Dwan and Aaron Bray filed a medical malpractice lawsuit in state court individually and on behalf of their minor child, N.B., against Dr. Timothy J. Thress and various medical entities and actors. Plaintiffs sought damages stemming from defendants’ negligence as to Dwan Bray’s pre-natal care and subsequent birth of baby N.B. But unbeknownst to
plaintiffs, Thress was employed by a federally funded health center during his treatment of Bray. In line with the Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)–(n), Thress removed the suit to federal court and the United States substituted itself for Thress, requiring plaintiffs to bring their claim against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
The government then moved for dismissal, arguing that plaintiffs failed to satisfy the FTCA’s administrative exhaustion requirement. Plaintiffs, in turn, moved first to remand the action to state court, arguing that the FSHCAA did not apply, and later to amend their complaint to demonstrate compliance with the FTCA’s exhaustion requirement. The district court denied both of plaintiffs’ motions, finding the FSHCAA applicable and any attempt to amend plaintiffs’ complaint futile. Accordingly, the district court dismissed plaintiffs’ FTCA claim without prejudice and remanded plaintiffs’ claims against the remaining defendants to state court.
Plaintiffs appealed the district court’s denial of their motion to remand and its dismissal of their FTCA claim. The United States Court of Appeals for the Sixth Circuit (“Federal Appellate Court” ) affirmed in its Opinion filed on March 29, 2024.
The Federal Appellate Court stated: “plaintiffs instituted suit upon the filing of their initial complaint concerning Thress’s conduct. The action plaintiffs instituted then became one against the United States, and thus subject to the FTCA’s exhaustion requirement, upon the Attorney General’s certification and the case’s removal to federal court pursuant to § 233(c). At the time of certification and removal, plaintiffs had not filed, much less exhausted, an administrative complaint concerning the substance of plaintiffs’ FTCA claim.”
“And as previously explained, plaintiffs’ attempt to amend their complaint to include the United States as a defendant cannot cure this failure to exhaust. This claim became an FTCA claim against the United States prior to plaintiffs’ request to amend the complaint to show the same. Plaintiffs’ proposed amendments—specifically those to name the United States as a defendant and label the applicable law as the FTCA—were therefore immaterial, as the application of § 233(g) already rendered this case an action against the United States under the FTCA. We therefore find that the district court correctly dismissed plaintiffs’ claim without prejudice for failure to exhaust.”
Source Bray, et al. v. Bon Secours Mercy Health, Inc., et al., No. 23-3357.
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