Doctor Employed by Federal and State VA skirts Federal Claims in Nursing Home Negligence Lawsuit

A recent case that alleged harm under the Federal Tort Claims Act, DUCKWALL-KENNADY v. US, Dist. Ct., ED Ky. (2013), was dismissed due to the court’s finding that the doctor defendant was not acting within her scope of employment as an on-call doctor for Federal Veteran’s Agency, but rather in her capacity as a treating doctor for a state Veteran’s Agency.telephone.jpg

The case alleged that the plaintiff’s husband became a patient of a veteran’s affairs center, called the Thomson Hood Veterans Center (“THVC”), which was owned and operated by the Kentucky Department of Veteran’s Affairs. According to the plaintiff, her husband suffered an accelerated deterioration of his health, ultimately resulting in his death, due to the physicians who worked in the home failing to take proper care of him.

The doctor who provided care for the plaintiff’s husband was simultaneously employed by the Kentucky Department of Veterans Affairs at THVC, where the plaintiff’s husband was a resident, and also maintained “on call” telephonic hours with the United States Department of Veterans Affairs at the VA Nursing Home in Lexington, Kentucky. While her patient, the doctor only provided care to the plaintiff’s husband at the THVC.

Following her husband’s death, Plaintiff filed a complaint in federal court, asserting a claim under the Federal Tort Claims Act (“FTCA”), in addition to state law claims for negligent supervision and negligence per se.

Ordinarily, the government is immune from being sued by so called sovereign immunity. However, in order to ensure fairness in certain cases where individuals become injured, the government will carve out exceptions, which will allow for suit. The FTCA is one such exception. It waives governmental sovereign immunity “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment…” However, in order to be able to sue under the FTCA, the statute requires that the act was done within the scope of the employment for a relevant federal agency.

Therefore, in order for the plaintiff’s lawsuit to remain in federal court, and to sustain her FTCA claims, the doctor had to have been acting within the scope of her federal employment.

The district court engaged in a detailed discussion of the various elements arising under relevant state law in order to examine whether the doctor was acting within the scope of her federal employment. Most notably, it found that the entire course of treatment of the plaintiff’s husband was within her duties as a doctor at the THVC, and not pursuant to her on-call employment with the local federal VA facility. Therefore, it held, because the doctor was acting solely within the scope of her employment with the state (rather than federal) agency, the plaintiff could not sustain a FTCA lawsuit, and it granted the defendant’s motion to dismiss, officially ending the federal lawsuit. The plaintiff’s complaint was dismissed without prejudice. Because she had filed her initial suit in federal court, she most likely filed her relevant state negligence and other claims in the relevant state court following this action.

While this case was decided in Kentucky, it was done in federal court. Thus, the analysis regarding the FTCA and relevant scope of employment would be the same if the case was filed in Maryland, except that the court would look to Maryland’s laws regarding scope of employment.

If you suspect that your loved one has been a victim of suspected neglect, abuse, or medical malpractice in a nursing home or assisted living facility within the Maryland or the Washington D.C. areas, contact the experienced nursing home abuse and neglect attorneys at Lebowitz & Mzhen, LLC immediately. You can reach us by calling (800) 654-1949 or contact us through our website, in order to schedule your initial complimentary consultation.

More Blog Posts:

$114 Million Jury Award in Nursing Home Lawsuit, Maryland Nursing Home Lawyer Blog, published December 3, 2013
D.C. Court of Appeals Examines Meaning of Reckless Indifference in Criminal Neglect of Vulnerable Adult Appeal, Maryland Nursing Home Lawyer Blog, published November 25, 2013

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