John Mantiply v. United States ( 2015 )


Menu:
  •      Case: 14-31349      Document: 00513313975         Page: 1    Date Filed: 12/18/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    December 18, 2015
    No. 14-31349
    Lyle W. Cayce
    Clerk
    JOHN MANTIPLY, individually and on behalf of Casey Adam Mantiply;
    MELISSA SUE MANTIPLY, individually and on behalf of Casey Adam
    Mantiply,
    Plaintiffs - Appellees
    v.
    UNITED STATES OF AMERICA, Department of Veterans Affairs,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 1:10-CV-1855
    Before SMITH, WIENER, and GRAVES, Circuit Judges.
    JAMES E. GRAVES, JR., Circuit Judge:*
    John Mantiply and Melissa Sue Mantiply, individually and on behalf of
    their son, Casey Adam Mantiply (the “Plaintiffs”), sued the U.S. Department
    of Veterans Affairs (the “VA” or “Defendant”) under the Federal Tort Claims
    Act (“FTCA”), 
    28 U.S.C. § 1346
    (b). The district court determined that the
    operating surgeon was an employee of the Defendant for purposes of liability
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-31349    Document: 00513313975     Page: 2   Date Filed: 12/18/2015
    No. 14-31349
    and awarded damages and costs to the Plaintiffs. For the following reasons, we
    REVERSE and RENDER JUDGMENT in favor of the Defendant.
    FACTS AND PROCEDURAL HISTORY
    The Plaintiffs’ action seeks damages in connection with John Mantiply’s
    knee surgery. Dr. Joseph Hoffman performed the surgery at the Veterans
    Affairs Medical Center in Pineville, Louisiana (the “VAMC”). The issue before
    the district court was whether Dr. Hoffman qualified as an independent
    contractor or an employee for purposes of the FTCA.
    The   Defendant    contracted   with   CHG    Companies     (“CHG”)     for
    $459,409.60 per year for physician services, and CHG insured itself for any
    potential liability. The contract between the VA and CHG provides that the
    contractor will provide all professional liability insurance, services, lodging,
    transportation, and associated expenses (e.g. worker’s compensation, health
    examinations, income tax withholding and social security payments) for the
    contract period. The contract states that the parties agree that the contractor
    shall not be considered a VA employee for any purpose. The contract also states
    that the Defendant may evaluate the quality of professional and
    administrative services provided; but retains no control over the medical,
    professional aspects of services rendered (e.g., professional judgments,
    diagnosis for specific medical treatment).
    CHG engaged Dr. Hoffman on an independent contractor basis and
    assigned him to the VAMC. The contract between CHG and Dr. Hoffman states
    that Dr. Hoffman is an independent contractor and specifies that he is not an
    employee of CHG or any of its clients. Dr. Hoffman did not contract directly
    with the Defendant, and he did not personally agree to indemnify the
    Defendant for his acts or omissions. As compensation, Dr. Hoffman received a
    portion of the fee paid by the Defendant to CHG. CHG agreed to furnish Dr.
    Hoffman with medical malpractice insurance. The contract stated, however,
    2
    Case: 14-31349   Document: 00513313975     Page: 3   Date Filed: 12/18/2015
    No. 14-31349
    that CHG would not pay for social security, workers’ compensation,
    unemployment insurance, or health and accident insurance.
    The Defendant instructed Dr. Hoffman as to how many patients he
    would see each day, when he would perform surgeries, when he would perform
    clinic duties, and where he would perform surgeries and procedures. The
    Defendant also instructed Dr. Hoffman as to the type of information he was
    expected to obtain from patients and the extent to which he was required to
    explain risks, benefits, and procedures to patients. Additionally, Dr. Hoffman
    was not allowed to hire his own staff and assistants and was required to
    maintain certain computer capabilities to work within the hospital’s system.
    STANDARD OF REVIEW
    “We review de novo a district court's finding that an individual is an
    employee of the Government under the FTCA.” Creel v. United States, 
    598 F.3d 210
    , 213 (5th Cir. 2010).
    ANALYSIS
    “‘[T]he United States, as sovereign, is immune from suits save as it
    consents to be sued. . . . ’” Linkous v. United States, 
    142 F.3d 271
    , 275 (5th Cir.
    1998) (quoting United States v. Mitchell, 
    445 U.S. 535
    , 538, 
    100 S.Ct. 1349
    ,
    1351, 
    63 L.Ed.2d 607
     (1980); Broussard v. United States, 
    989 F.2d 171
    , 174
    (5th Cir. 1993)). Pursuant to the FTCA, “Congress has waived sovereign
    immunity and has granted consent for the government to be sued for acts
    committed by any ‘employee of the Government while acting within the scope
    of his office or employment.’” 
    Id.
     (quoting 
    28 U.S.C. § 1346
    (b)). “The FTCA,
    however, does not cover acts committed by independent contractors.” 
    Id. at 275
    .
    This court stated in Linkous that “[t]he critical factor in determining
    whether an individual is an employee of the government or an independent
    contractor is the power of the federal government to control the detailed
    3
    Case: 14-31349       Document: 00513313975         Page: 4    Date Filed: 12/18/2015
    No. 14-31349
    physical performance of the individual.” 
    142 F.3d at 275
    . The Restatement
    factors, utilized by the court when faced with a contract physician issue,
    include:
    (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 distinct
    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 business 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.
    Creel, 
    598 F.3d at 213-14
     (quoting RESTATEMENT (SECOND) OF AGENCY § 220
    (1958)). 1 These factors were also utilized by the court in other similar physician
    cases and in each case this court found that the contracted physician was not
    an employee of the government for purposes of the FTCA. See, e.g., Peacock v.
    United States, 
    597 F.3d 654
    , 659-60 (5th Cir. 2010) (cardiologist employed by
    a university which supplied his services to VA by contract was an independent
    contractor); Linkous, 
    142 F.3d at 271-78
     (obstetrician who contracted directly
    with Army hospital was an independent contractor); Broussard, 
    989 F.2d at
    1 In contract physician cases, this Circuit utilizes the Restatement factors and not
    those utilized in Community for Creative Non-Violence v. Reid, 
    490 U.S. 730
    , 
    109 S. Ct. 2166
    ,
    
    104 L. Ed. 2d 811
     (1989).
    4
    Case: 14-31349     Document: 00513313975      Page: 5   Date Filed: 12/18/2015
    No. 14-31349
    173 (emergency room physician employed by staffing company that supplied
    his services to an Army hospital was an independent contractor).
    Here, Dr. Hoffman was an independent contractor. The contracts
    between the Defendant and CHG and Dr. Hoffman and CHG refer to him as
    an independent contractor. These two agreements provide further evidence
    that there was no employer-employee relationship. Moreover, Dr. Hoffman was
    not on the government payroll as a federal employee. Rather, CHG paid his
    compensation and provided the government with proof of liability insurance.
    While it is true that the VAMC oversaw Dr. Hoffman’s hours and required that
    he tell patients about the risks and benefits of procedures, the Defendant’s
    actions do not rise to the level of “control” that would distinguish this case from
    similar cases. The control exercised by the VAMC was on an administrative
    level only and did not include Dr. Hoffman’s medical judgment. Dr. Hoffman
    was an orthopedic surgeon engaged in a distinct profession requiring a high
    degree of skill.
    Furthermore, our holding is in line with the holdings of other circuits.
    See Robb v. United States, 
    80 F.3d 884
    , 890 (4th Cir. 1996) (“The circuits have
    consistently held that physicians either in private practice or associated with
    an organization under contract to provide medical services to facilities
    operated by the federal government are independent contractors, and not
    employees of the government for FTCA purposes.”); Carrillo v. United States,
    
    5 F.3d 1302
    , 1304 (9th Cir. 1993) (“The circuit courts are unanimous in holding
    that a contract physician is not an employee of the government under the
    FTCA.”).
    CONCLUSION
    For the foregoing reasons, we REVERSE.
    5