United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
LOZANO, United States District Court Judge.
matter is before the Court on the Motion to Summary Judgment
filed by Defendant United States of America on February 19,
2016 (DE #55). For the reasons set forth below,
Defendant's motion for summary judgment (DE #55) is
GRANTED. The Clerk is ORDERED to DISMISS this case WITH
Elizabeth Carias-Garcia's infant passed away in utero in
2011. Plaintiff subsequently filed this action against
Defendant United States of America, Neighborhood Health
Clinics, Inc. (“NHC”), and Dr. David W. Pepple,
M.D. She seeks monetary damages for the alleged negligence in
the pregnancy care she received from Dr. Pepple and NHC that
allegedly resulted in the death of her infant. Plaintiff
brings her claim against Defendant as a result of the actions
of Dr. Pepple and NHC, pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 2671,
et seq.Defendant now moves for summary judgment,
asserting that it is not liable under the FTCA for acts or
omissions of Dr. Pepple because Dr. Pepple was not an
employee of NHC. The motion has been fully briefed and is
ripe for adjudication.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). Not every dispute between the parties
makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. To determine whether a genuine
dispute of material fact exists, the Court must construe all
facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor.
See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.
opposing a properly supported summary judgment motion may not
rely on allegations in his own pleading but rather must
“marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat'l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
“[I]nferences relying on mere speculation or conjecture
will not suffice.” Stephens v. Erickson, 569
F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the
nonmoving party fails to establish the existence of an
essential element on which he bears the burden of proof at
trial, summary judgment is proper. See Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
April 2009 through November 2009, Plaintiff received
treatment at the NHC in Fort Wayne, Indiana, for her
pregnancy. Plaintiff alleges that Dr. Pepple provided her
care and treatment during her pregnancy. Plaintiff was
diagnosed with gestational diabetes, and claims that she
consistently complained of very little fetal movement during
the end of her third trimester. On November 13, 2009, Dr.
Pepple performed an emergency C-section on Plaintiff at St.
Joseph Hospital. Plaintiff's baby was stillborn, and
appeared to have passed away several days before the
2011, Plaintiff presented a Notice of Federal Tort Claim to
NHC and the United States Department of Health and Human
Services (“HHS”). HHS denied Plaintiff's
administrative tort claim in 2012. Plaintiff also filed a
medical malpractice complaint against NHC and Dr. Pepple
before the Indiana Insurance Commissioner
(“IIC”). On January 12, 2015, the IIC Medical
Review Panel found that evidence supported the conclusion
that NHC and Dr. Pepple “failed to comply with the
appropriate standard of care, ” and that the alleged
conduct “was a factor of the resultant damages, but the
panel [was] unable to determine the extent of any disability
or permanent impairment.” (DE #62-1 at 3.)
brought this lawsuit against Defendant based on the alleged
actions of NHC and Dr. Pepple. NHC is a federally deemed
community health center, and is a not-for-profit corporation
organized and existing under the law of the State of Indiana.
Dr. Pepple is a licensed family practice physician in Fort
Wayne, Indiana. NHC never employed Dr. Pepple, never had a
personal contract with Dr. Pepple, and never compensated him
for his services at NHC. Dr. Pepple was employed by the
Northeast Regional Family Practice, P.C. (“Northeast
Regional”), an entity independent of NHC.
2000, Dr. Pepple entered into an Employment Agreement with
the Fort Wayne Medical Education Program
(“FWMEP”). FWMEP is part of the Indiana
University School of Medicine, and provides training to
family practice resident physicians. According to the
Employment Agreement, Dr. Pepple was employed as FWMEP's
Assistant Director. His duties included serving as clinical
instructor and coordinator of obstetrical services and
education for FWMEP's family practice residency,
supervising resident obstetrics, and supervising the
outpatient obstetrical clinic at NHC. (DE #56-6 at 2, 7.) Dr.
Pepple and the FWMEP's residency program had their own
medical malpractice insurance.
to October 5, 2009, NHC and FWMEP operated under a Memorandum
of Understanding (“MOU”). Under the MOU, FWMEP
resident physicians provided obstetrical services for all NHC
prenatal patients, and NHC provided nursing, support
personnel and equipment to support the physician services. On
or about October 5, 2009, NHC and FWMEP entered into a
Program Letter of Agreement between FWMEP's family
medicine residency program and NHC (“Program
Letter”). (DE #56-8.) Pursuant to the Program Letter,
FWMEP assigned resident physicians to provide prenatal care
and deliveries to NHC patients. (DE #56-2 at
¶¶4-5.) NHC provided nursing, support personnel and
equipment to support the physician services. The Program
Letter identifies Dr. Pepple as “Local Director”
of the “Participating Site - [NHC], ” and Dr.
James E. Buchanan as the Program Director of Family Medicine
of the “Sponsoring Institution, ” FWMEP. (DE
#56-8 at 1.) Dr. Pepple and Dr. Ravi Raju were responsible
for supervising the resident physicians while they were