Bruce Kelley (“Kelley”) and his spouse, Nancy Kelley, filed a medical malpractice suit in Vermont state court after Kelley was paralyzed from the waist down while residing in the Franklin County Rehabilitation Center (“FCRC”), a skilled nursing facility. The Kelleys blamed the injury on Dr. Teig Marco, who treated Kelley in the facility under a contract between FCRC and Dr. Marco’s employer, the Richford Health Center, Inc. (“RHC”). As a federally funded community health center, RHC is “deemed” to be a member of the Public Health Service under the Federally Supported Health Centers Assistance Act (FSHCAA), 42 U.S.C. § 233(g)–(n). Deemed health centers and their employees are immune from malpractice suits for acts or omissions that occur within the scope of their deemed] employment.
The FSHCAA makes the Federal Tort Claims Act (FTCA) the exclusive remedy for specified actions against members of the Public Health Service (including deemed health centers) and protects employees of the Public Health Service from being subject to suit while performing medical and similar functions by requiring that such lawsuits be brought against the United States instead. The statute’s protection covers medical malpractice claims that arise from a deemed
health center’s provision of medical services to patients and, in limited circumstances, nonpatients too. 42 U.S.C. § 233(g)(1)(B).
The FSHCAA authorizes the United States Department of Health and Human Services (“HHS”) to deem federally qualified health centers as Public Health Service members. HHS can extend its deeming determination to cover medical services to nonpatients if the federally qualified health center submits an application to HHS before providing those services. § 233(g)(1)(C). HHS has carved out narrow exceptions to this requirement: if the employees of a deemed health center provide either “after-hours coverage” for a non-deemed community health center’s patients or emergency treatment to any nonpatient, those activities will be covered by HHS’s deeming decision without the need to apply for prior approval. 42 C.F.R. § 6.6(e)(4). But if the center’s employees provide medical services to nonpatients that do not fit squarely within the examples listed in Section 6.6(e)(4) of HHS’s regulations, then the center must seek a particularized determination of coverage from HHS.
The United States Court of Appeals for the Second Circuit stated in its August 20, 2024 opinion: “The FSHCAA makes clear that the scope of HHS’s deeming decision depends on the patient’s status. In general, the deeming decision — and the corresponding FTCA coverage for malpractice claims — is limited to medical treatment that a deemed entity (such as the Health Center) and its employees provide to its patients. 42 U.S.C. § 233(g)(1)(B). Coverage extends to nonpatients only if the treatment meets specified statutory criteria. See id. § 233(g)(1)(B), (C).”
“Patients of a deemed entity’s doctors are not necessarily patients of the entity itself. Otherwise, the FSHCAA’s distinction between coverage of services to patients on the one hand and coverage of services to nonpatients on the other would have no consequence. The Appellants’ interpretation would upend the statutory distinction between patients and nonpatients and improperly convert virtually every nonpatient treated by a health center doctor into a patient under the FSHCAA. Accordingly, we agree with the District Court that Kelley was not a Health Center patient.”
“FTCA coverage thus applies to Dr. Marco’s treatment of Kelley only if the treatment satisfies one or more of the FSHCAA’s specified statutory criteria for services to nonpatients described in HHS’s regulations, 42 C.F.R. § 6.6(e)(4). But Dr. Marco’s treatment does not “fit[] squarely” within any of the nonpatient-related activities or arrangements described in those regulations … We therefore conclude that Dr. Marco’s treatment of Kelley is not covered by HHS’s deeming decision, and accordingly that Dr. Marco and RHC are not entitled to FTCA medical malpractice liability coverage for the Kelleys’ claim.”
Source Kelley v. Richford Health Ctr., Inc., 23-344-cv.
If you or a family member suffered harm as a result of medical malpractice in Vermont or in another U.S. state, you should promptly find a Vermont medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your state who may assist you.
Turn to us when you don’t know where to turn.
