Opinion
No. SA-04-CA-0874-RF.
November 14, 2005
ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendant United States of America's Motion to Dismiss pursuant to Rule 12(b)(6), or in the alternative, Motion for Summary Judgment (Docket No. 23), filed August 15, 2005, Plaintiff's Response (Docket No. 24), filed August 23, 2005, and Defendant's Reply to Plaintiff's Response (Docket No. 26), filed August 30, 2005. Finding that the resolution of the dispute requires an analysis of the evidence submitted by both parties, the Court construes the government's motion as one for summary judgment.
The Court held a hearing on this motion on October 26, 2005. At the hearing, Plaintiff argued that the MOU attached to Defendant's Motion was not verified as being the MOU that was in effect at the time of the events in question. The Government assured the Court that the same MOU was in effect at that time and agreed to obtain and submit an affidavit from Colonel Theodore J. Parsons, M.D., Dean of the San Antonio Uniformed Services Health Consortium. That declaration was filed with this Court on November 4, 2005. Having carefully considered the motion, the arguments, and the summary judgment evidence presented by the parties, the Court is of the opinion that Defendant's Motion for Summary Judgment (Docket No. 23) should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This case a rises from the death of Oswald Sanchez . Mr. Sanchez was admitted to University Hospital in San Antonio for a planned surgery on December 7, 1999. Attending staff physician, Dr. Strodel, and Residents Dr. Fang and Dr. McNeil all attended to Mr. Sanchez during the relevant time period. Mr. Sanchez appeared to emerge from the December 7th surgery well, but later that evening and the next day his condition deteriorated. Mr. Sanchez underwent a second surgery on the evening of December 8, 1999. Following the second surgery, Mr. Sanchez's neurological status was unknown. On December 12, 1999 a neurologist diagnosed Mr. Sanchez as having a probable hypoxic brain injury from which he would not likely recover. Mr. Sanchez was placed in a long-term care facility where he eventually passed away on April 4, 2000.
Plaintiffs filed this medical malpractice action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 (b), and 2671-2680, on September 28, 2004. The medical residents involved in this case, Drs. Fang and McNeil, participated in a Residency Training Program arranged between the government and the University of Texas System (UTS) at University Hospital. Drs. Fang and McNeil were and are active duty members of the United States Air Force.
The Residency Training Program was governed by a General Agreement and Memorandum of Understanding (MOU) between the government and UT. The agreement sets forth that it is for the benefit of both parties and that "the trainees will be under the supervision of the facility officials of the supervising-institution, and will be subject to, and be required to abide by, all of the supervising-institution's rules and regulations." Furthermore, the MOU provided that the supervising-institution, here UT, agreed to assume various responsibilities such as: making facilities available for the trainees, coordinating the trainees' schedule so as to not conflict with other education programs, designating an official to be in charge of the trainees learning experience, providing classrooms, storage areas, locker space for the trainees, providing emergency medical and dental treatment, and arranging for parking permits. Paragraph 14 of the MOU states:
Def. MSJ (Docket No. 23), Ex. 1 at ¶ 5.
Id. at ¶ 13.
While assigned to UTS and performing services pursuant to this agreement, the military trainees remain employees of the United States performing duties within the course and scope of their federal employment. Consequently, the provision of the Federal Torts Claims Act (Title 28, U.S.C., Sections 1346(b), 2671-2680), including its defenses and immunities, will apply to allegations of negligence or wrongful acts or omissions by the military trainee committed while ac ting within the scope of his or her duties performed pursuant to this agreement.
Additionally, Paragraph 16 states:
In the event the employer-institution issued by a plaintiff seeking to hold it vicariously liable for negligent acts of its trainee while performing duties at the supervising institution, the employer-institution shall make all legal defenses including the terms of this agreement to defend the claim. However, neither the employer-institution nor the supervising-institution shall seek indemnification from any trainee. When the supervising-institution settles or pays any claims against it involving the trainee or other institution, the supervising-institution shall obtain as broad a release as possible from the plaintiff or claimant in order to provide the employer institution protection from further claims. Each institution agrees to notify the other when a claim is received and to cooperate to the fullest extent possible with the other institution in preparing for and conducting the defense of any malpractice claim involving trainees.
The MOU was in effect at the time of Mr. Oswald's treatment and covered Drs. Fang and McNeil's residency training.
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 nonmoving 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.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
After graduating from medical school, medical students a re eligible to further their training by participating in a graduate medical education program, commonly called a "residency program." A residency program allows the trainees to provide patient care while being supervised by more experienced doctors. Over the course of a residency program, residents take on increasing responsibility for patient care, but "even the most senior resident must be supervised." "Medical residency programs are accredited under the general authority of the Accreditation Council for Graduate Medical Education ("ACGME")." The sponsoring-institution (here UTS) "assumes the fin al responsibility for a program of graduate medical education" and "must assume responsibility for the educational quality of its sponsored program(s).""The FTCA provides a remedy for persons injured by an employee of the Government who was `acting within the course and 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.'" Mr. Sanchez's surgeries and treatment took place in Texas, therefore, Texas law applies. When the FTCA is applicable, "the United States's waiver of sovereign immunity is limited by the same defenses available to private citizens, including the `borrowed servant' doctrine relevant in the present case."
Palmer v. Flaggman, 93 F.3d 196, 199 (5th Cir. 1996) (quoting 28 U.S.C. § 1346(b), 2671 et seq. (1988)).
Id.
Whether an employee of one employer has become the "borrowed servant" of another employer "hinges on whether the other employer or its agents have the right to direct and control the employee with respect to the details of the particular work at issue." "If an employee of one becomes the borrowed employee of another, he is no longer considered an employee of the general employer for vicarious liability purposes." There are a number of factors to be considered in determining whether vicarious liability is appropriate, but "[p]aramount among those factors, however, is whether the person being held responsible can be said to have had a right to control the activities of the wrongdoer."
Wolff, 94 S.W.3d at 537.
Id. at 538 (citing See Starnes v. U.S., 139 F.3d 540, 542 (5th Cir. 1998) (applying Texas law) ("Respondent superior liability is assigned to the borrowing employer who had control over the act in question.").
Id. at 541.
Defendant argues that Drs. Fang and McNeil were borrowed servants of UTS, and therefore, the United States cannot be held liable for the alleged negligent acts of these doctors. Plaintiffs counter that the United States, in its Motion for Summary Judgment, did not conclusively establish as a matter of law that UTS had a right to control the details of the residents' work. Plaintiffs claim that Defendant's evidence merely shows that UTS had supervisory rights over the residents, which does not rise to the level of having the right to direct or control the employees and the details of their work. Plaintiffs also argue that there is no explicit language in the MOU giving UTS the right to control the de tails of the residents' work.
Defendant offers the affidavit of Lieutenant Colonel David L. Smith, M.D., who was the Program Director for this Residency Program before the University of Texas took over the role of Program Director. The same MOU was in effect both during Dr. Smith's tenure and during the events at issue in this lawsuit. Dr. Smith's affidavit explains how the UTS-WHMC Residency Program operates in practice. Dr. Smith testified that the language of the MOU requires the supervising-institution to provide all the supervision of the residents in their facility. Dr. Smith stated that this was also the case in practice — "the UTS staff physicians had exclusive supervision over the residents in the UTS facility. The Wilford Hall staff had no right to interfere in the instruction provided by the UTS staff while a resident was undergoing training at UTS, nor did they." Additionally, any patient seen by the resident is really the staff physician's patient. Residents have no authority to provide medical care without the supervision and approval of the staff physician, and it is the staff physician who bears the ultimate responsibility for the patient's care.
Def. Reply to Pl. Response to MSJ, Ex. 2, Aff. of Dr. Smith at p. 1.
Id. at p. 2.
Id.
Id.
Id.
Judge Rodriguez, an esteemed fellow judge in the Western District of Texas, addressed an almost identical situation involving the same MOU in Spriggs v. Sirinek. While the Court recognizes that the Spriggs case has no binding precedential value, this Court does find Judge Rodriguez's analysis to be sound. As Judge Rodriguez noted, although the MOU does not contain express language granting UTS the right to control the details of the residents' work, the inquiry does not end there. "An express grant of the right of control is only one factor in determining whether the supervising-institution actually obtained the right to control the de tails of the employee in question." The Texas Supreme Court in Wolff made it clear that the "borrowed servant" doctrine applies to doctors. In reaching this conclusion, the Wolff Court looked not only at the language of the contract, but also at the requirements of the residency program and at the actions of the supervising institution.
No. Civ. ASA03-CA-0922-XR, 2004 WL 2801126 (W.D. Tex. Dec. 7, 2004).
Spriggs, 2004 WL 2801126, at *4.
Wolff, 94 S.W.3d 513 (holding that "regardless of any evidence that [the doctor] was the general or regular employee of St. Joseph, he was acting as the borrowed employee of Foundation as a matter of law when he treated Wolff.").
See Wolff, 94 S.W.3d at 543.
Like the declarations presented in the Spriggs case, Dr. Smith's affidavit is not conclusive proof that Drs. Fang and McNeil's actions were controlled by UTS, but it does provide a backdrop for analyzing the residency program. The government's evidence, including Dr. Smith's affidavit, indicates that the Air Force had no direct supervisory control over the details of the residents' work. Plaintiffs argue that Dr. Smith interprets the contractual language of the MOU too broadly, and that UT was only granted "narrow general supervisory authority" over the military residents. Furthermore, Plaintiffs contend that Dr. Smith is "unqualified and lacking personal knowledge regarding whether, on the dates in question, UTS actually controlled the details of the relevant military residents on December 7-8, 1999." Plaintiffs' arguments are unpersuasive for a couple of reasons. First, the standard is not whether "UTS actually controlled the details" of Drs. Fang and McNeil's work, but instead whether UTS obtained the right to control the details of their work. Additionally, affidavits presented in support of a summary judgment motion must be "made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show that the affiant is competent to testify to the matters stated therein." Dr. Smith did testify as to the operation of the Residency Program based on personal knowledge. Although his term as Program Director ended on March 31, 1999, and Mr. Oswald's surgery was in December 1999, Plaintiffs offered no evidence that the standard operation of the Residency Program changed between April and December. Further, Plaintiffs do not assert that Dr. Smith testified as to any evidence that would be inadmissible nor do they assert he is incompetent to testify. Therefore, the Court finds Dr. Smith's affidavit to be competent summary judgment evidence.
Pl. Response to MSJ at ¶ 16.
Id. at ¶ 18.
Plaintiffs presented no evidence to contradict the government's assertions as to who has the right to direct the details of the residents' work. Plaintiffs simply assert that the government did not meet its burden of establishing the applicability of the "borrowed servant" doctrine as a matter of law. Plaintiffs also argue that Defendants could have submitted affidavits from people who they consider to be more convincing, such as the UTS staff surgeon or the December 7-9, 1999 on-call UTS supervisors, who would "have the requisite personal knowledge to discuss whether UTS controlled the details of the military residents' work on the dates in question." However, it is not up to the Plaintiffs to decide whose testimony Defendant can use to support its arguments.
Pl. Response to MSJ at ¶ 19.
The Air Force does not appear to play any role in the details of the residents' work. Instead, "[t]he government is a passive participant in the residency program, paying the residents' salaries and reaping the benefits of their training during the service period after their residencies." As discussed earlier in this order, the nature of a residency program in general tends to support the idea that the supervising-institution is responsible for the details of the residents' work. Because residents are not yet able to practice medicine on their own, they necessarily are supervised and under the control, even if not the micro-management, of the supervising staff physician. As the residents gain experience, they are given more and more independence, but until residency is over, the final decision rests with the supervising staff physician. Additionally, the MOU states that "the trainees will be under the supervision of the facility officials of the supervising-institution, and will be subject to, and be required to abide by, all of the supervising-institution's rules and regulations." Furthermore, UTS made facilities available to the trainees, coordinated their schedules, designated a person to be in charge of their education, made locker and storage space available, and provided emergency medical and dental treatment for the trainees. These factors taken together, including Plaintiffs lack of contradictory evidence, indicate that Drs. Fang and McNeil were the borrowed servants of UTS, and therefore, the government is not liable under the principles of respondent superior for any alleged acts of negligence by those doctors. As a result, Defendant's Motion for Summary Judgment is GRANTED.
Spriggs, 2004 WL 2801126, at *6.
Def. MSJ, Ex. 1 at ¶ 7.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements of each of his federal causes of action.ACCORDINGLY, IT IS ORDERED that Defendant's Motion for Summary Judgment (Docket No. 23) is GRANTED.
It is so ORDERED.