Background
Irma Herrera alleged that negligent care by her obstetricians at a federally funded Chicago community health clinic caused a massive hemorrhage, organ failure, and an eventual hysterectomy following childbirth. She initially sued the doctors in state court, but because the clinic and its doctors were deemed employees of the Public Health Service, her exclusive remedy was against the United States under the Federal Tort Claims Act.
After the government certified that the doctors had acted within the scope of their employment and removed the case to federal court, the district court dismissed it because Herrera had not exhausted her administrative remedies. Herrera then presented her claim to the appropriate federal agency within the period specified by the Westfall Act’s saving provision and filed a new federal action after the agency denied the claim. The district court dismissed again based on Evans v. United States, which held that the saving provision does not apply to medical-malpractice cases removed under 42 U.S.C. § 233(c).
The Court’s Holding
The Seventh Circuit affirmed. In a per curiam opinion, the court declined Herrera’s request to overrule Evans, even though she presented statutory arguments that the Evans panel had not considered. The court emphasized that it overturns recent circuit precedent only for a compelling reason and concluded that Herrera had offered no such reason beyond her contention that Evans was wrongly decided.
Because Evans remained controlling, the Westfall Act’s saving provision did not preserve Herrera’s claim following the dismissal for failure to exhaust administrative remedies. The court also reminded medical-malpractice attorneys that the federal status of clinics and health centers can be checked through the Health Resources and Services Administration’s database of entities deemed employees of the Public Health Service.
Chief Judge Brennan dissented. He reasoned that 42 U.S.C. § 233(c) authorizes certification and removal but does not itself contain language automatically substituting the United States as defendant. In his view, automatic substitution therefore occurred under the Westfall Act, making that Act’s saving provision applicable. He would have overruled Evans, reversed the dismissal, and remanded.
Key Takeaways
- Under binding Seventh Circuit precedent, the Westfall Act’s saving provision does not apply to medical-malpractice actions removed under 42 U.S.C. § 233(c).
- A litigant’s argument that a recent circuit decision was wrongly decided, without a compelling additional reason, did not justify overruling that precedent.
- Attorneys pursuing malpractice claims against community clinics should check the HRSA database before filing to determine whether the clinic or its providers are treated as federal employees for FTCA purposes.
Why It Matters
The decision reinforces a potentially claim-dispositive distinction between cases governed by § 233(c) and cases in which substitution occurs under the Westfall Act. In the Seventh Circuit, a plaintiff who mistakenly sues covered clinic personnel without first presenting an administrative claim may not rely on the Westfall Act’s saving provision to cure the FTCA exhaustion problem.
The divided panel also exposes a statutory disagreement over the legal basis for substituting the United States in suits against deemed Public Health Service employees. Although the dissent argued that the text and history of the statutes undermine Evans, the majority adhered to that recent precedent and affirmed Herrera’s dismissal.