EAST ST. LOUIS – U.S. Magistrate Judge Gilbert Sison on Feb. 18 dismissed physician Melvin Merritt from a suit over delivery of a baby, ruling that plaintiff Heather Turner must sue the United States instead.
Sison found Merritt acted as an employee of Southern Illinois Health Care Foundation, a public health service that qualifies for protection from malpractice suits.
“When a public health service’s employee or officer’s performance of medical functions causes damages, including personal injury or death, the only available remedy is a Federal Tort Claims Act lawsuit against the United States,” he wrote.
He denied a motion to remand the suit to Madison County circuit court, where Morgan Scroggins of Granite City filed it for Turner last year.
The complaint sought damages from Merritt, the foundation, and Gateway Regional Medical Center.
Scroggins claimed Merritt negligently employed a vacuum to induce labor even though the baby’s size made the procedure dangerous.
The baby, who weighed 10.5 pounds, allegedly suffered brain injuries from lack of oxygen.
In December, assistant U.S. attorney David Pfeffer removed the suit to district court and moved to substitute the U.S. for Merritt and the foundation.
He moved to dismiss the U.S. on Jan. 5, writing that a tort claim against the U.S. is forever barred unless an administrative claim is presented within two years.
He wrote that the U.S. had no record of such a claim.
Scroggins moved for remand to Madison County on Jan. 7, claiming the foundation didn’t allege how Merritt met the criteria for a full time employee.
He wrote that Merritt might be an independent contractor working fewer than 32.5 hours a week, and therefore wasn’t an employee or a contractor.
On Jan. 22, Scroggins agreed that the foundation should be dismissed but opposed substitution for Merritt.
“The Federal Tort Claims Act does not cover all employees or designees of the government,” Scroggins wrote.
He wrote that a notable exception is an independent contractor.
He wrote that physicians who provide services at facilities operated by the U.S. often operate independently of government control and qualify as contractors for purposes of the Act.
Pfeffer opposed remand on Feb. 4, writing that the U.S. would remain a party even if Turner succeeded in challenging substitution for Merritt.
He filed a brief on substitution on the same date, writing that he provided Merritt’s employment documents to Scroggins on Jan. 15.
He wrote that Merritt’s employment agreement established him as a full time salaried employee of the foundation at the relevant time.
He wrote that the foundation issued him a W-2 for 2016.
Sison found he had to respect an employment certificate that an assistant U.S. attorney prepared on behalf of the Secretary of Health and Human Services.
“Once the Secretary deems an individual to be an employee of a public health service, that determination is binding on the Secretary, the Attorney General, and all other parties to the civil action, including the court,” he wrote.
“Such a determination also includes contractors.”
Pfeffer’s motion to dismiss the U.S. from the suit remains pending.
Thomas Hayek of St. Louis represents Gateway Regional Medical Center, which so far has played a bystander’s role.