E-Alert Case Updates

Maryland District Court Rejects Sovereign Immunity Pursuant to 28 U.S.C. § 2680(h) Where Intentional Tort Claim Against Government was Rooted in Negligence

Jana Cantrel v. United States of America
United States District Court for the District of Maryland, KB-12-2607 (D. Md. Mar. 4, 2013)
by Jhanelle Graham, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

In Jana Cantrel v. United States of America, the United States District Court for the District of Maryland found that the sovereign immunity provision in 28 U.S.C. § 2680(h), did not bar an intentional tort claim against the government because the claim was rooted in negligence—not misrepresentation or slander.

Jana Cantrel filed a civil suit against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) et seq., seeking money damages for alleged negligence in the form of medical malpractice and negligent transmission of information to Cantrel and third parties. Cantrel also alleged intentional infliction of emotional distress by doctors at Chase Brexton Health Services, Inc., in Baltimore, Maryland. Specifically, Cantrel was told erroneously in early January 2011 that her previously-diagnosed hepatitis C had reappeared, which meant that she would need to go through the arduous and intensive treatment required for that disease. Three (3) weeks later, she was informed by a different doctor at Chase Brexton that her blood tests showed Cantrel did not have the disease after all. In the interim, however, the doctor who had misdiagnosed her recurrence of hepatitis C told an insurance company to which Cantrel had submitted an application for life insurance, that she had hepatitis C and a mental or nervous disorder. Neither statement was true, and Cantrel was denied life insurance based upon the doctor’s misstatements.

In the Maryland district court, the Government moved to dismiss Cantrel’s claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and Rule 12(b)(1), and Cantrel’s moved to order early mediation and leave to amend her complaint. Because amendment of the complaint would partially nullify the Government's motion to dismiss, the district court first addressed Cantrel’'s motion for leave to amend.

The Government did not claim it would be prejudiced by granting leave to Cantrel to amend and that amendment would be futile; thus, the court evaluated the matter to determine whether Cantrel’s proposed amendment was in bad faith. The essence of the Government's argument was that Cantrel failed to satisfy the requirements of Maryland's statutory law on the filing of claims against health care providers insofar as Cantrel’'s original complaint sought $300,000. That amount of money requires exhaustion of an administrative claims procedure before filing suit, and Cantrel did not exhaust her claim. Because Cantrel sought to amend her complaint to claim damages of $30,000—less than the amount triggering that administrative claims procedure—the Government contended that her amendment was in bad faith.

The district court found no merit in the Government's argument. The court stated that the clear purpose of Cantrel's proposed amendment was to have a viable claim against the Government, which would be possible with a maximum damages demand of $30,000. Revising the complaint would have the effect of substituting a viable claim for a nonviable claim. Thus, the court found no bad faith and granted Cantrel’s motion to amend the complaint.

Because Cantrel was permitted to amend her complaint to reduce the demand for damages to $30,000, the court found moot the portion of the Government’s motion for dismissal of Count One, premised upon negligence, for failure to state a claim since Cantrel did not administratively exhaust her claim for $30,000, which exceeded the Maryland statutory threshold for filing suit on an exhausted claim.

The second part of the Government’s motion asserted that the court lacked subject-matter jurisdiction over Count Two (2), which made a claim for intentional infliction of emotional distress (“IIED”) because the United States had not waived its sovereign immunity for this tort. Specifically, the Government contended that IIED, being an intentional tort, was included within the exceptions to a waiver of sovereign immunity contained in 28 U.S.C. § 2680(h). The district court, however, determined that the Government was wrong to the extent it argued that all claims of IIED were barred by § 2680(h). The wording of the statute is clear that only intentional torts specified in § 2680(h) are excepted from the waiver of sovereign immunity. See Sheridan v. United States, 487 U.S. 392, 398 (1988). The torts specified in § 2680(h) are assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Intentional infliction of emotional distress, however, was not specified in § 2680(h). Baird v. Haith, 724 F. Supp. 367, 376 (D. Md. 1988).

Cantrel claimed the doctors at Chase Brexton intentionally inflicted emotional distress upon her when they informed her she would need treatment for recurrence of hepatitis C and when they told her insurance company that she had hepatitis C and a mental or nervous disorder. The court concluded that both of these claims fell within the ambit of medical malpractice and, conceivably, within the scope of misrepresentation and slander. To the extent Cantrel was pursuing her IIED claim based upon negligence—i.e., a breach of the duty of care by her medical providers—the court held that the claim was not barred by § 2680(h). For these reasons, the court granted Cantrel’s motion for leave to amend her complaint and denied the Government’s motion to dismiss her complaint.