The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
This medical malpractice case is before the Court on the "United States' Motion to Dismiss the Consortium Claims of Floyd Combs, Elizabeth Combs and Russell Combs and to Dismiss All Claims For Wrongful Death in Accordance with Fed. R. Civ. P. § 12(b)(1)." [Doc. 49]. Plaintiffs have responded [Doc. 68] and the United States has filed a reply. [Doc. 71]. The matter is now ripe for disposition. For the reasons which follow, the motion will be GRANTED in part and DENIED in part.
On August 27, 2004, this medical malpractice case was filed against the United States by the surviving spouse of Rhonda Combs, individually and on behalf of her estate, and on behalf of her two minor children. The complaint alleges malpractice on the part of two physician employees of Rural Medical Services who provided care to Rhonda Combs during her pregnancy, the birth of her child and after her delivery. Plaintiffs allege numerous acts of medical negligence on the part of these physicians and allege that, as a result of the negligence, Rhonda Combs suffered serious and debilitating injuries and, ultimately, her death.Plaintiffs allege acts of negligence occurring between June 27, 2002, and July 5, 2002.
On October 7, 2003, the attorney for Rhonda Combs submitted a Standard Form 95 (Claim For Damage, Injury Or Death) to the United States Department of Health and Human Services ("HHS"). The claimant on the Form 95 was "Rhonda Combs, by Next Friend and Guardian, Floyd Combs," and alleges the same acts of negligence later set forth in the complaint filed in the instant action.
While the administrative claim was pending with HHS, Rhonda Combs died on April 4, 2004. The instant civil action was filed on August 27, 2004. On November 12, 2004, HHS formally denied the administrative claim. The November 12 denial letter mentioned the filing of the federal court complaint.*fn1 The United States answered the complaint on January 7, 2005, and alleged that the court lacked subject matter jurisdiction over the claims asserted on behalf of the minor children on the grounds that no administrative claim was filed on their behalf as required by 28 U.S.C. § 2675. The United States also asserted lack of subject matter jurisdiction over plaintiff's wrongful death claim for failure to exhaust administrative remedies.
During the pendency of the complaint in this Court, several scheduling orders have been entered as the result of scheduling conferences participated in by counsel for plaintiffs and the United States. All of these orders -- on March 2, 2005, July 21, 2006 and May 24, 2007 -- stated that jurisdiction "is not in dispute." Pursuant to the Court's orders, all dispositive motions were required to be filed by September 15, 2006. The present motion was filed September 28, 2007, 61 days before the then scheduled trial.
II. Discussion and Analysis
1. The Federal Tort Claims Act
The doctrine of sovereign immunity prohibits suits against the United States unless Congress has consented to the government being sued. See Montez v. United States, 359 F.3d 392, 395 (6th Cir. 2004) (citing United States v. Orleans, 425 U.S. 807, 814 (1976)). Through its enactment of the Federal Tort Claims Act ("FTCA"), Congress has waived, to a limited extent, the United States' immunity from suits:
For injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
As a prerequisite to filing suit, however, against the United States, claimant must first present his claim administratively to the appropriate federal agency. "An action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency . . ." 28 U.S.C. § 2675(a). Failure of the agency to make a final disposition of a claim within six months may be deemed by the claimant to be a final denial. Id. The claim "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years" of accrual and suit is filed within six months of a final denial. 28 U.S.C. § 2675(b). The filing of a written claim with the appropriate Federal agency is thus a jurisdictional prerequisite for filing a civil suit under FTCA. ...