                                                                                    FILED
                                                                        United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                           Tenth Circuit

                                        TENTH CIRCUIT                         February 1, 2012

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
SHARON BETHEL, individually and as
Conservator and Guardian of DAVID
BETHEL, an incapacitated person,
                                                              No. 09-1219
                Plaintiff – Appellee,                (D.C. No. 1:05-CV-1336-RPM )
                                                               (D. Colo.)
v.

UNITED STATES OF AMERICA,

                Defendant – Appellant.



                                ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, HAWKINS, Senior Circuit Judge, and
O'BRIEN, Circuit Judge.†


       David Bethel (David)1 suffered severe brain damage while under anesthesia at the

Veterans Affairs Medical Center in Denver, Colorado (VAMC).2 His wife, Sharon


       *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       †
       Honorable Michael Daly Hawkins, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       1
        For clarity and ease of reference, we use the Bethels’ first names. No slight is
intended by our use of the familiar form.
       2
           Appendix A contains a listing of all acronyms used in this Order and Judgment.
Bethel (Sharon), brought suit under the Federal Tort Claims Act (FTCA) against the

United States and several doctors including Dr. Robin Slover, the lead anesthesiologist on

David’s case and an assistant professor of anesthesiology at the University of Colorado

School of Medicine (UCSM). The case was originally assigned to the Honorable Phillip

S. Figa. In resolving motions to dismiss, he concluded Slover was an employee of

UCSM, an independent contractor, not an employee of VAMC, and therefore the federal

government was not vicariously liable for her negligence under the FTCA. Subsequently,

Judge Figa died and the case was reassigned to the Honorable Richard P. Matsch. Judge

Matsch took a different course. He did not consider Slover to be a federal employee, but

nevertheless decided the federal government was liable for her negligence. After a bench

trial, he awarded damages in the amount of $10,710,700.

       The government argues that under the FTCA it cannot be held vicariously liable

for the negligence of someone other than its employee. It also claims Judge Matsch

failed to consider legitimate defenses and failed to apportion fault among all negligent

actors as required by Colorado law. We agree in part. Slover was not a federal employee

at the time of David’s injury so the government is not liable for her negligence. It was

also error not to apportion fault among all relevant actors as required by Colorado law.

However, we do not address the government’s claimed defenses as they are best

addressed in the first instance on remand.




                                               -2-
                              I.   FACTUAL BACKGROUND

       On September 10, 2003, David3 reported to the VAMC for surgery to repair an

anal fistula.4 The surgery was to be performed by Dr. Frank Chae, a general surgeon,

with the assistance of Dr. Joel Baumgartner, a first-year resident.5 Slover was the lead

anesthesiologist. Although employed by UCSM she was assigned to the VAMC pursuant

to a contract between those entities which required UCSM to provide “4.32 full-time . . .

anesthesiologists” to the VAMC. (Appellant’s Appx. at 86.) Assisting Slover was Dr.

Nicole McDermott, a first-year resident. The government admits McDermott was its

employee at the time of this incident.

       Prior to David’s surgery, McDermott examined David’s airway access, rating it a

Level II or III (on a scale of I to IV with IV being the most difficult).6 David was given

the option of a spinal anesthesia (which would only numb the area of his body where the

surgery was to be performed) but he chose to undergo general anesthesia. Once in the

operating room, McDermott, apparently in Slover’s presence, attached David to machines

which monitored his vital signs and placed an oxygen mask on his face. It is unclear

       3
           David, then age 40, weighed 275 pounds at 5’11” tall.
       4
        “An anal fistula is a small tunnel (tract) with an internal opening in the anal canal
and an external opening in the skin near the anus. It forms when an anal abscess that’s
drained (either on its own or via surgery) doesn’t heal completely.” See
http://www.mayoclinic.org/anal-fistula/
       5
        There is some indication in the limited record before us, see infra n.19, that Chae
was working at the VAMC under a contract with UCSM and Baumgartner was a UCSM
medical resident. Nevertheless, because they were not named as defendants in the
amended complaint, their employment status is irrelevant to our decision.
       6
         David was examined by a nurse practitioner the day before his surgery. She
rated his airway access a Level IV.

                                                -3-
what drugs were administered or by whom.7 Slover left the room to attend to another

patient, with the intent to proceed with the administration of the anesthesia when she

returned.8

       David became agitated, sat up and indicated he was having trouble breathing.

McDermott and Baumgartner restrained him while a nurse paged Slover. When Slover

returned, she performed a rapid sequence induction—simultaneously giving David the

paralytic drug Rocuronium and other drugs to render him unconscious. Slover and

McDermott then made several unsuccessful attempts to intubate David. Although no

alarms sounded, the operating room nurse announced she could not detect a pulse.

Slover, McDermott and Baumgartner immediately began resuscitation efforts and made

an emergency call for assistance. Dr. Lyle Kirson, the VAMC’s Chief Anesthesiologist,

was among the first to respond. Using a two-handed jaw thrust, Kirson established an

oral airway. David’s heart began beating.

       Dr. Chae arrived soon thereafter. After unsuccessfully seeking to establish an

airway with a guidewire and tracheal tube, Chae, with the assistance of an Ear, Nose and



       7
         He was allegedly given Midazolam (trade name Versed) for sedation, although at
least one expert opined that he received, in error, the paralytic drug Rocuronium (trade
name Zemuron) instead. Also, there is some indication in the record that David was
given Midazolam prior to being taken to the operating room and that Slover left while
David was being attached to the monitoring machines.
       8
         In a normal (or non-rapid) induction, the anesthesiologist renders the patient
unconscious by administering a drug. She then insures her ability to take over the
patient’s breathing. Once she is so satisfied the patient is given a paralytic drug to stop
his breathing. The anesthesiologist then intubates the patient so a machine can breathe
for him during the medical procedure.

                                                -4-
Throat surgeon, performed a tracheotomy. David’s vital signs improved and he was

taken to the intensive care unit. As a result of the lack of oxygen and cardiac arrest,

David suffered a hypoxic-ischemic brain injury. He was eventually released from the

hospital in January 2004 with severe brain damage. He continues to have cognitive

impairment and myoclonus;9 he is unable to care for himself.

       Normally a clinical record is made contemporaneously with the administration of

anesthesia, noting the medications and fluids given to the patient and recording the

patient’s vital signs at regular intervals. Due to the emergency in this case, a

contemporaneous record was not made. Slover and McDermott attempted to create a

record later that day by retrieving data stored in the machines that monitored David’s

vital signs during the operation. The data could not be retrieved because the machines

had been turned off. Slover, however, provided a written narrative report recounting the

events.

                         II.   PROCEDURAL BACKGROUND

       Sharon, individually and as David’s conservator and guardian, filed a medical

malpractice case against the United States and Drs. Baumgartner, Chae, McDermott and

Slover under the FTCA. Slover moved to dismiss for lack of subject matter jurisdiction

under Rule 12(b)(1) of the Federal Rules of Civil Procedure. She claimed she was an

employee of UCSM, not the federal government, at the time of David’s injury and

therefore she was entitled to dismissal because Sharon failed to comply with the notice of


       9
        “Myoclonus refers to sudden, brief, shocklike involuntary movements caused by
muscle contractions or relaxations.” See http://www.mayoclinic.org/myoclonus/

                                                -5-
claim provision of the Colorado Governmental Immunity Act (CGIA).10 See Colo. Rev.

Stat. § 24-10-109.

       The turning point in determining the critical issue, whether Slover was a federal

employee or an employee of UCSM, is whether the government had the power to control

the details of her work. Guided by the seven factors set forth in our case law to

determine whether a physician is a federal employee, see infra Section III(A), Judge Figa

concluded Slover was a UCSM employee and therefore the government was not liable for

her actions under the FTCA. He also determined that, because Slover was a UCSM

employee, Sharon’s failure to comply with the CGIA’s notice of claim provision

warranted dismissal of the claims against Slover.11 See Colo. Rev. Stat. § 24-10-109(a)

(“Compliance with the [notice of claim] provisions . . . shall be a jurisdictional

       10
         Sharon admits she failed to provide the UCSM’s Board of Regents or the
Colorado Attorney General with a written notice of claim prior to filing suit as required
by the CGIA. See Colo. Rev. Stat. § 24-10-109. It was a considered choice. She decided
not to pursue a claim against the UCSM, an entity of the State of Colorado, because any
recovery would have been limited to a maximum of $150,000, which she believed would
be wholly inadequate to compensate David for his injuries. See Colo. Rev. Stat. § 24-10-
114(1)(a).
       11
          Slover was sued in her individual capacity for medical negligence; neither
UCSM nor the State of Colorado was named as a defendant. The CGIA provides
immunity to public employees sued in tort for injuries arising out of “an act or omission
of such employee which occurred or is alleged in the complaint to have occurred during
the performance of his duties and within the scope of his employment, unless the act or
omission causing such injury was willful and wanton.” Colo. Rev. Stat. 24-10-118(1). It
also requires, as a jurisdictional prerequisite, that any person seeking to sue a public
employee, whether or not his actions are willful and wanton and whether or not he is
being sued in his personal capacity, comply with its notice of claim provision. See id. §
24-10-118(1)(a); see also Middleton v. Hartman, 45 P.3d 721, 730 (Colo. 2002) (“[T]he
plain language of the notice-of-claim provisions unambiguously requires notice in a suit
against a state employee in which the plaintiff seeks to hold the state employee personally
liable, as well as a suit where recovery is from the state.”).

                                                -6-
prerequisite to any action brought under the provisions of this article, and failure of

compliance shall forever bar any such action.”). The government subsequently

designated Slover as a non-party at fault pursuant to Colo. Rev. Stat. § 13-21-111.5,

alleging her malpractice caused David’s brain injury.

       With the court’s permission, Sharon amended her complaint, naming the United

States as the sole defendant and alleging the negligence of its employees, Kirson and

McDermott, caused David’s injuries. In the government’s answer to the amended

complaint, it admitted Kirson and McDermott were acting within the course and scope of

their federal employment at the time of the operation and it was responsible under the

FTCA for their conduct,12 but denied their actions were negligent or the cause of David’s

injury. It also claimed Kirson’s actions were reasonable under Colorado’s sudden

emergency doctrine, which states that an individual providing care in an emergency

situation cannot reasonably be held to the same standard of care as one who had time for

reflection, i.e., one in a non-emergency situation. See Young v. Clark, 814 P.2d 364, 365

(Colo. 1991). And, to the extent McDermott was negligent, the government claimed

Slover was liable for that negligence under the “captain of the ship” doctrine13 because



       12
          See 28 U.S.C. § 2679(d)(1) (“Upon certification by the Attorney General that
the defendant employee was acting within the scope of his office or employment at the
time of the incident out of which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district court shall be deemed an action
against the United States under the provisions of this title and all references thereto, and
the United States shall be substituted as the party defendant.”).
       13
         “The captain of the ship doctrine, which is grounded in respondeat superior
principles, imposes vicarious liability on a surgeon for the negligence of hospital
employees under his control and supervision during surgery.” Ochoa v. Vered, 212 P.3d

                                                -7-
Slover, as the attending anesthesiologist, was responsible for McDermott’s actions.

       After Judge Figa’s death on January 5, 2008, the case was reassigned to Judge

Matsch.14 In a pretrial conference he reopened the issue of the government’s vicarious

liability for Slover’s alleged negligence. After further briefing, he concluded the

government could be held vicariously liable for Slover’s conduct even though she was

not a government employee. He based his decision on several factors: (1) UCSM and the

VAMC shared “faculty and staff with joint appointments to staff to enable the [VAMC]

to function as a major teaching facility” (Appellant’s Appx. at 222); (2) Slover received

her work assignments at the VAMC from Kirson (who the government admitted was its

employee); (3) Slover, while working at the VAMC, supervised medical residents like

McDermott (also a government employee); and 4) Slover was part of the VAMC’s

Medical Staff and the Staff Bylaws expressly stated: “Practioners appointed to the

Medical Staff, while engaged in patient care activities . . . are covered under the [FTCA]

for purposes of civil liability.” (Appellant’s Appx. at 223 (quotations omitted).)

       A bench trial was held to determine liability. Despite the prior ruling holding the

government vicariously liable for Dr. Slover’s negligence at trial, the government

attempted to show Slover was negligent and her negligence was the sole cause of David’s



963, 966 (Colo. App. 2009). “[I]n a medical negligence case involving acts or omissions
during surgery, the jury should be instructed that a surgeon is vicariously liable for the
negligence of subordinate hospital employees from the time the surgeon assumes control
of the operating room until the surgeon concludes the procedure.” Id.
       14
         Hereafter, references to the court or the judge refer to Judge Matsch unless
otherwise stated.


                                               -8-
injuries.15 The court determined the government’s legal position was “not tenable.”

(Appellant’s Appx. at 243.) It also concluded it was not possible to apportion fault

among the various doctors treating David because

        there was a systemic failure to prepare or preserve contemporaneous
        medical records and a failure to make an adequate investigation to
        reconstruct what happened when memories were sufficiently fresh to be
        reasonably reliable. The record keeping in this case was far below the
        standard of care of a hospital providing general anesthesia services.

(Id.)

        Nevertheless, the judge concluded David’s symptoms on the operating table were

consistent with his having received the paralytic drug Rocuronium rather than Midazolam

prescribed by Slover before she left the room. This medication error, he decided, was the

precipitating cause of the chain of events that resulted in David’s brain injury. However,

it could not be determined whether McDermott put the wrong label on the syringe or

whether Slover or McDermott used the wrong syringe. The judge also determined there

was a treatment error in proceeding with a rapid sequence induction without an adequate

        15
         Prior to Judge Matsch’s ruling holding the government vicariously liable for
Slover’s alleged negligence, the government argued Slover’s negligence caused David’s
injury. Even after Judge Matsch’s ruling and in obvious disagreement with it, the
government continued to “admit” Slover “breached the standard of care required for
medical practitioners in the field of anesthesiology and that such conduct was the direct
and proximate cause of the injury to David Bethel.” (Appellant’s Appx. at 233.) It said
the following actions constituted a breach of the standard of care:
        1. Slover failed to adequately assess [David’s] condition after returning to the
operating room, and she proceeded with a rapid sequence induction without first ensuring
[his] airway could be secured safely.
       2. Slover failed to promptly seek additional medical assistance in intubating or
ventilating [David] when she should have been aware of the developing emergency.



                                               -9-
assessment of David’s condition. However, he concluded this error was not attributable

to Slover alone because she was not present when David showed symptoms of the

partially paralyzing effects of Rocuronium and McDermott failed to communicate that

information to her.

       The judge also relied on the expert opinion of Dr. Sheldon Deluty, a Board-

certified anesthesiologist, who said Kirson breached the standard of care by failing to

attempt ventilation with a laryngeal mask airway (LMA), a device inserted into a

patient’s pharynx to open his airway, as an alternative to intubation. While it was

“speculat[ive]” as to whether use of the LMA would have been successful, the judge

nevertheless believed that based on the published success rate, the use of an LMA may

have revived the flow of oxygenated blood to David’s brain much earlier and thereby

reduced the amount of damage. (Appellant’s Appx. at 246.) Ultimately, he concluded:

       The evidence is insufficient to apportion the injury to any one time or
       event. [David] did not have adequate oxygen in his blood or adequate
       circulation of his blood to his brain for a substantial amount of time as a
       result of negligent treatment by those responsible for his care at the
       []VAMC.

(Id. at 248.) He attributed all liability for David’s injury to the government.

       At the bench trial to determine damages, the parties stipulated to $300,000 in non-

economic damages, $155,200 in past lost wages and $287,504.53 in future wage loss.

While the Veterans Administration (VA) had provided and paid for all treatment and

services David had required since his injury, the judge determined the “VA model of

health care is not adequate for David,” because it primarily responds to his symptoms

rather than taking a proactive approach to his care. (Appellant’s Appx. at 251.) He

                                               - 10 -
concluded the government must fund a life care plan for David without requiring his

family to provide services. The amount necessary to pay for future medical care and

other health care expenses for the remainder of David’s life (an estimated 29 years) was

set at $12 million. While the total damages thus established were $12,742,704.00,

judgment was entered for $10,710,700 because Sharon’s FTCA notice of claim and its

supplement sought only that amount. See 28 U.S.C. § 2675(b).

                                  III.    DISCUSSION

       According to the government, the district court erred as a matter of law in

concluding it was liable for Slover’s negligence—vicarious liability for Slover’s

negligence cannot lie because she was an employee of UCSM, not the federal

government. It also contends there was no basis for imposing liability on it for David’s

brain injury because (1) Kirson acted reasonably in responding to the emergency created

by Slover’s negligence and (2) McDermott’s negligence, if any, was attributable to

Slover under the “captain of the ship” doctrine. Finally, it claims that even if there was

negligence on the part of Kirson or McDermott for which it could be held responsible, the

court failed, as Colorado law requires, to apportion liability among Kirson, McDermott

and Slover.

A. Government’s Liability for Slover’s Negligence

       Under the FTCA, the United States can be held liable for “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

                                               - 11 -
law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1) (emphasis

added). “The [FTCA] is a limited waiver of sovereign immunity, making the Federal

Government liable to the same extent as a private party for certain torts of federal

employees acting within the scope of their employment.” United States v. Orleans, 425

U.S. 807, 813 (1976). “This unequivocal waiver of immunity must be construed

narrowly and the limitations and conditions upon which the Government consents to be

sued must be strictly observed and exceptions thereto are not to be implied.” Miller v.

United States, 463 F.3d 1122, 1123 (10th Cir. 2006) (quotations omitted). “Although

‘employees’ of the government include officers and employees of federal agencies,

‘independent contractors’ are not ‘employees.’” Tsosie v. United States, 452 F.3d 1161,

1163 (10th Cir. 2006). Therefore, “[t]he FTCA does not authorize suits based on the acts

of independent contractors or their employees.” Curry v. United States, 97 F.3d 412, 414

(10th Cir. 1996) (citations omitted). Whether an individual is a government employee or

an independent contractor is a question of law reviewed de novo. Id. We review the

factual findings underlying the district court’s decision for clear error. Id.

       Whether an individual is a federal employee or an independent contractor for

purposes of the FTCA turns on “whether the federal government has the power to control

the detailed physical performance of the individual.” Duplan v. Harper, 188 F.3d 1195,

1200 (10th Cir. 1999); see also Orleans, 425 U.S. at 814. “The key inquiry . . . is whether

the Government supervises the day-to-day operations of the individual.” Lurch v. United

States, 719 F.2d 333, 337 (10th Cir. 1983). We consider:

       (1) the intent of the parties; (2) whether the United States controls only the

                                                - 12 -
       end result or may also control the manner and method of reaching the
       result; (3) whether the person uses his own equipment or that of the United
       States; (4) who provides liability insurance; (5) who pays social security
       tax; (6) whether federal regulations prohibit federal employees from
       performing such contracts; and (7) whether the individual has authority to
       subcontract to others.

Tsosie, 452 F.3d at 1163-64.

       Significantly, the district court never decided Slover was a federal government

employee, but nevertheless concluded the government was vicariously liable for her

conduct. That was error. The government can only be held liable under the FTCA for

the negligence of its employees. See 28 U.S.C. § 1346(b)(1); see also Orleans, 425 U.S.

at 813. Moreover, if the court actually or implicitly considered Slover a government

employee, it erred. Considering the seven factors set forth above, as well as our case law

(which the district court did not do), it is clear Slover was an employee of an independent

contractor, not the federal government.

       The intent of the VAMC and UCSM to establish an independent contractor

relationship is plain from their contract. It refers to UCSM as “Contractor” and to the

anesthesiologists rendering services under the contract as the “contractor’s employee[s].”

(Appellant’s Appx. at 86.) It also provides: “The parties agree that Contractor personnel

without formal VA appointments shall not be considered VA employees for any purpose

and shall be considered employees of the contractor.” (Id. at 90.) Additionally: “It is

expressly agreed and understood that this is a non-personal services contract . . . under

which the professional services rendered by the Contractor or its health-care providers

are rendered in its capacity as an independent contractor.” (Id. at 98 (emphasis added).)



                                               - 13 -
While the VAMC reserved the right to approve the assignment of personnel, UCSM, not

the VAMC, selected the personnel to perform its responsibilities under the contract.

       Turning to the second factor, the United States’ ability to control the manner and

method of Slover’s performance, the contract states: “The Government may evaluate the

quality of professional and administrative services provided but retains no control over

[the] professional aspects of the services rendered, including by example, the

Contractor’s or its health-care providers’ professional medical judgment, diagnosis, or

specific medical treatments.” (Id. at 99.) That provision weighs in favor of independent

contractor status. However, the government’s inability to control the medical judgment

of contract anesthesiologists flows not only from the contract but also the professional

ethical obligations of the doctors, which require they be given complete discretion in the

care of patients. Lilly v. Fieldstone, 876 F.2d 857, 858-59 (10th Cir. 1989). These

ethical obligations foreclose a strict control test in determining whether a physician is a

government employee. Id. at 859. Instead, we must “determine whether other evidence

manifests an intent to make the professional an employee subject to other forms of

control which are permissible.” Id. The express language of the contract identifying

UCSM as an independent contractor coupled with the lack of evidence manifesting an

intent to create an employee relationship tip the second factor in favor of independent

contractor status.

       With respect to the fourth and fifth factors, UCSM is required by the contract to

include the contract anesthesiologists in its workers’ compensation plan and to withhold

income and social security taxes from their pay. The contract also reads: “The Contractor

                                               - 14 -
and its health-care providers shall be liable for their liability-producing acts or omissions.

The Contractor shall maintain or require all health-care providers performing under this

contract to maintain . . . professional liability insurance . . . .” (Appellant’s Appx. at 98-

99.) These matters weigh heavily in favor of Slover being an employee of UCSM, an

independent contractor.

       The last two factors likewise point to independent contractor status. Sharon has

pointed to no regulations prohibiting federal employees from performing contracts like

this one and she conceded Slover could also subcontract to others.

       Only one factor weighs against independent contractor status—Slover does not use

her own equipment when rendering services under the contract but instead uses the

VAMC’s equipment. However, we have recognized: “When a physician shows up to

work in today’s world—either as an independent contractor or a full-fledged employee—

he no longer is likely to carry all relevant medical instruments in a black satchel. Instead,

it is expected that he will make full use of the hospital’s physical facilities during the

course of his service.” Tsosie, 452 F.3d at 1164. This factor, even if relevant, is not

determinative.

       Applying the seven-factor test leads to only one conclusion—Slover is the

employee of an independent contractor and not a federal government employee. Other

case law is consistent with our conclusion. See, e.g., Tsosie, 452 F.3d at 1164 (holding

emergency room doctor at government-owned hospital was an independent contractor

under the seven-factor test because (1) the doctor was working at the hospital pursuant to

a contract between the government and Medical Doctor Associates (MDA), (2) the

                                                 - 15 -
contract clearly said the services rendered by the doctors were to be rendered as

independent contractors and (3) MDA provided its doctors with liability insurance and

paid their social security taxes); Duplan, 188 F.3d at 1200 (concluding doctor at Air

Force clinic was not a government employee but rather the employee of Med-National

who contracted with the government to provide medical services at the clinic because (1)

the contract between Med-National and the government stated Med-National was

responsible for selecting, assigning, transferring, supervising and controlling the contract

doctors; (2) Med-National paid the doctor; and (3) the doctor was to obtain his own

liability insurance); Lurch, 719 F.2d at 338 (concluding neurosurgeon who performed

services at VA hospital pursuant to a contract between the hospital and the University of

New Mexico was an employee of an independent contractor where (1) University had

discretion to choose which physicians would fulfill its contractual obligations; (2) the

contract expressly said doctors providing services under the contract “shall not be

considered VA employees for any purpose,” and (3) the University provided the contract

doctors with workers’ compensation, insurance, and social security payments).

       The factors relied upon by the district court do not adequately support its contrary

conclusion. Kirson, a government employee, managed Slover’s work assignments and

Slover supervised government employees. But UCSM assigned Slover to the VAMC and

Kirson could not override Slover’s professional judgment. In any event, the fact that an

individual receives his work assignments from a government employee and supervises

government employees are not factors we have identified as relevant in determining

whether one is a government employee for purposes of the FTCA. As the government

                                               - 16 -
correctly argues, an independent contractor generally receives his work assignments from

the contracting party. Moreover, the supervision, assistance and support of VAMC staff,

as well as the training of medical residents and students, are services the government

expressly contracted for from UCMS.

       Slover was required by the contract between the VAMC and UCSM to be

credentialed and privileged according to VA policies. Such requirements, however, do

not defeat independent contractor status. See Lurch, 719 F.2d at 338 n.9 (“General

regulation of activities [does] not . . . avoid the independent contractor exemption from

FTCA liability.”). In Lurch, we concluded the following factors (similar to the facts

here) “amount[ed] to no more than pervasive regulation of [the doctor] by the VA

hospital”: the doctor (1) could not refuse to see a VA patient, (2) was required to be

present at all VA neurological clinics, (3) could be terminated by the VA hospital, and (4)

had to conform to the VA’s rules and regulations. Id. In Lilly, we rejected a physician’s

contention that he was a government employee because he was subject to the same rules,

regulations and hospital control as other military physicians: “Surely, being subject to [a]

hospital’s rules as a condition of staff privileges does not remotely make a private

physician an employee of that hospital.” 876 F.2d at 860.

       And, in Duplan, we overruled the district court’s reliance on the following facts as

grounds for concluding the physician was a government employee: the government (1)

had the power to conduct periodic quality reviews of his performance, (2) imposed

minimum standards for doctors hired to perform services under its contract with Med-

National with respect to education, licensing, work experience and general health, and (3)

                                               - 17 -
required the physician to abide by a dress code and to follow government-established

rules, policies and procedures in treating patients at the hospital. We reasoned:

       [T]he government’s ability to require that contract doctors meet minimum
       qualifications and to conduct reviews of the contract doctors’ performance
       amounts to nothing more than a standard quality assurance [provision] by
       which the government reserves the right to determine whether it is satisfied
       with the services it is purchasing under the contract.

       There was no evidence showing that the [hospital]’s regulations . . .
       diminished [the physician’s] control over the choices he made in fulfilling
       his duties . . . . Likewise, that [the physician] was subject to the
       government’s rules as a condition of working at the [hospital] does not
       indicate that he was an employee of the government.

188 F.3d at 1201 (citation and quotations omitted).

       The district court relied heavily on the VAMC’s Medical Staff Bylaws which

provide that practitioners appointed to the Medical Staff, while engaged in patient care

activities, are covered under the FTCA for purposes of civil liability. The government

contends this statement in the Bylaws refers only to formal appointments by the VA

under statute and it says Slover was not formally appointed to the VA. However, the

Bylaws define “Appointment” as “an appointment to the Medical Staff. It does not refer

to appointment as a Veterans Administration employee . . . . Both Veterans Health

Administration employees and contractors may receive appointments to the Medical

Staff.” (Appellee’s Supp. Appx. at 18 (emphasis added).) Slover was a member of the

Medical Staff. Nevertheless, the contract between the VAMC and UCSM provides: “The

parties agree that Contractor personnel without formal VA appointments shall not be

considered VA employees for any purpose and shall be considered employees of the

contractor.” (Appellant’s Appx. at 90 (emphasis added).) Here, although Slover was


                                              - 18 -
privileged and credentialed to work at the VAMC and a member of its Medical Staff, it

does not appear she was formally appointed to the VA because a “formal” appointment

apparently refers to a statutory appointment under 38 U.S.C. § 7401 and § 7405. Under

those statutes, the Secretary of Veteran Affairs is authorized to “employ” medical

personnel and refers to this employment as “appointments.”16

       But that is beside the point. The VAMC Bylaws cannot waive the federal

government’s sovereign immunity. See United States v. Murdock Mach. & Eng’g Co. of

Utah, 81 F.3d 922, 930-31 (10th Cir. 1996) (“The government consents to be sued only

when Congress unequivocally expresses its intention to waive the government’s

sovereign immunity in the statutory text . . . . Because waiver must be unequivocally

expressed by Congress, officers of the United States possess no power through their

actions to waive an immunity of the United States or to confer jurisdiction on a court.”)

(quotation marks and citations omitted).

       Slover was not a federal employee. The federal government cannot be held liable

for her negligence under the FTCA. The district court erred in concluding otherwise.

B. Sudden Emergency and “Captain of the Ship” Doctrines

       The government argues that to the extent the district court determined Kirson and


       16
          Several courts have held that those appointed under § 7405 are federal
employees, not independent contractors. See, e.g., Ezekiel v. Michel, 66 F.3d 894, 900
(7th Cir. 1995) (the “statutory scheme . . . clearly establishes that [the defendant] was a
federal employee rather than an independent contractor”); see also Carrillo v. United
States, 5 F.3d 1302, 1305 (9th Cir. 1993) (“Under the statute, appointed staff members . .
. are considered government “personnel” and in most cases they are paid by the
government.”). There is no indication the Secretary “appointed” Slover pursuant to
statute.

                                              - 19 -
McDermott were negligent, it erred as Kirson’s actions were reasonable under Colorado’s

Sudden Emergency Doctrine and any negligence on the part of McDermott was

attributable to Slover under the “captain of the ship” doctrine.17

       Sharon argues the Sudden Emergency Doctrine does not relieve a physician of

liability or lessen the standard of care. Rather, the fact a physician was responding to an

emergency is just one factor to be considered in determining whether he acted

reasonably. She says the district court concluded that a reasonably careful physician

would have used an LMA under the same or similar circumstances encountered by

Kirson. As to the “captain of the ship” doctrine, Sharon contends it applies to the

negligence of those under a surgeon’s supervision and control. She says no authority



       17
          As stated previously, the “captain of the ship” doctrine is based on respondeat
superior principles. See supra n.13. “The doctrine of respondeat superior provides that
an employer may be held vicariously liable for an employee’s torts when the act is
committed within the course and scope of employment.” Colo. Comp. Ins. Auth. v. Jones,
131 P.3d 1074, 1079-80 (Colo. App. 2005). “The additional liability of the employer,
however, does not shield the negligent employee from his own personal liability, nor
does it supplant his liability with that of his employer. It provides only an alternative,
and in some cases a more lucrative, source from which the injured party may recover his
damages.” Shannon v. City of Milwaukee, 289 N.W.2d 564, 568 (Wis. 1980); see also
Arnold ex rel. Valle v. Colo. State Hosp., Dept. of Insts., 910 P.2d 104, 107 (Colo. App.
1995) (“An employer’s liability for an employee’s negligence based upon respondeat
superior is only a secondary liability.”). Therefore, the fact Slover may be responsible
for McDermott’s negligence under the “captain of the ship” doctrine does not necessarily
relieve McDermott from her own negligence.

       There is an added wrinkle in this case. The government has admitted McDermott
was acting within the scope of her employment at the time of David’s injury. Therefore,
under the FTCA, the government has assumed responsibility for her negligence, if any.
See 28 U.S.C. § 2679(d)(1). Consequently, application of the “captain of the ship”
doctrine may not necessarily let the government off the hook. We leave resolution of
these issues to the district court on remand.

                                               - 20 -
exists for the proposition that an anesthesiologist may be held liable for the acts and

omissions of others in the operating room. Even assuming the doctrine could be applied

to an anesthesiologist, Sharon says it does not relieve the government of liability because

Kirson, a government employee, was undisputedly the anesthesiologist in charge.

       The district court did not specifically address the Sudden Emergency Doctrine.

And it refused to consider the “captain of the ship” doctrine after concluding the

government was vicariously liable for Slover’s negligence.18 Since we reverse on

vicarious liability and because the record on appeal is incomplete, these issues should be

addressed in the first instance on remand.19



       18
         Sharon says the government waived this argument by withdrawing it. But it is
clear from the record the only reason the government withdrew it as a defense was
because the district court directed it to do so based on its erroneous ruling that the
government could be held vicariously liable for Slover’s negligence.
       19
          The parties did not provide us with a complete trial transcript. The only trial
testimony provided is that of Dr. Sheldon Deluty, whose expert opinion the court relied
upon to conclude Kirson was negligent in failing to attempt ventilation with an LMA. In
addition to criticizing Kirson for failing to use an LMA, Deluty opined David’s behavior
on the operating room table was consistent with him having received Rocuronium rather
than Midazolam and it was McDermott’s responsibility to fill and properly label the
syringes. He also testified McDermott was responsible for fully informing Slover of
David’s behavior upon her return to the operating room and if she did not, McDermott
breached the standard of care. Deluty further testified that the standard of care in 2003
required the anesthesiologist to complete an anesthesia clinical record contemporaneous
with the administration of anesthesia. When a contemporaneous record cannot be made,
the anesthesiologist should complete it later by retrieving the data stored in the memory
of the machines monitoring the patient’s vital signs. In this case, Deluty testified it was
McDermott’s duty to ensure the data was retrieved from the machines before it was lost.
And McDermott could be found to have breached the standard of care even though she
was only a first-year resident. On cross-examination, however, Deluty admitted he did
not critique Slover’s actions because he was only asked to review Kirson and
McDermott’s conduct. He also conceded Slover had a duty to ask McDermott what had
transpired in her absence and had Slover not proceeded with a rapid sequence induction

                                               - 21 -
C. Apportionment of Fault

        The government complains that even if Slover was not solely negligent for

David’s injuries, the district court erred in not apportioning fault between Slover and the

government employees, McDermott and Kirson. It says the court’s determination that it

could not apportion fault due to faulty recordkeeping is not supported by the record

because there was a large amount of evidence and testimony concerning the incident that

was available to the court, including a five-page report prepared by the VAMC two

weeks after the incident and a peer review by a University of California professor of

anesthesiology six months after the accident. The government also argues that even if the

records kept during this emergency were imperfect, that did not excuse the district court

from apportioning fault as Colorado law requires.

        As part of its tort reform, “the Colorado legislature eliminated joint and several

liability wherein one tortfeasor might be liable in damages for the acts of another

tortfeasor, and adopted a several liability scheme, wherein a tortfeasor is responsible only

for the portion of the damages that he or she caused.” Slack v. Farmers Ins. Exch., 5 P.3d

280, 284 (Colo. 2000). In particular, Colo. Rev. Stat. § 13-21-111.5 states in relevant

part:

        (1) In an action brought as a result of a death or an injury to person or property, no
        defendant shall be liable for an amount greater than that represented by the
        degree or percentage of the negligence or fault attributable to such defendant that
        produced the claimed injury, death, damage, or loss . . . .



upon her return to the operating room, David “would not be in the condition that he’s in
today.” (Appellee’s Supp. Appx. at 245.)

                                                - 22 -
       (2) The jury shall return a special verdict, or, in the absence of a jury, the court
       shall make special findings determining the percentage of negligence or fault
       attributable to each of the parties and any persons not parties to the action . . . to
       whom some negligence or fault is found and determining the total amount of
       damages sustained by each claimant. The entry of judgment shall be made by the
       court based on the special findings, and no general verdict shall be returned by the
       jury.

(Emphasis added.)

       Clearly, the trier of fact is obliged to apportion fault. Here, the district court

suggested there was negligence on the part of Slover and/or McDermott and Kirson.

Nevertheless, because it believed the federal government was responsible for the

negligence of all three of these individuals, it did not apportion fault among them. As it

now stands, the federal government cannot be held liable for Slover’s negligence so fault

must be apportioned.

       While it may be extremely difficult to apportion fault in this case, it is not

impossible. The anesthesia clinical record was incomplete because the machine

recording David’s vital signs was turned off prior to obtaining its data, and the syringes

used to administer the various drugs to David were not saved or tested. But, as the court

concluded, none of these actions were intentional. And, as the government correctly

points out, Slover did complete a medical report of the incident on September 10 and 11,

2003; the VAMC performed an immediate investigation of the incident and prepared a

report of that investigation; and an independent review of the incident was conducted by

a Professor of Clinical Anesthesia at the University of California within seven months of

the incident. The court also had the assistance of several experts, as well as the testimony




                                                - 23 -
of the relevant actors.20

       Sharon agrees that if we conclude Slover is not a federal government employee

under the FTCA, the government is entitled to apportionment as a private defendant

under Colorado law. However, she says that in order for the district court to have

apportioned fault, the government was required to plead and prove not only that Slover

was at fault but also that her fault caused David’s injuries. Sharon claims the government

did not meet its burden. That is a matter for the district court on remand.

                                IV.     CONCLUSION

       The federal government is not liable for Slover’s actions. The district court’s

contrary judgment is reversed. On remand, it must apportion fault (if any) between

Slover and the federal government employees (Kirson and McDermott).

       REVERSED AND REMANDED. The government’s motion to file a

supplemental appendix is GRANTED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       20
           The district court noted the testimony was made several years after the incident
“when memories had already faded.” (Appellant’s Appx. at 243.) Unfortunately, that is
true in a great number of cases. While the passage of time can certainly complicate the
truth-seeking process, it does not excuse the duty of the trier of fact to apportion fault as
it is best able.

                                                - 24 -
                            APPENDIX A

      List of Acronyms Used Throughout the Order and Judgment

1. VAMC: Veterans Affairs Medical Center (VAMC)

2. FTCA: Federal Tort Claims Act

3. UCSM: University of Colorado School of Medicine

4. CGIA: Colorado Governmental Immunity Act

5. LMA: Laryngeal Mask Airway

6. VA: Veterans Administration

7. MDA: Medical Doctor Associates




                                    - 25 -
