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Jasper Gonzales, By His Guardian Ad Sc Litem, Jenna Gonzales v. Rick Simons

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


May 1, 2012

JASPER GONZALES, BY HIS GUARDIAN AD SC LITEM, JENNA GONZALES,
PLAINTIFFS,
v.
RICK SIMONS, FURTADO, JASPOVICE & SIMONS, A LAW CORPORATION, SUTTER BAY HOSPITALS DBA SUTTER MEDICAL CENTER OF SANTA ROSA, AND DOES 1 THROUGH 20,
DEFENDANTS. SUTTER BAY HOSPITALS DBA SUTTER MEDICAL CENTER OF SANTA ROSA, INC.
CROSS-COMPLAINANT,
v.
TRINA BOWEN, M.D., WEST COUNTY HEALTH CENTERS, INC., AND ROES 1- 10, CROSS-DEFENDANTS.

The opinion of the court was delivered by: Hon. Samuel Conti United States District Court Judge

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL OF TRINA BOWEN, M.D. AND WEST COUNTY HEALTH CENTERS, WITH PREJUDICE

Subject to the approval of the Court, the parties, by and through their counsel of record, stipulate 27 28 as follows: 2

1. This is a legal and medical malpractice action related to the birth of Jasper Gonzales in August 2004. Plaintiff is Jasper Gonzales, a minor, by and through his Guardian Ad Litem, Jenna 4 Gonzales. Plaintiff filed a complaint alleging legal malpractice by defendant Rick Simons and 5 Furtado, Jaspovice & Simons on or about December 21, 2010. On or about February 2, 2011, 6 plaintiff filed an amended complaint alleging medical malpractice by defendant Sutter Bay 7 Hospitals dba Sutter Medical Center of Santa Rosa ("Sutter").

2. Around June 17, 2011, defendant Sutter brought a third-party complaint naming Trina Bowen, M.D. and West County Health Centers, Inc. as third-party defendants. 10

3. Sutter's third-party complaint is an action against a federally funded health center and health center doctor. The plaintiff and Sutter allege in this action that third-party defendant Trina 12 Bowen, M.D. was at the time of the events alleged in the amended complaint and third-party 13 complaint acting in the scope of her employment at West County Health Centers, Inc. Under the 14 Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C § 233(g)-(n), third-15 party defendant West County Health Centers, Inc. is deemed part of the Public Health Service of 16 the United States Department of Health and Human Services ("HHS"), and the Federal Tort 17 Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 ("FTCA"), is the exclusive remedy for 18 alleged torts committed by health center employees while acting within the course and scope of 19 their employment. See 28 U.S.C. §§ 1346(b)(1), 2676, 2679. 20

4. The FTCA provides an exclusive remedy for Sutter, if there is any at all, and limits

Sutter to an action against the United States of America, not against the individual federal actor 22 or agency. 28 U.S.C. §§ 2679, 2676. 23

5. As a result of the foregoing, the parties hereby stipulate and agree that (1) Trina Bowen, M.D. and West County Health Centers, Inc. shall be dismissed with prejudice from the 25 action; and (2) the United States of America shall be substituted into the action as the third-party 26 defendant. 27

6. The caption for the third-party complaint shall be changed to SUTTER BAY HOSPITALS dba SUTTER MEDICAL CENTER OF SANTA ROSA, Third-Party Complainant 2 v. UNITED STATES OF AMERICA, Third-Party Defendant.

Dated: April 30, 2012 Respectfully submitted, 5 MELINDA HAAG United States Attorney 6 /s/ Jennifer S Wang JENNIFER S WANG Assistant United States Attorney 7 8 Dated: April 27, 2012 TEAL MONTGOMERY & HENDERSON 9 /s/ Michael S. Henderson MICHAEL S. HENDERSON Attorney for Plaintiff Jasper Gonzales, by 10 11 his Guardian Ad Litem, Jenna Gonzales Dated: April 30, 2012 MURPHY PEARSON BRADLEY & FEENEY /s/ Arthur J. Harris ARTHUR J. HARRIS Attorneys for Defendants Rick Simons and Furtado, Jaspovice & Simons Dated: April 30, 2012 LA FOLLETTE, JOHNSON, DE HAAS, 16 FESLER & AMES /s/ Larry Thornton BARRY VOGEL / LARRY THORNTON Attorneys for Defendant and Third-Party Complainant Sutter West Bay Hospitals dba Sutter Medical Center of Santa Rosa

IT IS SO ORDERED. TES DISTRI

IS SO ORDERED

Samuel Conti Judge

20120501

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