[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________
No. 98-6499
____________________
D.C. Docket No. 98-00961-CV-C-W
MAGGIE DEDRICK, individually, & as
mother & next friend of LAKENDRA DEDRICK,
deceased minor,
Plaintiff-Appellee,
versus
DR. CLIFTON YOUNGBLOOD, et al.,
Defendant-Appellant
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Appeal from the United States District Court
for the Northern District of Alabama
_________________
(January 12, 2000)
Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.
GODBOLD, Senior Circuit Judge:
This case involves the interpretation of a public health service employee under
the Federally Supported Health Centers Assistance Act. The Act was enacted in
1992 to reduce the growing costs of malpractice insurance to private nonprofit health
centers that provide health services to medically underserved populations, commonly
referred to as “§ 245(b) health centers” or “eligible entities.” The Act essentially
makes the U.S. government the medical malpractice insurer for qualifying § 245(b)
health centers, their officers, employees, and contractors, allowing these “deemed”
health centers to forgo obtaining private malpractice insurance. Youngblood based
his appeal on an expanded interpretation of the definition of a contractor under § 233.
We must decide whether a doctor is considered a U.S. Public Health Service
Employee within the meaning of § 233 of the Act if at the time he allegedly
committed malpractice he was performing medical services as an employee of a legal
entity that has contracted with a FSHCAA eligible health care entity. It appears that
we are the first circuit to address this issue.1 The district court remanded the case after
it determined that Dr. Youngblood was not a contractor with provider coverage under
the definition provided in § 233 of the Act. We agree that Youngblood is not a
1
The parties indicate that the court should be persuaded by a recent Tenth Circuit
case. We agree that the contractual relationship in this case is similar to that in Duplan v.
Harper,
188 F.3d 1195, 1198 (10th Cir. 1999). Dr. Harper was an employee of a
corporation, Med-National, Inc., that contracted with the U.S. Air Force to provide
medical services at Tinker AFB. The incident giving rise to Duplan’s claim arose during
Dr. Harper’s treatment of Duplan pursuant to the Tinker-Med-National contract. The
Tenth Circuit reversed a finding of the district court and held that Harper was not an
employee of the government. However, the court did not address the key issue in this
case: whether Harper would be considered a contractor with Tinker under § 233.
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covered provider under § 233 and affirm the decision of the district court.
Determining the contractual relationship of the parties is essential to properly
interpreting this statute.2 Youngblood entered into an employment contract with
Capstone Health Services Foundation for a term of one year. Under the terms of the
contract Youngblood became a member of the OB-GYN Department of the University
of Alabama School of Medicine, Tuscaloosa. Capstone contracted to obtain
professional liability insurance for Youngblood. Shortly after Youngblood entered
into his employment contract with Capstone, Capstone entered into a provider
agreement with West Alabama Health Services, Inc. Capstone agreed to provide OB-
GYN related services to Medicaid eligible pregnant women at West Alabama
facilities. The contract provided that Capstone would maintain malpractice insurance
for its employees.
Youngblood treated Maggie Dedrick while he was providing OB-GYN services
to a West Alabama clinic. Youngblood concedes that at the time he provided the
services he was “on-call” for West Alabama pursuant to the provider contract between
Capstone and West Alabama. Capstone billed West Alabama for the services
2
There is no need to employ a control test to determine whether Youngblood is an
employee of the government because there is no dispute that Youngblood qualifies only
under the contractor exception if he qualifies at all. Although Youngblood does not
dispute that all services rendered to West Alabama were pursuant to the provider contract
between Capstone and West Alabama, he does dispute the district court’s requirement for
a direct contractual relationship between him and West Alabama.
3
rendered by Youngblood to Dedrick.
Dedrick filed a malpractice action against Youngblood in Alabama state court
for alleged negligent acts that occurred during the treatment of her pregnancy.
Youngblood removed the case to federal court on the ground that he was a covered
employee under § 233 of the Act. He contends that federal jurisdiction was proper
because of the special relationship between the Act and the Federal Tort Claims Act,
28 U.S.C. § 1346(b). The Act provides the exclusive remedy for medical malpractice
of employees or contractors of the Public Health Service. However, the district court
held that Youngblood was not a Public Health Service “employee” under § 233 at the
time of the alleged medical malpractice and remanded the case to state court.
The Act defined a Public Health Service employee to include “an entity
described in [§ 233(g)(4)], and any officer, governing board member, or employee of
such an entity, and any contractor of such an entity who is a physician or other
licensed or certified health care practitioner (subject to paragraph 5).” 42 U.S.C. §
233(g)(1)(A). Paragraph (5) states:
an individual may be considered a contractor of an entity . . . only if ..
A) the individual normally performs on average of at least 32 ½ hours of
service per week for the entity for the period of the contract. § 233(g)(5);
or
B) in the case of an individual who normally performs less than 32 ½ hours
of service per week for the entity for the period of the contract, the
individual is a licensed or certified provider of services in the fields of
family practice, general internal medicine, general pediatrics, or
obstetrics and gynecology.
4
42 U.S.C. § 233(g)(5).
Although Youngblood is an employee of Capstone and has no separate contract
with West Alabama, he contends that the statute does not exclude him because it does
not explicitly require direct contractual relations with West Alabama for him to be
“deemed” an employee. Youngblood contends that the Act permits an individual
physician to be “deemed” a Public Health Service employee if that physician performs
services for a public health entity pursuant to a contract. However, strict
interpretation requires that a contractor be an “individual” who contracts with an
eligible entity. 42 U.S.C. § 233(g)(1)(A); § 233(g)(5).
Suits brought under the FTCA are generally limited to those claims arising from
the negligent conduct of government employees. 28 U.S.C. § 1346(b). The FTCA
retains sovereign immunity over claims against contractors. See Tisdale v. U.S.,
62
F.3d 1367, 1371 (11th Cir. 1995). However, when a statute like the Act expands the
liability of the government we must strictly construe the language used by Congress
because the inclusion of contractor liability serves as an expanded waiver of sovereign
immunity. See, e.g., Department of the Army v. Blue Fox, Inc.,
119 S. Ct. 687, 691
(1999).
The expanded definition of a “contract employee” under § 233(g) of the Act to
certain contractors of qualified health centers is clearly not an unlimited extension to
all contractors. The text of § 233(g) states “or any contractor of such an entity who
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is a physician or other licensed or certified health care practitioner.” 42 U.S.C. § 233.
We interpret the personal pronoun “who” as identifying only individual physicians
who contract with eligible entities, not organizations or foundations who contract with
eligible entities.3
The statutory language of the Act requires us to distinguish contracts by which
an individual physician contracts with the eligible entity and those where the
physician uses a separate entity, such as Capstone, to contract with the eligible entity.
West Alabama contracted with Capstone, his employer. Although Youngblood is a
licensed physician who provided services to the patients of West Alabama in the area
of obstetrics, he did so pursuant to his contractual relationship with Capstone, not
based on any contractual relationship with West Alabama. Whether Youngblood
would have qualified as a contractor if there was a contract between him and West
3
Judge Fay’s dissenting opinion relies without citation upon Congressional intent. The
legislative history discusses at some length the need that the Act was addressing.
However, both the 1992 and 1994 legislative histories state that the purpose of the Act is
to relieve the financial burden imposed on eligible health centers by the costs of
malpractice insurance. I cannot find any language stating that the purpose of the Act is to
relieve the cost of malpractice insurance from any physician who treats any of the eligible
entity’s patients See H.R. Rep. No. 398, 104th Cong., 1st Sess. 1995, 1996
U.S.C.C.A.N. 767; H.Rep. No. 823(I), 102d Cong., 2nd Sess. 1992, 1992 U.S.C.C.A.N.
2627.
In the case of contractors providing health services to [eligible] health
center patients, coverage is provided only to contractors who are licensed or
certified health care practitioners.
H.R. Rep. No. 398, 104th Cong., 1st Sess. 1995, 1996 U.S.C.C.A.N. 767, at § 11.
6
Alabama is irrelevant. Youngblood is an employee of the contractor – Capstone. The
statutory expansion of government liability under the FTCA does not apply in this
case because there is no direct contractual relationship between the eligible entity and
the physician.4
A doctor who wishes to be a covered employee is not precluded simply because
he is a member of a group or a professional corporation. He is only precluded if he
contracts with an eligible entity through another entity or group.5 Therefore, because
§ 233(g) sets forth an initial requirement that a qualified individual first must have
contracted with a covered entity, Youngblood was not qualified under the Act because
he never contracted with West Alabama.
AFFIRMED.
FAY, Senior Circuit Judge, dissenting:
The majority opinion is sound and well reasoned. My concern is that the
majority is creating a road block to the successful implementation of the
4
We decline to address the concerns raised by Youngblood at oral argument
regarding whether an individual doctor who contracts with an eligible entity through his
professional corporation would be protected. Those facts are not before this court.
5
We will not rewrite the statutory language of § 233(g)(1)(A) to expand the
definition of contractors covered under the statute to include physicians like Youngblood
who perform services for an eligible entity pursuant to an intermediate contract signed by
a practice group or clinic. Youngblood’s policy arguments suggesting that this
interpretation of the statute will preclude any physician employed by a clinic or entity
cannot overcome the express language of the statute. These concerns are more properly
disposed of by Congress.
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Congressional scheme designed to provide medical services to the indigent.
It is a fact of life that one of the major costs of practicing medicine is the
high cost of malpractice insurance. In an attempt to secure the services of those
doctors necessary to carry out the Federally Supported Health Centers Assistance
Act, the Act provides financial malpractice protection to those doctors who qualify
by placing their conduct under the Federal Tort Claims Act.
There is no question that Dr. Youngblood would be covered by the Act had
he contracted directly, as an individual physician, with West Alabama. The
majority holds that because there were intermediate or sub-contracts between West
Alabama, Capstone and individual physicians (or their professional corporations)
the doctors are not protected. It seems to me that such a holding flies in the face of
Congressional intent. I would hold otherwise and, therefore, respectfully dissent.
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