Costa v. US Dept. of Veteran's Affairs
Decision Date | 09 March 1994 |
Docket Number | Civ. A. No. 92-0482L. |
Citation | 845 F. Supp. 64 |
Parties | Audrey COSTA, Plaintiff, v. UNITED STATES of America DEPARTMENT OF VETERAN'S AFFAIRS d/b/a Park Davis Veteran's Administration Hospital, Brian S. McLeod, M.D., John C. Lathrop, M.D., Colleen Cavanaugh, M.D., Defendants. |
Court | U.S. District Court — District of Rhode Island |
Brian R. Cunha, Kevin F. Bowen, Brian Cunha & Associates, East Providence, RI, for plaintiff.
Stephanie S. Browne, Asst. U.S. Atty., Providence, RI, for defendants.
This matter is before the Court on defendant United States of America's motion to substitute itself for defendants Department of Veterans Affairs ("the Department"), Brian S. McLeod, M.D., John C. Lathrop, M.D., and Colleen Cavanaugh, M.D. pursuant to the provisions of the Federal Tort Claims Act ("FTCA"). For the reasons set forth herein, the motion of the United States is granted in part and denied in part.
The facts, as alleged by plaintiff Audrey Costa in her complaint, are as follows.
On September 7, 1989 plaintiff was admitted to the Davis Park Veterans Administration Hospital1 ("VA Hospital") to undergo a gynecological surgical procedure known as dilatation and curettage. That procedure was performed the next day by Dr. Brian McLeod and Dr. John Lathrop. Dr. Colleen Cavanaugh participated in the post-operative care and treatment of plaintiff. Shortly after the surgery, plaintiff developed severe abdominal pain. On September 15, Dr. Diane Gruber and Dr. Benjamin Jackson performed abdominal surgery on plaintiff discovering a perforated uterus, perforated bowel and a pelvic wall abscess. At the time of plaintiff's treatment, Dr. McLeod and Dr. Cavanaugh were second and first year residents, respectively, doing a rotation at the VA Hospital.
Plaintiff alleges that her bodily injuries resulted from the negligence of Drs. McLeod and Lathrop. Plaintiff also claims that Dr. Cavanaugh was negligent in failing to diagnose that perforations and the abscess.
The United States argues that the Department of Veterans Affairs, as an executive department, may not be sued directly and that the proper party defendant is the United States. Further, the United States argues that the defendant physicians were employees of the VA Hospital and thus are entitled to immunity under the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563 (1988) (Federal Tort Claims Act) the and that the United States must be substituted for them in this suit. Plaintiff argues that the defendant physicians were not employees of the VA Hospital, but were independent contractors and are not entitled to immunity and to have the United States substituted for them. The matter was taken under advisement after a hearing before the Court. It is now in order for decision.
The Department of Veterans Affairs is an executive department of the United States. 38 U.S.C. § 301. This action seeks relief in the form of monetary damages from the Department. The suit, therefore is one against the federal sovereign and cannot be maintained absent an express waiver by Congress. Massachusetts v. United States Veterans Admin., 541 F.2d 119, 123 (1st Cir. 1976). Plaintiff has failed to cite any authority which would modify the sovereign immunity which protects the Department.
The United States has included the Department in its motion to substitute. However, it only cites 28 U.S.C. § 2679(d) as authority for the motion to substitute. Section 2679(d) applies only to the substitution of the United States for individual employees of the government. It provides no authority for the substitution of the United States for the Department. Since the Department is covered by sovereign immunity and the United States has not consented to suit, this Court has no jurisdiction to hear any claims against it. Federal Deposit Ins. Corp. v. diStefano, 839 F.Supp. 110, 120 (D.R.I.1993). In any event, the United States is already a defendant in this case. Accordingly, the Court dismisses all claims against defendant Department of Veterans Affairs, sua sponte, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for want of subject matter jurisdiction.
Id. § 2679(d)(1). Although the language of the statute seems to the contrary, the certification of the Attorney General is not conclusive. Such a certification is subject to review by the court which may make its own determination of employment status. Nasuti v. Scannell, 792 F.2d 264, 266 n. 3 (1st Cir. 1986); Gogek v. Brown University, 729 F.Supp. 926, 932-933 (D.R.I.1990) (Torres, J.). Absent a ruling by the court contrary to the Attorney General's certification, that certification is binding on all, including the court itself. Nasuti v. Scannell, 906 F.2d 802, 810 (1st Cir.1990). The Attorney General, through Lincoln C. Almond, United States Attorney for the District of Rhode Island, submitted the required certifications for Drs. McLeod, Lathrop, and Cavanaugh on March 3, 1993.3 Therefore, if the Court determines that Drs. McLeod, Lathrop, and Cavanaugh were employees of the United States and acted within the scope of that employment, then the United States must be substituted for them.
28 U.S.C. § 2671. The definition of federal agency contains an exclusion for contractors of the United States which has been incorporated into the definition of employee as well. See Quilico v. Kaplan, 749 F.2d 480, 482-83 (7th Cir.1984). Thus, this Court will look to federal law to determine whether the physicians in this case were employees of the government or independent contractors.
The United States urges the Court to adopt the approach of the Seventh Circuit in Quilico. The Court in that case determined that every physician appointed pursuant to 38 U.S.C. § 41144 is immune for medical malpractice through 38 U.S.C. § 41165. Quilico, 749 F.2d at 487. It based its decision to interpret the grant of immunity on the priority set forth by Congress to attract top-notch practitioners in order to improve the level of care provided by the Veterans Administration. The Seventh Circuit went on to note that the traditional "strict control" test used to determine employee status was not practical for professionals who are required to use their independent judgement in order to perform their duties. Id. at 482-85.
Id. In reaching a decision on the employment status of the defendant, Dr. Fieldstone, the Court looked to the relationship between the doctor and the United States Army. It looked at the intent of the parties, the compensation arrangement (who set the physician's fee), which party determined what patients were treated by Dr. Fieldstone, whether the doctor had set hours, and what sort of administrative support the doctor had received.
This Court agrees with the Tenth Circuit approach in Lilly because the broad grant of immunity supported by the Quilico decision may be over inclusive. The Court recognizes Congress' desire to attract quality health care professionals to veterans hospitals as set forth in the Quilico decision. However, those desires are not impeded by the Lilly approach. Accordingly, this Court will examine the relationship...
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