UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50609
LARRY B. STARNES and LINDA STARNES, Individually and as
Representatives of the Estate of KIMBERLY STARNES, Deceased,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
May 5, 1998
Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
Larry and Linda Starnes appeal the decision of the district
court granting Defendant-Appellee United States of America summary
judgment. Finding error, we reverse and remand.
BACKGROUND
Larry and Linda Starnes are the natural parents and
representatives of the estate of their deceased daughter, Kimberly.
A few days before Christmas in 1992, Kimberly was hospitalized at
Santa Rosa Children’s Hospital (hereinafter “SRCH”) for care of
intestinal distress and dehydration. SRCH is a private hospital in
San Antonio, Texas. Robin Hardiman, M.D., was a Brooke Army
Medical Center resident on pediatric surgical rotation at SRCH.
Dr. Hardiman was on active duty in the United States Army at the
time and was on rotation at SRCH pursuant to a Military Training
Agreement (hereinafter “the Agreement”) between the United States
Army and SRCH. Under the Agreement, military residents were
assigned to SRCH to do a two to three month pediatric surgery
rotation. During her residency at SRCH, Dr. Hardiman’s salary was
paid by the government.
On December 22, 1992, Dr. Hardiman inserted a venous catheter
line which perforated Kimberly’s heart. Kimberly died on December
23, 1992. The Starnes allege that the negligent placement of the
subclavian line was a proximate cause of Kimberly’s death.
After filing an administrative claim, the Starnes filed suit
against the United States under the Federal Tort Claims Act (FTCA)
based upon the alleged negligence of Dr. Hardiman. The government
filed a motion to dismiss or, in the alternative, motion for
summary judgment, contending that the United States was not liable
because Dr. Hardiman was the “borrowed servant” of SRCH. The
district court granted the government’s motion for summary judgment
and dismissed the plaintiffs’ suit after concluding that Dr.
Hardiman was the borrowed servant of SRCH. The Starnes timely
filed a notice of appeal.
ANALYSIS
This court reviews a district court’s grant of summary
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judgment de novo. Stults v. Conoco, Inc., 76 F.3d 651 (5th Cir.
1996). The district court held that the borrowed servant doctrine
precluded the plaintiffs from succeeding on their FTCA action.
Under the FTCA, the United States 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. 28 U.S.C. § 2671, et seq.
Under the FTCA, the United States can assert the same defenses
available to private citizens, including the borrowed servant
defense. See Palmer v. Flaggman, 93 F.3d 196, 199 (5th Cir. 1996).
Under Texas law, the employee of a general employer may become
a borrowed servant of another. Respondeat superior liability is
assigned to the borrowing employer who had control over the act in
question. The right to control is the key to determining borrowed
servant status. Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766,
768 (Tex. 1977).
When a written contract between two employers expressly
provides that one or the other shall have the right of control,
solution of the question is relatively simple. Producers Chemical
Co. v. McKay, 366 S.W.2d 220 (Tex. 1963). But see Exxon Corp. v.
Perez, 842 S.W.2d 629, 630 (Tex. 1992)(a “contract between two
employers providing that one shall have the right of control over
certain employees is a factor to be considered, but it is not
controlling.”). In reaching its conclusion, the district court
relied upon Paragraph 7 of the Agreement which provides:
It is further understood and agreed that the military
residents while undergoing training at the training
institution will be under the immediate professional
supervision and control of the medical specialty teaching
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chief at the training institution or his/her authorized
designee. All professional services rendered to patients
of the training institution by military residents will be
properly monitored and supervised by training
institution’s staff personnel. (emphasis added).
The district court concluded that under the contract Dr. Hardiman
was the borrowed servant of SRCH.
The government maintains that Paragraph 7 of the Agreement is
dispositive regarding borrowed servant status. We disagree. The
Agreement provides that residents are under the professional
supervision and control of the medical specialty teaching chief,
not the hospital. If the parties to the Agreement wanted SRCH to
have exclusive control over the residents, they could have provided
such a provision in the Agreement. Instead, the Agreement states
that residents are under the administrative direction of other
physicians at the hospital. These physicians are independent
contractors with privileges at the hospital, and under Texas law,
hospitals are not liable for the negligence of physicians who are
independent contractors. See Drennan v. Community Health Inv.
Corp., 905 S.W.2d 811, 818 (Tex. App. -- Amarillo 1995, writ
denied).
The government argues that a recent Fifth Circuit decision,
Palmer v. Flaggman, 93 F.3d 196 (5th Cir. 1996), supports its
position that Dr. Hardiman was the borrowed servant of SRCH. The
issue in Palmer was whether a doctor had been acting within the
scope of his federal employment for the purposes of Westfall Act
immunity while completing a residency at a private hospital.
Although the government’s liability was not at issue in Palmer, the
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court noted that the agreement between the Air Force and the
hospital gave the hospital full control over the doctor during his
residency. Thus the court concluded that the doctor was the
borrowed servant of the hospital, and the government could not be
liable.
However, the agreement in Palmer gave exclusive control over
the military residents to the hospital. 93 F.3d at 198. Also the
hospital agreed to obtain liability insurance to satisfy any claims
brought against the resident. Id. The contract in Palmer was much
clearer regarding borrowed servant status.
In this case a number of factors leads the court to the
conclusion that Dr. Hardiman was not the borrowed servant of SRCH.
First, other portions of the Agreement indicate that the resident
is responsible for patient care, and that the United States is
liable for the negligence of the resident while she is undergoing
training. Paragraph 10 of the Agreement provides that the resident
is responsible for the “workup, evaluation, and management of
patients assigned to him/her by members of the Training Institution
staff.” Paragraph 3 of the Agreement provides:
Federal Tort Claims Act (28 U.S.C. § 2671, et seq.)
provides that the United States is liable for the
negligent and wrongful acts or omissions of United States
employees during the scope of their employment. The term
“United States employees” includes healthcare personnel
performing training covered by this agreement.
Paragraph 3 indicates that the United States is liable for the
negligence of residents during training covered in the Agreement.
In response to the motion for summary judgment, the Starnes
submitted evidence from physicians at SRCH indicating that the
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hospital does not supervise or control the medical treatment
provided to patients by staff physicians and military residents.
Dr. Richard Wayne, the Medical Director and Chief Executive Officer
at SRCH, attested that residents are under the administrative
direction of physicians who operate independently of the hospital,
and that SRCH does not direct or control patient care by residents.
Finally, Texas courts have yet to apply the borrowed servant
doctrine to physicians. In the medical malpractice context, the
borrowed servant doctrine in Texas has only been applied to nurses.
See Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex. 1977);
Elizondo v. Tavarez, 596 S.W.2d 667 (Tex. Civ. App. -- Corpus
Christi 1980, writ ref’d n.r.e.). Although Dr. Hardiman was a
resident, as opposed to an attending physician, the court is not
unmindful of the expansive duties of residents at a hospital.
The lack of an express provision indicating that SRCH had
control over Dr. Hardiman’s patient care, the provisions of the
Agreement which did indicate that the United States accepted
liability for the negligence of its employees undergoing training,
and the absence of Texas case law applying the borrowed servant
doctrine to physicians, lead the court to conclude that the
borrowed servant defense does not apply to absolve the government
of liability for Dr. Hardiman’s alleged negligence.
For the foregoing reasons, the judgment of the district court
is REVERSED and REMANDED for further proceedings.
REVERSED AND REMANDED.
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