     Case: 14-31349      Document: 00513313975         Page: 1    Date Filed: 12/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                                                          December 18, 2015
                                      No. 14-31349
                                                                             Lyle W. Cayce
                                                                                  Clerk
JOHN MANTIPLY, individually and on behalf of Casey Adam Mantiply;
MELISSA SUE MANTIPLY, individually and on behalf of Casey Adam
Mantiply,

               Plaintiffs - Appellees

v.

UNITED STATES OF AMERICA, Department of Veterans Affairs,

               Defendant - Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-1855


Before SMITH, WIENER, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*
       John Mantiply and Melissa Sue Mantiply, individually and on behalf of
their son, Casey Adam Mantiply (the “Plaintiffs”), sued the U.S. Department
of Veterans Affairs (the “VA” or “Defendant”) under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1346(b). The district court determined that the
operating surgeon was an employee of the Defendant for purposes of liability



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-31349
and awarded damages and costs to the Plaintiffs. For the following reasons, we
REVERSE and RENDER JUDGMENT in favor of the Defendant.
                 FACTS AND PROCEDURAL HISTORY
      The Plaintiffs’ action seeks damages in connection with John Mantiply’s
knee surgery. Dr. Joseph Hoffman performed the surgery at the Veterans
Affairs Medical Center in Pineville, Louisiana (the “VAMC”). The issue before
the district court was whether Dr. Hoffman qualified as an independent
contractor or an employee for purposes of the FTCA.
      The   Defendant    contracted   with   CHG    Companies     (“CHG”)     for
$459,409.60 per year for physician services, and CHG insured itself for any
potential liability. The contract between the VA and CHG provides that the
contractor will provide all professional liability insurance, services, lodging,
transportation, and associated expenses (e.g. worker’s compensation, health
examinations, income tax withholding and social security payments) for the
contract period. The contract states that the parties agree that the contractor
shall not be considered a VA employee for any purpose. The contract also states
that the Defendant may evaluate the quality of professional and
administrative services provided; but retains no control over the medical,
professional aspects of services rendered (e.g., professional judgments,
diagnosis for specific medical treatment).
      CHG engaged Dr. Hoffman on an independent contractor basis and
assigned him to the VAMC. The contract between CHG and Dr. Hoffman states
that Dr. Hoffman is an independent contractor and specifies that he is not an
employee of CHG or any of its clients. Dr. Hoffman did not contract directly
with the Defendant, and he did not personally agree to indemnify the
Defendant for his acts or omissions. As compensation, Dr. Hoffman received a
portion of the fee paid by the Defendant to CHG. CHG agreed to furnish Dr.
Hoffman with medical malpractice insurance. The contract stated, however,
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                                  No. 14-31349
that CHG would not pay for social security, workers’ compensation,
unemployment insurance, or health and accident insurance.
        The Defendant instructed Dr. Hoffman as to how many patients he
would see each day, when he would perform surgeries, when he would perform
clinic duties, and where he would perform surgeries and procedures. The
Defendant also instructed Dr. Hoffman as to the type of information he was
expected to obtain from patients and the extent to which he was required to
explain risks, benefits, and procedures to patients. Additionally, Dr. Hoffman
was not allowed to hire his own staff and assistants and was required to
maintain certain computer capabilities to work within the hospital’s system.
                            STANDARD OF REVIEW
        “We review de novo a district court's finding that an individual is an
employee of the Government under the FTCA.” Creel v. United States, 598 F.3d
210, 213 (5th Cir. 2010).
                                   ANALYSIS
        “‘[T]he United States, as sovereign, is immune from suits save as it
consents to be sued. . . . ’” Linkous v. United States, 142 F.3d 271, 275 (5th Cir.
1998) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,
1351, 63 L.Ed.2d 607 (1980); Broussard v. United States, 989 F.2d 171, 174
(5th Cir. 1993)). Pursuant to the FTCA, “Congress has waived sovereign
immunity and has granted consent for the government to be sued for acts
committed by any ‘employee of the Government while acting within the scope
of his office or employment.’” Id. (quoting 28 U.S.C. § 1346(b)). “The FTCA,
however, does not cover acts committed by independent contractors.” Id. at
275.
        This court stated in Linkous that “[t]he critical factor in determining
whether an individual is an employee of the government or an independent
contractor is the power of the federal government to control the detailed
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                                      No. 14-31349
physical performance of the individual.” 142 F.3d at 275. The Restatement
factors, utilized by the court when faced with a contract physician issue,
include:
       (a) the extent of control which, by the agreement, the master may
       exercise over the details of the work;
       (b) whether or not the one employed is engaged in a distinct
       occupation or business;
       (c) the kind of occupation, with reference to whether, in the
       locality, the work is usually done under the direction of the
       employer or by a specialist without supervision;
       (d) the skill required in the particular occupation;
       (e) whether the employer or the workman supplies the
       instrumentalities, tools, and the place of work for the person doing
       the work;
       (f) the length of time for which the person is employed;
       (g) the method of payment, whether by the time or by the job;
       (h) whether or not the work is a part of the regular business of the
       employer;
       (i) whether or not the parties believe they are creating the relation
       of master and servant; and
       (j) whether the principal is or is not in business.

Creel, 598 F.3d at 213-14 (quoting RESTATEMENT (SECOND) OF AGENCY § 220
(1958)). 1 These factors were also utilized by the court in other similar physician
cases and in each case this court found that the contracted physician was not
an employee of the government for purposes of the FTCA. See, e.g., Peacock v.
United States, 597 F.3d 654, 659-60 (5th Cir. 2010) (cardiologist employed by
a university which supplied his services to VA by contract was an independent
contractor); Linkous, 142 F.3d at 271-78 (obstetrician who contracted directly
with Army hospital was an independent contractor); Broussard, 989 F.2d at




       1 In contract physician cases, this Circuit utilizes the Restatement factors and not
those utilized in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166,
104 L. Ed. 2d 811 (1989).
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                                  No. 14-31349
173 (emergency room physician employed by staffing company that supplied
his services to an Army hospital was an independent contractor).
      Here, Dr. Hoffman was an independent contractor. The contracts
between the Defendant and CHG and Dr. Hoffman and CHG refer to him as
an independent contractor. These two agreements provide further evidence
that there was no employer-employee relationship. Moreover, Dr. Hoffman was
not on the government payroll as a federal employee. Rather, CHG paid his
compensation and provided the government with proof of liability insurance.
While it is true that the VAMC oversaw Dr. Hoffman’s hours and required that
he tell patients about the risks and benefits of procedures, the Defendant’s
actions do not rise to the level of “control” that would distinguish this case from
similar cases. The control exercised by the VAMC was on an administrative
level only and did not include Dr. Hoffman’s medical judgment. Dr. Hoffman
was an orthopedic surgeon engaged in a distinct profession requiring a high
degree of skill.
      Furthermore, our holding is in line with the holdings of other circuits.
See Robb v. United States, 80 F.3d 884, 890 (4th Cir. 1996) (“The circuits have
consistently held that physicians either in private practice or associated with
an organization under contract to provide medical services to facilities
operated by the federal government are independent contractors, and not
employees of the government for FTCA purposes.”); Carrillo v. United States,
5 F.3d 1302, 1304 (9th Cir. 1993) (“The circuit courts are unanimous in holding
that a contract physician is not an employee of the government under the
FTCA.”).
                                CONCLUSION
      For the foregoing reasons, we REVERSE.




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