By Cherrie Anne E. Villahermosa
Variety News Staff

THE Superior Court dismissed a complaint of negligence against a physician at the Commonwealth Health Center who was sued by a man for malpractice when he was diagnosed as having a broken ankle after a motorcycle accident in 2004.
Superior Court Judge David A. Wiseman, in an order last week, granted the motion for dismissal of complaint by Dr. J. David Southcott.
Wiseman said plaintiff Alvin Owens failed to adequately contest the validity of the certification of Southcott from the attorney general stating that the doctor was acting within the scope of his employment as a physician at CHC at the time of the incident giving rise to the claims of plaintiffs in this action.
Owens, represented by attorney George Hasselback, sued CHC, Southcott and Dr. Bernadette Saccomano in 2005 for negligence and malpractice, saying that they wrongly diagnosed his ankle when he went to the hospital for treatment after a motorcycle accident.
Owens was driving a scooter when he got involved in an accident in March of 2004.
Owens went to CHC for check-up and complained of pain in the ankle.
The defendants examined him and told him that his ankle was sprained and fractured.
Four weeks after that examination, the plaintiff’s X-rays were reviewed and it was found that the plaintiff did not have a fractured ankle.
Southcott, through his lawyers Assistant Attorneys General Dana Emery, Gregory Baka and David Lochabay, filed a motion to dismiss the complaint.
The matter was heard on Sept. 21, 2006 and the plaintiff challenged the attorney general’s certification that Southcott was acting within the scope of his employment under CHC at the time of the incident.
The court took Southcott’s motion to dismiss the complaint against him under advisement and issued an opinion which invited plaintiff to challenge the AG’s certification and set out the procedural guidelines for initiating such a challenge.
The parties were asked to “submit statements of undisputed and disputed material facts with regard to whether Southcott was acting within the scope of his employment with CHC at the time the events giving rise to this complaint occurred in order to assess the validity of the AG’s certification.”
The court called the parties for a status conference on March 12 and issued a tentative ruling stating that the plaintiff “failed to demonstrate that any facts existed which challenged the AG’s certification, and that the complaint against Southcott should be dismissed pursuant to Public Law 15-22.”
Public Law 15-22 repeals the Public Employee Legal Defense and Indemnification Act codified as 7 CMC 2301-07 in its entirety.
The law mandates the dismissal of negligence lawsuits againts commonwealth employees upon certification by the AG to the court that the commonwealth employees were acting within the scope of their employment when the acts or omissions complained of in the lawsuit occurred.
After certification and dismissal, the CNMI government is substituted as defendant, if not already named, in the employee’s place.
Wiseman, in his order, said the plaintiff relied on the undisputed language of Southcott’s contract that he was exempted from the Fair Labor Standards Act of 1936 and that 1) he was hired for a short period of time and was hired to cover a specific shortfall in doctors; 2) that he failed to acquire annual or sick leave during the term of his contract; and 3) that he was performing a highly skilled and specialized task as radiologist.
Wiseman said the plaintiff failed to persuasively demonstrate that Southcott was an independent contractor rather than an employee of CHC.
According to the judge, the defendant was an employee of CHC at the time of the events giving rise to the current action and the plaintiff failed to rebut the presumption that Southcott was acting within the scope of his employment by a preponderance of evidence.
Wiseman said the defendant has provided certification from the AG whose validity the plaintiff failed to adequately contest.