Creel v. U.S.
| Decision Date | 30 May 2007 |
| Docket Number | Civil Action No. 2:04CV238KS-MTP. |
| Citation | 512 F.Supp.2d 574 |
| Parties | Thomas L. CREEL, Plaintiff v. UNITED STATES of America, Lloyd F. Mercer, M.D., Fred W. Rushton, Jr. M.D., and University Surgery Associates, PLLC, Defendants. |
| Court | U.S. District Court — Southern District of Mississippi |
Joseph P. Callahan, Rawls & McNelis, PC, Richmond, VA, Raynold Lee Willett, Raynold Lee Willett, Attorney, Laurel, MS, for Plaintiff.
Peggy C. Newton, U.S. Attorney's Office, Stephen P. Kruger, Page, Kruger & Holland, P.A., Jackson, MS, Joseph L. McNamara, Stephanie C. Edgar, Copeland, Cook, Taylor & Bush, Ridgeland, MS, for Defendants.
This cause is before the court on defendant United States of America's motion to dismiss, defendant Lloyd F. Mercer, M.D.'s motion to dismiss and second and alternative motion to dismiss, and defendant Fred W. Rushton, Jr. M.D.'s motion for summary judgment. From its review of all matters made a part of the record of this case as well as applicable law, and thus being fully advised in the premises, the court FINDS that the United States' motion to dismiss should be denied, that Defendant Mercer's motion to dismiss should be granted, that Defendant Mercer's second and alternative motion to dismiss should be overruled as moot and that Defendant Rushton's motion for summary judgment should be granted. The court specifically finds as follows:
FACTUAL BACKGROUND
This lawsuit arises from medical treatment plaintiff Thomas Creel received in October and November of 2002 at G.V. Montgomery V.A. Medical Center in Jackson, Mississippi ("VAMC"), which is owned and operated by defendant the United States of America. During the course of medical evaluations at VAMC in October 2002, plaintiff received advice from his orthopedic surgeon, defendant Lloyd Mercer, M.D., that he should have his left knee surgically replaced. At this time, Dr. Mercer was a full-time member of the orthopedic staff at the VAMC. Dr. Mercer's contract with VAMC (the "Mercer Contract") states that "[t]he contractor shall provide Orthopedic Surgeon Services at [VAMC] in accordance with the requirements of the contract."1 The Mercer Contract provides that "Dr. Mercer is to provide staff coverage of orthopedic surgery clinics and attending staff responsibility for in-patient orthopedic care and supervision of orthopedic residents."2 In addition, the Mercer Contract provides that "[t]he services to be performed by the contractor will be performed in accordance with VA policies and procedures and regulations of the medical, staff by-laws3 of the VA facility," as well as the VHA Handbook, and will be performed "under the direction of the Chief of Staff and the Chief, Surgical Service."
The Mercer Contract also provides that "[p]ersonnel assigned by the Contractor to perform the services covered by this contract shall be licensed in a State ... the qualifications of such personnel shall also be subject to review by the VA Chief of Staff and approval by the VA Facility Director," and that "[o]ther necessary personnel for the operation of the services contracted for at the VA will be provided by the VA." The Mercer Contract also provides that "[t]he contractor shall be responsible for protecting the personnel furnishing services under this contract" and requires the contractor to provide for its personnel's workers' compensation, no less than one million dollars in professional liability insurance,4 health examinations, income tax withholding and social security payments. The Mercer Contract expressly provides that "the parties agree that the contractor, its employees, agents and subcontractors shall not be considered VA employees for any purpose." Finally, the Mercer Contract provides:
It is expressly agreed and understood that this is a nonpersonal services contract ... under which the professional services rendered by the Contractor or its health care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered, including by example, the Contractor's or its health care providers' professional medical judgment, diagnosis, or specific medical treatments. The contractor and its health care providers shall be liable for their liability-producing acts or omissions.
The original Mercer Contract provides an estimated price of $18,768.00 (calculated at $1104.00 per day, seventeen days per month), and provides an estimated price for option year 1 of $264,960.00 (calculated at $22,080 per month, twelve months per year). In accordance with the Mercer Contract, Dr. Mercer submitted an invoice each month for payment.5 The United States paid Dr. Mercer the exact amount of his invoice in full and did not make any deductions for any withholdings such as federal taxes, state taxes, Medicare or Medicaid, federal withholding or any other withholding.
The Mercer Contract provides that Dr. Mercer's work hours are 8:00 a.m. to 4:30 p.m., Monday through Friday, and that Dr. Mercer was not required, except upon emergency, to furnish services during off-duty hours. Dr. Mercer was paid additional remuneration for time he worked in excess of the 8:00 a.m to 4:30 p.m., Monday through Friday, schedule. Dr. Mercer did not accrue any vacation time and he was paid less during the time he took vacation. During the time period at issue, Dr. Mercer did not treat patients at any facility other than the VAMC, although the Mercer Contract did not explicitly prevent him from doing so.
Dr. Mercer performed pre-operative surgical evaluations on plaintiff on October 18 and 21, 2002, and the knee replacement surgery was performed on November 4, 2002. Dr. Mercer did not discuss the type of surgery he was going to perform on plaintiff with his supervisor, the Chief of Surgery, nor did the Chief of Surgery come into the surgery suit while Dr. Mercer was operating on plaintiff. Dr. Mercer made a choice of the type of procedure he was going to perform on plaintiff based solely on his professional opinion.
The morning after the surgery, Dr. Mercer was alerted to the fact that the plaintiffs leg did not have a pulse and was losing color. Dr. Mercer concluded that an arteriogram was likely necessary to determine the cause and extent of the damage. According to Dr. Mercer, at this time he contacted defendant Fred Rushton, M.D.6
During the relevant time period, Dr. Rushton, a specialist in vascular medicine, was employed by the University of Mississippi Medical Center ("UMMC") School of Medicine as a Clinical Associate Professor of Surgery, and was also an employee of University Surgery Associates, PLLC ("University Surgery").7 University Surgery is a faculty practice plan of UMMC.8 VAMC is the teaching hospital for UMMC. UMMC and VAMC are parties to a Memorandum of Affiliation (the "Affiliation Agreement") which authorizes the VAMC to affiliate with UMMC "for the academic purposes of enhanced patient care, education and research."9 In a memo dated March 7, 2001, from Dr. A. Wallace Conerly, Vice Chancellor of the VAMC, to Dr. William W. Turner, Chairman of the Department of Surgery at UMMC and Manager of University Surgery, Dr. Conerly stated:
Dr. Mercer testified that because no VAMC radiologist was immediately available to perform the arteriogram, he made arrangements for plaintiff to be transferred to St. Dominic's Hospital, a nearby private hospital. Dr. Mercer testified that he called Dr. Rushton to update him on the situation and Dr. Rushton told him to have the radiologist call him after the arteriogram. Dr. Mercer testified that he thought that Dr. Rushton might perform post-arteriogram vascular surgery at St. Dominics, because he had privileges there. However, after the arteriogram, plaintiff was then transferred back to VAMC and underwent multiple procedures there under the care of Dr. Rushton, concluding with the amputation of his left leg above the knee on December 23, 2002.
Plaintiff brought suit against the United States on July 19, 2004 under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. On October 28, 2004, plaintiff filed his First Amended Complaint in which he added Drs. Mercer and Rushton as defendants. On May 13, 2005, the United States moved to dismiss the complaint on the ground of sovereign immunity under the FTCA. Also on May 13, 2005, Dr. Mercer moved to dismiss the complaint claiming immunity under the FTCA as an employee of the United States, and immunity under the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-1 et seq., as an employee of the State of Mississippi, and requesting that this court certify him as both a federal and...
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