United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-51266
Summary Calendar
DAWN MCBEE, Individually and as Representative of the Estate
of Randy C. McBee, Jr., Deceased; RANDY C. MCBEE, SR.,
Individually and as Representative of the Estate of Randy
C. McBee, Jr., Deceased,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-1040
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Dawn McBee and Randy McBee, Sr., (the McBees) appeal from
the district court’s grant of summary judgment in favor of the
Government on their medical malpractice action arising under the
Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1346(b), 2671-80.
The McBees sued the Government after the death of their son for
the alleged negligence of Dr. Timothy Porea, who was an active
*
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that this opinion should not be published and is not precedent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.
No. 03-51266
-2-
member of the United States Navy at the time of their son’s
death. The McBees argue that the district court’s judgment
violates the holding in Starnes v. United States, 139 F.3d 540
(5th Cir. 1998), and that the “borrowed servant” doctrine
violates public policy.
The standard of review following the district court’s order
granting summary judgment is de novo. Melton v. Teachers Ins.
& Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir. 1997).
Summary judgment is proper if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c).
Under the FTCA, “the Government is liable for the
torts of its employees to the same extent as a private party
would be under like circumstances, according to state law.”
Starnes, 139 F.3d at 542; 28 U.S.C. §§ 2671-80. The Government
may also assert the same defenses available to private parties,
including the defense of the “borrowed servant.” Starnes,
139 F.3d at 542. Texas law recognizes the defense of the
“borrowed servant” where the employee of a general employer
becomes the borrowed servant of another. Id.
The district court did not err in finding the facts of the
instant case distinguishable from Starnes. The Memorandum of
No. 03-51266
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Understanding (MOU) in the instant case entered into between
Porea and the Baylor College of Medicine (Baylor), reflects that
Baylor exercised control over the medical treatment rendered
by Porea. The MOU reflects that Porea was directly supervised
by Baylor staff, not independent contractors. Cf. Starnes,
139 F.3d at 542-43. Moreover, the testimony in the record from
Rear Admiral Nancy Lescavage, the Commander of the Naval Medical
Education and Training Command; from Dr. Kenneth McClain, Porea’s
supervising doctor and Baylor employee; and from Porea himself,
establish that Baylor directly controlled the patient care
rendered by Porea. The McBees have not presented any evidence to
the contrary. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc).
Although the terms of the MOU do not expressly assign
liability to either party, the applicability of the FTCA does
not render the Government automatically liable. Compare Palmer
v. Flaggman, 93 F.3d 196, 197-99 (5th Cir. 1996), with Starnes,
139 F.3d at 542-43. Subsequent to this court’s holding in
Starnes, the Texas Supreme Court extended the “borrowed servant”
defense to physicians in St. Joseph Hosp. v. Wolff, 94 S.W.3d
513, 537-39, 542-43 (Tex. 2002). The MOU and summary judgment
evidence in the instant case establish that the district court
did not err in concluding that Porea was the “borrowed servant”
of Baylor for vicarious liability purposes. Accordingly, the
judgment of the district court is AFFIRMED.