Lurch v. U.S., 80-2226

Citation719 F.2d 333
Decision Date12 October 1983
Docket NumberNo. 80-2226,80-2226
PartiesRaymond LURCH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. The REGENTS OF the UNIVERSITY OF NEW MEXICO and Ralph Kaplan, Third Party Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Bruce P. Moore, Moscow, Idaho (Paul S. Cronin, Duhigg & Cronin, Albuquerque, N.M. were also on the brief), for plaintiff-appellant.

L.D. Harris, Asst. U.S. Atty., Albuquerque, N.M. (R.E. Thompson, U.S. Atty., Albuquerque, N.M., was also on the brief) for defendant-third party plaintiff-appellee.

Before HOLLOWAY, BREITENSTEIN and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a suit under the Federal Tort Claims Act claiming that negligence by a neurosurgeon in the employ of the Government at a Veterans' Administration Hospital, while attempting surgical relief for severe facial pain, produced total loss of plaintiff Lurch's hearing in his left ear with a return of the pain symptoms sought to be relieved.

The central issue is whether the physician who treated the plaintiff was an employee of the Government for purposes of the FTCA. The district court held that the physician was not a federal employee because he performed neurological services for the Veterans' Administration Hospital pursuant to a contract between the Veterans' Administration and the University of New Mexico School of Medicine. I R. 212. The court dismissed the complaint against the Government and also dismissed as moot the Government's third party complaint against the Regents and Dr. Kaplan. Plaintiff appeals.

I

On September 17, 1975 the plaintiff, Raymond Lurch, visited the Veterans' Administration Hospital in Albuquerque, New Mexico, because he was suffering from severe pain on the left side of his face. Dr. Kaplan examined him there and diagnosed a secondary trigeminal neuralgia. 1 III R. 8. The plaintiff visited Dr. Kaplan on two subsequent occasions, and they discussed the possibility of surgery.

On May 19, 1976 plaintiff was admitted to the V.A. Hospital with "terrible facial pain." An informed consent form was signed that day, and the following day Dr. Kaplan performed surgery. The operation was designed to sever the branches of the fifth cranial nerve that provide facial sensation. 2 After surgery, the pain returned and plaintiff eventually lost all hearing in his left ear. Plaintiff alleged that this was caused by negligent injury to his eighth cranial nerve during the operation.

On March 4, 1977 plaintiff sued the Veterans' Administration under the Freedom of Information Act (FOIA) to obtain all medical and administrative records concerning his care and treatment. The Veterans' Administration subsequently settled this suit by relinquishing all administrative records to plaintiff. I R. 68.

In October 1977 plaintiff filed an administrative claim for damages. The claim was not acted on by the Government and hence was deemed denied. 3 In January 1979 the plaintiff brought suit against the United States under the FTCA. I R. 1. After filing an answer to plaintiff's first amended complaint, the United States joined the Regents of the University of New Mexico and Dr. Kaplan as third party defendants. The United States moved for summary judgment against the plaintiff, arguing that Dr. Kaplan was not a Government employee but the employee of an independent contractor, thereby insulating the United States from liability under the FTCA. See 28 U.S.C. Sec. 1346(b) (United States liable for negligence of its employees); id. Sec. 2671 (independent contractors are not employees). This motion was denied.

Thereafter the parties stipulated that the district court could decide without an evidentiary hearing whether Dr. Kaplan was an employee of the Government. The issue was submitted on the contract, depositions and affidavits. The court held that Dr. Kaplan was not a federal employee. Rather, he was the employee of the University of New Mexico, an independent contractor, and the United States could not be liable. The court also determined that the third party complaint of the Government was therefore moot and should be dismissed.

The basis of the district court's decision was that the V.A. Hospital did not direct or control Dr. Kaplan's medical treatment of the plaintiff. Additionally, the court found that the contract between the V.A. and the University of New Mexico provided that persons rendering services to the V.A. under the contract "were not to be considered Veterans Administration employees for any purpose." I R. 212. 4 Under the contract the University assumed full responsibility for protection of employees in furnishing services, such as providing for insurance and Social Security Payments, and since late 1975 the University of New Mexico paid Dr. Kaplan for work he did at the V.A. Hospital. I R. 212.

In addition, the district court found that the medical services could be provided by one or more neurosurgeons at the discretion of the School of Medicine of the University. After November 20, 1975, Dr. Kaplan received his compensation or pay check from the University and he did not receive any payment from the Veterans Administration Medical Center for services performed in May, June or July, 1976. I R. 212. The court further found that the Chief of the Surgical Service of the V.A. Medical Center did not influence the practice of the neurosurgeons from the University who were providing services to the V.A. Medical Center and the surgeons were free to perform any surgery at the Center considered within the realm of neurological surgery. The Chief of Surgery of the V.A. Medical Center did not direct or control Dr. Kaplan in performing the surgery on plaintiff and could not and did not direct Dr. Kaplan as to the surgical methods or instruments to be used in any surgery. I R. 213.

Of the findings, which we have outlined above, plaintiff challenges only two--findings 14 and 17--as not being supported by the record. Appellant's Brief in Chief at 6. Those were findings respectively as follows:

14. The services could be provided by one or more neurosurgeons at the discretion of the School of Medicine, University of New Mexico.

* * *

* * *

17. The Chief of the Surgical Service, Veterans Administration Medical Center, did not influence the practice of the neurosurgeons from the University of New Mexico who were providing services to the Veterans Administration Medical Center and said surgeons were free to perform any surgery at the Veterans Administration Medical Center that was considered within the realm of neurological surgery.

I R. 212-13.

Essentially the plaintiff argues that the district court erroneously concluded that Dr. Kaplan was not an employee of the United States. It is plaintiff's position that the control test as generally applied is not the appropriate test for determining if a physician is a federal employee. Should we reject this, plaintiff has two alternative arguments. He further contends: (1) that 38 U.S.C. Sec. 4116(a) creates an exception for physicians to the statutory rule that the United States is not liable for the negligence of independent contractors; and (2) that the United States should be equitably estopped from asserting the independent contractor defense. We are not persuaded by plaintiff's arguments and accordingly affirm.

II

The independent contractor exception

Under the FTCA, the United States is liable for the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b). (emphasis added). The United States is not liable for acts of independent contractors. Id. Secs. 1346, 2671. See United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). This same rule applies to the employees of independent contractors. Hill v. Schweiker, 532 F.Supp. 1014 (D.N.H.1982). Thus it is important to distinguish between federal employees and the employees of independent contractors. And it is well settled that the question whether one is an employee of the United States is to be determined by federal law. See Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1972); Brooks v. A.R. & S. Enterprises Inc., 622 F.2d 8, 10 (1st Cir.1980); Lefevere v. United States, 362 F.2d 352, 353 (5th Cir.1966); Pattno v. United States, 311 F.2d 604, 605 (10th Cir.1962), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963).

The Supreme Court has made clear that a critical element in distinguishing a Government agency from an independent contractor is the power of the Federal Government "to control the detailed physical performance of the contractor." United States v. Orleans, supra, 425 U.S. at 814, 96 S.Ct. at 1976; Logue v. United States, supra, 412 U.S. at 527-28, 93 S.Ct. at 2219-20. The key inquiry under this control test is whether the Government supervises the day-to-day operations of the individual. United States v. Orleans, supra, 425 U.S. at 815, 96 S.Ct. at 1976. The district court found that the V.A. Hospital did not and could not control the manner in which Dr. Kaplan rendered medical treatment to the plaintiff. I R. 213. The decision to operate and the selection of surgical procedures and instruments were made by Dr. Kaplan without the control or influence of the V.A. Hospital. Plaintiff does not challenge these findings. 5 Under these precedents it would seem that the requisite control, as a premise for finding that Dr. Kaplan is a federal employee, is lacking.

Plaintiff attempts to distinguish these cases by arguing that the control test should be subject to special considerations when a physician's employment status is at issue. Plaintiff reasons that because a...

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