ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

W. ROYAL FURGESON, District Judge

BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on January 4, 2005. The Magistrate Judge recommended that Defendant United States of America's Motion for Partial Summary Judgment be granted (Docket No. 33). Plaintiffs filed their objections to the Memorandum and Recommendation on January 14, 2005. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.

BACKGROUND

The evidence in the record shows that Roland Aylesworth underwent gastric by-pass surgery on August 13, 2002 at the South Texas Veteran's Health Care System, Audie Murphy Division ("the Veteran's Hospital"). The surgery was performed by staff surgeons Drs. Ranjit Pullarkat and John Metersky and surgical resident-physicians Drs. Carlos Godinez and Rajiv Vasan. Drs. Pullarkat and Metersky are employees of the University of Texas Health Science Center ("UTHSC").

Surgical resident Dr. Daniel Dearmond assisted in an emergency tracheotomy performed on August 16, 2002. Surgical resident Dr. Jozef Smit also provided Decedent Aylesworth postoperative care. At the time of Mr. Aylesworth's hospitalization, Drs. Godinez, Vasan, Dearmond, and Smit were resident-physicians being trained in general-surgery through the UTHSC. These doctors were assigned to work at the Veteran's Hospital as part of their residency program.

After undergoing the medical procedures in August 2002, Mr. Aylesworth experienced various complications and eventually died. Plaintiffs brought this medical malpractice action against the United States of America, Dr. Pullarkat, and Dr. Metersky pursuant to the Federal Tort Claims Act ("FTCA"). Plaintiffs argue that Drs. Pullarkat and Metersky were negligent in their medical treatment of Mr. Aylesworth. In addition, Plaintiffs contend that general surgery residents Drs. Godinez, Vasan, Dearmond, and Smit were negligent in their surgical and postoperative care of Mr. Aylesworth and that the United States is vicariously liable for their negligent actions. The United States moves for partial summary judgment as to its liability for the actions of the resident doctors Godinez, Vasan, Dearmond, and Smit. Magistrate Judge John Primomo reviewed the arguments made by the parties and recommended that Defendant United States of America's Motion for Partial Summary Judgment be granted.

STANDARD OF REVIEW

Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the non moving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.

ANALYSIS

After de novo due review of this issue, the Court agrees with Magistrate Judge Primomo's interpretation of the holding in St. Joseph Hospital and its application in this case. Magistrate Judge Primomo held that the central inquiry for determining whether a resident physician qualifies as a borrowed servant requires "ascertaining whether the borrowing employer directed the details of the resident physician's conduct when the alleged negligence occurred." The Texas Supreme Court acknowledged that the right to control remains the "supreme test" of whether the rule of vicarious liability applies, and the Court recognized it as a predominant justification for rendering a new employer vicariously liable for a borrowed employee's actions. In finding that a resident physician was a borrowed employee of the Central Texas Medical Foundation (the "Foundation"), the Court in St. Joseph Hospital focused on the Foundation's right to direct and control the details of the residents' treatment of patients. In particular, the St. Joseph Hospital Court emphasized that the contract terms placed upon the Foundation full responsibility for the resident training and supervision. The Program Contract between St. Joseph Hospital and the Foundation, for instance, stated that the Hospital would "not control the details of the medical tasks performed by the residents when they are assigned to [the Foundation] save through consultation between and the mutual consent of the Academic Chief of General Surgery at St. Joseph Hospital and [the Foundation's] Director of Surgical Education." Finally, the Court recognized that the Foundation's Director of Surgical Education served as the resident's attending physician and was responsible for overseeing and directing the details of that patient's treatment.

Guided by the holding in St. Joseph Hospital as well as recent decisions from the Western District of Texas concerning the UTHSC/Veteran's Hospital residency program, the Court finds that UTHSC possessed the right to direct and control the residents' treatment of patients. Contracts between UTHSC and the Veteran's Hospital placed responsibility upon UTHSC for resident training and supervision. For instance, the Responsibilities section of the Specs Work Statement between the parties states that UTHSC will "professionally direct the research, education, and training programs within the surgical subspecialties" and "professionally direct 100 percent all operative cases."

The parties agreed to adhere to the Veteran Health Administration Resident Supervision Handbook, which states that supervising pactitioners, such as attending physicians, "are responsible for the care provided to each patient." The term "resident" is defined as "an individual who is engaged in a graduate training program in medicine . . . and who participates in patient care under the direction and supervision of supervising practitioners." The Handbook calls upon attending physicians to monitor the quality of professional services delivered and instructs them to direct patient care and provide the appropriate type of supervision. According to the Handbook, "Ultimately, it is the decision of the supervising practitioner as to which activities the resident will be allowed to perform within the context of the assigned levels of responsibility."

Finally, the Memorandum of Affiliation Master Agreement between the Veteran's Hospital and UTHSC places responsibility upon UTHSC to supervise resident physicians. The Terms of Agreement states, "in coordination with VA staff, the faculty of the academic affiliate has primary responsibility for the assignment and supervision of students and/or residents in their academic program(s)." The contractual relationship between the parties clearly establishes that UTHSC maintained the right to direct and control the details of the residents' treatment of patients.

Second, Plaintiffs object to the Magistrate Judge's decision to assign the right of control to UTHSC despite evidence that the resident physician Defendants exercised independent judgment and did not consult supervisory staff physicians, as allegedly called for in the contract between UTHSC and the Veteran's Hospital. Plaintiffs contend that as military resident physicians, doctors Godinez, Vasan, DeArmond, and Smit committed negligent acts under the control of the United States as federal employees acting with in the course and scope of their military employment. Plaintiffs maintain that certification of these military residents as employees of the United States constitutes conclusive proof of these doctors' active military status and their contractual relationship with the United States.

The Court holds that the doctors' status as military residents does not import vicarious liability to the United States for negligent acts the residents committed while under the supervision of UTHSC. The Court concurs with the Magistrate Judge's holding on this matter — the ability to of the United States military to call resident doctors into active military service or to reassign them does not grant the U.S. the right of control over the residents' actions and work details that they perform while in the UTHSC residency program. In addition, contractual right of control and vicarious liability does not shift to the United States due to a resident's exercise of independent judgment in the course of treating a patient. None of the residents can be characterized as maintaining sole control over the means and methods of treating patients sufficient to characterize any of them independent contractors. The Western District of Texas has previously held and this Court again holds today that under the UTHSC/Veteran's Hospital residency program, UTHSC performed direct supervision and training of resident physicians.

Third, Plaintiffs seek to clarify that the United States' Motion for Partial Summary Judgment excludes the nursing staff and other non-physician employees of the Veteran's Administration Hospital that provided care and treatment to Decedent. The Court accepts this clarification. Defendant United States' Motion for Partial Summary Judgment conceded as much, stating, " This motion does not address the potential liability of the Government for negligence in the nursing care provided." Defendant United States further argued in its Motion, "The Government now moves for summary judgment on the applicability of [the borrowed servant] defense to this case to exonerate it as to any liability for claims of physician negligence by its surgical resident trainees."

Having considered Plaintiff's objections and having reviewed de novo the controlling law and the specific facts of this case, the Court concurs with the Magistrate Judge's conclusion.

CONCLUSION

Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED IN ITS ENTIRETY. The Court ORDERS that Defendant United States's Motion for Partial Summary Judgment (Docket No. 33) be GRANTED.