Bragg v. United States, Case No. 3:09cv382/MCR/EMT.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Citation810 F.Supp.2d 1307
Docket NumberCase No. 3:09cv382/MCR/EMT.
PartiesTimothy A. BRAGG and Violeta C. Bragg, Individually and as Parents and Natural Guardians of S.E.B., a minor, Plaintiffs, v. UNITED STATES of America; Terrall Neal Moore, D.O.; Randall Eugene Scott, P.A.; and PhyAmerica Government Services, Inc., Defendants.
Decision Date26 August 2011

810 F.Supp.2d 1307

Timothy A. BRAGG and Violeta C. Bragg, Individually and as Parents and Natural Guardians of S.E.B., a minor, Plaintiffs,
UNITED STATES of America; Terrall Neal Moore, D.O.; Randall Eugene Scott, P.A.; and PhyAmerica Government Services, Inc., Defendants.

Case No. 3:09cv382/MCR/EMT.

United States District Court, N.D. Florida,Pensacola Division.

Aug. 26, 2011.

[810 F.Supp.2d 1309]

R. Douglas Hanson, Christopher P. Janes, Michles & Booth P.A., Pensacola, FL, for Plaintiffs.

Pamela A. Moine, Leah Ann Butler, U.S. Attorney, Pensacola, FL, Rogelio Jose Fontela, Dennis Jackson Martin Etc., Tallahassee, FL, for Defendants.

M. CASEY RODGERS, Chief Judge.

Timothy A. Bragg and Violeta C. Bragg filed suit against the United States of America (“Government”), PhyAmerica Government Services, Inc. (“PhyAmerica”), Terrall Neal Moore, D.O. (“Dr. Moore”) and Randall Eugene Scott, Physician's Assistant (“P.A. Scott”), asserting claims arising from the medical diagnosis and treatment of Plaintiffs' daughter, S.E.B., in the Emergency Room (“ER”) of the Naval Hospital in Pensacola, Florida (“NH”). 1 (Doc. 1) The Government is sued for medical negligence based on the conduct of its employees pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671– 2680 (“FTCA”). Pending before the court is the Government's motion for summary judgment on grounds that Dr. Moore and P.A. Scott were not employees but independent contractors, and thus the Government is not responsible for their conduct under the FTCA (docs. 23, 24). For the reasons stated below, the Government's motion for summary judgment is GRANTED.


On November 4, 2007, a minor, S.E.B., was taken to the ER at NH where she received medical treatment from P.A. Scott for a severe headache accompanied by nausea and periods of incoherency. After conducting blood work on S.E.B., P.A. Scott advised the Plaintiffs that a computed tomography (“CT”) scan was not necessary. P.A. Scott diagnosed S.E.B. with a stomach virus and prescribed Phenergan, an anti-nausea medication. Dr. Moore signed off on S.E.B.'s medical chart and she was discharged from the ER. The next day, S.E.B. was transported by ambulance to Sacred Heart Hospital in Pensacola, Florida. A CT scan was ordered and a large mass with an intracerebral hemorrhage was identified. An emergency craniotomy was performed that same day. Since S.E.B.'s craniotomy, she has undergone two additional surgical procedures. S.E.B. alleges she has suffered permanent injury and permanent cognitive impairment

[810 F.Supp.2d 1310]

as a result of the negligence of P.A. Scott and Dr. Moore.

The Plaintiffs filed suit against the Government pursuant to the FTCA, alleging medical negligence, loss of filial consortium, and negligent infliction of emotional distress (doc. 1). The Government moves for summary judgment on all counts,3 asserting that Dr. Moore and P.A. Scott were independent contractors, not government employees, when they worked in the NH ER. The Government further argues that, because Dr. Moore and P.A. Scott were independent contractors, the Court lacks subject matter jurisdiction over the Plaintiffs' claims against the Government.

A. The Contract

The Government entered into a contract (“Contract”) with PhyAmerica on July 29, 2004, as amended effective January 4, 2007, to “establish, operate and manage Emergency Room services in support of the Naval Hospital, Pensacola, FL, within the confines of the MTF.” 4 (Doc. 24–2, at 1, 16) During all times relevant to Plaintiffs' Complaint, the Government and PhyAmerica were governed by the Contract, which provided that the services rendered by PhyAmerica “are rendered in the capacity as an independent, non-personal service Contractor ... [and] the Contractor 5 shall not in any manner represent or infer that it is an instrumentality or agent of the United States Government.” ( Id. at 17–18) It further permitted the Government to “evaluate the quality of both professional and administrative services for purposes of contract inspection and acceptance.” ( Id. at 17) However, the Contract also provided that “[t]he Government retains no direct control over the medical services rendered, including, for example, professional judgments, diagnoses, or specific medical treatments. [PhyAmerica] shall be solely responsible for any and all liability caused by the acts or omissions of its agents or employees.” ( Id.)

Under the Contract, the Government retained control over certain administrative, procedural and operational activities. PhyAmerica was required to “adhere to and comply with all applicable MTF, Bureau of Medicine and Surgery, Department of Defense, and other higher authority directives, instructions, and notices as may be in effect during the term of the contract.” (Doc. 24–2, at 36) PhyAmerica was required to accept that the “Commanding Officer of the MTF maintains administrative and operational responsibility for all activities within the command and may takes [sic] such actions necessary to preserve and maintain the integrity of the command, subject to the limitations prescribed by law and U.S. Navy Regulations.” ( Id. at 18) The “Commanding Officer” is “[t]he individual who has responsibility for the operation of the military treatment facility at which contract services are being performed.” 6 (Doc. 24–2, at 20) The Commanding Officer was responsible for determining the MTF's operating capacity, equipment needs, and the granting of clinical privileges, among other things. Overall, “[c]omplete administrative control of the patients remains with the Government. All records produced in

[810 F.Supp.2d 1311]

the performance of this contract and all evaluations of patients are the property of, and subject to the exclusive control of, the Government.” (Doc. 24–3, at 31)

PhyAmerica employees were required to “comply with standards of medical practice pursuant to the bylaws, policies, and procedures of the medical staff of the MTF, the regulations of the MTF related to licensure and regulation of healthcare providers and hospitals, and the standards and recommendations of the Joint Commission,7 as may be in effect from time to time.” (Doc. 24–2, at 35) In addition to complying with certain standards of medical practice, the Contract required PhyAmerica employees, among other things, to adhere to the MTF policies for prescribing drugs, comply with the provisions of the MTF Occupational Health and Safety Program, and comply with all MTF administrative procedures and policies which apply to the ER. Further, all healthcare practitioners were subject to “the credentials review,8 professional staff appointment, clinical privileging,9 and adverse credentials actions/fair hearing/appeals processes of the MTF as specified in the MTF medical staff bylaws, policies and procedure.” (Doc. 24–2, at 36; Doc. 24–3, at 1)

As to the provision of medical care, the Contract enumerated certain procedures and protocols for PhyAmerica healthcare practitioners to follow, but expressly provided that they “may deviate from the protocols when clinical judgment dictates.” (Doc. 24–3, at 12) In addition to guidelines and protocols, the Contract enumerated certain procedures PhyAmerica healthcare practitioners must follow in providing their contractual services.10 The physician is

[810 F.Supp.2d 1312]

responsible for requesting tests, rendering a diagnosis, document it, and providing treatment. On-call specialists could be summoned when appropriate.

In addition to addressing the Government's administrative and operational control over PhyAmerica's protocols, guidelines and procedures, the Contract addressed PhyAmerica's key responsibilities as Contractor. PhyAmerica was required to provide medical malpractice insurance, workers' compensation insurance and general liability insurance for its employees. (Doc. 24–2, at 34) With regard to salary and benefits, PhyAmerica was responsible for “the payment of all wages and salaries, taxes, withholding payments, penalties, fees, fringe benefits, professional liability insurance premiums, contributions to insurance and pension or other deferred compensation plans ... [and] the ... pay[ment] all applicable federal, State, and local income taxes ....” (Doc. 24–4, at 4) PhyAmerica was also required not only to train its own employees, but also to “provide periodic training/advice for EMTs, corpsmen, independent duty corpsmen, physicians and nurses who rotate through the ER Department.” (Doc. 24–3, at 32) In addition to training ER personnel, PhyAmerica was required to “provide assistance to the MTF Education and Training Department by periodically providing personnel to present training classes and lectures to MTF personnel.” ( Id.) The Contract further stated “[a]ll care provided to the particular patient is the responsibility of the Contractor physician who completes the treatment form. Liability for that care rests solely with the Contractor.” ( Id.)

B. The Physicians

Dr. Moore and P.A. Scott provided emergency care to patients at the NH pursuant to the Contract, as well as individual contracts entered into with PhyAmerica. Dr. Moore was an Osteopathic physician specializing in Emergency Room Medicine while working in the NH. P.A. Scott was a Physician's Assistant in the NH's ER Department. During the relevant time period, Dr. Moore and P.A. Scott did not enter into individual contracts with the Government. Rather, the Government paid PhyAmerica directly for its compliance with the Contract. PhyAmerica then issued checks to its employees for their services rendered under the Contract. The Government did not deduct any taxes from the checks issued to PhyAmerica employees nor did it provide any employee benefits to Dr. Moore or P.A. Scott, such as vacation, sick leave, insurance or retirement programs.

According to P.A. Scott, the NH ER department is under the direction of Dr. Hibbert, who works for PhyAmerica but reports to the Navy...

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