Patricia S. Abraham, as Personal Representative of the Estate of Raymond Zedan Abraham, Deceased v. United States

932 F.2d 900, 1991 U.S. App. LEXIS 10879, 1991 WL 77152
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 31, 1991
Docket90-3589
StatusPublished
Cited by11 cases

This text of 932 F.2d 900 (Patricia S. Abraham, as Personal Representative of the Estate of Raymond Zedan Abraham, Deceased v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patricia S. Abraham, as Personal Representative of the Estate of Raymond Zedan Abraham, Deceased v. United States, 932 F.2d 900, 1991 U.S. App. LEXIS 10879, 1991 WL 77152 (11th Cir. 1991).

Opinion

JOHN W. PECK, Senior Circuit Judge:

Plaintiff Patricia Abraham filed suit against the United States under the Federal Tort Claims Act alleging that two military physicians who were participating in surgical rotations at University Hospital of Jacksonville, a Florida civilian hospital, committed medical malpractice resulting in the death of her husband, Raymond Abraham. The United States moved for summary judgment, asserting that it could not be held liable for acts committed by its employees while they were not under its supervision or control. The district court granted defendant’s summary judgment motion and the plaintiff appeals. For the reasons that follow, WE REVERSE.

I. BACKGROUND

On October 28, 1988, twenty-eight year old Raymond Abraham was shot in the abdomen during a robbery at the grocery store he owned and operated. He was taken to University Hospital of Jacksonville, 1 the area’s principal trauma center at about 9:30 p.m. Dr. Chen, a surgical resident, took Abraham’s history and performed a peritoneal lavage, which revealed blood in the abdomen, requiring surgery. The surgery was performed shortly before midnight by a trauma team consisting of three physicians: Dr. Frykberg, Chief of General Surgery at University and Abraham’s attending physician; Dr. Wilcox, Chief Resident of General Surgery; and Dr. Bolar, an active duty Army physician assigned to a trauma surgery rotation at University Hospital as part of his residency *902 training. Dr. Bolar wrote the orders for post-operative care.

At 2:00 a.m., Abraham was transferred to the Surgical Intensive Care Unit (SICU). Dr. Leoni, an active duty Navy physician who was assigned to a rotation in SICU as part of his residency training, was on duty in SICU at that time. Dr. Bolar’s post-operative instructions for Dr. Leoni indicated that Abraham should be monitored closely because of the potential for bleeding. At 3:15 a.m., Abraham’s blood pressure dropped and his heart rate increased. After Dr. Leoni unsuccessfully tried to catheterize the patient, assistance was requested and Dr. Chen arrived. Dr. Chen contacted Dr. Bolar by telephone. Bolar instructed Chen to abandon the catheter attempts and instead to maintain intravenous fluids. Dr. Chen left the SICU between 4 and 5 a.m. At 7:30 a.m., Dr. Leoni again requested assistance and Dr. Wilcox responded. Wilcox performed an open heart cardiac massage on Abraham. However, at 8:15 a.m., Abraham was pronounced dead from a massive heart attack induced by prolonged internal bleeding.

II. DISCUSSION

Plaintiff alleges that Drs. Bolar and Leo-ni were negligent in the care provided to her husband and that this was the cause of his death. Under 10 U.S.C. § 1089, plaintiff is prohibited from suing the physicians personally if she has a remedy under the Federal Tort Claims Act (FTCA). The FTCA provides that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances....

28 U.S.C.A. § 2674.

The jurisdictional provision, 28 U.S.C. § 1346, clarifies the application of this provision in employee negligence actions. Section 1346 states that the United States may be sued for the negligent acts or omissions of its employees resulting in personal injury or death “if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Therefore, the issue here is whether a private employer would be liable under Florida law for the physicians’ alleged negligence.

The Florida Supreme Court states the principles of employer liability very broadly:

An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer.

Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 549 (Fla.1981) (emphasis in original).

It is undisputed that the physicians were acting within the scope of their employment. Consequently, under Florida law, the government would ordinarily be liable if the physicians were negligent. However, the government argues, and the district court held, that the government was relieved of liability in this case because the military doctors were the “borrowed servants” of the hospital.

We disagree. The Florida Supreme Court has stated that an employer may be relieved of its respondeat superior liability through the borrowed servant doctrine only if another employer assumes complete control of the servant. In Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936), the supreme court rejected a defendant-employer’s argument that it was not responsible for its employee’s negligence because the employee had been loaned to a third party. The court stated:

It is competent for a principal to loan or farm out his servant to a third party, and if such third party has complete dominion over the servant, and directs his conduct at all times, he will be held responsible for his derelictions even though the principal is paying his salary; but this rule *903 does not hold good if the principal in any way withholds control over him.

Id. 167 So. at 360.

Similarly, in Parmerter v. Osteopathic General Hospital, 196 So.2d 505 (Fla.App.1967), the Court of Appeal of Florida, Third District, held that a hospital was not relieved of liability for the negligence of an intern although the hospital asserted that at the time of the alleged negligent act the intern was acting at the directions of a private physician. The court stated that the employer had not met its burden of showing that the employee was not, as a matter of law, acting as the hospital’s agent at the time of the alleged negligence. Likewise, the Restatement of Agency, cited with approval in the Parmerter case, states that when a servant is loaned to another, “there is an inference that he remains in his general employment, so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.” Restatement (Second) of Agency § 227 and comment b (1958).

On the record before this court, it is clear that a material question of fact remains for trial. There is evidence that Dr. Bolar and Dr. Leoni exercised a great deal of autonomy in their work at University Hospital, both generally and with respect to the care of Abraham. Dr. Bolar wrote Abraham’s post-operative orders.

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932 F.2d 900, 1991 U.S. App. LEXIS 10879, 1991 WL 77152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patricia-s-abraham-as-personal-representative-of-the-estate-of-raymond-ca11-1991.