                         _________________________

                         Nos. 93-3074SD, 93-3219SD
                         _________________________


William Knowles and Jane            *
Knowles, on behalf of               *
themselves and as guardians         *
of their minor son,                 *
Kris Knowles,                       *
                                    *   On Appeal from the United
           Appellants,              *   States District Court
                                    *   for the District of
     v.                             *   South Dakota.
                                    *
                                    *
United States of America,           *
                                    *
           Appellee.                *


                                ___________

                   Submitted:   April 24, 1996
                       Filed:   August 5, 1996
                                ___________


Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
      BEAM, Circuit Judge.
                              ___________

RICHARD S. ARNOLD, Chief Judge.


     When this case was initially submitted to this Court, we held that
its disposition involved novel questions of state law.    Thus, we certified
four questions to the Supreme Court of South Dakota.       Knowles v. United
States, 29 F.3d 1261 (8th Cir. 1994) (Knowles I).    We have received answers
to those questions and the parties' briefs in response to those answers,
and are prepared to dispose of this case without further argument.
                                          I.


        The plaintiffs, William and Jane Knowles, brought this case under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), on behalf of their son, Kris.
They allege that Kris was permanently injured by negligent treatment he
received at the Ellsworth Air Force Base Hospital.           They also sued in their
own right, asserting a cause of action for emotional distress and loss of
consortium.


        Twelve-day-old Kris Knowles was admitted to the Ellsworth Air Force
Base Hospital on July 17, 1989, for treatment of a fever.               His condition
improved over the next three days.            However, during the night preceding
Kris's discharge, his temperature began to fall.             In fact, by 6:00 a.m.,
it was only 95.3 degrees.        Nevertheless, Kris was discharged on July 20,
1989.


        Among those persons caring for Kris in the hospital were medical
services specialists.        These enlisted persons are roughly the equivalent
of civilian nurse's aides and are charged with tasks such as taking vital
signs and providing patient services.            It was the responsibility of the
medical services specialists on duty to take and record Kris's temperature,
which they did.       They were also to report any abnormally high or low
temperatures to the nursing staff or to the attending physician.                     The
Knowleses allege that the medical services specialists failed to perform
this duty the night before Kris's discharge.


        Following   Kris's    release,   he    was   taken   to   the   Ellsworth    AFB
Pediatrics Clinic for a blood test.            There it was discovered that Kris's
temperature had fallen to 92.9 degrees.           He was immediately readmitted to
the hospital for warming and other treatment for hypothermia.                       This
treatment    notwithstanding,     Kris   developed     hypoglycemia      and   suffered
respiratory arrest, resulting in severe and irreversible brain damage.




                                         -2-
     The Knowleses then filed this lawsuit, alleging medical negligence
against the hospital and its employees.             The United States admitted
liability, but moved for damages to be limited to $1 million pursuant to
South Dakota's malpractice-damages cap.        S.D.C.L. 21-3-11.     The District
Court, in granting that motion, held that the cap applied to medical
services specialists and did not violate the South Dakota constitution.
Moreover, it held that the cap did not apply separately to each cause of
action, plaintiff, or tortfeasor.       Finally, the District Court held that
the Knowleses had no cause of action for emotional distress or loss of
consortium due to injury of a child under South Dakota law, and dismissed
that count.


     The Knowleses appealed that ruling to this Court.         Noting that this
case turned on several novel questions of state law, we certified four
specific questions to the South Dakota Supreme Court.          We have received
answers to those certified questions, and will now address the issues
remaining in this case.


                                        II.


     The first question certified to the South Dakota Supreme Court was
whether the $1 million damages cap in S.D.C.L 21-3-11 violated the South
Dakota Constitution.   Knowles I, 29 F.3d at 1265.      That Court held that the
cap did, indeed, violate the Due Process Clause of the South Dakota
Constitution.    Knowles v. United States, 544 N.W.2d 183, 195 (S.D. 1995)
(opinion of Gilbertson, J.) (Knowles II).            We therefore reverse that
portion of the District Court's order limiting damages in this case to $1
million.


     That is not the end of the limitation-of-damages question, however.
Because    the   statute   containing    the   $1   million   cap,   is   "wholly
unconstitutional," Knowles II, 544 N.W.2d at 204, a predecessor statute,
the Supreme Court of South Dakota held, a statute that the invalid statute
purported to repeal, is revived,




                                        -3-
and "remains in full force and effect."       Ibid.   Under that predecessor
statute, 1985 S.D. Sess. Laws ch. 167, non-economic or general damages are
capped at $500,000, while economic or special damages have no cap.      If a
cap applies in this case, it is the cap established by this revived
statute.    Where the negligence of the doctors, nurses, and hospital are
concerned, the cap indisputably applies.    The medical services specialists
are a different story.


     Among those medical professionals protected by the $1 million cap
were "practitioners of the healing arts."         Whether medical services
specialists were encompassed by this term was the second question certified
to the South Dakota Supreme Court.       Knowles I, 29 F.3d at 1266.    This
question was crucial because, as is the case with the revived statute, all
of the other actors who could feasibly be responsible for Kris's injuries
were unquestionably subject to the $1 million cap, id. at 1265, assuming
its validity.


     The South Dakota Supreme Court held that this question was made moot
by its disposition of the first question.     Knowles II, 544 N.W.2d at 192
(opinion of Sabers, J.).   The revived statute does not include the language
at issue.   It lists hospitals, doctors, and nurses as beneficiaries of the
cap, but does not go on to use the general phrase, "practitioners of the
healing arts."   The United States, nevertheless, argues that the $500,000
cap on general damages still applies.     It reasons that, because hospitals
are covered, and the medical services specialists are hospital employees
whose negligence will be charged to the hospital, the statute should be
construed to limit the liability of medical services specialists.         We
reject this argument for the same reason that we rejected the Knowleses'
argument that the United States was not protected by the original cap in
our first opinion.   Under the FTCA, the United States will be held liable
to the same extent as a private party.     It is "standing in the shoes of .
. . the [medical service specialists].    Therefore, the United States shares
in the protection [of the statute] to the same extent the




                                    -4-
individuals would if they were sued directly."          Knowles I, 29 F.3d at 1265.
It follows, then, that if medical services specialists, individually, are
not protected by the statute, neither is the United States shielded from
the consequences of their negligence.


     Our   Brother   Beam   would   have   us    hold   that   this   conclusion   is
foreclosed by the Westfall Act, 28 U.S.C. § 2679(b)(1), (d)(2), and the
Gonzalez Act, 10 U.S.C. § 1089.     He reasons that, because medical services
specialists are immune from suit under these acts, liability for the United
States attaches only by way of the Hospital.             Given that hospitals are
included in the revived statute, the cap must apply.           Notably, the United
States did not raise this argument before us in either its briefs or its
oral argument.


     Employees of the United States, as the dissent points out, may not
be sued for torts they commit while acting within the scope of their
employment.   United States v. Smith, 499 U.S. 160, 165 (1991).           Rather, a
plaintiff's "remedy provided by the [FTCA] . . . is exclusive."           28 U.S.C.
§ 2679(b)(1); 10 U.S.C. § 1089.     The United States, under the FTCA, "shall
be liable . . . in the same manner and to the same extent as a private
individual under like circumstances."           28 U.S.C. § 2674.     The effect of
these provisions taken together is quite clear.            When someone is injured
by a tort committed by an employee of the United States who is acting
within the scope of his employment, that employee cannot be sued.           Rather,
the injured person must sue the United States which is liable in its
employee's stead.


     That is what we mean by saying that the United States stands in the
shoes of the medical services specialists.          It has, through the FTCA and
the Westfall and Gonzalez Acts, removed liability from its employees and
placed it on itself.   It is liable to the same extent the employee would
have been absent immunity from suit.       If an employee would not have had the
benefit of a particular defense,




                                      -5-
a damages cap for example, neither does the United States.                         Medical
services specialists do not enjoy the cap's protection.                 Thus, neither does
the   United   States   when   it   is   sued    in   place    of   a   medical   services
specialist.


      The Seventh Circuit case, Ezekial v. Michel, 66 F.3d 894 (7th Cir.
1995), cited by the dissent does not support its position.                     There, the
plaintiff, a government employee, was injured by another government
employee, a doctor.     The plaintiff attempted to sue the doctor, but could
not because the Federal Employees' Compensation Act (FECA), 5 U.S.C. §§
8101, et seq., provided the plaintiff's exclusive remedy.                  FECA supplants
liability that would otherwise exist under the FTCA for on-the-job injuries
suffered by government employees.               Lockheed Aircraft Corp. v. United
States, 460 U.S. 190, 193-94 (1983).


      Here, on the other hand, nothing supplants the liability imposed by
state law and the FTCA.         To the contrary, both the Westfall and the
Gonzalez Acts reinforce the fact that the FTCA's provisions placing
liability on the United States are exclusive.            That liability is the same
liability that the employees, medical services specialists, would have
borne absent immunity from suit.


      There has, however, been no finding of negligence on the part of the
medical services specialists.       The United States merely admitted liability
generally and then moved for damages to be limited to $1 million under the
statute that has now been held invalid.           We must, as a result, remand this
case to the District Court for a trial on the issue of whether any medical
services specialist was negligent.              If so, there will be no limit on
damages recoverable against the United States.                On the other hand, if no
medical services specialists were negligent, damages will be limited in
accordance with the revived statute:            a $500,000 limit on general or non-
economic damages, no limit on special or economic damages.




                                          -6-
     Our third certified question was whether South Dakota law recognized
a separate cause of action for loss of consortium and emotional distress
for injuries to a minor child.           That State's Supreme Court held that no
such cause of action exists.       Knowles II, 544 N.W.2d at 193.                We affirm the
portion of the District Court's order that dismissed this claim.


     The South Dakota Supreme Court did hold, however, that the Knowleses
could assert a cause of action for loss of services and for recovery of
medical expenses in their own right.           Ibid.    Any damages awarded under this
cause of action will be special damages subject to no cap.                     The Knowleses
have not pleaded such a cause of action, but may move for leave to amend
their complaint and assert this claim on remand.


     Our     last    certified    question,        whether    the   damages      cap   applies
separately     to    each   plaintiff,      Knowles    I,    29   F.3d    at   1266,   is   now
irrelevant.    While Kris's cause of action may be subject to a cap depending
on whether any medical services specialists were negligent, his parents'
cause of action is not.         Only special damages may be awarded under their
theory of recovery, and special damages are not limited under the revived
statute.      The two causes of action are, however, "linked in regard to
liability," so that the parents may not recover unless the child recovers.
Knowles II, 544 N.W.2d at 195.


                                             III.


     This     case    is    remanded   to    the    District      Court    for    proceedings
consistent with this opinion.          That Court should make a finding regarding
whether negligence on the part of any medical services specialist caused
Kris's injuries.      If this finding is in the affirmative, no cap will apply.
If it is in the negative, the District Court should separately find the
amounts of general and special damages.                     If a motion to amend their
complaint is made by




                                             -7-
Mr. and Mrs. Knowles to assert a claim for loss of services and for medical
expenses for which they are liable under state law, the District Court will
exercise its discretion to grant or deny the motion.        There can be, in any
event, no duplicate recovery for medical expenses.


     It is so ordered.


BEAM, Circuit Judge, dissenting.


     The   court's    opinion   repeals,   insofar   as   the   United   States    is
concerned, the $500,000 malpractice general damages cap that the South
Dakota Supreme Court has just told us "remains in full force and effect."
Knowles v. United States, 544 N.W.2d 183, 204 (S.D. 1996) (Gilbertson, J.,
writing for the majority on revival of the earlier statute).             From this
result, I dissent.


     The issue in this appeal is whether the liability for any alleged
negligence of an Air Force medical services specialist (under civilian
parlance, a "nurse's aide") is capped under that revived statute.                 The
South Dakota statute mentions neither the position of medical services
specialist nor nurse's aide.         A hospital, as noted by the court, is,
however, a beneficiary of the limits established by the South Dakota Act.
This includes a military hospital.      See Lozada v. United States, 974 F.2d
986, 987 (8th Cir. 1992) (applying Nebraska damages cap statute to a
military hospital).


     The court, quoting our earlier opinion in this same case, Knowles v.
United States, 29 F.3d 1261, 1265 (8th Cir. 1994), states that the United
States "is `standing in the shoes'" of the medical services specialists,
the government employees purportedly guilty of culpable conduct in the
treatment of Kris Knowles.      Supra at 4.   While the "standing in the shoes"
metaphor may be a handy illustration for some purposes, it is only an
illustration and is




                                       -8-
not an accurate statement of the law under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671-2680.        The FTCA allows the United States to
assume liability for the negligence of its employees under a theory of
respondeat superior, much as a private employer would under ordinary tort
law.    Accordingly, it may only "step into the shoes" of the hospital as the
employer of allegedly negligent staff.1      It may not step into the shoes of
the negligent employee.


        Analysis of this case must begin with a rudimentary examination of
the Federal Tort Claims Act, under which this suit is brought.        The FTCA
provides for a limited waiver of the United States' absolute immunity from
suit.       Under the FTCA, the United States, subject to specific exceptions
not applicable here, has statutorily waived its sovereign immunity and
voluntarily assumed liability for the wrongful act of an "employee" while
"within the scope of his office or employment."            28 U.S.C. § 2672.
Similarly, the jurisdictional counterpart to the FTCA limits liability to
"claims . . . for money damages . . . for injury . . . 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) (emphasis added).     The FTCA explicitly excludes liability of the
government for the negligent actions of independent contractors.     28 U.S.C.
§ 2671.       It also excludes liability of the government under any theory
involving managerial agents or officers empowered to act on behalf of the




        1
      Concededly, if a private employer were involved, the
liability of the employee, here the medical services specialist,
would not be extinguished just because the employer is also
liable. See generally W. Page Keeton, et al., Prosser and Keeton
on the Law of Torts § 69, at 499 (5th ed. 1984) ("all that the
law [of respondeat superior] has done is to broaden the liability
for that [employee's] fault by imposing it upon an additional,
albeit innocent, defendant.").

                                       -9-
United States in a policy-making capacity. 28 U.S.C. § 2680(a).2 Thus, by
its very terms, FTCA liability is limited to responsibility under the
theory of respondeat superior.


     Phrases such as "scope of employment" and "employees acting within
the scope of their employment" are conspicuous in the statute.   This is the
language of respondeat superior.        Indeed, the Knowles's complaint is
                                 3
replete with this terminology.       These terms



     2
      An employer's liability for the acts of an employee can
come in two distinct forms that are sometimes confused:
master/servant (employer) liability and principal/agent
(principal) liability. When an employee negligently drives a
vehicle on company business and injures another, the doctrine of
respondeat superior is applicable even though negligent driving
is not company policy. The employee negligence is imputed to the
employer. On the other hand, principal/agent liability involves
managerial acts by an individual (such as a corporate president)
empowered by the employer (such as through a corporate board of
directors) to create and implement the employer's policy
decisions. These are considered direct acts of the employer.
See generally Restatement (Second) of Agency § 217 C (1958) and
Restatement (Second) of Torts § 909 (1979) (regarding imposition
of punitive damages for managerial acts). The discretionary act
exemption of the FTCA, 28 U.S.C. § 2680(a), shields the United
States from liability in these situations. See Dalehite v.
United States, 346 U.S. 15, 36 (1953) (discussing discretionary
function exemption: "where there is room for policy judgment and
decision there is discretion"). In any event, medical service
specialists, are not, under any stretch of the imagination,
policy-making officers or employees with discretionary authority,
whatever theory of employer/employee liability you may wish to
apply.
     3
      In the complaint, the Knowleses allege that the United
States is liable for the wrongful acts of its employees, i.e.,
hospital personnel. Specifically, they allege that the United
States, "through its agents and employees, all acting within the
scope of their agency and employment," allowed the temperature of
Kris Knowles room to fall to such a level as to cause
hypothermia; that its "agents and employees . . . should have
known that the temperature posed a hazard to newborn infants;"
that the United States, "through its hospital staff," was told of
the intolerable cold temperatures. Plaintiffs further allege
that the United States, "by and through its hospital staff and

                                      -10-
of art are borrowed from the common law of torts and agency.                  To that
effect, for purposes of the FTCA, the common law of torts and agency
defines the distinction between an independent contractor (for whose torts
the government is not responsible), a policy-making agent (for whose torts
the government is not responsible) and a servant (for whose torts the
government is responsible).       B & A Marine Co. v. American Foreign Shipping
Co., 23 F.3d 709, 713 (2d Cir.), cert. denied, 115 S. Ct. 421 (1994); see
also Toole v. United States, 588 F.2d 403, 407 n.4 (3d Cir. 1978).
"Employee" in the statute is to be read as having the same general meaning
as "servant" in the body of law relating to respondeat superior.               United
States v. Becker, 378 F.2d 319, 321 (9th Cir. 1967).           Thus, courts consult
a state's applicable law of respondeat superior to determine "scope of
employment" under the FTCA.        See, e.g., Heuton v. Anderson, 75 F.3d 357,
360 (8th Cir. 1996); Walsh v. United States, 31 F.2d 696, 699 (8th Cir.
1994) (both applying Iowa respondeat superior law).             And, it is hornbook
law that liability under respondeat superior theory is vicarious, and not
direct, liability.    W. Page Keeton, et al., Prosser and Keeton on the Law
of Torts § 69, at 499 (5th ed. 1984).          See also Sterling v. United States,
85 F.3d 1225, 1229 (7th Cir. 1996) (the FTCA creates vicarious liability).


     The FTCA also provides that the United States is liable "in the same
manner   and   to   the   same   extent   as   a   private   individual   under   like
circumstances," 28 U.S.C. § 2674, or "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."             28 U.S.C.
§ 1346(b).     "Private person or individual" includes such entities as
corporations, municipal corporations, and hospitals.             See, e.g.,
Lozada, 974 F.2d at 989 (military hospital).            Moreover, there need




employees," failed to monitor or to report the newborn's low body
temperature and that the "hospital staff and employees, including
its physicians, nurses and other attendants," knew or should have
known the infant was
becoming hypothermic.


                                          -11-
not be an actual "private party" under like circumstances as the United
States; the statute merely requires us to analogize to a hypothetical
private party under "like circumstances."                Bush v. Eagle-Picher Indus.,
Inc.,       927   F.2d   445,    452   (9th   Cir.   1991).      In   this   context,    the
"hypothetical private party" is analogous to a private employer.                        See,
e.g., Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227, 2229 (1995)
(people       injured    in     automobile    accident   suing    driver     and   driver's
employer/government agency); United States v. Smith, 499 U.S. 160, 162
(1991) (injured patient suing doctor and doctor's employer/Army hospital).


        Although the waiver of sovereign immunity extends to torts committed
by government employees, the FTCA grants total immunity to employees for
torts committed in the course of their employment.               28 U.S.C. § 2679(b)(1),
(d)(2) (also called the Federal Employees Liability Reform and Tort
Compensation Act of 1988 or the Westfall Act).4               The FTCA further provides
that the United States "shall be entitled to assert any defense based upon
judicial or legislative immunity which otherwise would have been available
to the employee of the United States whose act or omission gave rise to the
claim."       28 U.S.C. § 2674.        One of these sources of legislative immunity
is



        4
      The Westfall Act was enacted in response to the holding in
Westfall v. Erwin, 484 U.S. 292, 297 (1988), that government
employees were absolutely immune only from state-law tort
liability for acts that were both within the scope of their
employment and discretionary in nature. The Westfall decision
effectively denied most federal employees immunity from lawsuits
against them personally for torts committed in the scope of
employment. It narrowed the respondeat superior liability of the
United States while shifting the liability to the employees
individually.

     Through the Westfall Act, Congress legislatively overruled
the Westfall decision. Nasuti v. Scannell, 906 F.2d 802, 804
(1st Cir. 1990). The Act provides a federal employee with
absolute immunity from an ordinary tort suit if the suit arises
out of acts performed within the scope of employment. 28 U.S.C.
§ 2679(b)(1). Thus, an action against the United States is the
only remedy for injuries caused by federal employees acting
within the scope of their employment. Anthony v. Runyon, 76 F.3d
210, 212-13 (8th Cir. 1996).

                                              -12-
the Westfall Act. Another is the Gonzalez Act, 10 U.S.C. § 1089 (also
called the Medical Malpractice Immunity Act).5        These statutes confer
absolute immunity on Government employees for liability for acts committed
in the course of employment.   Both grants of immunity are available to the
medical services specialist in this case.6


     Discussing the Westfall Act, the court asserts that the United States
has "removed liability from its employees and placed it on itself" and thus
is "liable to the same extent the employee would have been absent immunity
from suit."   Supra at 5.   This is not a correct statement of the law.   The
government has waived its immunity with respect to acts of its employees
acting within the "scope of [their] office or employment," 28 U.S.C.
§ 1346(b), so as to be liable to the same extent that private employers are
held liable under state law for the acts and omissions of their employees.
Fair v. United States, 234 F.2d 288, 294 (5th Cir. 1956) (emphasis added).
Thus, as defendant, the United States is liable only under a statutorily-
imposed respondeat superior theory.    See Gutierrez de Martinez, 115 S. Ct.
at 2229 ("[g]enerally, such cases unfold much as cases do against other
employers who concede respondeat superior liability").    Congress intended
this statutory




     5
      Like the Westfall Act, the Gonzalez Act was passed in
response to a decision, Henderson v. Bluemink, 511 F.2d 399 (D.C.
Cir. 1974), that expanded the tort liability of military
physicians. Smith, 499 U.S. at 170 n.11. The Gonzalez Act
provides protection against malpractice liability to any military
"physician, dentist, nurse, pharmacist, or paramedical or other
supporting personnel" for any negligent or wrongful acts
committed while acting within the scope of duties or employment.
10 U.S.C. § 1089(a). The meaning of the act is clear: a suit
against the United States is the only remedy for malpractice of
military medical personnel. Jones v. Newton, 775 F.2d 1316, 1318
& n.1 (5th Cir. 1985) (per curiam).
     6
      The more generous immunity available under the Westfall Act
is available to those federal employees previously covered by
other immunity statutes such as the Gonzalez Act. See United
States v. Smith, 499 U.S. 160, 173 (1991).

                                      -13-
scheme to immunize employees from a particular type of claim--the sort of
wrongdoing for which employers, typically, are vicariously liable under
principles of respondeat superior.        Wood v. United States, 995 F.2d 1122,
                                     7
1125 (1st Cir. 1993) (en banc).


        Thus, the crucial question in most Federal Tort Claims Act cases
becomes whether an individual is acting within the scope of his or her
employment.8       Scope of employment sets the line:   if an employee is inside
the line, he is not subject to suit; if he is outside the line, he may be
personally liable.          Gutierrez de Martinez, 115 S. Ct. at 2231.      For
negligence committed by those inside the line, the United States is the
only available defendant, and then only to the extent permitted by the
FTCA.       Id.   The Supreme Court has made it clear under these statutes that
federal employees are immune from liability even if substitution of the
United States as defendant leaves the plaintiff without a remedy.        Smith,
499 U.S. at 166 ("Congress recognized that the required substitution of the
United States as defendant in tort suits filed against Government employees
would sometimes foreclose a tort plaintiff's recovery altogether.").9


        7
      The Wood case has been criticized on grounds not relevant
to this discussion. Heuton v. Anderson, 75 F.3d 357, 360 (8th
Cir. 1996).
        8
      The FTCA includes a certification procedure to determine
whether the employee is in the scope of employment. 28 U.S.C.
§ 2679(d). Under this procedure, the Attorney General certifies
that a government employee was in the scope of employment at the
time of the actionable act or omission. Id. Once certified, the
employee is absolutely immune from suit for actions in the course
and scope of employment. As far as the record shows, such
certification in this case apparently took place at the
administrative claim level.
        9
      The court argues that the availability of supplanted
liability is a crucial factor in conferring Westfall Act
immunity. Supra at 6. As the Smith case makes clear, the
availability of another remedy is of no concern. Smith, 499 U.S.
at 166. The plaintiffs in Smith were left completely without a
remedy because the United States had not waived its immunity for
the negligence of military
doctors on foreign soil and the doctors themselves were immune
from suit under the Westfall Act. Id.

                                         -14-
      The effect of the statutory scheme in the present case is that the
United States steps into the shoes of the hospital, as employer, under
respondeat superior theory.    The government cannot stand in the shoes of
a negligent federal employee, individually, because the employee is immune
from suit.10   Here, because of the malpractice damages cap, the amount that
Kris Knowles can recover under imputed liability may be less than he might
have been able to recover under the medical services specialist's direct
liability, if any.   The trade-off for that, however, is his ability to sue
the United States which is ordinarily immune from suit.


      The court's approach ignores "course of employment" language in the
FTCA and Westfall and Gonzalez Acts.       The court effectively writes the
"course of employment" language right out of these statutes.   This language
can mean nothing else but that the United States is vicariously liable.



      In conclusion, contrary to the court's holding, the United




      10
      A case that illustrates the exclusivity of this
statutorily-imposed respondeat superior action is Ezekiel v.
Michel, 66 F.3d 894 (7th Cir. 1995). In that case, a Veterans
Administration (VA) nurse sued a VA resident physician for a
needle prick that resulted in hepatitis. Because the doctor was
found to be a federal employee under the FTCA, substitution of
the United States as defendant was required. Id. at 901, 904.
The case was subject to dismissal after substitution. Id. at
901. Contrary to the court's assertion, supra at 6, the case
against the doctor, individually, was not dismissed because FECA
provided the exclusive remedy, but because he was immune from
suit under the Westfall Act, leaving the United States (the
nurse's employer) as the only defendant. Ezekiel, 66 F.3d at 897
(if Dr. Michel was a federal employee, then the Westfall Act
would nullify Ezekiel's claim against Dr. Michel). The fact that
federal worker's compensation (FECA--the Federal Employees'
Compensation Act, 5 U.S.C. §§ 8101 et seq.) provided a remedy was
not dispositive. Indeed, absence of another means of recovery
does not affect Westfall Act immunity. Supra at 14-15 n.9. Just
as direct recovery against Dr. Michel was barred in Ezekiel, Kris
Knowles's recovery is limited in this case.

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States cannot step into the shoes of the medical services specialist
individually--he or she is immune from suit.     Instead, the plaintiff has
an action, under a federal statutory grant of authority, against the
medical services specialist's employer, the United States.     Because that
employer, the sole source of liability, is a hospital, the damages cap
applies.   I would remand this case for entry of judgment against the United
States in the amount of $500,000 in general damages and for a determination
of other damages not subject to the statutory limitation.


     A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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