Bravo v. U.S.

• Decision Date: 02 July 2008
• Docket Number: No. 06-13052.,06-13052.
• Citation: 532 F.3d 1154
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Raiza BRAVO, Oscar Rodriguez, individually and as co-personal representatives of the Estate and Survivors of Kevin Bravo Rodriguez, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Kenneth Kushner, M.D., Defendant-Appellee.

532 F.3d 1154

Raiza BRAVO, Oscar Rodriguez, individually and as co-personal representatives of the Estate and Survivors of Kevin Bravo Rodriguez, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Kenneth Kushner, M.D., Defendant-Appellee.

No. 06-13052.

United States Court of Appeals, Eleventh Circuit.

July 2, 2008.

William G. Cole, Dept. of Justice, Civil Appellate Div., Washington, DC, Anne R. Schultz, Asst. U.S. Atty., Wendy Jacobus, Marlene Rodriguez, Miami, FL, for Defendant-Appellant.

Deborah J. Gander, Ervin A. Gonzalez, Barbara Ann Silverman, Colson Hicks Eidson, Coral Gables, FL, Irene Porter, Dinah S. Stein, Hicks & Kneale, P.A., Matthew Leonard Jones, Jones & Adams, P.A., Miami, FL, Susan Yoffe Marcus, Hicks & Kneale PA, Hollywood, FL, for Raiza Bravo, Oscar Rodriguez and Kenneth Kushner.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and WILSON, Circuit Judges, and STAGG^*, District Judge.

CARNES, Circuit Judge:

This is a tragic case in which the negligence of those acting for the United States government destroyed the life of a little boy and did much damage to the lives of his mother and father. The case is here not because anyone questions whether the government should pay, but because there are good faith disagreements about issues affecting how much it must pay.

I.

Raiza Bravo was entitled to care and treatment at the Naval Hospital in Jacksonville, Florida because her husband, Oscar Rodriguez, was a serviceman in the Navy. On June 10-11, 2003, Bravo was at the hospital for the birth of their child, Kevin Bravo Rodriguez. As a result of medical malpractice, Kevin was born with severe brain injuries. No one disputes that some of those whose negligence caused the injuries were full-time Naval personnel and therefore government employees for purposes of the Federal Tort Claims Act. There is a dispute about whether one doctor whose negligence contributed to the injuries is a government employee for FTCA purposes, and the resolution of that issue will determine what portion of the judgment the government is responsible for paying. There are also disputes about the size of the judgment.

One of the physicians who attended Bravo during the delivery was Dr. Kenneth Kushner, a civilian OB/GYN working at the Naval Hospital on a contractual basis. He is the negligent actor whose status as a government employee for FTCA purposes is in issue. A description of his status requires some explanation of the contractual context in which he worked.

The Department of Defense entered into a contract with Humana Military Healthcare Services, known as the "TRICARE Contract," through which Humana would provide medical services for eligible military personnel and their dependents. The contract allowed facilities like the Naval Hospital in Jacksonville to enter into their own agreements with Humana, known as "Resource Sharing Agreements" under which Humana (or its subcontractor) provides medical staff for the hospital. These contracts were subject to the terms of the original TRICARE Contract.

The Jacksonville Naval Hospital entered into a Resource Sharing Agreement with Humana, incorporating the hospital's own OB/GYN "Statement of Work" into the contract; that statement described with specificity the duties and responsibilities of the physician who was contracted to do OB/GYN work at the hospital. Humana, in turn, sub-contracted with Sterling Medical Corporation to supply an OB/GYN physician to the Naval Hospital. Sterling contracted with Dr. Kushner for that purpose, and it was through that contract and Sterling's contract with Humana, as well as Humana's contract with the Naval Hospital, that Dr. Kushner came to the hospital as a civilian physician. The same "Statement of Work" included in the contract between Humana and the hospital was in turn incorporated into Dr. Kushner's contract with Sterling.

Following Kevin's birth, Dr. Kushner was subjected to peer review, temporarily suspended from the Naval Hospital, and instructed to take a course on fetal monitoring. Later, because of his negligence during Kevin's birth, the hospital permanently suspended Dr. Kushner's privileges with the result that he can no longer work there.

II.

Bravo and Rodriguez filed suit against the government on their own behalf and on behalf of Kevin under the FTCA based on the personal injuries Kevin suffered and the loss of consortium with him that they each suffered. Bravo also claimed economic loss because of the time that she was required to spend caring for Kevin and her resulting loss of earning power. Bravo and Rodriguez claimed that Kevin was injured as a result of the wrongful acts and omissions of hospital employees who were acting within the scope of their employment for the United States. They later amended the complaint to add a negligence count against Dr. Kushner individually.

Bravo and Rodriguez filed a motion for summary judgment asking the district court to find, as a matter of law, that Dr. Kushner was a government employee for FTCA purposes at the time he treated Bravo. Dr. Kushner filed a similar motion seeking the same result. Conversely, the government filed a cross-motion for summary judgment, asking the court to find as a matter of law that Dr. Kushner was an independent contractor and not a government employee. The district court denied the motions and set the case for trial.

After an eleven-day bench trial, the district court issued its findings of fact and conclusions of law. The court determined that the medical evidence indicated that everyone treating Bravo had failed to meet the requisite standard of care and that their negligence contributed substantially to Kevin's injuries. The government requested that the damages be apportioned under Fla. Stat. § 768.81(3) between the culpable Naval personnel (for which it admitted responsibility) and Dr. Kushner. The court declined to do that because it concluded that Dr. Kushner was himself a government employee for FTCA purposes. As a result there would be no basis for apportionment because the government would be fully responsible for Dr. Kushner's part of the judgment. The court ruled that even if it were wrong about Dr. Kushner being a government employee, apportionment would still not be proper because of two exceptions to Fla. Stat. § 768.81(3): (1) the initial-subsequent tortfeasor exception, and (2) the indivisible injury exception.

The court entered a total judgment against the government in the amount of $60,485,788.98 to Bravo, Rodriguez, and Kevin. That judgment included: (1) $25 million in non-economic damages for Bravo; (2) $603,883 in economic damages for Bravo; (3) $15 million in non-economic damages for Rodriguez; (4) $10 million in non-economic damages for Kevin; and (5) $9,881,905.98 in economic damages for Kevin. At the time judgment was entered Kevin was almost two-and-a-half years old and had a life expectancy of twenty-one years. The damages were calculated based on the parental sacrifices and the surgeries, therapies, and medications that it was projected Kevin would need over the remaining eighteen-and-a-half years of his life as well as the suffering that would be endured during that time.

Dr. Kushner and the government both filed Rule 59 motions to alter or amend the judgment or, alternatively, for a new trial. The district court denied those motions, except that it did reduce the non-economic damages awarded to Bravo and Rodriguez by $10 million each, so that Bravo received $15 million for her non-economic damages and Rodriguez received $5 million for his. The court left the award to Kevin in place. Those reductions lowered the total judgment to $40,485,788.98. The only explanation the court gave for reducing the awards, and the amount of the reductions, was that it was being done "[u]pon consideration of all relevant factors." Even after the district court reduced the award, it was at that time the largest amount ever awarded to a single family for non-economic damages in the sixty-year history of the FTCA.¹

The government filed its notice of appeal on May 22, 2006. Kevin died, at the age of three, on August 21, 2006.

III.

The government raises three primary issues on appeal, contending that the district court erred by: (1) finding that Dr. Kushner was a government employee instead of an independent contractor; (2) failing to apply Fla. Stat. § 768.81(3) to apportion the damages among the joint tortfeasors; and (3) not further reducing the damages awarded.

A.

There is some dispute among the circuits about whether an individual's status as a government employee in a given factual scenario is a question of law subject to de novo review or a question of fact subject to clear error review. See Duplan v. Harper, 188 F.3d 1195, 1200 (10th Cir. 1999) (holding that an individual's status as a government employee for the purpose of the FTCA is a question of law); Linkous v. United States, 142 F.3d 271, 275 (5th Cir.1998) (same); but see Van Camp & Bennion v. United States, 251 F.3d 862, 865 (9th Cir.2001) ("We review for clear error the question whether independent contractor status as opposed to employee status was correctly determined."). We need not take our place on one side or the other of the split because it does not matter in this case. Under either standard of review, we would leave the district court's determination of the government employee issue standing.

The district court stated that the question of Dr. Kushner's employment status was "merely academic," because the court determined that either of two exceptions to Fla. Stat. § 768.81(3) applied, making all of the defendants jointly and severally liable for the entire damage award regardless of whether Dr. Kushner was an employee of the government. Alternatively, the court addressed the issue of Dr. Kushner's employment status, and interpreted the various contracts to mean that he was...