United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 7, 2005
August 17, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-50691
BRADLEY GUILE, Individually and
as representative of the Estate
of Emiko Guile and all her
wrongful death beneficiaries,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
---------------------------------------------------------------
BRADLEY GUILE, Individually and
as representative of the Estate
of Emiko Guile and all her
wrongful death beneficiaries,
Plaintiff-Appellant-Cross-Appellee,
versus
UNITED STATES OF AMERICA, ET AL,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee,
CRISTINA CRUZ, MD,
Defendant-Appellee-Cross-Appellant.
Appeals from the United States District Court
for the Western District of Texas
Before GARWOOD, SMITH and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff Bradley Guile (Guile) appeals the district court’s
dismissal of his claims against the United States under the Federal
Tort Claims Act (FTCA) and the court’s granting of defendant
Cristina Cruz’s motion for judgment as a matter of law regarding
liability for the death of Guile’s wife. We affirm.
Facts and Proceedings Below
Guile’s wife, Emiko Guile, was admitted on May 12, 1998 to an
inpatient psychiatric ward for military dependents and retirees at
William Beaumont Army Medical Center (Beaumont) in El Paso, Texas.
Beginning in 1991, Mrs. Guile had been seeing military doctors,
including neurologists, psychiatrists, and psychologists, at
various places that Guile was stationed because of problems
including depression, anxiety, and an involuntary head movement.
When she was admitted to Beaumont in May 1998, Mrs. Guile had been
found unconscious at home by her four-year-old daughter and her
husband after overdosing on her antidepressant medication. This
was Mrs. Guile’s second inpatient admission at Beaumont; she had
been admitted in February 1998 for a few days, apparently for
2
severe anxiety and because she had expressed concerns that she
would overdose on her medications.1
The United States Army had contracted with PHP Healthcare
Corporation (PHP) to provide psychiatric services for dependents
and retirees at Beaumont. The inpatient ward serving Mrs. Guile
was therefore operated by PHP within the Army’s Beaumont facility.
Mrs. Guile’s psychiatrist while she was admitted to the inpatient
ward was Dr. Cristina Cruz, a part-time independent contractor with
PHP. Dr. Cruz treated Mrs. Guile from May 13 until Tuesday, June
9, when she left for a few days’ vacation. From June 9 through
Friday, June 12, Dr. Cecilia DeVargas, another PHP contractor
psychiatrist, covered for Dr. Cruz in treating Mrs. Guile.
Beginning on the evening of June 12, Dr. Milton Anderson, an active
duty Army officer and psychiatrist, was the on-call physician
covering the inpatient ward for the weekend.2
On the morning of Sunday, July 14 Emiko Guile was found dead
in her room. She had hung herself from a door hinge of an armoire
in the room, using the belt from her bathrobe. Mrs. Guile was in
a double-occupancy room with a roommate, and two large armoires
were positioned between the two beds in the room. The armoires
1
Mrs. Guile had also been a patient since January 1998 of Dr. Frank
Giordano, PHP’s medical director, in the outpatient psychiatric clinic run by PHP
at Beaumont.
2
The Army and PHP had an arrangement by which Army and PHP psychiatrists
participated in a rotating on-call schedule for evenings and weekends. The on-
call physician covered both the PHP-run inpatient psychiatric ward and an
adjacent inpatient ward operated by the Army for active-duty military patients.
3
blocked the view from the room’s doorway of most of Mrs. Guile’s
bed. Although Mrs. Guile likely died soon after midnight, her body
was not discovered until about 9:20 the next morning. The nurse on
duty during the night, Adree Rojas, had spent much of her shift
asleep in a break room, without checking on Mrs. Guile. The mental
health technician, Mario Padilla, charged with checking on Mrs.
Guile every thirty minutes also did not do so, although he marked
her chart to indicate that he had. Padilla also heard a banging
noise from the direction of Mrs. Guile’s room soon after midnight,
but did not investigate.
On behalf of himself, his daughter, and his wife’s estate,
Guile sued the United States, Drs. Cruz and DeVargas, PHP, and some
of PHP’s nurses and technicians in the district court below. The
claims against the United States included claims based on premises
liability and negligent contractor supervision and a claim based on
negligence of Dr. Anderson. At the close of evidence, the court
granted a motion to dismiss the non-medical claims (referred to as
the “premises liability” claims). The court then instructed the
jury that the United States could not be liable if the jury found
that there was no doctor-patient relationship between Dr. Anderson
and Mrs. Guile, and the jury did in fact find that there was no
such doctor-patient relationship.
With regard to the non-government plaintiffs, the court
instructed the jury that PHP, Adree Rojas, Mario Padilla, and Mrs.
Guile herself were each negligent and a proximate cause of Emiko
4
Guile’s death as a matter of law. PHP had entered bankruptcy
proceedings by this time, and its insurance company was in
receivership. The plaintiff had dismissed its claims against the
other PHP nurses and technicians at the close of evidence. The
jury found that Dr. DeVargas was not liable for Mrs. Guile’s death,
but that Dr. Cruz and Bradley Guile were liable. The jury awarded
total damages of about $1.2 million, and attributed the liability
33% to PHP, 25% to Dr. Cruz, 20% to Mario Padilla, 15% to Adree
Rojas, 5% to Emiko Guile, and 2% to Bradley Guile.
Dr. Cruz renewed with the district court the motion for
judgment as a matter of law that she had made unsuccessfully at the
close of the plaintiff’s evidence and at the close of all evidence.
The court agreed that there was not “sufficient evidence for the
jury to find that Defendant Cruz’s allegedly negligent acts or
omissions were the proximate cause of Emiko Guile’s death,” and
granted Dr. Cruz’s motion for judgment as a matter of law. Dr.
Cruz’s motions for a new trial and for remittitur were denied as
moot. Guile appeals the grant of Cruz’s motion for judgment as a
matter of law and the dismissal of the non-medical claims against
the government.
Discussion
I. Standard of Review
As with other questions of law, we review a grant of judgment
as a matter of law de novo. Morante v. Am. Gen. Fin. Ctr., 157
5
F.3d 1006, 1009 (5th Cir. 1998). The jury’s verdict can be
overturned only if “there is no legally sufficient evidentiary
basis for a reasonable jury to find as the jury did.” Id. In
evaluating this evidentiary basis, we view the evidence and
inferences therefrom in the light most favorable to the party
opposing the motion. Delano-Pyle v. Victoria County, 302 F.3d 567,
572 (5th Cir. 2002). We review de novo the district court’s
granting of a motion to dismiss based on exceptions to the FTCA.
Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001).
II. Liability of Dr. Cruz
It has long been the law in Texas that a plaintiff in a
medical negligence case must “prove by a preponderance of the
evidence that the allegedly negligent act or omission was a
proximate cause of the harm alleged.” See, e.g., Archer v. Warren,
118 S.W.3d 779, 782 (Tex. App.–Amarillo 2003); Park Place Hosp. v.
Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Kramer v.
Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993); Bowles
v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949). For the alleged
negligence to be a proximate cause of the harm, the harm must have
been a foreseeable result of the negligence, and the negligence
must have been “a substantial factor in bringing about the harm,
and without which the harm would not have occurred.”3 Archer, 118
3
The inquiry is sometimes described as a “reasonable medical probability”
that the alleged negligence proximately caused the harm, but the ultimate
standard is the same. See Park Place, 909 S.W.2d at 511; Kramer, 858 S.W.2d at
6
S.W.3d at 782; Park Place, 909 S.W.2d at 511; Kramer, 858 S.W.2d at
400. Because medical treatment is beyond the reach of a
layperson’s knowledge and experience, expert evidence is required
to show both a breach of a standard of care and that the breach was
a proximate cause of the harm suffered. See Chambers v. Conaway,
883 S.W.2d 156, 158 (Tex. 1993); Bowles, 219 S.W.2d at 782–83. In
granting Dr. Cruz’s motion, the district court concluded that
Guile’s expert had not established that any negligence on the part
of Dr. Cruz was a proximate cause of Emiko Guile’s suicide.
A. Breach of the standard of care
Guile argues that the testimony of his expert, Dr. George
Meyer, did establish breaches of the relevant standard of care.
The breaches that Guile contends were established are: improper
drug dosing, lack of necessary suicide precautions, improper
handling of test results, failure to re-evaluate the treatment
plan, failure to transfer Mrs. Guile to another hospital, improper
discussion of discharge with Mrs. Guile, improper sending of Mrs.
Guile out on a pass, and failure to have the armoires removed from
Mrs. Guile’s room.4
In the case of some of these alleged breaches, there is no
evidence that Dr. Cruz committed the alleged act or omission,
400.
4
There were a few other breaches alleged at trial, but those listed here
are the ones Guile briefs on appeal. The district court correctly concluded that
there was insufficient evidence to find that Dr. Cruz committed any other
breaches that were a proximate cause of Mrs. Guile’s death.
7
whether or not such act or omission would constitute a breach of
the standard of care. For example, the expert’s reference to
discussion of discharge with Mrs. Guile involved acts of Dr.
DeVargas, not Dr. Cruz. All evidence showed that Dr. Cruz
continually re-evaluated and adjusted the treatment plan, including
seeking of second opinions. Dr. Cruz did read the results of the
testing she ordered, and discussed the results with the testing
psychologist. There was no evidence that Dr. Cruz had anything to
do with any subsequent unavailability of the test results. Mrs.
Guile’s charts showed that Dr. Cruz did increase the dosages of
medication over time, as Dr. Meyer testified was necessary to meet
the standard of care.
Furthermore, there was no evidence that Dr. Cruz knew about
the armoires in Mrs. Guile’s room. Dr. Cruz testified that she had
not been in Mrs. Guile’s room and did not know about the furniture,
and there was no evidence that she had been in the room. Guile
argues that there was sufficient circumstantial evidence for the
jury to infer that Dr. Cruz had seen the armoires or should have
seen them.5 Inferences drawn from circumstantial evidence must be
reasonable inferences, however. Seven-Up Co. v. Coca-Cola Co., 86
F.3d 1379, 1387 (5th Cir. 1996); Brock v. Merrell Dow Pharm., Inc.,
874 F.2d 307, 308 (5th Cir. 1989). An inference that Dr. Cruz
5
A nurse testified that it was “no big deal” for a doctor to go into a
patient’s room, but did not specifically recall having seen Dr. Cruz do so.
There was also testimony that the nurse’s station was close enough to Mrs.
Guile’s room that the furniture could be seen from there.
8
should have noticed the furniture in Mrs. Guile’s room because it
may have been possible to see the furniture from the nurse’s
station is not a reasonable inference in view of evidence that (1)
her practice was to see patients in her office, and (2) the
arrangement of patient rooms was not her responsibility (so that
there would be no reason for her to be looking at the patient rooms
while at the nurse’s station). Such an inference would be “mere
speculation and conjecture,” which is not sufficient to support a
jury verdict. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583–84
(5th Cir. 2002)(concluding that testimony showing ways in which it
was possible that an oil drilling operation contaminated an aquifer
was not sufficient to allow an inference that the operation
actually did so). Dr. Cruz can of course not be held liable for
these acts or omissions that she was not shown to have committed.
For most of the remaining alleged breaches, there was not
substantial evidence that these were actually breaches of the
relevant standard of care, where the standard of care is that of a
psychiatrist exercising ordinary care. Although Dr. Meyer
testified that he would have used higher dosages on Mrs. Guile’s
medications, he agreed that Dr. Cruz’s adjustment of the
medications met the standard of care. With regard to transferring
Mrs. Guile to another hospital, Dr. Meyer at one point said that
transfer to a facility having electroconvulsive therapy (ECT)
capability would be appropriate, but he later conceded that ECT was
9
not required to meet the standard of care and might be
inappropriate in some cases. Dr. Meyer’s statement that Mrs. Guile
should have been transferred to a safer facility was a reference to
the lassitude of Rojas and Padilla, which was not foreseeable to
Dr. Cruz. In the case of suicide precautions, Dr. Meyer at one
point asserts that Dr. Cruz did not properly maintain suicide
precautions, and at another point allows that the ongoing suicide
assessments of Mrs. Guile met the standard of care.
Guile argues that the district court was incorrect in
concluding that Dr. Meyer had retracted his statements asserting
that Dr. Cruz breached the standard of care. He argues that Dr.
Meyer instead created “contradictions” the resolution of which is
the province of the jury. We must remember, however, that evidence
sufficient to support a jury verdict must be substantial evidence.
Anthony, 284 F.3d at 583. An expert’s opinion must be supported to
provide substantial evidence; “we look to the basis of the expert’s
opinion, and not the bare opinion alone.” Archer, 118 S.W.3d at
782. “A claim cannot stand or fall on the mere ipse dixit of a
credentialed witness.” Id. (footnote omitted). Many of the
alleged breaches described above come from statements of Dr. Meyer
that are unsupported by any data (such as studies evaluating
treatment techniques), in addition to being later contradicted by
him, or to be nothing but his incorrect factual assumptions based
on examination of incomplete records. The contradictions coupled
10
with the lack of support for the statements take them out of the
realm of substantive evidence. In the context of admissibility of
expert testimony, this court has noted that “[i]f an opinion is
fundamentally unsupported, then it offers no expert assistance to
the jury.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.
1987).
B. Proximate cause
Even to the extent Guile could establish any breaches of the
standard of care, there can be no liability unless such breaches
are shown to be a proximate cause of Mrs. Guile’s death. For
example, Dr. Meyer did testify to a belief that Dr. Cruz breached
the standard of care when she allowed Mrs. Guile to go on a pass
with her family on May 28. This was arguably contradicted by his
later testimony acknowledging that Mrs. Guile’s passes appeared to
make her feel better, but even if we assume that the pass was a
breach of the standard of care, there can be no liability from this
breach because Dr. Meyer testified that the pass was not a cause of
Mrs. Guile’s death.
Similarly, there is no expert evidence establishing that any
of the alleged breaches by Dr. Cruz were a proximate cause of Mrs.
Guile’s suicide. Evidence of proximate cause must show that in the
absence of the alleged breach the harm would not have occurred, and
must state, describe or explain the connection between the breach
and the harm in sufficient detail to support the expert’s assertion
11
of proximate cause. See, e.g., Bottoms v. Smith, 923 S.W.2d 247,
251–52 (Tex. App.–Houston 1996) (holding that fact issue existed as
to proximate cause when expert opined that polyp would more likely
than not have been diagnosed if omitted test had been done, that
polyp diagnosed at that time would more likely than not have been
at cancer stage having an 88% or better survival rate, and that
delay in diagnosis resulted in a cancer stage having a 0% survival
rate).
Dr. Meyer’s statements regarding the causes of Emiko Guile’s
suicide do not provide a sufficient connection between any alleged
breaches of Dr. Cruz and Mrs. Guile’s death. There was no expert
testimony that any one or more alleged breaches of care by Dr. Cruz
caused Emiko Guile’s death. As noted in Guile’s brief, Dr. Meyer
stated generally that “in totality” all breaches by all the
multiple actors involved combined to cause Mrs. Guile’s suicide. 6
These unexplained, conclusory statements do not establish proximate
cause for any particular breach or combination of particular
breaches by Dr. Cruz, because they do not describe or state how any
particular asserted breach or breaches by Dr. Cruz related to the
6
Acts and omissions by other actors that were brought up during the trial
as potential causes include: Rojas’s sleeping during her shift; Padilla’s
failure to check on Mrs. Guile; an unidentified nurse or technician’s failure to
confiscate Mrs. Guile’s bathrobe belt; a June 9 meeting regarding discharge
planning that upset Mrs. Guile and her husband; Guile’s failure to take Mrs.
Guile out on her usual Saturday pass June 13 or to acknowledge their June 12
wedding anniversary; Guile’s June 13 argument with Mrs. Guile in which he
reiterated that he would not let her come home until she was well; Dr. Anderson’s
June 13 assignment to Mrs. Guile to prepare a time line of events in her life;
and placement by unidentified personnel of the armoires in Mrs. Guile’s room.
12
suicide and do not state that without Dr. Cruz’s alleged breach or
breaches the suicide would not have occurred. This is especially
so in that several asserted deficiencies which Dr. Meyer assumed
were attributable to Dr. Cruz were shown by uncontradicted evidence
either not to have occurred at all or not to have been attributable
to Dr. Cruz (and the others were essentially withdrawn by Dr.
Meyer).7 The same is true for Dr. Meyer’s generalized statements
that Mrs. Guile’s illness was treatable or that her suicide was
preventable. Dr. Meyer further testified that he could not
guarantee within a reasonable degree of medical probability that
Mrs. Guile would not have committed suicide on June 14, 1998 even
if she had received the care that he testified was appropriate.
Because Guile did not establish by expert testimony any
negligence on the part of Dr. Cruz that was a proximate cause of
Emiko Guile’s suicide, the district court was correct in granting
Dr. Cruz’s motion for judgment as a matter of law.
III. Dismissal of Claims Against United States
Guile argues that the district court erred in applying the
discretionary function exception to the FTCA to dismiss his non-
7
This was in contrast to several particular acts or omissions of others
than Dr. Cruz which Dr. Meyer individually identified as a cause of Mrs. Guile’s
death. For example, Dr. Meyer agreed that “regardless of everything that
occurred. . . Mrs. Guile would not have died but for Mario Padilla not doing his
job that night” and that “the nursing staff [having] allowed the belt on the
ward” was one of “[t]he three most important factors in Emiko Guile’s suicide,”
the other two being “Mrs. Guile’s failure to listen to the allied help” and “the
milieu . . . of PHP on II West . . . the environment of lisisity [explained as
“lassitude”].” Also, “. . . the last straw was her phone conversation with her
husband in which he said you’re not coming home until you are better.”
13
medical claims against the United States. The United States has
sovereign immunity from suit except as it waives this immunity by
consent. United States v. Sherwood, 61 S.Ct. 767, 769 (1941). One
example of such a waiver is the FTCA, which provides that the
United States may be sued “for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment.” 28 U.S.C. § 1346(b)(1).8
There are multiple exceptions to liability of the United
States under the FTCA, however, one of which is known as the
discretionary function exception. Liability under the FTCA does
not apply to claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28 U.S.C. §
8
28 U.S.C. § 1346(b) provides:
“(1) Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District Court for the
District of the Canal Zone and the District Court of the Virgin Islands,
shall have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January 1, 1945,
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the 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.
(2) No person convicted of a felony who is incarcerated while
awaiting sentencing or while serving a sentence may bring a civil action
against the United States or any agency, officer, or employee of the
Government, for mental or emotional injury suffered while in custody
without a prior showing of a physical injury.”
14
2680(a).9 The Supreme Court has described the purpose of the
discretionary function exception as being to protect policy-based
legislative and administrative decisions from “judicial ‘second-
guessing.’” United States v. Varig Airlines, 104 S.Ct. 2755, 2765
(1984); United States v. Gaubert, 111 S.Ct. 1267, 1273 (1991).
Guile argues that the United States failed to properly
supervise PHP, failed to provide safe premises, failed to protect
the safety of hospital patients, and failed to ensure that PHP had
the malpractice insurance required by its contract with the Army.10
Guile’s reasons for arguing that the discretionary function
exception does not apply to these claims appear to be that (1) when
the government retains safety oversight authority over a
contractor, enforcement of safety obligations is not a
discretionary function; (2) that medical judgments are not covered
9
28 U.S.C. § 2680 provides in relevant part:
“The provisions of this chapter and section 1346(b) of this title
shall not apply to—
(a) Any claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a statute
or regulation, whether or not such statute or regulation be valid,
or based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the
discretion involved be abused.
. . . .”
10
Guile does not appear to argue that the United States should be liable
for the breaches of PHP personnel, apart from liability for its own alleged
breaches. This vicarious liability would be barred by the independent contractor
exception to the FTCA. See Broussard v. United States, 989 F.2d 171, 175 (5th
Cir. 1993). A retained right of inspection does not defeat the independent
contractor exception unless the government actually supervises the contractor’s
day-to-day activities. See Williams v. United States, 50 F.3d 299, 306–07 (4th
Cir. 1995); Brooks v. A.R. & S. Enters., Inc., 622 F.2d 8, 12 (1st Cir. 1980).
15
by the discretionary functions exception; and (3) that the
government’s negligence in this case was too egregious to be rooted
in the policy considerations that the discretionary function
exception is intended to protect.
Guile cites a Ninth Circuit case holding the United States
liable for injuries to workers on a post office construction
project. Camozzi v. Roland/Miller & Hope Consulting Group, 866
F.2d 287 (9th Cir. 1989). The workers were injured falling through
uncovered openings in metal decking. Id. at 288. In its contract
with the construction contractor, the Postal Service specifically
required that metal deck openings be covered, and a contract with
a company hired to supervise construction required daily
inspections of 35 listed items, including “floor openings.” Id. at
288–89. The court held that the Postal Service’s negligence in not
discovering and remedying the uncovered openings was not a policy
choice warranting protection by the discretionary function
exception but rather “a failure to effectuate policy choices
already made and incorporated in the contracts.” Id. at 290.
Other courts have distinguished Camozzi and held that the
discretionary function exception did apply in cases where contracts
were less specific regarding the safety violations proscribed and
the mechanics of the inspection authority retained by the
government. See Clark v. United States, 805 F. Supp. 84, 88–89
(D.N.H. 1992); Moody v. United States, 753 F. Supp. 1042, 1055
16
(N.D.N.Y. 1990). The contract between the Army and PHP includes a
general requirement that “contractor personnel shall comply with
all safety procedures and practices associated with the facility,”
but has no specific safety requirements for patient rooms.
Moreover, the government “inspections” authorized by the contract
refer to inspections of services provided, not of facilities, and
are to be accomplished through review of medical records and
procedures. We do not believe that this contract language creates
a nondiscretionary duty on the part of the government to ensure the
safety of patient rooms in the PHP-operated inpatient ward.
Guile’s argument that governmental medical judgments are not
covered by the discretionary function exception is not applicable
to his claims against the government, since the claims do not
involve governmental medical judgments at all. Dr. Anderson is the
only government employee who could have applied any medical
judgment with respect to Emiko Guile, and Guile does not appeal the
jury’s finding that he incurred no liability because there was no
doctor-patient relationship. Guile’s argument that the
government’s negligence was too egregious to be protected by the
discretionary function exception appears to be in reference to the
government’s alleged failure to ensure that PHP had insurance.
There are cases denying application of the discretionary function
exception when extreme negligence was exhibited by government
employees, on the theory that such negligence could not be grounded
17
in any legitimate policy consideration. See Glickman v. United
States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985); Orlikow v. United
States, 682 F. Supp. 77, 82 (D.D.C. 1988) (both involving CIA drug
experiments on unwitting subjects). Even if we assume that hiring
an uninsured contractor constitutes this degree of negligence,
there was no evidence presented that PHP was uninsured, much less
that the government was aware of such a situation.
Guile’s claims against the United States largely involve
negligent supervision of PHP, with respect to either safety in
patient rooms or insurance coverage. Supervision of a contractor’s
work, including the degree of oversight to exercise, is inherently
a discretionary function. Kirchmann v. United States, 8 F.3d 1273,
1276–77 (8th Cir. 1993). Similarly, a decision to hire a
contractor and the choice of contractor are policy-based
discretionary decisions. Williams v. United States, 50 F.3d 299,
310 (4th Cir. 1995). To the extent that Guile claims that one or
more United States employees were involved in placement of the
armoires in Mrs. Guile’s room,11 this is also a discretionary
function involving balancing of considerations such as patient
safety, patient privacy, and patient convenience with regard to
storage space. There was no evidence presented of a statute,
11
The trial record does not reveal exactly how or when the armoires got
into Mrs. Guile’s room. There was testimony that PHP’s head nurse learned that
the units were available and expressed interest in obtaining them for the patient
rooms. The armoires, like all of the furniture on the ward, were owned by the
government, so it is possible that some government employee approved transfer of
the armoires to PHP’s use, or even helped to move or place them.
18
regulation or policy giving specific direction as to any of these
functions in a way that would make them non-discretionary.12 See
Gaubert, 111 S.Ct. at 1273 (act is non-discretionary if a “‘federal
statute, regulation or policy specifically prescribes a course of
action for an employee to follow’”).
Because the complained-of actions by the United States were
discretionary functions, the district court was correct to dismiss
Guile’s non-medical claims against the United States under the
discretionary function exception to the FTCA. The United States
therefore cannot be liable for torts that would otherwise apply in
Texas, and we do not reach Guile’s arguments regarding Texas
premises liability law.13
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.14
12
Guile points to a “Patient’s Bill of Rights” issued by Beaumont which
includes a patient’s right to care and treatment “in a safe environment.” This
vague statement does not sufficiently prescribe any particular course of action
that it would remove the government’s discretion in respect to the PHP contract.
13
Guile argues that “if the discretionary function exception does not
apply,” the United States would be liable under Texas “premises liability” law.
14
Dr. Cruz cross-appealed the district court’s failure to conditionally
rule on her alternative motion for new trial filed with her post-verdict motion
for judgment as a matter of law as required by FED. R. CIV. P. 50(C)(1),
requesting that, in the event we do not affirm the judgment of the district court
in her favor, we alternatively remand to the district court to rule on her motion
for new trial. As we affirm the district court’s judgment in favor of Dr. Cruz,
we dismiss her conditional cross-appeal as moot.
19