On Tuesday, a decision was issued in the case brought by a doctor against the United States. The opinion, rendered by the Second Circuit, resolves a question regarding whether the plaintiff’s actions received immunity under the Federally Supported Health Centers Assistance Act. The case also dealt with the notice requirements involved with the removal of a case to federal court.
According to the opinion, Dr. Razmzan was employed as a doctor in a Federally Supported Health Center in New York. As a part of his employment contract, Dr. Razmzan was required to not bill any services that he performed at the clinic in lieu of a direct salary. However, he was required and permitted to bill any inpatient services that he provided for the clinic’s patients in lieu of a higher salary. After being sued for malpractice involving an inpatient treatment, Dr. Razmzan removed the case to federal court and sought to dismiss the case under the Federal Tort Claims Act. The trial court acknowledged the immunity for the treatment Dr. Razmzan performed at the clinic, but stated that the inpatient treatment was not covered and Dr. Razmzan appealed.
First, the government argued that the issue was not appealable under 42 U.S.C. § 233(g)-(n). The appellate court noted directly that the case had been removed under 28 U.S.C. § 1442 and that 42 U.S.C. § 233(g)-(n) could not contravene the explicit language of 28 U.S.C. § 1442, which permits an appeal if the person appealing was acting under the color of federal office. The court, after reviewing Dr. Razmzan’s status, noted that he was acting under federal supervision in his position as a physician at the clinic, and that the contract for Dr. Razmzan did not preclude and in fact required both the actions taken at the inpatient facility as well as the billing practice that was used. The court held that the government could not permit the type of employment contract that Dr. Razmzan had signed with the clinic and then deny the immunity when the doctor acted in accord with the contract.
The court also noted that while Dr. Razmzan had not timely submitted the notice required under 28 U.S.C. § 1442 to the government, the government was permitted to and had waived the requirement for that timely notice by not raising the objection at the trial court level and requesting remand to state court. The government had received the notice plainly in the removal documents which clearly stated the grounds of the removal and did not file an objection within the 30 days required.
Dr. Razmzan was represented by Feldesman Tucker Leifer Fidell.
