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 after she gave birth. 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 Attorney General 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 60 days, as contemplated by the Westfall Act’s saving provision, and filed a new federal action after the agency denied the claim. The district court dismissed that action under Evans v. United States, which held that the Westfall Act’s 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 majority declined Herrera’s request to overrule Evans, even though she offered statutory arguments that the Evans panel had not considered. The court explained that it overturns its own recent precedent only for a compelling reason and concluded that Herrera had merely argued that Evans was wrongly decided without identifying a sufficient basis to depart from it.
Because Evans remained controlling, Herrera could not rely on the Westfall Act’s saving provision to make her administrative claim timely. The majority also emphasized that attorneys handling malpractice claims against community health clinics should consult the Health Resources and Services Administration’s database to determine whether a clinic or its providers are deemed Public Health Service employees whose alleged torts are actionable only against the United States under the FTCA.
Chief Judge Brennan dissented. He reasoned that Section 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
- Evans remains binding in the Seventh Circuit: the Westfall Act’s saving provision does not rescue an untimely administrative claim in a medical-malpractice action removed under 42 U.S.C. § 233(c).
- A litigant’s new statutory arguments are not, without more, a compelling reason for a Seventh Circuit panel to overrule recent circuit precedent.
- Malpractice counsel should check the HRSA database before filing suit to determine whether a clinic or provider is deemed a Public Health Service employee and therefore covered by the FTCA.
Why It Matters
The decision reinforces a potentially claim-dispositive distinction between cases governed by Section 233(c) and cases in which substitution occurs under the Westfall Act. In the Seventh Circuit, plaintiffs who mistakenly sue covered community-health providers in state court may lose their claims if they did not timely present them to the appropriate federal agency, even if they later follow the Westfall Act saving provision’s procedures.
The dissent highlights an unresolved disagreement over the statutory source of the United States’ substitution in these cases. Unless Evans is reconsidered by the full court or displaced by higher authority, however, practitioners must treat early identification of federally deemed clinics and timely FTCA exhaustion as essential.