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Elsa Manulid v. Sycuan Casino & Resort

December 20, 2010

ELSA MANULID, PLAINTIFF,
v.
SYCUAN CASINO & RESORT, AN ENTITY;
SYCUAN BAND OF THE KUMEYAAY NATION, AN ENTITY;
UNITED STATES OF AMERICA; DOES 1-30, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Notice of Certification of Scope of Employment for Defendant Dr. Donald Weiss and Notice of Substitution of United States of America as Defendant in Place of Donald Weiss, M.D. (ECF No. 6), and the Motion to Dismiss the Complaint filed by the United States. (ECF No. 7).

BACKGROUND

On April 6, 2010, Plaintiff filed her Complaint against Sycuan Casino & Resort, Sycuan Band of they Kumeyaay Nation, and Dr. Donald Weiss. (ECF No. 1).

On September 9, 2010, the United States filed a Notice of Certification of Scope of Employment for Defendant Dr. Donald Weiss. (ECF No. 6-1). The United States concurrently filed a Notice of Substitution of United States of America as Defendant in Place of Donald Weiss, M.D. (ECF No. 6). On September 24, 2010, Plaintiffs filed a Response to the Notice of Substitution of United States of America as Defendant in Place of Donald Weiss. (ECF No. 10). The United States filed a Reply to Plaintiff's Response. (ECF No. 13).

The United States also filed a Motion to Dismiss the Complaint. (ECF No. 7). On September 24, 2010, Plaintiffs filed an Opposition to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. (ECF No. 9). The United States filed a Reply to Plaintiff's Opposition. (ECF No. 14).

Plaintiff contends that the certification that Weiss was acting within the scope of his employment at the time of the incident is not valid because the only claim against Weiss is battery, an intentional tort. Plaintiff contends that substitution of the United States as a Defendant was improper because Plaintiff's battery claim seeks individual liability against Weiss for his conduct outside the scope of his employment.

The United States contends the certification that Weiss was acting within the scope of his employment at the time of the incident is valid because the allegations in the Complaint against Weiss arise solely from his examination of Plaintiff at the Sycuan Medical/Dental Center while he was providing medical care.

ALLEGATIONS OF THE COMPLAINT

The Complaint alleges that on April 6, 2008, Plaintiff injured her head while at work. (ECF No. 1 at 3). The Complaint alleges that on April 8, 2008, Plaintiff visited Weiss at the Sycuan Medical/Dental Center and told Weiss that she had injured her head and neck. Id. at 3-4. The Complaint alleges: "Much to her surprise, Weiss placed his finger in Plaintiff's rectum during her medical exam and then he immediately left the room." Id. at 4. The Complaint alleges that Plaintiff asked a medical assistant why she had been given a rectal exam and , "the assistant claimed that Weiss was confused about the nature of [Plaintiff's] injury and that [Weiss] had left the office." Id. The Complaint asserts a claim of battery against Weiss stating that Weiss "touched Plaintiff with the intent to cause a harmful or offensive contact[,]" "Plaintiff did not give her willing, voluntary, or informed consent to be touched[,]" and "Plaintiff was injured, harmed and/or offended by Defendant Weiss' touching." Id. at 10.

DISCUSSION

I. Certification and Substitution

The Notice of Certification, which is signed by an Assistant United States Attorney, states:

Pursuant to the provisions of 42 U.S.C. § 233(c), and 28 U.S.C. § 2679(d), as amended by Public Law 100-694, and pursuant to the authority vested in the United States Attorney to make scope of employment certifications under 28 C.F.R. 15.3, ... I hereby find and certify that Donald Weiss, M.D., an individual defendant named therein, at all relevant times, was acting within the scope of his employment at the Sycuan Medical Clinic and was providing medical services funded under the Indian Self Determination and Education Assistance Act (ISDEAA), 25 U.S.C. § 405f(d). As such, claims for medical malpractice against Sycuan Medical Clinic physicians, such as Dr. Weiss, arising from medical services provided within the scope of employment at the Clinic, are cognizable exclusively against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671, et seq. See 25 U.S.C. § 450f(d) and 42 U.S.C. § 233(a). Based on my certification that Dr. Weiss was acting within the scope of his employment ...


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