Pickett v. US

• Decision Date: 01 November 1989
• Docket Number: Civ. A. No. 3:88-3104-16.
• Citation: 724 F. Supp. 390
• Court: U.S. District Court — District of South Carolina
• Parties: Eva Nell Williams PICKETT, as personal representative of the Estate of Chundra Renee Pickett, Plaintiff, v. UNITED STATES of America, Dr. Clarence R. Thompson, and Sterling Medical Associates, Inc., Defendants.

724 F. Supp. 390

Eva Nell Williams PICKETT, as personal representative of the Estate of Chundra Renee Pickett, Plaintiff, v. UNITED STATES of America, Dr. Clarence R. Thompson, and Sterling Medical Associates, Inc., Defendants.

Civ. A. No. 3:88-3104-16.

United States District Court, D. South Carolina, Columbia Division.

November 1, 1989.

Allen Nickles, III, Columbia, S.C., for plaintiff.

Glen Craig, Michelle Ligon, Asst. U.S. Attys., Columbia, S.C., for U.S.

Douglas McKay, Jr., Columbia, S.C., for Sterling Medical.

Heyward E. McDonald, Columbia, S.C., for Dr. Clarence Thompson.

ORDER

HENDERSON, District Judge.

This matter is before the Court on two motions. First, defendant United States of America ("government") moves for summary judgment pursuant to Rule 56, Fed.R. Civ.P. Next, third-party defendants and defendants Dr. Clarence R. Thompson ("Thompson") and Sterling Medical Associates, Inc. ("Sterling") move to dismiss all claims against them. The government, Sterling and Thompson are parties defendant to these wrongful death and survival actions brought by Eva Nell Williams Pickett, the personal representative of the estate of Chundra Renee Pickett ("Pickett").

Pickett was struck by a car on June 28, 1987, and received treatment for her injuries at Moncrief Army Hospital ("Moncrief"). Thompson was the emergency room physician on duty when Pickett arrived at Moncrief. The plaintiff alleges that despite her obvious signs of severe trauma, Pickett was classified in the emergency room as non-urgent, she received "only a casual and disjointed medical assessment" and her treatment was deficient in numerous particulars, including the failure of the Moncrief staff to transfer her sooner to a better equipped emergency room. The plaintiff alleges that Pickett's death proximately resulted from the Moncrief staff's negligent treatment of her.

The Government's Motion for Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Investment Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). The moving party has the burden of showing the absence of a genuine issue of material fact and the Court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

The plaintiff alleges that Pickett's death was due to the joint and several negligence of the "Defendants, their agents, servants and employees." Amended Complaint, at 6. The Court has already concluded that Thompson was an employee of Sterling, an independent contractor, and not an agent, servant or employee of the government for whose acts or omissions the government is liable. Order of June 9, 1989. The government claims Thompson was the only physician who had a duty to manage Pickett's medical care while she was at Moncrief and only his acts of negligence could have proximately caused Pickett's death.

The government argues that, under its contract with Sterling, and under Sterling's contract with Thompson, Thompson was to "provide emergency medical care, summon appropriate on call specialist (sic) when deemed necessary, and continue medical management until the arrival of the appropriate specialist." The government claims Thompson should have called a general surgeon immediately after his examination of Pickett; instead he called a urologist and an obstetrician. Two hours after Pickett's arrival at Moncrief, a general surgeon examined her but, because she had already slipped into a coma and was on a ventilator, the government claims, the general surgeon did not have a real opportunity to provide her medical care.

The government's summary judgment argument is as follows: (1) Thompson breached his contractual duty to summon "the" appropriate on call specialist by failing to summon a general surgeon; (2) Thompson's failure to transfer Pickett's care to a general surgeon in time for the latter to provide her medical care left Thompson with the contractual responsibility to "continue medical management" until Pickett was discharged; (3) Thompson's breach of his contractual duties relieved the government physicians of the legal responsibility for managing Pickett's care; and (4) consequently, as a matter of law, Thompson was the only physician with a duty to care for Pickett while she was at Moncrief.

In addition to her claims that the physicians were negligent, the plaintiff alleges the emergency room support staff at Moncrief failed to request blood work in a timely manner and failed to communicate effectively with the laboratory regarding the type and availability of blood. The government claims the actions of the support staff regarding blood work were not proximately related to Pickett's death. First, it argues, Thompson did not order that Pickett be given blood for emergency room use; he ordered the blood only in the event she underwent surgery at Moncrief, which she never did. Second, the government asserts, assuming one of its physicians ordered blood for Pickett, Thompson's contractual duty to "continue medical management until the arrival of the appropriate specialist" negated any authority the government physicians had to do so.

The Court cannot say as a matter of law that the contract language on which the government relies negates the duty or authority of government physicians to provide adequate care to patients when they are summoned to do so. The Court finds several genuine issues of material fact regarding whether any of the several government physicians breached a duty of care to Pickett. For example, the government admits that the obstetrician and the urologist who were called were both appropriate specialists to summon. Government's Reply to Thompson's Memorandum in Opposition to the Government's Motion for Summary Judgment, pp. 2 and 3. A fact-finder might conclude that one (or even both) of the government physicians summoned was an appropriate specialist who assumed management responsibility for Pickett's care, or that Thompson as well as the obstetrician and the urologist all breached a duty to summon a general surgeon or that all of them otherwise negligently treated her, proximately causing or contributing to her death. Accordingly, the Court denies the government's motion for summary judgment.

Thompson's and Sterling's Motions to Dismiss

The plaintiff initially brought this action against the government pursuant to the Federal Tort Claims Act ("FTCA"). The government answered inter alia that Thompson, one of the physicians who treated Pickett, was an independent contractor hired by Sterling. The government then filed third-party claims against Thompson for common-law indemnity and against Sterling for contractual indemnity. See 28 U.S.C. § 1345; Fed.R.Civ.P. 14(a). Thereafter, the plaintiff moved to amend her complaint to include common-law tort claims directly against Thompson and Sterling under the Court's pendent jurisdiction. Amended Compl. § 6. The government and Thompson agreed to the amendment and the Court granted the plaintiff's motion. Order filed April 10, 1989. In its amended answer, the government realleged its third-party indemnity claims against Thompson and Sterling as cross-claims against them. In Sterling's amended answer, it realleged its indemnity cross-claim against Thompson based on the government's claim against it and asserted a second cross-claim against Thompson based on the plaintiff's claim against it.

A.

Defendants Thompson and Sterling first argue that the government's indemnity claims should be dismissed because the Court has ruled that Thompson was an employee of Sterling, an independent contractor, and not an agent, servant or employee of the government for whose acts or omissions the government is liable.

The government's indemnity claim against Sterling is based on its contract with Sterling and therefore federal law controls the interpretation of that contract. United States v. Seckinger, 397 U.S. 203, 209-10, 90 S.Ct. 880, 884-85, 25 L.Ed.2d 224, 232 (1970). The indemnity provision of the contract provides:

H.2. CLAIMS LIABILITY: The contractor agrees to save the Government harmless from any and all claims, demands, action, debts, liabilities, judgements sic, costs, and attorney's fees arising out of, claimed on account of, or in any manner predicated upon loss of, or damage to, property of or injuries, to or the death of, any or all persons whatsoever, in any manner, caused or contributed to by the Contractor, his agents, servants, or employees, while, in, upon, or about the military installation on which the work upon this contract is to be done, or while going to or departing from the same, and to save the Government harmless from and account of sic damage of any kind which the Government may suffer as a result of any act of the Contractor, his agents, servants, or employees in and about the said military installation.

Exhibit to Gov't. Ans. to Amended Compl. (emphasis added). In Seckinger, the indemnity agreement between the government and its contractor protected the government from responsibility for damages occurring "`as a result of the private contractor's fault or negligence.'" Id. at 204, 90 S.Ct. at 881. The Supreme Court construed the contract language to disallow indemnification for the government's own negligence and instead adopted a comparative negligence approach, leaving the government responsible...