Broussard v. U.S.
| Decision Date | 24 March 1993 |
| Docket Number | No. 92-8442,92-8442 |
| Parties | Hanson J. BROUSSARD, Rhonda J. Broussard, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Daniel W. Andrews, Byrd, Davis & Eisenberg, Austin, TX, for plaintiffs-appellants.
Mollie S. Crosby, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., Austin, TX, for defendant-appellee.
Appeal from the United States District Court For the Western District of Texas.
Before KING, DAVIS and WIENER, Circuit Judges.
Hanson and Rhonda Broussard sued the United States under the Federal Tort Claims Act (FTCA), 1 alleging that the death of their son, Jermaine resulted from the negligent treatment that he received at military hospital. The district court granted partial summary judgment for the United States on the issue of FTCA liability for the action of an independent contractor physician. After a full trial on the remaining issues the district court determined that Jermaine's injuries were so severe that nothing could have been done for him that would have saved his life, and granted judgment for the United States. The court also held that the Broussards failed to prove that anyone other than the independent contractor physician was negligent. Finding no error that warrants reversal, we affirm.
On June 22, 1989, three year old Jermaine Broussard was with his mother visiting friends at Fort Polk, Louisiana. When Jermaine went to retrieve a toy from a neighbor's driveway, he was run over by the neighbor's vehicle. The neighbor was a medic who immediately started CPR when he found that Jermaine did not have a pulse. Jermaine was transported by ambulance to an Army hospital (the Hospital). Before Jermaine arrived at the Hospital, his pulse was restored, lost, then restored again. He had a pulse and was breathing on his own when he arrived at the emergency room.
The ambulance was met at the Hospital by an emergency room physician (the E.R. Physician). He ordered a series of tests for Jermaine, but delayed some forty-five minutes before calling for a pediatrician and general surgeon. The pediatrician arrived at the Hospital twenty minutes after he was called. He diagnosed Jermaine as suffering from a closed head injury and ordered helicopter transport to another hospital that was better equipped for neurological support. But before he could be transported, Jermaine's condition worsened and he died.
Jermaine's cause of death was initially reported as closed head trauma. An autopsy was performed six days later on June 28, 1989. The autopsy report, which was issued the next day, revealed that Jermaine had suffered a torn thoracic aorta, and reported the cause of death as severe closed-chest injuries. The torn aorta had never been diagnosed by the Hospital emergency room personnel.
After exhausting their administrative remedies, the Broussards filed the instant suit on March 21, 1991, seventeen months after Jermaine's death. The complaint alleged that his death was caused by "various acts and omissions of negligence on the part of defendant's agents, servants, and employees." The United States was served on April 17, 1991 and filed its answer on June 17, 1991.
On December 23, 1991, the United States moved for summary judgment on the grounds that the Broussards apparently were relying solely on the acts of the E.R. Physician in this negligence action, but that he was an independent contractor, a class of actors that is excepted from the FTCA's waiver of sovereign immunity. This was the first time that the United States expressly claimed that the E.R. Physician was an independent contractor for whose actions the United States was not liable. The original answer of the United States had only obliquely suggested such a claim when it stated: "Defendant denies any negligent act or omission on its part."
The United States supported its motion with a copy of the contract between the government and Emergency Medical Services Associates (EMSA). This contract provided that:
It is expressly agreed and understood that the professional services rendered by the contractor are rendered in its capacity as an independent contractor. The Government retains no control over the professional aspects of the services rendered by the Contractor, including by example Contractors medical judgement [sic], diagnosis or specific medical treatment. Contractor shall be solely liable for any liability producing acts or omissions by it or its employees or agents.
The contract also required EMSA to carry liability insurance of not less than $1,000,000 per occurrence, and to indemnify the United States against all claims caused or contributed to by EMSA employees. The E.R. Physician was employed and paid by EMSA. The United States had no role in hiring him or in his direct supervision.
The district court granted partial summary judgment for the United States in so far as any negligence of the E.R. Physician was concerned, finding that he was an independent contractor. The district court refused to grant total summary judgment, however, concluding that a material fact issue existed whether the negligence of any non-independent contractor personnel at the Hospital may have caused Jermaine's death.
The case was tried to the court without a jury, and at the conclusion of the trial the court rendered a judgment that the Broussards "take nothing." In its Findings of Fact and Conclusions of Law, the district court denied the Broussards' motion to reconsider its previous grant of partial summary judgment. The court also stated that it accepted the testimony of a defense expert witness that "Jermaine Broussard's injuries were so severe and extensive that nothing could have been done for him that would have saved his life," and that the Broussards "failed to prove by a preponderance of the evidence that anyone, other than [the E.R. Physician], committed any act of negligence in the care and treatment of Jermaine Broussard." The Broussards timely appealed.
The Broussards assign four points of error in the instant appeal: 1) The government is responsible for the E.R. Physician's negligence; 2) the government is estopped from asserting the independent contractor defense; 3) plaintiffs have established a cause of action pursuant to Louisiana's Loss of Chance doctrine; and 4) other Hospital personnel were negligent in their treatment of Jermaine. We discuss these issues seriatim.
"It is elementary that '[t]he 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.' " 2 The United States has statutorily consented to suits pursuant to the terms of the Federal Tort Claims Act. 3 This consent to be sued, though, does not extend to the acts of independent contractors. 4
The Supreme Court has noted that Congress left the courts free to define the term "contractor." 5 A critical factor in identifying a contractor "is the power of the Federal Government 'to control the detailed physical performance of the contractor.' " 6
The Broussards characterize the Supreme Court's test for independent contractor status as a "strict control" test, in which control over the detailed physical performance is the sole consideration. They argue that the district court should not have relied on the strict control test: As physicians have an ethical obligation of independence, they can never be subject to such a degree of control; therefore, under such a restrictive test they will almost always be found to be independent contractors.
The Broussards do not state what the test for an independent contractor physician should be, but they imply that it should be some form of modified control test. They rely on one case each from the Seventh and Tenth Circuits as suggesting the appropriateness of such a test. 7 But we do not read these cases as supporting the establishment of any radically different test for determining when professionals are independent contractors.
In Quilico v. Kaplan, 8 the plaintiffs sought to establish that the defendant physicians--who were temporary employees of the Veterans Administration--were independent contractors rather than employees who would be statutorily immune from personal liability. In order to establish that the physicians were independent contractors, the plaintiffs urged the court to follow the strict control test to determine the physicians' status. The Seventh Circuit acknowledged that under the strict control test, the physicians would not be employees, but neither would any other physician employed by the Veterans Administration regardless of the permanency or terms of their employment. 9 The Quilico court found that such a result would conflict with Congress's intent in statutorily providing immunity for physicians employed both permanently and temporarily by the Veterans Administration. 10 The court consequently rejected the strict control test for purposes of the determining the scope of immunity for Veterans Administration physicians, 11 and instead relied on the relevant statutory definition of employees who were to be immunized from liability. 12
In Lurch v. United States, 13 the Tenth Circuit questioned the use of a strict control test in determining whether a physician is an independent contractor. 14 The plaintiff in Lurch argued that the court should adopt a modified control test in which the "areas of medical service that are susceptible to supervision and control should be considered in determining if a physician is a federal employee." 15 The Lurch court found that it need not decide that issue, however, because the contractual arrangement and its application to the physician clearly established that he was not in an employer-employee relationship with the United...
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