Robb v. United States ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN G. ROBB,
Plaintiff-Appellant,
v. No. 95-1317
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-94-302)
Argued: January 29, 1996
Decided: March 29, 1996
Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and BLAKE, United States District Judge for the
District of Maryland, sitting by designation.
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Affirmed by published opinion. Judge Blake wrote the opinion, in
which Chief Judge Wilkinson and Judge Hamilton joined.
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COUNSEL
ARGUED: Judith M. Cofield, SHUTTLEWORTH, RULOFF,
GIORDANO & KAHLE, P.C., Virginia Beach, Virginia, for Appel-
lant. Anita K. Henry, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appel-
lee.
_________________________________________________________________
OPINION
BLAKE, District Judge:
Plaintiff-Appellant John Robb ("Robb") appeals from the district
court's dismissal of a portion of his Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, claim against the
United States. Robb argues that the United States is liable for the
alleged negligence of two physicians, Doctors John F. Stroy and
Richard O'Hagan, who failed to diagnose a cancerous lesion on his
lung. Dr. Stroy, a family practitioner, was employed by Franklin,
Green, and Jamaludeen, Ltd. ("F.G.J."), a provider of primary care
medical services which had entered into a Partnership Memorandum
of Understanding ("MOU") with the United States Air Force. Under
the MOU, F.G.J. agreed to provide primary care services at the 1st
Medical Group, Langley Air Force Base in Langley, Virginia. Dr.
O'Hagan, a diagnostic radiologist, was employed by Dr. Leo P.
O'Connell. Dr. O'Connell contracted with the Air Force to provide
radiology services for the 1st Medical Group. The district court held
that Drs. Stroy and O'Hagan were independent contractors with, and
not employees of, the United States. Accordingly, it dismissed this
portion of Robb's claim against the United States for lack of subject
matter jurisdiction. We agree with the conclusion of the district court
and affirm.
I.
The facts in this appeal are essentially undisputed. The relationship
between the United States and the allegedly negligent physicians may
be summarized as follows.
On December 23, 1988, the Air Force entered into an MOU with
F.G.J., the employer of Dr. Stroy. Under the MOU, F.G.J. was to pro-
vide primary care medical services to CHAMPUS beneficiaries at the
1st Medical Group at Langley Air Force Base.1 The MOU was to last
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1 The Civilian Health and Medical Program of the Uniformed Service
("CHAMPUS") was established by Congress pursuant to the Depen-
dents' Medical Care Act, 10 U.S.C. § 1071 et seq., to provide medical
and dental benefits to dependents of active-duty and former members of
the military.
2
two years, but the parties renewed the agreement on July 3, 1990. The
renewed agreement remained effective from July 3, 1990 through
June 30, 1992. Dr. O'Connell, the employer of Dr. O'Hagan, exe-
cuted a service contract with the United States Air Force to perform
radiology services for the 1st Medical Group at Langley. The contract
was in effect from October 1, 1989 through September 1, 1994.
On November 5, 1990, following a fall, Robb received a medical
work-up at the F.G.J. Partnership Clinic at Langley Air Force Base
at which Dr. John F. Stroy examined Robb and ordered a chest x-ray.
Robb's chest was x-rayed the following day, and the film was read
and interpreted by Dr. Richard O'Hagan. Dr. O'Hagan failed to locate
a mass in Robb's lungs, noting in his report: "The lungs are expanded
and free of infiltrate," and "NEGATIVE CHEST."
Over the following three years, Robb was examined by four active-
duty military practitioners specializing in ophthalmology, optometry,
dermatology, and surgery. The surgeon's examination of Robb was
related to pain resulting from gallstones. None of these specialists
examined Robb for problems of the neck or lung, and none identified
the tumor. On March 24, 1993, Robb commented to an Air Force
physician about a lump in his neck. The physician took a chest x-ray
and thereafter diagnosed Robb's lung cancer.
On March 16, 1994 Robb filed a complaint in the United States
District Court for the Eastern District of Virginia alleging negligence
on the part of the United States, its agents and employees. The United
States then filed a motion to dismiss and for summary judgment.
After briefing and oral argument, a United States Magistrate Judge
recommended that the complaint against the United States be dis-
missed insofar as it alleged negligence on the part of Drs. Stroy and
O'Hagan because he determined that the physicians were independent
contractors rather than employees of the United States. The magistrate
judge recommended denial of the motion for summary judgment with
respect to any claims predicated on the acts or omissions of active-
duty personnel. In an order dated September 23, 1994, the district
judge adopted the magistrate judge's recommendation in its entirety.
On February 1-2, 1995, a trial was conducted before the district judge
on Robb's remaining claims regarding the alleged negligence of the
active-duty personnel. On February 2, 1995, the court granted the
3
United States's motion for judgment as a matter of law regarding the
alleged negligence of the active-duty personnel, thus dismissing the
remainder of the action on the merits.
Robb has appealed the dismissal of the action against the United
States relating to Drs. Stroy and O'Hagan under two theories. First,
Robb argues that Drs. Stroy and O'Hagan are employees of the
United States and not independent contractors for the purposes of the
FTCA. Second, while he does not appeal the judgment of dismissal
related to the active-duty personnel, he argues that the alleged negli-
gence of Drs. Stroy and O'Hagan should be imputed to the United
States under Virginia's continuing treatment rule. Robb argues that
the failure by the active-duty medical practitioners to diagnose his
cancer after the original examination by Drs. Stroy and O'Hagan was
a continuation of that alleged negligence, and the United States
should be liable for that continuing failure to diagnose.
II.
The district court dismissed Robb's claim, to the extent that it
relied on the alleged negligence of Drs. Stroy and O'Hagan, for lack
of subject matter jurisdiction.2 Joint Appendix ("J.A.") at 300. The
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2 Where the challenged conduct in an FTCA action was performed by
an independent contractor, the district court must dismiss the action for
want of subject matter jurisdiction. The jurisdictional grant for FTCA
actions provides, in part:
Subject to the provisions of chapter 171 of this title [Tort claims
procedure], the district courts . . . shall have exclusive jurisdic-
tion of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omis-
sion of any employee of the Government while acting within the
scope of his office or employment, under circumstances where
the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.
28 U.S.C. § 1346(b) (emphasis supplied). See also Williams v. United
States, 50 F.3d 299, 304-05 (4th Cir. 1995) (district court has no subject
matter jurisdiction to hear FTCA claim arising out of the actions of an
independent contractor); Fed. R. Civ. P. 12(b)(1).
4
dismissal of an action under Rule 12(b)(1) is a matter of law reviewed
de novo. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995);
Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir.
1994).
The FTCA contains a limited waiver of the United States's sover-
eign immunity, allowing a plaintiff to sue the United States for dam-
ages in compensation for injuries resulting from certain torts of
employees of the government acting within the scope of their employ-
ment. 28 U.S.C. § 1346(b). An "``[e]mployee of the government'
includes officers or employees of any federal agency, members of the
military or naval forces of the United States, . . . and persons acting
on behalf of a federal agency in an official capacity, temporarily or
permanently in the service of the United States." Id. § 2671. The term
"federal agency" explicitly excludes "any contractor with the United
States." Id. Therefore, Congress has not waived the sovereign immu-
nity of the United States for injuries resulting from the actions of
independent contractors performing work for the government. See
United States v. Orleans, 425 U.S. 807, 814 (1976).
The FTCA, as a waiver of sovereign immunity, is strictly con-
strued, and all ambiguities are resolved in favor of the sovereign. See
United States v. Nordic Village, Inc, 503 U.S. 30, 33 (1992);
Williams, 50 F.3d at 305. Accordingly, the independent contractor
exception to the waiver of sovereign immunity has been construed
broadly. See Lurch v. United States, 719 F.2d 333, 338 (10th Cir.
1983), cert. denied, 466 U.S. 927 (1984). Although state law governs
the substantive duties of the United States under the FTCA, 28 U.S.C.
§ 1346(b), whether a person is a contractor or an employee is deter-
mined under federal law. See Logue v. United States, 412 U.S. 521,
528 (1973); Berkman v. United States, 957 F.2d 108, 112 (4th Cir.
1992).
The test employed for distinguishing between a contractor and an
employee for FTCA purposes was developed by the Supreme Court
in Logue and Orleans. In Logue , a federal prisoner hanged himself
while being held in a county jail. The surviving parents of the pris-
oner sued the United States under the FTCA alleging that the negli-
gence of employees and agents of the government was the proximate
cause of their son's death. Logue, 412 U.S. at 522-23. The county jail
5
was one of hundreds that had contracted with the Federal Bureau of
Prisons to provide for the safekeeping, care, and subsistence of fed-
eral prisoners. The Logue Court concluded that the employees of the
county jail were independent contractors and not employees of the
United States. In reaching this conclusion, the Court cited approv-
ingly from the opinion of the court below, which had read the FTCA
contractor exemption as incorporating the common-law distinction
between contractors and employees or agents. Primarily, this distinc-
tion turns on "the absence of authority in the principal to control the
physical conduct of the contractor in performance of the contract." Id.
at 527. Guided by this standard, the Court examined the statute which
authorized the contracts with county jails, as well as the contract
itself. The Court concluded that the jail was an independent contractor
because the United States had no authority to "physically supervise
the conduct of the jail's employees." Id. at 530. The Court reached
this conclusion despite the jail's obligation to comply with a variety
of rules governing prisoner care and discipline, communications with
attorneys, visitation privileges, mail, medical services, and employ-
ment. The authority of the United States to enter the jail for the pur-
pose of inspection and evaluation did not alter the result. Id. at 529-
30.
The Orleans Court built on the principles established in Logue. In
Orleans, a father sued the United States under the FTCA for injuries
sustained by his minor child in an automobile accident. The accident
occurred in a private automobile which was being used by a commu-
nity action agency to transport children from an outing sponsored by
one of its affiliates. The community action agency was funded by the
federal Office of Economic Opportunity ("OEO"), was required to
comply with federal standards and regulations, conducted only pro-
grams formulated and funded by the federal government, and suffered
an OEO funding lapse pending the selection of a new chairman of the
governing board. Orleans, 425 U.S. at 811. In determining whether
the community action agency was a contractor with, or an agent of,
the United States, the Orleans court stated that: "the question here is
not whether the community action agency receives federal money and
must comply with federal standards and regulations, but whether its
day-to-day operations are supervised by the Federal Government." Id.
at 815. As in Logue, the outcome in Orleans did not turn on the abil-
ity of the United States to compel compliance with standards, rules,
6
and regulations. Rather, it was the inability of the OEO to supervise
day-to-day operations that led to the conclusion that no employment
relationship existed. The Court stated that "[a]lthough such regula-
tions are aimed at assuring compliance with goals, the regulations do
not convert the acts of entrepreneurs--or of state governmental
bodies--into federal governmental acts." Orleans, 425 U.S. at 816.
This court and others have had occasion to apply the principles of
Logue and Orleans to private physicians working under contractual
relationships with medical facilities operated by the United States.
One of the earliest of these cases was Wood v. Standard Products Co.,
671 F.2d 825 (4th Cir. 1982), in which this court was confronted with
"the question whether a ``contract physician' of the United States Pub-
lic Health Service (PHS), who had treated medically the plaintiff . . .
was an ``employee' of the United States, for whose alleged negligence
the United States was liable under the [FTCA]." Id. at 826 (footnote
omitted). The district court in Wood observed that, because of the
nature of their work, physicians can not be subject to external control
of their medical judgment. Because no physician may ethically relin-
quish control of his or her medical judgment, the district court held
that the proper application of the Logue and Orleans control test to
physicians must focus on "those areas of medical service that may be
supervised and controlled." Wood v. United States, 494 F. Supp. 792,
799 (E.D. Va. 1980), rev'd, 761 F.2d 825 (4th Cir. 1982). Specifi-
cally, the district court directed its attention to whether the United
States "retained and exercised significant authority over the non-
treatment areas" of the physician's work. Id. This court rejected the
approach of the district court because we found no reason why "the
controlling principle as stated in Logue and Orleans is inapplicable to
contracts governing the rendering of medical services by a physician."
Wood, 671 F.2d at 831. The district court improperly focused its con-
trol analysis on "the peripheral, administrative details which were
incidental to the rendering of medical services" and not on "the con-
trol over the performance of the medical services" as Logue and
Orleans require. Id. The Wood court concluded that, when examining
the extent of the principal's control over the purported employee, "the
real test is control over the primary activity contracted for and not the
peripheral, administrative acts relating to such activity." Id. at 832.
7
The Wood court did not conclude, however, that a physician must
always be deemed an independent contractor simply because of the
necessity that a physician exercise independent professional judgment
in providing medical treatment to his or her patients.3 Nor did the
court limit its inquiry to the parties' stipulation"that the PHS . . . does
not exercise control over or dictate the day-to-day medical judgment
of [the physician] in his provision of medical services." Id. at 830(internal quotations marks omitted) (emphasis in original). Rather, the
court examined a variety of factors relevant to the relationship
between the parties.4 In addition to noting PHS's lack of control of
the physician's medical judgment, the Wood court considered: (1) that
the physician under the contract was referred to as a "contract physi-
cian," (2) that the physician was to provide"outpatient" care, (3) gen-
eral statements concerning the manner and quality of service required
under the contract, (4) the lack of control by the government over the
prescription of drugs and medical supplies, (5) the authority of the
physician to make referrals, (6) contractual requirements for office
hours and the ability of the physician to decline to see patients, (7)
the physician's responsibility to provide office space, support staff,
supplies, and equipment, (8) the percentage of the physician's total
practice which was devoted to activities under the contract, (9) the
nature of the compensation to the physician, including method (fee
schedule) and rates (similar to the physician's usual fees), (10) PHS
recordkeeping requirements, (11) prescribed methods of verifying
_________________________________________________________________
3 For example, physicians may be deemed employees of the govern-
ment for FTCA purposes because they were hired pursuant to an act of
Congress which designates them as such. See e.g. , 38 U.S.C. § 7316(providing that suit against the United States may be the exclusive rem-
edy for malpractice by physician employees of the government); 38
U.S.C. § 7405 (authorizing the Secretary of Veterans Affairs to "employ"
a variety of medical professionals); see also Ezekiel v. Michel, 66 F.3d
894, 903 (7th Cir. 1995) (observing that the application of the strict con-
trol test to physicians employed by the government pursuant to § 7316
would, in many cases, defeat Congress's intent to immunize these work-
ers because physicians are typically deemed independent contractors
under that test); Quilico v. Kaplan, 749 F.2d 480, 485 (7th Cir. 1984).
4 In conducting its inquiry, the Wood court noted that "the contract and
its terms in fixing the relationship of the offending party are critical," to
distinguishing between an independent contractor and an employee.
Wood, 671 F.2d at 829.
8
patient eligibility for treatment, and (12) the extent of PHS's review
of the physician's offices. Id. at 830 & n.10.5
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5 Several of these factors considered by the Wood court are discussed
in the Restatement (Second) of Agency § 220(2). Section 220 addresses
the liability of a principal for the torts of a servant and provides a helpful
discussion of the distinction between a servant and an independent con-
tractor in this context. Section 220(2) provides, in full:
In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among oth-
ers, are considered:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a dis-
tinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the direction of
the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by
the job;
(h) whether or not the work is a part of the regular busi-
ness of the employer;
(i) whether or not the parties believe they are creating
the relation of master and servant; and
(j) whether the principal is or is not in business.
Restatement (Second) of Agency § 220(2). The Restatement has been
cited with approval in other private physician FTCA cases. See Brous-
sard v. United States, 989 F.2d 171, 175 (5th Cir. 1993); Leone v. United
States, 910 F.2d 46, 49, 50 (2d Cir. 1990), cert. denied, 499 U.S. 905(1991).
9
Analyzing these facts, the Wood court had little difficulty in hold-
ing that the physician was an independent contractor. Subsequent
decisions of the courts of appeals have reached similar results. The
circuits have consistently held that physicians either in private prac-
tice or associated with an organization under contract to provide med-
ical services to facilities operated by the federal government are
independent contractors, and not employees of the government for
FTCA purposes. See Carrillo v. United States, 5 F.3d 1302 (9th Cir.
1993); Broussard v. United States, 989 F.2d 171 (5th Cir. 1993);
Leone v. United States, 910 F.2d 46 (2d Cir. 1990), cert. denied, 499
U.S. 905 (1991); Lilly v. Fieldstone, 876 F.2d 857 (10th Cir. 1989);
Lurch v. United States, 719 F.2d 333 (10th Cir. 1983), cert. denied,
466 U.S. 927 (1984); Bernie v. United States, 712 F.2d 1271 (8th Cir.
1983).
Underlying the uniform results of these cases, however, is some
uncertainty regarding the proper test to be applied in FTCA cases
involving contract physicians. Robb directs this court to a multi-
factored approach discussed in Lilly v. Fieldstone. In Lilly, the Tenth
Circuit addressed the concerns about the autonomy of physicians dis-
cussed by the district court in Wood and several courts following Wood.6
Rather than examining the extent of control the government may
exercise over medical decisions, the Lilly court stated that the proper
course is to identify evidence bearing on the parties' intention "to
make the professional an employee subject to other forms of control
which are permissible." Lilly, 876 F.2d at 859. The court reasoned
that a physician may become an employee by intent and agreement
without the requirement that the physician surrender control of vital
decisions related to patient care. In attempting to determine the intent
of the parties, the Lilly court considered a variety of factors including
whether the physician was authorized to see patients at his office as
well as at the hospital, whether he charged the same fees to the gov-
ernment and private patients, whether he or the government was the
primary supplier of office space and supplies, whether the doctor
retained exclusive control over patients and records, whether he
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6 See e.g., Ezekiel, 66 F.3d at 902; Broussard, 989 F.2d at 175;Lurch,
719 F.2d at 337.
10
worked under a contract with the government, and whether he was
required to maintain regular office hours as a consultant.7
We are not persuaded that there is any need to adopt a test different
from that used in Wood for determining the employment status of pri-
vate physicians in FTCA cases. Indeed, many of the factors consid-
ered by the Wood court are substantially similar to the factors
discussed in Lilly and the factors outlined in § 220(2) of the Restate-
ment (Second) of Agency.8 Application of the control test, which
properly includes analysis of the contractual relationship between the
government and the allegedly negligent physician, is supported by
precedent in this circuit and is consistent with the guidance provided
by the Supreme Court in Logue and Orleans.
III.
A.
We turn now to the MOU between Dr. Stroy's employer, F.G.J.,
and the United States. Pursuant to the MOU, F.G.J. was required to
provide practitioners and sufficient support personnel "in order to
function as a stand alone clinic." J.A. at 34 (MOU ¶ B(2)(n)).
_________________________________________________________________
7 Prior to reviewing the factors it deemed relevant in making the inde-
pendent contractor determination, the Lilly court noted that the district
court in that case had applied a test from Norton v. Murphy, 661 F.2d
882 (10th Cir. 1981). It is this test to which Robb directs our attention.
The factors from this test include: (1) the intent of the parties, (2)
whether the United States controls only the end result or may also control
the manner and method of reaching the result, (3) whether the person
uses her own equipment or that of the United States, (4) whether the
United States provides liability insurance, (5) whether the United States
pays social security tax, (6) whether federal regulations prohibit federal
employees from performing such contracts, and (7) whether the individ-
ual has authority to subcontract to others. See Lilly, 876 F.2d at 859 (cit-
ing Norton, 661 F.2d at 884-85). The court in Lilly did not apply the
Norton criteria as such, instead focusing primarily on evidence which
manifested the intent of the parties regarding the status of the physician.
See Bird v. United States, 949 F.2d 1079, 1086-87 (10th Cir. 1991)
(describing the Lilly court's treatment of Norton).
8 The text of § 220(2) is set forth in note 5, supra.
11
Although located inside the Langley Air Force Hospital, the F.G.J.
Clinic was a distinct entity. A sign informed visitors that they were
entering the F.G.J. Partnership Clinic, the employees of the Clinic
wore civilian clothes and name tags identifying themselves as F.G.J.
employees, and no military personnel worked in the clinic. Id. at 49
(Affidavit of Colonel George Belcher, Former Chief of Hospital Ser-
vices at Langley Air Force Base ("Belcher Aff.")).9 No F.G.J.
employee received any compensation directly from the United States.
Id. at 48. Pursuant to the MOU, all compensation to F.G.J. came in
the form of CHAMPUS prevailing rate fees. F.G.J. was required to
"[p]rovide full professional liability insurance covering acts or omis-
sion [sic] of [F.G.J. and any support personnel] not covered by 10
U.S.C. § 1089."10 Id. at 33 (MOU ¶ B(2)(b)). Finally, it is undisputed
that the United States exercised no control over the day-to-day medi-
cal judgment of F.G.J. including treatment, diagnosis, and referral for
treatment. Id. at 48 (Belcher Aff.).
Robb first argues that the MOU's statement of purpose provides
evidence that the parties intended F.G.J. and its employees to be
employees of and not independent contractors with the United States.
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9 The district court properly considered the affidavit of Colonel Belcher
in ruling on the Rule 12(b)(1) motion. In evaluating whether it has sub-
ject matter jurisdiction to hear a case, a district court may consider evi-
dence outside the pleadings. Williams, 50 F.3d at 304.
10 Paragraph C(7) of the MOU provides in full: "The hospital's liability
for actions of its employees (hospital staff and Military Department prac-
titioners, but excluding participating health care entities) is governed by
Title 10, United States Code, Section 1089." The"hospital" is shorthand
for the 1st Medical Group at Langley Air Force Base, and the term "par-
ticipating health care entity" includes individual practitioners provided
by F.G.J. J.A. 32 (MOU ¶ A(1)).
This liability provision of the MOU refers to the Medical Malpractice
Immunity Act, better known as the Gonzales Act. See 10 U.S.C. § 1089.
The Gonzales Act provides medical malpractice immunity to medical
employees of the armed forces, Department of Defense, Armed Forces
Retirement Home, Central Intelligence Agency, and the National Guard
if engaged in training or duty. This section makes the FTCA the exclu-
sive remedy for victims of medical malpractice committed by these med-
ical employees of the government.
12
This statement provides: "The purpose of this agreement is to inte-
grate specific Hospital and CHAMPUS program resources to provide
primary care services for CHAMPUS beneficiaries at 1st Medical
Group, Langley AFB." Id. at 32 (MOU ¶ A(2)). Furthermore, the
cover page of the MOU indicates that the Air Force entered into the
partnership with F.G.J. "to improve patient access to Primary Care
Services at the 1st Medical Group." Id. at 31. We are not persuaded
that the Air Force's intention to consolidate resources, and presum-
ably thereby increase the efficiency of health care delivery, suggests
that the parties intended that F.G.J.'s employees become employees
of the United States. Robb provides no reasons why we should con-
clude otherwise.
Robb next argues that we should conclude that an employer-
employee relationship was created with F.G.J. because it was the gov-
ernment's shortage of medical personnel that required it to seek these
services through private contractors. A similar argument was
advanced and rejected in Logue. The Logue Court stated: "If this were
to be the law, the exclusion of contractors from the definition of ``Fed-
eral agency' in § 2671 would be virtually meaningless, since it would
be a rare situation indeed in which an independent contractor with the
Government would be performing tasks that would not otherwise be
performed by salaried Government employees." Logue, 412 U.S. at
532.
Robb also suggests that the inability of F.G.J. to subcontract or
assign the contract without the prior consent of the government
reflects an employer-employee relationship. See J.A. at 34-35 (MOU
§ (C)(1)). As authority for this proposition, Robb directs our attention
to Norton v. Murphy, 661 F.2d 882 (10th Cir. 1981), in which the
Tenth Circuit appeared to rely, in part, on a contractor's authority to
subcontract to others to support its holding that a driver who had
entered into a contract with the United States to deliver the mail was
an independent contractor. See id. at 885. While we might imagine
cases in which the authority to subcontract supports an inference that
an independent contractor relationship exists, we are not persuaded
that the absence of authority to subcontract here should give rise to
an inference that an employer-employee relationship exists. At most,
F.G.J.'s inability to subcontract implies that the Air Force has mani-
fested its consent to receive only the services of F.G.J. However,
13
there is no provision of the contract requiring government approval
of F.G.J.'s individual practitioners. Under these facts, therefore, we
ascribe little if any weight to this factor in making our determination.
Robb next argues that the review provisions of the MOU authorize
the Air Force to control the day-to-day operations of F.G.J. and its
employees. The MOU provides that the Medical Group commander
shall "[r]eview past and current performance of, determine qualifica-
tions of (including review of liability insurance coverage), and select
potential participating health care entities." Id. at 32 (MOU ¶ B(1)(a)).
Under the MOU, the term "participating health care entity" designates
F.G.J. and the individual practitioners provided by F.G.J. Id. at 32
(MOU ¶ A(1)). The authority of the government to review the perfor-
mance of and determine the qualifications of F.G.J.'s practitioners
does not support Robb's position that these physicians were employ-
ees of the government. This provision amounts to nothing more than
a standard quality assurance clause by which the government reserves
the right to determine whether it is satisfied with the services it is pur-
chasing under the contract. As we stated in Berkman, "we cannot
accept the suggestion that a contractor loses its independence and
becomes an ``employee' of the government in every case in which the
government writes into the contract sufficient procedural safeguards
to ensure compliance with the terms of the agreement." Berkman, 957
F.2d at 114. The other feature of this provision, however, indicates
that the Air Force retained the right to "select potential [individual
practitioners]" of F.G.J. This type of authority is consistent with an
employee-employer relationship. Cf. Broussard , 989 F.2d at 176(observing that the government did not hire the physician in that
case); Lurch, 719 F.2d at 338 (noting that the authority of a university
to choose which physicians would fulfill the university's obligations
under a contract with the Veteran's Administration was "not conso-
nant with a traditional employer-employee relationship" between the
V.A. and the physician). In this case, however, there is no dispute that
all F.G.J. employees were selected, hired, and paid at the discretion
of F.G.J. J.A. at 46 (Belcher Aff.). It is significant that the Air Force
did not specifically request that Dr. Stroy be hired by F.G.J., although
it arguably retained the authority to determine who was to work in the
clinic.
Robb correctly notes that certain other provisions of the MOU sup-
port his argument that Dr. Stroy was an employee of the government.
14
Under the MOU, the Air Force was required to "[p]rovide facilities,
diagnostic and therapeutic services, and equipment and supplies nec-
essary for the proper care and management of patients under this
agreement to the extent available and authorized for that facility." Id.
at 33 (MOU ¶ B(1)(c)). The MOU also required the Air Force to
"[p]rovide administrative support to participating health care entities
and individual practitioners to the extent available and authorized for
that facility." Id. at 33 (MOU ¶ B(1)(d)). The Air Force was also
required to provide a nursing liaison "to assist with orientation of
Nursing support personnel and insure compliance with[sic] Nursing
Quality Assurance Program." Id. at 33 (MOU ¶ B(1)(i)). Moreover,
F.G.J. was required under the MOU to "[u]se all available Air Force
resources: that is, specialty consultations, other existing partners,
ancillary services, and equipment and supplies for the optimal care of
patients under this agreement." Id. at 34 (MOU ¶ B(2)(g)). In distin-
guishing between an employee and an independent contractor, one
factor to be considered is "whether the employer or the workman sup-
plies the instrumentalities, tools, and the place of work for the person
doing the work." Restatement (Second) of Agency§ 220(2)(e); see
also Lilly, 876 F.2d at 860 (independent contractor physician "main-
tained a private off-base office").
Viewing the entirety of the MOU and the parties' practices under
it, however, we conclude that Dr. Stroy was acting as an independent
contractor while working for F.G.J. While some provisions of the
agreement are consistent with an employment relationship, we can not
ignore the clear expression of intent in the MOU to establish an inde-
pendent contractor relationship. The parties contemplated that F.G.J.
would run a "stand alone clinic," albeit with equipment provided by
the United States. The employees of F.G.J. were neither selected nor
paid directly by the Air Force, and F.G.J.'s compensation was based
on CHAMPUS rate fees. Moreover, the Air Force appeared to con-
template that its physicians would be immune from liability under the
Gonzales Act, while F.G.J. agreed to provide full insurance coverage
for the malpractice of its physicians. These factors, combined with the
lack of control over Dr. Stroy's individual medical judgment, are
more than sufficient to establish his independent contractor status.
15
B.
In order to determine the potential liability of the United States for
the acts and omissions of Dr. O'Hagan, we now turn to the contract
between his employer, Dr. O'Connell, and the government. That
agreement explicitly provided that the services rendered by Dr.
O'Connell would be rendered "in the capacity[of] an independent
contractor."11 Moreover, the contract provided that Dr. O'Connell
would be solely liable for any liability producing act or omission by
himself, his agents or employees. In a related provision, the contract
required Dr. O'Connell to maintain at least $1,000,000 of insurance
for liabilities incurred while performing the contract. J.A. at 52 (Ser-
vice Contract, Part I, ¶ 5). All employees of Dr. O'Connell were "se-
lected, hired and paid at the discretion of Leo. P. O'Connell," without
receiving any compensation directly from the Air Force. Finally, the
United States exercised no control over day-to-day activities related
to interpreting radiologic film. Id. at 48-49 (Belcher Aff.).
The only arguably significant element of control over Dr.
O'Connell came in the form of an oversight provision pursuant to
which the Air Force reserved the right to "evaluate both [the] quality
of professional and administrative services rendered, including, for
example, the professional judgements, [sic] diagnosis [sic] or specific
medical treatments." Id. at 52 (Service Contract, Part I, ¶ 5). Robb
cites this provision as evidence that the Air Force has reserved the
right to control the exercise of professional judgment of Drs.
O'Connell and O'Hagan thereby creating an employer-employee rela-
tionship. This interpretation is misguided for two reasons. First, the
_________________________________________________________________
11 While not dispositive of the matter, this provision demonstrates that
the parties did not believe an employer-employee relationship was cre-
ated by the contract. See Restatement (Second) of Agency § 220(2)(i)
(relevant to distinguishing between an employee and an independent
contractor is "whether or not the parties believe they are creating the
relation of master and servant"); see also Lilly, 876 F.2d at 859 (discuss-
ing the intent of the parties to create an independent contractor relation-
ship); Kramer v. United States, 843 F. Supp. 1066, 1072 (E.D. Va. 1994)
(discussing intent of the parties and the right of the government to
receive the benefit of its bargain in shifting the risk of loss from itself to
the doctor).
16
authority reserved to the Air Force is the right "to evaluate [the] qual-
ity of . . . services rendered," not the right to control the professional
decisions of the physicians. This provision, like the one contained in
the MOU with F.G.J. discussed above, is merely a quality assurance
clause not inconsistent with the conclusion that Dr. O'Connell is an
independent contractor. Second, the cited language must be viewed in
context. The passage isolated by Robb appears immediately following
the passage which provides that "the services rendered by the physi-
cian are rendered in the capacity [of] an independent contractor," and
immediately preceding the passage which states that"[t]he contractor
shall be solely liable for any liability producing act or omission, by
[sic] contractor, its agents, or employees, and expressly agrees to
indemnify the government against all liability or loss." Id.Robb next argues that evidence of control by the government may
be inferred from the provision of the service contract requiring Dr.
O'Connell "to return all films and examination[sic] to the MTF
[Medical Treatment Facility] where they will remain the property of,
and subject to the exclusive control of the U.S. Government." Id. at
53 (Service Contract, Part II, ¶ 7). Far from providing evidence of
control, this provision, if anything, supports the government's posi-
tion that Dr. O'Connell's practice is separate and distinct from the Air
Force.
Robb points out that the government was required to provide cer-
tain equipment and services for the performance of Dr. O'Connell's
duties under the contract, suggesting the existence of an employer-
employee relationship. The provisions of the contract cited by Robb
indicate that the government agreed to provide use of the radiology
department, office space and associated equipment, a variety of sup-
port personnel services, forms, and office supplies. Id. at 54 (Service
Contract, Part IV, ¶¶ 1-5)). Robb, however, fails to cite an earlier por-
tion of the contract which provides that Dr. O'Connell was required
to "furnish[ ] all labor, transportation, consultation, teaching report,
[sic] equipment, material, supplies, and supervision except as noted
in PART IV." Id. at 52 (Service Contract, Part I, ¶ 1). Read together,
this allocation of resources supports the government's position that
Dr. O'Connell and his staff were providing services as independent
contractors. The Air Force was required to make available a radiology
facility and some associated resources, but Dr. O'Connell agreed to
17
provide all other "equipment, material, and supplies" to perform his
services. See Restatement (Second) of Agency§ 220(2)(e). Further-
more, it is uncontroverted that, while the contract authorized Dr.
O'Connell's access to the Langley facility for film reading, this rarely
if ever happened. J.A. at 49 (Belcher Aff.).
Finally, Robb argues that the explicit reservation of the right of the
government to refer patients to civilian practitioners is evidence that
Dr.O'Connell was an employee of the government. Again, if relevant
at all, this factor appears to favor the government's position. Rather
than showing that the government controlled the professional judg-
ment of Dr. O'Connell, this provision is an example of an area in
which the government has withheld discretionary authority and, to
that extent, obviated the need for supervision.
We conclude that Dr. O'Hagan was acting as an independent con-
tractor while working for Dr. O'Connell under the service contract
with the Air Force. The contract explicitly identified Dr. O'Connell
as an independent contractor, Dr. O'Connell agreed to assume sole
liability for the acts and omissions of himself and his employees, and
Dr. O'Connell was required to buy liability insurance to cover the risk
he assumed. Dr. O'Connell selected and paid Dr. O'Hagan directly,
he was required to provide most of the necessary equipment for per-
forming under the contract, and almost none of the film reading
occurred at the Langley facility. As with Dr. Stroy, the combination
of these factors and the government's lack of control over Dr.
O'Hagan's daily medical judgments render him an independent con-
tractor.
IV.
Robb argues that, even if Drs. Stroy and O'Hagan are independent
contractors, the United States should be held liable for their alleged
negligence pursuant to Virginia's continuing treatment rule. The con-
tinuing treatment rule, under Virginia law, tolls the two-year statute
of limitations in certain malpractice actions. Under the rule, the stat-
ute of limitations begins to run, not at the time of the initial act of
malpractice, but rather at the termination of a substantially uninter-
rupted course of improper examination or treatment by the same phy-
sician for the same or a related illness or injury. See Grubbs v. Rawls,
18
235 Va. 607, 369 S.E.2d 683 (1988); Farley v. Goode, 219 Va. 969,
252 S.E.2d 594 (1979).
Robb's reliance on this doctrine is misplaced. There is no sugges-
tion in this case that Robb's claim was time barred. Rather, Robb is
attempting to attribute negligence to the active-duty personnel who
had no connection with the initial act of alleged negligence. More-
over, Robb has not appealed the district court's judgment finding no
negligence on the part of the active-duty personnel. The doctrine of
continuing treatment is simply not applicable to the facts of this case.12
V.
For the foregoing reasons, the order of the district court granting
the government's motion to dismiss for lack of subject matter juris-
diction is
AFFIRMED.
_________________________________________________________________
12 Robb alleges that "at no time did [he] know (or have any way of
knowing) whether a contractor or an active duty physician was assigned
to treat [him]." By this we take Robb to be arguing that the government
is equitably estopped from denying liability for the actions of F.G.J. In
light of the facts set forth elsewhere in this opinion and Robb's failure
to allege even a single act of affirmative misconduct on the part of the
government we reject this claim. See United States v. Agubata, 60 F.3d
1081, 1083 (4th Cir. 1995), cert. denied, ___ U.S. ___, 1995 WL 647999(U.S. Feb. 20, 1996); Kramer, 843 F. Supp. at 1072-73.
19