United States District Court, D. Alaska
FINDINGS OF FACT AND CONCLUSIONS OF LAW
H. Russel Holland United States District Judge.
Plaintiff Loreen Pallas’ complaint against the defendant United States of America was filed June 11, 2012. Plaintiff’s complaint states a cause of action for medical malpractice based upon the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Defendant’s answer was filed August 16, 2012. Defendant denies plaintiff’s claim for medical malpractice.
By complaint filed in the Superior Court for the State of Alaska, Third Judicial District at Anchorage, on February 1, 2013, plaintiff filed a second complaint against the Cordova Community Medical Center, owned and operated by the City of Cordova. In this complaint, plaintiff stated claims for negligence, “violation of rights, ” and fraud and misrepresentation, all flowing from the same circumstances giving rise to plaintiff’s complaint against defendant. The Cordova Community Medical Center and the City of Cordova answered, denying and seeking dismissal of plaintiff’s complaint. Plaintiff’s state court case was removed to this court as Pallas v. Cordova Community Medical Center, Case No. 3:13-cv-0185, on September 23, 2013. Plaintiff’s cases were consolidated by order of September 30, 2013.
By order of October 16, 2014,  the court granted the motion for summary judgment brought by Cordova Community Medical Center and the City of Cordova. Judgment dismissing plaintiff’s complaint as to Cordova Community Medical Center and the City of Cordova, with prejudice, was entered October 17, 2014.
The issues raised by plaintiff’s complaint against defendant were tried to the court without a jury beginning October 5, 2015, and concluding October 7, 2015. At the conclusion of trial, the court called upon the parties to serve and file written final arguments and proposed findings of fact and conclusions of law. These filings have been made.
Findings of Fact
1. Plaintiff, born April 28, 1952, lives in Cordova and was a resident of Cordova in 2009. Plaintiff owned and operated a child care business known as “Children’s Pallas.” Plaintiff and her husband filed joint tax returns in connection with plaintiff’s child care business and a second business operated by Mr. Pallas, “Northern Delights, ” an ice cream and sandwich shop. Plaintiff’s husband, Noel, died in 2014. In 2009, Mr. Pallas was a member of the Ilanka Community Wellness Advisory Committee. Nicole Nothstine, plaintiff’s daughter, was a resident of Cordova in 2009.
2. Ilanka Community Health Center (Ilanka) is a primary care health clinic owned and operated by the Alaska Native Village of Eyak. In 2009, the Ilanka clinic was open during the daytime, Monday through Friday, and closed on weekends. Ilanka was plaintiff’s primary health care provider.
3. Cordova Community Medical Center (CCMC) is a community hospital owned and operated by the City of Cordova. In 2009, CCMC’s hospital was open seven days a week, 24 hours a day. CCMC also operated a long-term nursing care facility and an emergency room in the same building.
4. The Ilanka clinic and the CCMC hospital were located in the same building in Cordova in 2009.
5. Phillip A. Hess, M.D., a board certified, family medicine and family practice physician, became medical director and staff physician at Ilanka in 2008, and was so employed in 2009.
6. Joan Wisel (formerly Phillips) was a registered nurse at Ilanka. Nurse Wisel had 32 years’ experience, and had worked for the CCMC until September 25, 2009, on which date she became an employee of the Ilanka clinic.
7. In the spring of 2009, it was anticipated by federal, state, and local health care authorities that there would be a potentially serious, H1N1 flu epidemic in the fall of 2009. Health care and related authorities in Cordova, Alaska, formed a task force to address this threat. The task force included representatives of the Cordova Hospital, the Ilanka clinic, and representatives of other local agencies. Protection of CCMC’s long-term nursing patients was a particular concern.
8. By May of 2009, the task force had agreed upon a protocol for dealing with residents experiencing flu symptoms. There was no formal, written version of the protocol. However, the protocol called for signage at the CCMC and Ilanka clinic, and for the establishment of a recorded and telephonically available message which embodied the important aspects of the protocol. The Ilanka clinic protocol for addressing H1N1 flu epidemic concerns was consistent with CDC and State of Alaska health authorities’ publications.
A transcript of the telephonic H1N1 flu recording,  in pertinent part, advised callers having H1N1 and symptoms:
...if the sick person has a temperature of 100º and other flu symptoms, you should call one of our clinics. DO NOT GO there.... Please call first. They will then advise you what the next step should be.
The message continued:
When do you seek Emergency Medical Care??? Like going to the ER?
The message then explained:
Obviously, you will get medical care right away if the sick person at home:
• has difficulty breathing or chest pain
• has signs of dehydration such as dizziness when standing, absence of urination, or in infants, a lack of tears when they cry
• is less responsive than normal
The telephonic message continued with advice as to where further information could be obtained (a CDC website) and concluded
...if you or your loved one have any of the serious symptoms described above or just cannot figure out what is the best thing to do ... then, and only then ... call the hospital @ 424-8000. Id.
9. Consistent with the recorded message, signs were conspicuously posted on the building occupied by the Ilanka clinic and the CCMC hospital in May of ...