Linkous v. U.S., 97-50566

• Decision Date: 09 June 1998
• Docket Number: No. 97-50566,97-50566
• Parties: Kim J. LINKOUS, Individually and as next friend of Joshua Linkous, Kirsten Linkous, and Justin Linkous, minor children, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Lydia Sims, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 271

142 F.3d 271

Kim J. LINKOUS, Individually and as next friend of Joshua

Linkous, Kirsten Linkous, and Justin Linkous, minor children, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Lydia Sims, M.D., Defendant-Appellee.

No. 97-50566.

United States Court of Appeals, Fifth Circuit.

June 9, 1998.

William O. Whitehurst, Cynthia K. Stewart, Michael Ernest John Archuleta, Whitehurst, Harkness & Watson, Austin, TX, for Plaintiff-Appellee.

John F. Daly, Washington, DC, Barbara L. Herwig, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellant.

Katherine E. Bell-Moss, Clark, Thomas & Winters, Austin, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, BARKSDALE and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The Plaintiffs, Kim J. Linkous, individually and on behalf of her minor children, sued the Defendants, the United States and Lydia Sims, M.D., under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), for injuries received during medical treatment at Darnell Army Community Hospital ("DACH"). The United States appeals from an order of the district court certifying that Dr. Sims was an employee of the United States operating in the course and scope of her office or employment when treating Linkous. After reviewing the briefs and record on appeal, we reverse the decision of the district court.

I.

The Defendant, Dr. Lydia Sims, contracted with DACH to provide obstetrics/gynecological ("ob/gyn") services to beneficiaries of the Civilian Health and Medical Program of the Uniformed Services ("CHAMPUS"), a statutory health benefits program that provides medical and dental benefits for dependants of active-duty military service members and military retirees. See 10 U.S.C. §§ 1076-79. Federal law authorizes the Secretary of Defense to enter into partnership agreements which provide "for the sharing of resources between facilities of the uniformed services and facilities of a civilian health care provider." 10 U.S.C. § 1096. Pursuant to this statutory authorization, the Department of Defense promulgated regulations permitting the type of agreement at issue here, whereby private practitioners provide health care services within military facilities. See 32 C.F.R. § 199.1(p).

The terms of the partnership agreement between DACH and Dr. Sims were set forth in a Memorandum of Understanding ("MOU"). The MOU described Dr. Sims as a "participating health care provider" and indicated that Dr. Sims was to be compensated on a fee-for-service basis. Because Dr. Sims used DACH facilities, she received seventy percent of the rate paid to private practitioners who provide CHAMPUS health care services outside DACH. Dr. Sims did not determine the fees charged for her services. The MOU required Dr. Sims to provide full professional liability insurance covering acts or omissions committed by Dr. Sims or her support personnel, who are not covered by the Gonzalez Act, 10 U.S.C. § 1089. The Gonzalez Act renders FTCA remedies exclusive with respect to torts committed by military health care personnel. The MOU also required Dr. Sims to obtain insurance for the purpose of indemnifying the United States for any liability resulting from her exercise of clinical privileges at DACH. The MOU acknowledged the government's liability for the acts of its "employees" but indicated that DACH was not liable for the acts of "participating health care providers." Although Dr. Sims had access to support personnel and facilities at DACH, she hired her own nurse-chaperone to assist her with patients. In contrast, military physicians use only military personnel or Red Cross volunteers as nurse-chaperones. Dr. Sims, however, used DACH personnel to schedule her appointments, accepted all referrals from DACH practitioners, and only referred her patients to other DACH practitioners.

The MOU further provided that Dr. Sims was required to adhere to all hospital bylaws and Army regulations to the same extent as Army health care providers. For example, Dr. Sims was required to adhere to the policy of obtaining informed consent at least thirty days prior to performing a tubal ligation. Dr. Sims, however, was not subject to other supervisory controls imposed on military health care personnel. Dr. Silver, the former Chief of the Department of Obstetrics and Gynecology at DACH, stated that he lacked authority to assign Dr. Sims a schedule, require Dr. Sims to attend morning meetings, or conduct routine performance evaluations of Dr. Sims. Additionally, the MOU required Dr. Sims to undergo a credentialing procedure, similar to the type utilized at private hospitals, in order to obtain privileges at DACH. While Dr. Sims had no admitting privileges at any other hospital and did not maintain an office or see patients outside her practice at DACH, the terms of the MOU did not prohibit Dr. Sims from practicing outside DACH. Finally, as a prerequisite to receiving CHAMPUS fee-for-service payments, Dr. Sims certified that she was not an employee of the United States on the CHAMPUS application.

As a military dependent, the Plaintiff, Kim Linkous, sought gynecological services from DACH and was referred to Dr. Sims. While performing a laparoscopic tubal ligation on Linkous, the plaintiff alleges that Dr. Sims acted negligently by lacerating Linkous's right common iliac artery, thereby causing significant and continuing injury. Linkous brought suit on behalf of herself and her minor children, seeking recovery for her injuries under the FTCA, against Dr. Sims and the United States. The United States moved for dismissal, contending that Dr. Sims was not an employee of the government. The Plaintiffs and Dr. Sims opposed the motion to dismiss, and Dr. Sims asked the district court to certify that she was an employee of the United States acting within the scope of her employment and to substitute the United States as defendant pursuant to 28 U.S.C. § 2679(d)(3). The district court denied the government's motion to dismiss, certified Dr. Sims as an employee of the United States acting within the scope of employment, and substituted the United States for Dr. Sims as the sole defendant. On motion of the United States, the district court certified for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), that the previous order turns on "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

II.

"It is elementary that the United States, as sovereign, is immune from suits save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Broussard v. United States, 989 F.2d 171, 174 (5th Cir.1993). The FTCA constitutes a limited waiver of sovereign immunity. See 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). Courts must strictly construe all waivers of the federal government's sovereign immunity, and must resolve all ambiguities in favor of the sovereign. See United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992). Under the FTCA, Congress has waived sovereign immunity and has granted consent for the government to be sued for acts committed by any "employee of the Government while acting within the scope of his office or employment." ¹ 28 U.S.C. § 1346(b). The FTCA, however, does not extend to acts of independent contractors. See Orleans, 425 U.S. at 813-14, 96 S.Ct. at 1975-76; Broussard, 989 F.2d at 174. Therefore, if the act was not committed by an "employee of the Government," then the court must dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). See Broussard, 989 F.2d at 177. We apply a de novo standard of review to the question of whether an individual is an "employee of the government" for purposes of the FTCA. See Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir.1997); Williams v. United States, 71 F.3d 502, 504 (5th Cir.1995).

The critical factor in determining whether an individual is an employee of the government or an independent contractor is the power of the federal government to control the detailed physical performance of the individual. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976); Broussard, 989 F.2d at 174; see also Logue v. United States, 412 U.S. 521, 527, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)("[T]he distinction between the servant or agent relationship and that of independent contractor turn[s] on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract."). Although "control of the detailed physical performance may be the most critical factor in identifying an employee, it is not necessarily the only factor." Broussard, 989 F.2d at 175. As the court in Broussard recognized, if control were the only factor, then no professional who exercises professional judgment could be considered a federal employee under the FTCA. Id. Therefore, in Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir.1997), in addition to control, this court cited the factors listed in § 220 of the Restatement (Second) of Agency to differentiate between an employee and independent contractor under the FTCA. Section 220 lists the following factors as relevant in determining whether an individual is an employee or an independent contractor:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to...