WILLIAMS v. U.S., (W.D.N.C. 1999)

MAX O. COGBURN, JR., United States Magistrate Judge

THIS MATTER is before the court upon defendant United States of America's Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction. At the hearing, plaintiff conceded that the following claims as asserted against the United States are not viable:

(1) First Cause of Action: asserted under the Emergency Medical Treatment and Active Labor Act ("EMTALA") — 42, United States Code, Section 1395dd; and

(2) Second Cause of Action: asserted as a Bivens cause of action for alleged denial of equal protection and due process.

As to this defendant, all that remains is plaintiff's Third Cause of Action for "Federal Tort Claim Based on State Constitutional and Common Law Violations."

The "Unknown Cherokee Indian Hospital Nurse" is apparently now known to plaintiff; however, such defendant has not been served.

I. Applicable Standard

The United States has moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that this court lacks jurisdiction over the subject matter of plaintiff's claims. Rule 12 (b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed in Neitzke:

Inasmuch as the parties have voluntarily dismissed the primary claims over which the government contends this court lacks subject-matter jurisdiction, it would appear that the government's motion to dismiss the claim under the Federal Tort Claims Act is best viewed under Rule 12 (b)(6) for failure to state a cognizable claim against the government.

This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."

Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of the United States's motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to plaintiff.

II. Factual Background

The following facts are set forth for the limited purpose of aiding further review of the pending motion. While visiting the Cherokee Indian Reservation, plaintiff's decedent experienced respiratory distress and allegedly presented at the Cherokee Indian Hospital. An "unknown nurse" at the emergency room of that facility turned plaintiff's decedent away and refused to refill his oxygen tank because he was a non-Indian. Some 45 minutes later, plaintiff presented at a hospital off the reservation and received emergency services, but he died later that night.

It is the contention of the government that the nurse's actions in turning away plaintiff's decedent was consistent with 25, United States Code, Section 1689c(c), because that statute allows Indian Health Service hospitals to turn away people seeking emergency services if they are non-Indians. Section 1689c(c) provides, in relevant part, that Indian hospitals " may provide health services [to non-Indians] . . . to (1) achieve stability in a medical emergency. . . ." It is the United States's argument that "the provisions of the Indian Health Services Act, as amended, 25 U.S.C. § 1680c . . . provides for the exclusion of medical services by IHS' facilities based on race. . . ." The United States has, with great candor, provided to plaintiff and this court a copy of what it characterizes as an "internal policy" of the Cherokee Indian Hospital, which provides, in relevant part, as follows:

The relevant provision provides, in full, as follows:
(c) Purposes served in providing health services to otherwise ineligible individuals.

The Service may provide health services under this subsection to individuals who are not eligible for health services provided by the Service under any other subsection of this section or under any other provision of law in order to:

(1) achieve stability in a medical emergency,

(2) prevent the spread of a communicable disease or otherwise deal with a public health hazard,

(3) provide care to non-Indian women pregnant with an eligible Indian's child for the duration of the pregnancy through postpartum, or

(4) provide care to immediate family members of an eligible person if such care is directly related to the treatment of the eligible person.

1. All patients who access CIH ER Services regardless of race, creed, sex, economic status of eligibility for service will receive an appropriate medical screening examination from a physician.

2. All patients who present to the ER complaining of an illness or injury will sign in and be triaged according to accepted triage standards.

Exhibit A, Docket Entry 7.

III. Discussion

The issue squarely before this court is whether plaintiff can state a claim against the United States under the Federal Tort Claims Act (FTCA) for violation of a state statute prohibiting private hospitals from denying emergency care to anyone based on race. While this is an issue of first impression, the undersigned finds, for the reasons discussed below that a claim cannot be asserted as to the United States.

A. The Federal Tort Claims Act

Absent waiver, sovereign immunity shields the United States from suit.FDIC v. Meyer, 510 U.S. 471, 475 (1994). As a departure from immunity, the Federal Tort Claims Act ("FTCA") provides that the "United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Under the FTCA, the law of the place where the act or omission occurred establishes the substantive duties of the United States. Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996); 28 U.S.C. § 1346 (b)(1). While there may exist an argument that the "law of the place" where this incident occurred is the Cherokee Indian Reservation, no one has argued that tribal law would be applicable. Instead, the court will look to the law of the State of North Carolina which would otherwise be applicable to non-Indians who are injured on the reservation by federal employees.

B. North Carolina Torts

1. Statutory Torts

Plaintiff has argued that North Carolina has made unlawful racial discrimination in provision of medical services by private hospitals:

§ 58-65-85 Discriminatory practices prohibited.

No person subject to this Article and Article 66 of this Chapter shall refuse to issue or refuse to reissue to an individual any certificate, plan, or contract governed by this Article and Article 66 of this Chapter; limit the amount, extent, or kind of services available to an individual or charge an individual a different rate for the same services, because of the race, color, or national or ethnic origin of that individual.

Without doubt, North Carolina has seen fit to make unlawful in certain specific circumstances refusal of medical services based on race; however, such limitations are placed only on persons "subject to this Article. . . ." Article 65 of Chapter 58 applies to nonprofit hospital corporations seeking reimbursement from the North Carolina Department of Insurance for services rendered. It cannot be read as creating a tort applicable to all hospitals; indeed, no case law exists that recognizes any private right of action based on such regulatory provision even as to hospitals that seek public reimbursement. Theoretically, a hospital could be established that served only members of a religious sect without offending such law if such hospital did not seek reimbursement from the State of North Carolina. In any event, the only remedy available would be administrative denial of reimbursement or revocation of any charter. Unlike the tort provisions of North Carolina's "Unfair and Deceptive Trade Practices Act," the North Carolina Legislature did not create a private right of action when it enacted Chapter 58. Applying the FTCA to Chapter 58-65-90, and treating the "United States . . . in the same manner and to the same extent as a private individual under like circumstances," 28 United States Code Section 2674, it is clear to the undersigned that had plaintiff presented and been refused service at a private hospital, (1) the anti-discrimination provisions of Chapter 58 would have no impact, inasmuch as Cherokee Indian Hospital is not a hospital covered by Article 65 or Article 66; and/or (2) no private cause of action in tort would accrue to plaintiff based on such statutory provision. Even if plaintiff could overcome the Supremacy Clause argument asserted by the government at the hearing, by successfully arguing that (1) the federal statutory scheme was unconstitutional, and (2) an unconstitutional federal law does not trump a facially valid state law, it would appear to this court that reliance on the Chapter 58 regulatory scheme is insufficient to assert a statutory tort under North Carolina law.

The government argued that even if Chapter 58 provided a cause of action in tort, it could not be relied upon by plaintiff because it is contrary to federal law, which allows the IHS to discriminate based on race.

Plaintiff has advanced such an argument in a post-hearing letter, sent to the court and opposing counsel, which has been made part of the record.

2. Common Law Torts

a. Internal Policy

It is plaintiff's contention that the internal policy of the Cherokee Indian Hospital — to treat all presenting with a medical emergency regardless of race — is the basis upon which a common law claim for negligence can be asserted. Plaintiff argues that the policy establishes a "standard of care" whose violation is actionable at common law.

In response, the government argues that when you treat the United States as a "private person" or even a "private hospital" under the FTCA, violation of an internal policy would not lead to liability under North Carolina common law. For example, a corporation may have a policy that it will not discriminate in providing service to customers. If discrimination occurs, North Carolina would not look to the internal policy of the corporation as a violation of common law. The court can find no basis in North Carolina's jurisprudence that would support a common-law claim based on violation of a private person's or private hospital corporation's internal policy.

b. Public Utility

Plaintiff next argues that hospitals are, by their very nature, public utilities operated for the public good. Plaintiff concedes that a hospital has not been defined by North Carolina as being a public utility, but argues that the theory of public utility is broad enough to include hospitals. The court has accepted as true plaintiff's argument that discrimination in provision of services by public utilities would be actionable at common law in North Carolina. State ex rel. Utilities Comm. v. Mead Corp., 238 N.C. 451 (1953).

Although unthinkable, it is conceivable that a hospital could be founded to serve the needs of a specific community, e.g., hospitals serving only the needs of religious groups, such as Jehovah's Witnesses. So long as such a hospital did not seek reimbursement or payment from the State of North Carolina, this court cannot see how its limitation to members of the faith would violate state common law. While the court will agree with plaintiff that all public hospitals are comparable to public utilities, it would be a dangerous leap for this court to find that the common law of North Carolina would make actionable discriminatory practices at all private hospitals.

Even EMTALA, which is both progressive and sweeping, does not take all hospitals into its net. In its authorization of a private right of action, EMTALA provides a cause of action only as to violations by "participating hospital[s]." 42 U.S.C. § 1395dd(d)(2)(A). The hook of EMTALA is the federal reimbursement and payment of medical fees, just as the hook of Chapter 58 (discussed above) is state reimbursement or payment. This court simply cannot find that the common law of North Carolina would make all private hospitals public utilities regardless of their public/private status. The undersigned, therefore, will recommend that such claim be dismissed.

IV. Conclusion

The facts as alleged in the complaint indicate that a federal employee may have improperly turned away a patient based on race from the Cherokee Indian Hospital in violation of that hospital's internal policy. While such alleged act of racial discrimination is fundamentally repulsive to concepts which have taken centuries to evolve, but which we now hold dear, it does not appear that the United States can be held liable under any of the theories propounded by plaintiff in her complaint, amended complaint, or revised amended complaint. The question of whether aBivens-type action can be maintained against the "unknown nurse" has yet to ripen.

For the reasons discussed above, the undersigned has, most hesitantly, concluded that plaintiff cannot state a claim against the United States and that this court lacks jurisdiction over the subject matter of the other claims. It will be recommended that the United States's Motion to Dismiss be granted, that the third claim for relief against the United States be dismissed, and, in the event a stipulation of voluntary dismissal has not been filed by the time this recommendation is considered, that the first and second claims for relief as asserted against the United States in the revised amended complaint also be dismissed.

RECOMMENDATION

IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that

(1) defendant United States of America's Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction be ALLOWED;

(2) that the third claim for relief asserted against the United States in the Revised Amended Complaint be DISMISSED;

(3) that the first and second causes of action as asserted against the United States also be DISMISSED if a stipulation of voluntary dismissal has not been filed;

(4) that the United States be DISMISSED from this action.

The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn; 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).

This Memorandum and Recommendation is entered in response to defendant United States of America's Motion to Dismiss Plaintiff's Complaint for Lack of Subject Matter Jurisdiction (#6).