Opinion
No. SA-03-CA-248-H.
October 28, 2004
ORDER REGARDING MOTION FOR SUMMARY JUDGMENT
Plaintiffs filed this civil action in the 73rd District Court of Bexar County, Texas, in January 2003. The original petition alleged that James Dorman, M.D., and Kenneth B. Walton, M.D., were negligent in connection with the diagnosis and treatment of the Plaintiffs' decedent, Earl K. Moore, and that their negligence was a proximate cause of the death of Mr. Moore. On March 28, 2003, the United States Attorney for the Western District of Texas, acting on behalf of Dr. Walton, filed a notice of removal, removing the case to this Court. On the same date, a notice of substitution was filed, representing that Dr. Walton was a government employee acting within the course and scope of his employment at the time he was involved in the treatment of Mr. Moore. On April 22, 2003, the substitution was approved by the Court and the United States of America was substituted as a Defendant in place of Dr. Walton. On September 3, 2004, Defendant United States of America filed a motion for summary judgment.
The Government has titled its motion "Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." Because the motion relies on matters outside the pleadings, however, it must be treated as a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure.
The following facts are established by the pleadings and the summary judgment evidence: Earl K. Moore underwent surgery to remove his gallbladder on January 23, 2001, at Audie L. Murphy Memorial Veterans Hospital ("ALM"). The physicians who performed that surgery were Dr. Kenneth B. Walton, a resident in general surgery at the University of Texas Health Science Center, San Antonio ("UTHSC") and Dr. James Dorman, a staff physician employed by UTHSC. The two surgeons made the decision to remove the gallbladder by means of a laproscopic procedure rather than an open cholecystectomy. During the surgery, Dr. Dorman and Dr. Walton discovered that the gallbladder was gangrenous. Post-surgery, Mr. Moore experienced various complications and ultimately died. His surviving widow and children have brought this action for wrongful death.
At the time of Mr. Moore's surgery in January 2001, Dr. Walton, UTHSC, and ALM were involved in a contractual relationship. Under this arrangement, UTHSC undertook to operate a residency program for physicians being trained in a particular specialty. The Residency Program actually involved three entities: UTHSC, University Hospital, and ALM. UTHSC provided the residents, while University Hospital was responsible for paying them and assigning them to a facility to complete their training. One such facility was ALM. Dr. Walton was one such resident, and he was assigned to the General Surgery Residency Program at ALM. The contract provided that UTHSC would direct one hundred percent of all operative cases. Accordingly, all residents were trained and supervised by staff physicians of the UTHSC, such as Dr. Dorman. These more experienced physicians held faculty appointments at UTHSC. Staff physicians were responsible for the care provided to patients and for the supervision of residents, and were held accountable for the actions of those residents. The staff physicians were not employees of ALM for any purpose. It was the responsibility of ALM to provide the Residency Program with patients and with patient care facilities, and it paid University Hospital for the time its residents spent caring for patients. The contract specifically afforded these residents the status of federal employees for purposes of professional liability coverage under the Federal Tort Claims Act ("FTCA").
Under the FTCA, the United States is liable in damages for harm caused by the negligence of its agents or employees only to the extent that a private person would be liable in accordance with the law of the place where the negligence occurred. 28 U.S.C. §§ 1346 (b) (1); 2674. The Government may therefore assert any defense which would be available to a private person, including the "borrowed servant" defense. Starnes v. United States, 139 F.3d 540, 542 (5th Cir. 1998). The "borrowed servant" defense arises when a general employer loans or supplies an employee to another employer, called the "special employer," who then assumes temporary responsibility for the conduct of that employee. Aguilar v. Wenglar Construction, Inc., 871 S.W.2d 829, 831 (Tex.App.-Corpus Christi 1994, no writ). In Texas the "borrowed servant" doctrine applies to physicians as well as to other categories of employees. St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 542-43 (Tex. 2002). The right to control the work of the employee is the key issue in determining "borrowed servant" status for purposes of respondeat superior liability. Starnes, 139 F.3d at 542; St. Joseph Hospital, 94 S.W.3d at 537; Dodd v. Twin City Fire Insurance Company, 545 S.W.2d 766, 768 (Tex. 1977). The most important factor to consider is which employer was controlling and directing the employee's work with respect to the transaction during which the injury occurred. Guerrero v. Harmon Tank Company, Inc., 55 S.W.3d 19, 25 (Tex.App. — Amarillc 2001, pet. denied). If there is a contract between the two employers specifying which one has the right of control over the employee, it may be dispositive of the issue in the absence of conflicting evidence concerning the right of control. St. Joseph Hospital, 94 S.W.3d at 544 n. 92; Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992).
In the instant case, based on the contract between ALM and UTHSC as well as other summary judgment evidence, it appears that UTHSC retained ultimate control over the actions of its residents while they were participating in the Residency Program. More specifically, it appears that Dr. Dorman, an employee of UTHSC, was supervising and controlling the work of Dr. Walton throughout the surgery and treatment of Mr. Moore. Respondeat superior liability rests with the party in control, UTHSC, and the Defendant United States of America is relieved of liability for the acts and omissions of Dr. Walton.
The Plaintiffs also argue that Dr. Walton was an "independent contractor" rather than a "borrowed servant," but this argument appears to be foreclosed by the holding in St. Joseph Hospital. In that case, the Supreme Court held that a resident in a very similar situation was not an "independent contractor" but a "borrowed servant." St. Joseph Hospital, 94 S.W.3d at 524, 542-43.
Although the Court finds that the Defendant United States of America is entitled to summary judgment in its favor on the basis of the "borrowed servant" defense, it is not necessary nor would it be proper to remand this case to state court. At the time of the initial removal, a colorable federal question existed, so removal was proper. Considerations of judicial economy, convenience, and fairness to litigants dictate that the federal forum retain the case and proceed to final judgment. Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 436 (1995); Garcia v. United States, 88 F.3d 318, 325 (5th Cir. 1996).
It is therefore ORDERED that the motion of Defendant United States of America for summary judgment in its favor be, and it is hereby, GRANTED.
It is further ORDERED that judgment be, and it is hereby, ENTERED in favor of Defendant United States of America, and that the Plaintiffs take nothing by their suit against this Defendant.