V.A. Doctor Not Entitled to FTCA Immunity In Malpractice Suit

priscilla r. owen, circuit judge: 4 operation of the services contracted for at the va." however, mercer was to (i) whether or not the parties believe they are creating 3 business of the employer; no. 07-60703 skill and performed work normally done by a specialist without supervision. no. 07-60703 that vamc retained no control over the professional aspects of mercer's work. nonpersonal services contract . . . under which the case: 07-60703 document: 00511038817 page: 1 date filed: 03/01/2010 term was for a period of year, even though the individual had worked for the * * * including all options to extend its term), and mercer had worked for only a few (f) the length of time for which the person is employed; id.5 the district court improperly granted mercer's motion to dismiss and denied the case: 07-60703 document: 00511038817 page: 7 date filed: 03/01/2010 moreover, the government paid mercer additional remuneration for any hours claims act (ftca). because we conclude that mercer was an independent1 other factors that the restatement (second) of agency � 220 identifies as case: 07-60703 document: 00511038817 page: 3 date filed: 03/01/2010 creel consulted with mercer, his orthopedic surgeon, concerning the professional services rendered by the contractor or its tools, and the place of work" for mercer. mercer was not paid on a fee-for-service appeal from the united states district court supports classifying mercer as an independent contractor. supervision; creel's left leg was losing color and did not have a pulse. mercer then contacted granted mercer's motion and denied the government's, finding that mercer was direction of the chief of staff, and the chief, surgical service." a final judgment of dismissal as to mercer under federal rule of civil procedure we review de novo a district court's finding that an individual is an ii was an independent contractor. the "power of the federal government to control defendants. rushton and university surgery were later dismissed from the suit. providers shall be liable for their liability-producing (e) whether the employer or the workman supplies the factor (f) supported independent contractor classification because the contract united states of america, march 1, 2010 of medical services or override mercer's medical judgment regarding diagnosis the quality of professional and administrative services the surgery at vamc. the morning after the surgery, mercer was alerted that contractor status because the parties did not believe that they were creating an and mercer made the choice of the type of procedure he performed based solely basis. the contract specified an estimated yearly income that was based on r estatement (second) of agency � 220 (1958).8 was an independent contractor at vamc, and mercer moved to dismiss the whose act or omission gave rise to the claim or against the estate of such employee."). (b) whether or not the one employed is engaged in a the government's motion to dismiss. it is expressly agreed and understood that this is a and treatment. for example, in regard to the incident at issue, mercer did not claims against him, arguing that he was a federal employee. the district court for the fifth circuit discuss the type of surgery he was to perform on creel with the chief; the chief (j) whether the principal is or is not in business.8 government to control the detailed physical performance of the individual." in6 alleging medical malpractice. creel later amended his complaint to add mercer, ftca, however, does not cover acts committed by independent contractors.5 case: 07-60703 document: 00511038817 page: 5 date filed: 03/01/2010 in the united states court of appeals the district court dismissed creel's claims against mercer, concluding that united states pursuant to 28 u.s.c. � 2679(b). the district court later entered the locality, the work is usually done under the the relation of master and servant; and id. (quoting 28 u.s.c. � 1346(b)).4 contract required mercer to work from 8:00 a.m. to 4:30 p.m., monday through was an independent contractor. due to the nature of his work as an orthopedic ftca, "congress has waived sovereign immunity and has granted consent for medical treatments. the contractor and its health-care regulations of the medical staff by laws of the va facility . . . [and] under the and 4:30 p.m. mercer's contract did not provide for vacation, except for national the contractor's or its health-care providers' united states court of appeals 7 day for the initial portion of his contract and then $22,080 per month for the before reavley, benavides, and owen, circuit judges. (h) whether or not the work is a part of the regular in this case, factors (a) through (d) weigh in favor of finding that mercer case: 07-60703 document: 00511038817 page: 6 date filed: 03/01/2010 i linkous, 142 f.3d at 275.3 while acting within the scope of his office or employment is exclusive of any other civil action v. with workers' compensation, professional liability insurance, health negligence and, consequently, entitled to immunity under the federal tort in his "capacity as an independent contractor." the contract clearly provided then there would have been no need for her to indemnify the government for her independent contractor. the government may evaluate 2 time of the incident and the contract duration, we conclude that this factor employees, agents, and subcontractors shall not be considered va employees for v. services, including the orthopedic services provided by mercer. linkous, 142 f.3d at 277.10 resulting from the negligent or wrongful act or omission of any employee of the government case: 07-60703 document: 00511038817 page: 2 date filed: 03/01/2010 charles r. fulbruge iii f. mercer and the united states arising from creel's treatment at the g.v. surgery clinics, to provide attending staff responsibility for in-patient orthopedic relevant. these include:7 vamc, the principal here, is in the business of providing a wide range of medical direction of the employer or by a specialist without for the southern district of mississippi in ruling that mercer was an employee of the united states. this being the case, surgeon, mercer was engaged in a distinct occupation requiring a high degree of he worked in excess of the monday through friday schedule. in addition, was an employee of the government. vamc provided the "instrumentalities, addition to this factor, in linkous v. united states, we considered a number of employer�employee relationship. mercer's contract explicitly stated that the person doing the work; the contract required the va to supply "necessary personnel for the thomas l. creel brought a medical malpractice action against dr. lloyd montgomery veterans affairs medical center (vamc) in jackson, mississippi. defendant�appellee. care, and to supervise orthopedic residents. the contract also required mercer health care providers are rendered in its capacity as an negligence." thus, factor (i) supports independent contractor status.10 holidays, and he was paid less during those months in which he took vacation. chief of surgical service (chief), vamc did not intrude on the daily rendition contract further provided: acts or omissions. -- f.3d --, 2010 wl 537773, at *3 (5th cir. 17 feb. 2010).9 hebert v. united states, 438 f.3d 483, 486 (5th cir. 2006); linkous v. united states,2 5 on the other hand, factor (f), the length of time for which the individual lloyd f. mercer, m.d., was not present in the operating room while mercer was performing the surgery; the government moved to dismiss the ftca claim, arguing that mercer 6 (c) the kind of occupation, with reference to whether, in conversely, factors (e), (g), (h), and (j) support the conclusion that mercer several va rules and procedures and was supervised by the chief of staff and employee of the government under the ftca. "[t]he united states as2 the job; 142 f.3d 271, 275 (5th cir. 1998). of the government or an independent contractor is the power of the federal plaintiff�appellee, to perform all services "in accordance with va policies and procedures and the employees for any purpose" and that mercer rendered his professional services contractor, we reverse and remand. see 28 u.s.c. � 2679(b)(1) ("the remedy against the united states . . . arising or1 examinations, income tax withholding, and social security payments. the mercer being present at the vamc monday through friday between 8:00 a.m. the original contract provided mercer an estimated payment of $1,104 per a consultation. after numerous procedures under the care of rushton, creel's the parties to the contract also explicitly agreed that the "contractor, its insurance for himself and whomever he hired. as we observed in linkous, "[i]f surgical replacement of his left knee. after examining creel, mercer concluded establish an employer�employee relationship. therefore, the district court erred friday, and only required him to work other hours in an emergency. case: 07-60703 document: 00511038817 page: 4 date filed: 03/01/2010 a federal employee and therefore that creel's exclusive remedy was against the no. 07-60703 54(b). the government timely appealed. protect the "personnel furnishing services under this contract" by providing them professional medical judgment, diagnosis, or specific no. 07-60703 furthermore, mercer's contract required him to provide professional liability at all relevant times, mercer had contracted with vamc to provide any purpose." no. 07-60703 after considering all of the restatement factors, we conclude that mercer see id.7 on his professional opinion. the government to be sued for acts committed by any `employee of the "orthopedic surgeon services . . . in accordance with the requirements of the creel brought suit against the united states pursuant to the ftca, instrumentalities, tools, and the place of work for the "contractor, its employees, agents, and subcontractors shall not be considered va mercer was an employee of the federal government at the time of the alleged id.6 government while acting within the scope of his office or employment.'" the4 months at the time of creel's surgery. in peacock v. united states, we held that clerk contract." the contract required mercer to provide staff coverage for orthopedic defendant�appellant, left leg was amputated above the knee. distinct occupation or business; fiscal year beginning october 1, 2002. the united states paid him the exact "the critical factor in determining whether an individual is an employee hospital for over five years. given the short duration of mercer's tenure at the9 and remand with instructions to deny mercer's motion to dismiss and grant rushton, and university surgery associates, p.l.l.c. (university surgery) as for the foregoing reasons, we reverse the judgment of the district court, aspects of the services rendered, including by example, under the terms of the contract, the united states retained "no control over the detailed physical performance" of mercer's services was insufficient to professional aspects" of mercer's services. while mercer was required to follow government's motion to dismiss. master may exercise over the details of the work; was employed, weighs in favor of independent contractor status. mercer's that surgery was needed, and creel agreed to the procedure. mercer performed thomas l. creel, no. 07-60703 (g) the method of payment, whether by the time or by contract was for a relatively short term (a maximum of one and a half years, f i l e d or proceeding for money damages by reason of the same subject matter against the employee dr. fred rushton, a surgeon at the university of mississippi medical center, for sovereign, is immune from suits save as it consents to be sued." pursuant to the3 [the contractor] believed she was becoming an employee of [the government], amount of his invoices, and there were no withholdings from payments. the provided but retains no control over professional fifth circuit finally, factor (i), the relative beliefs of the parties, supports independent no. 07-60703 (a) the extent of control which, by the agreement, the (d) the skill required in the particular occupation;