UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 92-8442 Summary Calendar
HANSON J. BROUSSARD RHONDA J. BROUSSARD,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court For the Western District of Texas (W 91-CA-74) March 24, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Hanson and Rhonda Broussard sued the United States under the
Federal Tort Claims Act (FTCA),1 alleging that the death of their
son, Jermaine resulted from the negligent treatment that he
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 1 28 U.S.C. §§ 2671-2680. received at military hospital. The district court granted
partial summary judgment for the United States on the issue of
FTCA liability for the action of an independent contractor
physician. After a full trial on the remaining issues the
district court determined that Jermaine's injuries were so severe
that nothing could have been done for him that would have saved
his life, and granted judgment for the United States. The court
also held that the Broussards failed to prove that anyone other
than the independent contractor physician was negligent. Finding
no error that warrants reversal, we affirm.
I
FACTS AND PROCEEDINGS
On June 22, 1989, three year old Jermaine Broussard was with
his mother visiting friends at Fort Polk, Louisiana. When
Jermaine went to retrieve a toy from a neighbor's driveway, he
was run over by the neighbor's vehicle. The neighbor was a medic
who immediately started CPR when he found that Jermaine did not
have a pulse. Jermaine was transported by ambulance to an Army
hospital (the Hospital). Before Jermaine arrived at the
Hospital, his pulse was restored, lost, then restored again. He
had a pulse and was breathing on his own when he arrived at the
emergency room.
The ambulance was met at the Hospital by an emergency room
physician (the E.R. Physician). He ordered a series of tests for
Jermaine, but delayed some forty-five minutes before calling for
a pediatrician and general surgeon. The pediatrician arrived at
2 the Hospital twenty minutes after he was called. He diagnosed
Jermaine as suffering from a closed head injury and ordered
helicopter transport to another hospital that was better equipped
for neurological support. But before he could be transported,
Jermaine's condition worsened and he died.
Jermaine's cause of death was initially reported as closed
head trauma. An autopsy was performed six days later on June 28,
1989. The autopsy report, which was issued the next day,
revealed that Jermaine had suffered a torn thoracic aorta, and
reported the cause of death as severe closed-chest injuries. The
torn aorta had never been diagnosed by the Hospital emergency
room personnel.
After exhausting their administrative remedies, the
Broussards filed the instant suit on March 21, 1991, seventeen
months after Jermaine's death. The complaint alleged that his
death was caused by "various acts and omissions of negligence on
the part of defendant's agents, servants, and employees." The
United States was served on April 17, 1991 and filed its answer
on June 17, 1991.
On December 23, 1991, the United States moved for summary
judgment on the grounds that the Broussards apparently were
relying solely on the acts of the E.R. Physician in this
negligence action, but that he was an independent contractor, a
class of actors that is excepted from the FTCA's waiver of
sovereign immunity. This was the first time that the United
States expressly claimed that the E.R. Physician was an
3 independent contractor for whose actions the United States was
not liable. The original answer of the United States had only
obliquely suggested such a claim when it stated: "Defendant
denies any negligent act or omission on its part."
The United States supported its motion with a copy of the
contract between the government and Emergency Medical Services
Associates (EMSA). This contract provided that:
It is expressly agreed and understood that the professional services rendered by the contractor are rendered in its capacity as an independent contractor. The Government retains no control over the professional aspects of the services rendered by the Contractor, including by example Contractors medical judgement [sic], diagnosis or specific medical treatment. Contractor shall be solely liable for any liability producing acts or omissions by it or its employees or agents.
The contract also required EMSA to carry liability insurance of
not less than $1,000,000 per occurrence, and to indemnify the
United States against all claims caused or contributed to by EMSA
employees. The E.R. Physician was employed and paid by EMSA.
The United States had no role in hiring him or in his direct
supervision.
The district court granted partial summary judgment for the
United States in so far as any negligence of the E.R. Physician
was concerned, finding that he was an independent contractor.
The district court refused to grant total summary judgment,
however, concluding that a material fact issue existed whether
the negligence of any non-independent contractor personnel at the
Hospital may have caused Jermaine's death.
The case was tried to the court without a jury, and at the
4 conclusion of the trial the court rendered a judgment that the
Broussards "take nothing." In its Findings of Fact and
Conclusions of Law, the district court denied the Broussards'
motion to reconsider its previous grant of partial summary
judgment. The court also stated that it accepted the testimony
of a defense expert witness that "Jermaine Broussard's injuries
were so severe and extensive that nothing could have been done
for him that would have saved his life," and that the Broussards
"failed to prove by a preponderance of the evidence that anyone,
other than [the E.R. Physician], committed any act of negligence
in the care and treatment of Jermaine Broussard." The Broussards
timely appealed.
II
ANALYSIS
The Broussards assign four points of error in the instant
appeal: 1) The government is responsible for the E.R. Physician's
negligence; 2) the government is estopped from asserting the
independent contractor defense; 3) plaintiffs have established a
cause of action pursuant to Louisiana's Loss of Chance doctrine;
and 4) other Hospital personnel were negligent in their treatment
of Jermaine. We discuss these issues seriatim.
A. Independent Contractor Physician
"It is elementary that `[t]he United States, as sovereign,
is immune from suits save as it consents to be sued . . . and the
terms of its consent to be sued in any court define that court's
5 jurisdiction to entertain the suit.'"2 The United States has
statutorily consented to suits pursuant to the terms of the
Federal Tort Claims Act.3 This consent to be sued, though, does
not extend to the acts of independent contractors.4
The Supreme Court has noted that Congress left the courts
free to define the term "contractor."5 A critical factor in
identifying a contractor "is the power of the Federal Government
`to control the detailed physical performance of the
contractor.'"6
The Broussards characterize the Supreme Court's test for
independent contractor status as a "strict control" test, in
which control over the detailed physical performance is the sole
consideration. They argue that the district court should not
have relied on the strict control test: As physicians have an
ethical obligation of independence, they can never be subject to
such a degree of control; therefore, under such a restrictive
test they will almost always be found to be independent
2 United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). 3 28 U.S.C. §§ 2671-2680. 4 See 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973). 5 Logue, 412 U.S. at 528. 6 Orleans, 425 U.S. at 814 (quoting Logue, 412 U.S. at 528); see also, Logue, 412 U.S. at 527 ("[T]he distinction between the servant or agent relationship and that of independent contractor turn[s] on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract.")
6 contractors.
The Broussards do not state what the test for an independent
contractor physician should be, but they imply that it should be
some form of modified control test. They rely on one case each
from the Seventh and Tenth Circuits as suggesting the
appropriateness of such a test.7 But we do not read these cases
as supporting the establishment of any radically different test
for determining when professionals are independent contractors.
In Quilico v. Kaplan,8 the plaintiffs sought to establish
that the defendant physicians))who were temporary employees of
the Veterans Administration))were independent contractors rather
than employees who would be statutorily immune from personal
liability. In order to establish that the physicians were
independent contractors, the plaintiffs urged the court to follow
the strict control test to determine the physicians' status. The
Seventh Circuit acknowledged that under the strict control test,
the physicians would not be employees, but neither would any
other physician employed by the Veterans Administration
regardless of the permanency or terms of their employment.9 The
Quilico court found that such a result would conflict with
Congress's intent in statutorily providing immunity for
physicians employed both permanently and temporarily by the
7 Quilico v. Kaplan, 749 F.2d 480, 483-84 (7th Cir. 1984); Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983), cert. denied, 466 U.S. 927 (1984). 8 749 F.2d 480 (7th Cir. 1984). 9 Id. at 485.
7 Veterans Administration.10 The court consequently rejected the
strict control test for purposes of the determining the scope of
immunity for Veterans Administration physicians,11 and instead
relied on the relevant statutory definition of employees who were
to be immunized from liability.12
In Lurch v. United States,13 the Tenth Circuit questioned
the use of a strict control test in determining whether a
physician is an independent contractor.14 The plaintiff in Lurch
argued that the court should adopt a modified control test in
which the "areas of medical service that are susceptible to
supervision and control should be considered in determining if a
physician is a federal employee."15 The Lurch court found that
it need not decide that issue, however, because the contractual
arrangement and its application to the physician clearly
established that he was not in an employer-employee relationship
with the United States.16
10 Id. at 487. 11 Id. at 485. 12 Id. at 487. 13 719 F.2d 333 (10th Cir. 1983), cert. denied, 466 U.S. 927 (1984). 14 Id. at 337. 15 Id. at 337. 16 Id. at 337-38. The facts of this aspect of Lurch closely parallel those of the instant case. Although the doctor in Lurch worked in a Veterans Administration hospital, he was actually employed by a medical school which in turn contracted to provide physicians to the hospital. The contract between the medical school and the hospital specified that: 1) The medical
8 Apart from the fact that the Seventh and Tenth Circuits have
implicitly disapproved of a rigid control test for determining
when a given professional is a government employee, we are not
certain that such an inflexible test has ever been mandated by
the Supreme Court. As those two circuits (and the Broussards)
have noted, if such an absolute strict control test were
mandated, no professional who is required by a code of ethics to
exercise professional judgment could ever be considered an
employee of the United States for FTCA purposes.
We believe that a more significant observation is that, even
though control of the detailed physical performance of the actor
may be the most critical factor in identifying an employee, it is
not necessarily the only factor. "A critical element in
distinguishing an agency from a contractor is the power of the
Federal Government `to control the detailed physical performance
of the contractor.'"17 In seeking to distinguish between an
employee and an independent contractor, the Supreme Court in
Logue v. United States18 relied on § 2 of the Restatement
school had the discretion to choose the physicians to fulfill its obligations; 2) the parties stipulated that the physicians provided under the contract would not be considered VA employees for any purposes; and 3) the medical school assumed full responsibility for providing workmen's compensation, insurance and similar benefits for the physicians. Id. at 338.
17 Orleans, 425 U.S. at 814 (quoting Logue, 412 U.S. 521, 528) (emphasis added). 18 412 U.S. 521 (1973).
9 (Second) of Agency.19 That section defines an independent
contractor as "a person who contracts with another to do
something for him but who is not controlled by the other nor
subject to the other's right to control with respect to his
physical conduct in the performance of the undertaking."20 The
comments to this section expand on this definition: "Although for
brevity the definitions in this Section refer only to the control
or right to control the physical conduct of the servant, there
are many factors which are considered by the courts in defining
the relation."21
We find the present situation to be analogous to that in
Lurch: We need not define the outer limits of the test to
determine when a physician is an independent contractor because
"on the undisputed facts here, the contractual arrangement itself
and its application placed [the E.R. Physician] outside of the
parameters of an employer-employee relationship with the
Government."22 Unquestionably, the United States did not have a
traditional employer-employee relationship with him. He was
neither hired nor paid by the United States. Instead, the United
States had a contract with EMSA to provide the services of
physicians to staff the Hospital's emergency room. Under the
terms of this contract, EMSA assumed full liability for the acts
19 Id. at 527. 20 Restatement (Second) of Agency § 2. 21 Id. cmt. a. 22 Lurch, 719 F.2d at 337-38.
10 or omissions of its employees, agreed to indemnify the United
States against all claims caused or contributed to by its
employees, and agreed to carry liability insurance for its
employees. The United States was only obligated to pay a
contract price to EMSA; EMSA in turn was responsible for
compensating the physician or physicians whose services it
provided to the Hospital. Even though the contract did not
expressly obligate EMSA to control and supervise the physicians
whose services it supplied, the agreement did specify that EMSA
was to provide those professional services as an independent
contractor and that the United States would retain no control
over those professional services. Under any reasonable test for
distinguishing an employee from an independent contractor, EMSA
would be defined as an independent contractor of the government
and the E.R. Physician would be defined either as an employee of
EMSA or its independent contractor. Either way, he comes within
the independent contractor exception to the FTCA's waiver of
sovereign immunity so the United States cannot be held liable for
his negligence.
B. Estoppel
The Broussards next argue that the E.R. Physician's status
as an independent contractor is an affirmative defense, and that
the United States waived that affirmative defense when it did not
plead it until after the prescriptive period (statute of
limitations) for a negligence action against the doctor had run.
The government counters that under the FTCA independent
11 contractor status is not an affirmative defense but a fundamental
jurisdictional defect that may be asserted at any time. The
government further insists that even if it were theoretically
possible for the United States to be estopped from asserting the
E.R. Physician's independent contractor status, the present facts
would not support such an estoppel: The United States did not
engage in affirmative misconduct; and its failure to raise the
independent contractor issue earlier did not prejudice the
Broussards.
We again turn to the Supreme Court for guidance: "It is
elementary that `[t]he United States, as sovereign, is immune
from suits save as it consents to be sued . . . and the terms of
its consent to be sued in any court define that court's
jurisdiction to entertain the suit.'"23 The United States has
consented to suits pursuant to the terms of the Federal Tort
Claims Act, but this consent is limited by those terms.24 "Where
no such consent exists, a district court has no jurisdiction to
entertain a suit against the United States."25 "[T]he District
Court is vested with authority to inquire at any time whether
the[] conditions [to the exercise of its jurisdiction] have been
23 United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (emphasis added). 24 28 U.S.C. §§ 2671-2680; Orleans, 425 U.S. at 813. 25 Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1156 (5th Cir. Unit B, March 1981).
12 met."26
As the government asserts, even if we were to assume for the
sake of argument that the United States could be estopped from
asserting a person's independent contractor status, such an
estoppel would not lie in the instant case. At a minimum, the
government would have to engage in affirmative misconduct before
it could be estopped, and even then affirmative misconduct may
not be sufficient.27 The district court found that the
government did not engage in affirmative misconduct, and we
cannot state that this finding was clearly erroneous.
Additionally, the Broussards did not suffer any prejudice as
a result of the timing of the government's assertion of the
doctor's status. Jermaine died on June 22, 1989. The Broussards
did not file the present suit against the United States until
March 21, 1991, seventeen months after Jermaine's death. The
Broussards' suit against the United States was based on
negligence. The FTCA is subject to a two year statute of
limitations.28 The Broussards' suit was within this statute of
limitations, but they would not have the benefit of the FTCA's
comparatively generous statute of limitations if they had elected
to sue the E.R. Physician personally for negligence.
Under Louisiana law, "[d]elictual actions are subject to a
26 McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (emphasis added). 27 I.N.S. v. Miranda, 459 U.S. 14 (1982). 28 28 U.S.C. § 2401.
13 liberative prescription of one year. This prescription commences
to run from the day injury or damage is sustained."29
Consequently, any negligence action against the E.R. Physician
had prescribed long before the Broussards filed their suit
against the government. Even if the government had pleaded that
the doctor was an independent contractor the very day that the
Broussards filed their complaint, their negligence cause of
action against the E.R. Physician would have already been subject
to a valid exception of prescription.
We note didactically that, as a general rule, whenever the
United States has not waived its sovereign immunity, the district
court should dismiss the complaint for want of subject matter
jurisdiction rather than dismissing by granting a motion for
summary judgment.30 This would allow the plaintiff an
opportunity to amend his complaint so as to cure the
jurisdictional defect, assuming he is able to do so.31 The
district court here granted the government's motion for summary
judgment (which was grounded in the government's lack of consent
to be sued) to the extent that the Broussards sought to hold the
government liable for the negligence of the E.R. Physician, but
refused to grant summary judgment on the issue of any other
person's alleged negligence. Although the district court may
have mislabeled its disposition of this motion, no reversible
29 La. Civ. Code art. 3492. 30 Stanley, 639 F.2d at 1159. 31 Id. at 1159-60.
14 error was suffered as a result. The order neither disposed of
the Broussards' entire cause of action nor barred them from
amending their complaint (which in this case appears to have been
unnecessary).
C. Loss of Chance
The Louisiana Supreme Court has described that state's loss
of chance doctrine as follows:
The medical malpractice plaintiff does not have the unreasonable burden of proving that the patient would have lived if the defendant had not been negligent. However, the plaintiff does have the burden of establishing by a preponderance of the evidence that the defendant's conduct denied the patient a chance of survival.32
The Broussards complain that the district court erroneously found
that "nothing could have been done for [Jermaine] that would have
saved his life." In support of this argument, they cite the
opinions of their two expert physician witnesses that Jermaine
had a chance of survival if he had been properly diagnosed and
treated.
The determination of whether the defendant's conduct denied
the patient a chance of survival is a causation issue, and
"[c]ausation is a question of fact."33 "Findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to
32 Smith v. Louisiana, 523 So. 2d 815, 822 (La. 1988) (second emphasis added); Hastings v. Baton Rouge General Hosp., 498 So. 2d 713 (La. 1986). 33 Smith, 523 So. 2d at 822; see Urbach v. United States, 869 F.2d 829, 831 (5th Cir. 1989).
15 the opportunity of the trial court to judge the credibility of
the witnesses."34 Under the clearly erroneous standard, we may
not reverse the district court's findings of fact unless the
review of the relevant evidence leaves us with "the definite and
firm conviction that a mistake has been committed."35
In its findings of fact, the district court stated: "The
court accepts the testimony of Dr. William Dalsey that Jermaine
Broussard's injuries were so severe and so extensive that nothing
could have been done for him that would have saved his life."
The district court made no mention of the contrary opinions of
the Broussards' expert witnesses. Giving due regard for the
opportunity of the district court to judge the credibility of the
witnesses, we cannot say that the district court's finding on
this fact issue is clearly erroneous.
D. Other Hospital Personnel
The Broussards attack the district court's finding that they
"failed to prove by a preponderance of the evidence that anyone,
other than [the E.R. Physician], committed any act of negligence
in the care and treatment of Jermaine Broussard." Even if we
were convinced that someone other than that doctor was negligent
toward Jermaine, the Broussards cannot prevail in this negligence
suit. Negligent conduct that does not cause injury is not
34 Fed. R. Civ. P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). 35 United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
16 actionable.36 The district court found unerringly that Jermaine
would have died regardless of any course of treatment he might
have received. As the Broussards failed to establish
causation))an essential element of their cause of action))we need
not address the other elements of their negligence claim.
III
CONCLUSION
The United States is immune from suits except to the extant
it consents to be sued. The Federal Tort Claims Act is a
statutory waiver of that immunity, but it is a limited waiver.
One express statutory limitation is the independent contractor
exception. As the E.R. Physician was an independent contractor,
his conduct came within that exception to the FTCA's limited
waiver of sovereign immunity. Without the United States's
consent to be sued, the district court was without jurisdiction
to enter a judgment against it for the E.R. Physician's alleged
negligence. Accordingly, the district court properly refused to
consider that aspect of the Broussards' claim.
The district court did not clearly err in finding that
Jermaine would have died regardless of how competently he might
have been diagnosed and how promptly he might have treated. It
follows inescapably then that negligence on the part of that
physician or anyone else could not have caused the child's death.
As causation is an essential element of a negligence cause of
36 See La. Civ. Code. art. 2315; Sibley v. Board of Supervisors, 477 So. 2d 1094, 1099 (La. 1985).
17 action, and as the Broussards have failed to establish any
causation other than the fatal automobile injury, their
negligence claim too must fail. For the foregoing reasons, the
district court's judgment for the United States is
AFFIRMED.