                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                     REVISED OCTOBER 7, 2005
                                                              August 17, 2005
              IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                       Clerk



                          No. 04-50691



     BRADLEY GUILE, Individually and
     as representative of the Estate
     of Emiko Guile and all her
     wrongful death beneficiaries,

                                 Plaintiff-Appellant,


          versus


     UNITED STATES OF AMERICA,


                                 Defendant-Appellee.
---------------------------------------------------------------

     BRADLEY GUILE, Individually and
     as representative of the Estate
     of Emiko Guile and all her
     wrongful death beneficiaries,

                                 Plaintiff-Appellant-Cross-Appellee,

     versus

     UNITED STATES OF AMERICA, ET AL,

                                 Defendants,

     UNITED STATES OF AMERICA,

                                 Defendant-Appellee,


     CRISTINA CRUZ, MD,
                                   Defendant-Appellee-Cross-Appellant.



            Appeals from the United States District Court
                  for the Western District of Texas



Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

     Plaintiff Bradley Guile (Guile) appeals the district court’s

dismissal of his claims against the United States under the Federal

Tort Claims Act (FTCA) and the court’s granting of defendant

Cristina Cruz’s motion for judgment as a matter of law regarding

liability for the death of Guile’s wife.            We affirm.

Facts and Proceedings Below

     Guile’s wife, Emiko Guile, was admitted on May 12, 1998 to an

inpatient psychiatric ward for military dependents and retirees at

William Beaumont Army Medical Center (Beaumont) in El Paso, Texas.

Beginning in 1991, Mrs. Guile had been seeing military doctors,

including    neurologists,   psychiatrists,         and   psychologists,     at

various   places   that   Guile   was       stationed   because   of   problems

including depression, anxiety, and an involuntary head movement.

When she was admitted to Beaumont in May 1998, Mrs. Guile had been

found unconscious at home by her four-year-old daughter and her

husband after overdosing on her antidepressant medication.                This

was Mrs. Guile’s second inpatient admission at Beaumont; she had

been admitted in February 1998 for a few days, apparently for


                                        2
severe anxiety and because she had expressed concerns that she

would overdose on her medications.1

       The United States Army had contracted with PHP Healthcare

Corporation (PHP) to provide psychiatric services for dependents

and retirees at Beaumont.          The inpatient ward serving Mrs. Guile

was therefore operated by PHP within the Army’s Beaumont facility.

Mrs. Guile’s psychiatrist while she was admitted to the inpatient

ward was Dr. Cristina Cruz, a part-time independent contractor with

PHP.       Dr. Cruz treated Mrs. Guile from May 13 until Tuesday, June

9, when she left for a few days’ vacation.                  From June 9 through

Friday, June 12, Dr. Cecilia DeVargas, another PHP contractor

psychiatrist,      covered   for    Dr.       Cruz   in   treating   Mrs.   Guile.

Beginning on the evening of June 12, Dr. Milton Anderson, an active

duty Army officer and psychiatrist, was the on-call physician

covering the inpatient ward for the weekend.2

       On the morning of Sunday, July 14 Emiko Guile was found dead

in her room.      She had hung herself from a door hinge of an armoire

in the room, using the belt from her bathrobe.                Mrs. Guile was in

a double-occupancy room with a roommate, and two large armoires

were positioned between the two beds in the room.                    The armoires


       1
       Mrs. Guile had also been a patient since January 1998 of Dr. Frank
Giordano, PHP’s medical director, in the outpatient psychiatric clinic run by PHP
at Beaumont.
      2
        The Army and PHP had an arrangement by which Army and PHP psychiatrists
participated in a rotating on-call schedule for evenings and weekends. The on-
call physician covered both the PHP-run inpatient psychiatric ward and an
adjacent inpatient ward operated by the Army for active-duty military patients.

                                          3
blocked the view from the room’s doorway of most of Mrs. Guile’s

bed. Although Mrs. Guile likely died soon after midnight, her body

was not discovered until about 9:20 the next morning.      The nurse on

duty during the night, Adree Rojas, had spent much of her shift

asleep in a break room, without checking on Mrs. Guile.        The mental

health technician, Mario Padilla, charged with checking on Mrs.

Guile every thirty minutes also did not do so, although he marked

her chart to indicate that he had.       Padilla also heard a banging

noise from the direction of Mrs. Guile’s room soon after midnight,

but did not investigate.

     On behalf of himself, his daughter, and his wife’s estate,

Guile sued the United States, Drs. Cruz and DeVargas, PHP, and some

of PHP’s nurses and technicians in the district court below.           The

claims against the United States included claims based on premises

liability and negligent contractor supervision and a claim based on

negligence of Dr. Anderson.       At the close of evidence, the court

granted a motion to dismiss the non-medical claims (referred to as

the “premises liability” claims).        The court then instructed the

jury that the United States could not be liable if the jury found

that there was no doctor-patient relationship between Dr. Anderson

and Mrs. Guile, and the jury did in fact find that there was no

such doctor-patient relationship.

     With   regard   to   the   non-government   plaintiffs,   the   court

instructed the jury that PHP, Adree Rojas, Mario Padilla, and Mrs.

Guile herself were each negligent and a proximate cause of Emiko

                                     4
Guile’s death as a matter of law.                PHP had entered bankruptcy

proceedings   by    this   time,    and    its   insurance   company   was    in

receivership.      The plaintiff had dismissed its claims against the

other PHP nurses and technicians at the close of evidence.                   The

jury found that Dr. DeVargas was not liable for Mrs. Guile’s death,

but that Dr. Cruz and Bradley Guile were liable.             The jury awarded

total damages of about $1.2 million, and attributed the liability

33% to PHP, 25% to Dr. Cruz, 20% to Mario Padilla, 15% to Adree

Rojas, 5% to Emiko Guile, and 2% to Bradley Guile.

     Dr. Cruz renewed with the district court the motion for

judgment as a matter of law that she had made unsuccessfully at the

close of the plaintiff’s evidence and at the close of all evidence.

The court agreed that there was not “sufficient evidence for the

jury to find that Defendant Cruz’s allegedly negligent acts or

omissions were the proximate cause of Emiko Guile’s death,” and

granted Dr. Cruz’s motion for judgment as a matter of law.                   Dr.

Cruz’s motions for a new trial and for remittitur were denied as

moot.   Guile appeals the grant of Cruz’s motion for judgment as a

matter of law and the dismissal of the non-medical claims against

the government.

                                   Discussion

I.   Standard of Review

     As with other questions of law, we review a grant of judgment

as a matter of law de novo.          Morante v. Am. Gen. Fin. Ctr., 157


                                       5
F.3d 1006, 1009 (5th Cir. 1998).                The jury’s verdict can be

overturned only if “there is no legally sufficient evidentiary

basis for a reasonable jury to find as the jury did.”                     Id.     In

evaluating      this    evidentiary    basis,   we   view     the   evidence     and

inferences therefrom in the light most favorable to the party

opposing the motion. Delano-Pyle v. Victoria County, 302 F.3d 567,

572 (5th Cir. 2002).            We review de novo the district court’s

granting of a motion to dismiss based on exceptions to the FTCA.

Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001).

II.       Liability of Dr. Cruz

      It has long been the law in Texas that a plaintiff in a

medical negligence case must “prove by a preponderance of the

evidence that      the    allegedly    negligent     act     or   omission   was a

proximate cause of the harm alleged.” See, e.g., Archer v. Warren,

118 S.W.3d 779, 782 (Tex. App.–Amarillo 2003); Park Place Hosp. v.

Estate     of   Milo,   909   S.W.2d   508,   511    (Tex.    1995);    Kramer    v.

Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993); Bowles

v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949).                      For the alleged

negligence to be a proximate cause of the harm, the harm must have

been a foreseeable result of the negligence, and the negligence

must have been “a substantial factor in bringing about the harm,

and without which the harm would not have occurred.”3                  Archer, 118

      3
       The inquiry is sometimes described as a “reasonable medical probability”
that the alleged negligence proximately caused the harm, but the ultimate
standard is the same. See Park Place, 909 S.W.2d at 511; Kramer, 858 S.W.2d at

                                        6
S.W.3d at 782; Park Place, 909 S.W.2d at 511; Kramer, 858 S.W.2d at

400.        Because   medical    treatment   is   beyond   the   reach   of   a

layperson’s knowledge and experience, expert evidence is required

to show both a breach of a standard of care and that the breach was

a proximate cause of the harm suffered.           See Chambers v. Conaway,

883 S.W.2d 156, 158 (Tex. 1993); Bowles, 219 S.W.2d at 782–83.                In

granting Dr. Cruz’s motion, the district court concluded that

Guile’s expert had not established that any negligence on the part

of Dr. Cruz was a proximate cause of Emiko Guile’s suicide.

       A.     Breach of the standard of care

       Guile argues that the testimony of his expert, Dr. George

Meyer, did establish breaches of the relevant standard of care.

The breaches that Guile contends were established are: improper

drug   dosing,    lack   of     necessary   suicide   precautions,    improper

handling of test results, failure to re-evaluate the treatment

plan, failure to transfer Mrs. Guile to another hospital, improper

discussion of discharge with Mrs. Guile, improper sending of Mrs.

Guile out on a pass, and failure to have the armoires removed from

Mrs. Guile’s room.4

       In the case of some of these alleged breaches, there is no

evidence that Dr. Cruz committed the alleged act or omission,


400.
      4
        There were a few other breaches alleged at trial, but those listed here
are the ones Guile briefs on appeal. The district court correctly concluded that
there was insufficient evidence to find that Dr. Cruz committed any other
breaches that were a proximate cause of Mrs. Guile’s death.

                                        7
whether or not such act or omission would constitute a breach of

the standard of care.         For example, the expert’s reference to

discussion of discharge with Mrs. Guile involved acts of Dr.

DeVargas,     not   Dr.   Cruz.   All       evidence   showed   that   Dr.    Cruz

continually re-evaluated and adjusted the treatment plan, including

seeking of second opinions.       Dr. Cruz did read the results of the

testing she ordered, and discussed the results with the testing

psychologist.       There was no evidence that Dr. Cruz had anything to

do with any subsequent unavailability of the test results.                    Mrs.

Guile’s charts showed that Dr. Cruz did increase the dosages of

medication over time, as Dr. Meyer testified was necessary to meet

the standard of care.

     Furthermore, there was no evidence that Dr. Cruz knew about

the armoires in Mrs. Guile’s room.           Dr. Cruz testified that she had

not been in Mrs. Guile’s room and did not know about the furniture,

and there was no evidence that she had been in the room.                     Guile

argues that there was sufficient circumstantial evidence for the

jury to infer that Dr. Cruz had seen the armoires or should have

seen them.5    Inferences drawn from circumstantial evidence must be

reasonable inferences, however.         Seven-Up Co. v. Coca-Cola Co., 86

F.3d 1379, 1387 (5th Cir. 1996); Brock v. Merrell Dow Pharm., Inc.,

874 F.2d 307, 308 (5th Cir. 1989).              An inference that Dr. Cruz


      5
        A nurse testified that it was “no big deal” for a doctor to go into a
patient’s room, but did not specifically recall having seen Dr. Cruz do so.
There was also testimony that the nurse’s station was close enough to Mrs.
Guile’s room that the furniture could be seen from there.

                                        8
should have noticed the furniture in Mrs. Guile’s room because it

may have been possible to see the furniture from the nurse’s

station is not a reasonable inference in view of evidence that (1)

her practice was to see patients in her office, and (2) the

arrangement of patient rooms was not her responsibility (so that

there would be no reason for her to be looking at the patient rooms

while at the nurse’s station).         Such an inference would be “mere

speculation and conjecture,” which is not sufficient to support a

jury verdict.    Anthony v. Chevron USA, Inc., 284 F.3d 578, 583–84

(5th Cir. 2002)(concluding that testimony showing ways in which it

was possible that an oil drilling operation contaminated an aquifer

was not   sufficient   to     allow   an   inference   that   the    operation

actually did so).     Dr. Cruz can of course not be held liable for

these acts or omissions that she was not shown to have committed.

     For most of the remaining alleged breaches, there was not

substantial evidence that these were actually breaches of the

relevant standard of care, where the standard of care is that of a

psychiatrist    exercising     ordinary      care.     Although     Dr.    Meyer

testified that he would have used higher dosages on Mrs. Guile’s

medications,    he   agreed    that    Dr.    Cruz’s   adjustment     of    the

medications met the standard of care.          With regard to transferring

Mrs. Guile to another hospital, Dr. Meyer at one point said that

transfer to a facility having electroconvulsive therapy (ECT)

capability would be appropriate, but he later conceded that ECT was



                                      9
not    required   to    meet    the    standard    of    care   and   might   be

inappropriate in some cases. Dr. Meyer’s statement that Mrs. Guile

should have been transferred to a safer facility was a reference to

the lassitude of Rojas and Padilla, which was not foreseeable to

Dr. Cruz.      In the case of suicide precautions, Dr. Meyer at one

point asserts that Dr. Cruz did not properly maintain suicide

precautions, and at another point allows that the ongoing suicide

assessments of Mrs. Guile met the standard of care.

       Guile   argues    that    the    district     court was incorrect in

concluding that Dr. Meyer had retracted his statements asserting

that Dr. Cruz breached the standard of care.               He argues that Dr.

Meyer instead created “contradictions” the resolution of which is

the province of the jury. We must remember, however, that evidence

sufficient to support a jury verdict must be substantial evidence.

Anthony, 284 F.3d at 583.       An expert’s opinion must be supported to

provide substantial evidence; “we look to the basis of the expert’s

opinion, and not the bare opinion alone.”               Archer, 118 S.W.3d at

782.    “A claim cannot stand or fall on the mere ipse dixit of a

credentialed witness.”          Id. (footnote omitted).          Many of the

alleged breaches described above come from statements of Dr. Meyer

that are unsupported by any data (such as studies evaluating

treatment techniques), in addition to being later contradicted by

him, or to be nothing but his incorrect factual assumptions based

on examination of incomplete records.             The contradictions coupled


                                        10
with the lack of support for the statements take them out of the

realm of substantive evidence.   In the context of admissibility of

expert testimony, this court has noted that “[i]f an opinion is

fundamentally unsupported, then it offers no expert assistance to

the jury.”   Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.

1987).

     B. Proximate cause

     Even to the extent Guile could establish any breaches of the

standard of care, there can be no liability unless such breaches

are shown to be a proximate cause of Mrs. Guile’s death.       For

example, Dr. Meyer did testify to a belief that Dr. Cruz breached

the standard of care when she allowed Mrs. Guile to go on a pass

with her family on May 28.   This was arguably contradicted by his

later testimony acknowledging that Mrs. Guile’s passes appeared to

make her feel better, but even if we assume that the pass was a

breach of the standard of care, there can be no liability from this

breach because Dr. Meyer testified that the pass was not a cause of

Mrs. Guile’s death.

     Similarly, there is no expert evidence establishing that any

of the alleged breaches by Dr. Cruz were a proximate cause of Mrs.

Guile’s suicide. Evidence of proximate cause must show that in the

absence of the alleged breach the harm would not have occurred, and

must state, describe or explain the connection between the breach

and the harm in sufficient detail to support the expert’s assertion


                                 11
of proximate cause.       See, e.g., Bottoms v. Smith, 923 S.W.2d 247,

251–52 (Tex. App.–Houston 1996) (holding that fact issue existed as

to proximate cause when expert opined that polyp would more likely

than not have been diagnosed if omitted test had been done, that

polyp diagnosed at that time would more likely than not have been

at cancer stage having an 88% or better survival rate, and that

delay in diagnosis resulted in a cancer stage having a 0% survival

rate).

      Dr. Meyer’s statements regarding the causes of Emiko Guile’s

suicide do not provide a sufficient connection between any alleged

breaches of Dr. Cruz and Mrs. Guile’s death.             There was no expert

testimony that any one or more alleged breaches of care by Dr. Cruz

caused Emiko Guile’s death.         As noted in Guile’s brief, Dr. Meyer

stated generally      that   “in   totality”     all   breaches   by   all   the

multiple actors involved combined to cause Mrs. Guile’s suicide. 6

These unexplained, conclusory statements do not establish proximate

cause for any particular breach or combination of particular

breaches by Dr. Cruz, because they do not describe or state how any

particular asserted breach or breaches by Dr. Cruz related to the


      6
        Acts and omissions by other actors that were brought up during the trial
as potential causes include:      Rojas’s sleeping during her shift; Padilla’s
failure to check on Mrs. Guile; an unidentified nurse or technician’s failure to
confiscate Mrs. Guile’s bathrobe belt; a June 9 meeting regarding discharge
planning that upset Mrs. Guile and her husband; Guile’s failure to take Mrs.
Guile out on her usual Saturday pass June 13 or to acknowledge their June 12
wedding anniversary; Guile’s June 13 argument with Mrs. Guile in which he
reiterated that he would not let her come home until she was well; Dr. Anderson’s
June 13 assignment to Mrs. Guile to prepare a time line of events in her life;
and placement by unidentified personnel of the armoires in Mrs. Guile’s room.


                                       12
suicide and do not state that without Dr. Cruz’s alleged breach or

breaches the suicide would not have occurred.            This is especially

so in that several asserted deficiencies which Dr. Meyer assumed

were attributable to Dr. Cruz were shown by uncontradicted evidence

either not to have occurred at all or not to have been attributable

to Dr. Cruz (and the others were essentially withdrawn by Dr.

Meyer).7      The same is true for Dr. Meyer’s generalized statements

that Mrs. Guile’s illness was treatable or that her suicide was

preventable.        Dr. Meyer further testified that           he could not

guarantee within a reasonable degree of medical probability that

Mrs. Guile would not have committed suicide on June 14, 1998 even

if she had received the care that he testified was appropriate.

       Because Guile did not establish by expert testimony any

negligence on the part of Dr. Cruz that was a proximate cause of

Emiko Guile’s suicide, the district court was correct in granting

Dr. Cruz’s motion for judgment as a matter of law.

III.       Dismissal of Claims Against United States

       Guile argues that the district court erred in applying the

discretionary function exception to the FTCA to dismiss his non-



       7
       This was in contrast to several particular acts or omissions of others
than Dr. Cruz which Dr. Meyer individually identified as a cause of Mrs. Guile’s
death.   For example, Dr. Meyer agreed that “regardless of everything that
occurred. . . Mrs. Guile would not have died but for Mario Padilla not doing his
job that night” and that “the nursing staff [having] allowed the belt on the
ward” was one of “[t]he three most important factors in Emiko Guile’s suicide,”
the other two being “Mrs. Guile’s failure to listen to the allied help” and “the
milieu . . . of PHP on II West . . . the environment of lisisity [explained as
“lassitude”].” Also, “. . . the last straw was her phone conversation with her
husband in which he said you’re not coming home until you are better.”

                                      13
medical claims against the United States.           The United States has

sovereign immunity from suit except as it waives this immunity by

consent. United States v. Sherwood, 61 S.Ct. 767, 769 (1941).             One

example of such a waiver is the FTCA, which provides that the

United States may be sued “for injury or loss of property, or

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.”        28 U.S.C. § 1346(b)(1).8

     There are multiple exceptions to liability of the United

States under the FTCA, however, one of which is known as the

discretionary function exception.         Liability under the FTCA does

not apply to claims “based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on

the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.”              28 U.S.C. §




     8
      28 U.S.C. § 1346(b) provides:
        “(1) Subject to the provisions of chapter 171 of this title, the
  district courts, together with the United States District Court for the
  District of the Canal Zone and the District Court of the Virgin Islands,
  shall have exclusive jurisdiction of civil actions on claims against the
  United States, for money damages, accruing on and after January 1, 1945,
  for injury or loss of property, or 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 law of the place where the
  act or omission occurred.
        (2) No person convicted of a felony who is incarcerated while
  awaiting sentencing or while serving a sentence may bring a civil action
  against the United States or any agency, officer, or employee of the
  Government, for mental or emotional injury suffered while in custody
  without a prior showing of a physical injury.”

                                     14
2680(a).9     The Supreme Court has described the purpose of the

discretionary function exception as being to protect policy-based

legislative and administrative decisions from “judicial ‘second-

guessing.’” United States v. Varig Airlines, 104 S.Ct. 2755, 2765

(1984); United States v. Gaubert, 111 S.Ct. 1267, 1273 (1991).

      Guile   argues   that     the   United   States     failed   to   properly

supervise PHP, failed to provide safe premises, failed to protect

the safety of hospital patients, and failed to ensure that PHP had

the malpractice insurance required by its contract with the Army.10

Guile’s     reasons   for   arguing    that    the    discretionary     function

exception does not apply to these claims appear to be that (1) when

the   government      retains    safety     oversight      authority    over   a

contractor,     enforcement      of    safety        obligations   is    not   a

discretionary function; (2) that medical judgments are not covered



      9
       28 U.S.C. § 2680 provides in relevant part:
         “The provisions of this chapter and section 1346(b) of this title
   shall not apply to—
            (a) Any claim based upon an act or omission of an employee of
      the Government, exercising due care, in the execution of a statute
      or regulation, whether or not such statute or regulation be valid,
      or based upon the exercise or performance or the failure to exercise
      or perform a discretionary function or duty on the part of a federal
      agency or an employee of the Government, whether or not the
      discretion involved be abused.
      . . . .”
      10
       Guile does not appear to argue that the United States should be liable
for the breaches of PHP personnel, apart from liability for its own alleged
breaches. This vicarious liability would be barred by the independent contractor
exception to the FTCA. See Broussard v. United States, 989 F.2d 171, 175 (5th
Cir. 1993). A retained right of inspection does not defeat the independent
contractor exception unless the government actually supervises the contractor’s
day-to-day activities. See Williams v. United States, 50 F.3d 299, 306–07 (4th
Cir. 1995); Brooks v. A.R. & S. Enters., Inc., 622 F.2d 8, 12 (1st Cir. 1980).


                                       15
by    the   discretionary       functions   exception;     and    (3)   that     the

government’s negligence in this case was too egregious to be rooted

in    the   policy   considerations     that    the   discretionary     function

exception is intended to protect.

       Guile cites a Ninth Circuit case holding the United States

liable for injuries to workers on a post office construction

project.        Camozzi v. Roland/Miller & Hope Consulting Group, 866

F.2d 287 (9th Cir. 1989). The workers were injured falling through

uncovered openings in metal decking.            Id. at 288.      In its contract

with the construction contractor, the Postal Service specifically

required that metal deck openings be covered, and a contract with

a     company     hired   to    supervise     construction       required    daily

inspections of 35 listed items, including “floor openings.” Id. at

288–89. The court held that the Postal Service’s negligence in not

discovering and remedying the uncovered openings was not a policy

choice      warranting    protection    by     the    discretionary     function

exception but rather “a failure to effectuate policy choices

already made and incorporated in the contracts.”                 Id. at 290.

       Other courts have distinguished Camozzi and held that the

discretionary function exception did apply in cases where contracts

were less specific regarding the safety violations proscribed and

the    mechanics     of   the    inspection    authority     retained       by   the

government.       See Clark v. United States, 805 F. Supp. 84, 88–89

(D.N.H. 1992); Moody v. United States, 753 F. Supp. 1042, 1055


                                       16
(N.D.N.Y. 1990).       The contract between the Army and PHP includes a

general requirement that “contractor personnel shall comply with

all safety procedures and practices associated with the facility,”

but    has   no   specific   safety    requirements   for   patient     rooms.

Moreover, the government “inspections” authorized by the contract

refer to inspections of services provided, not of facilities, and

are to be accomplished through review of medical records and

procedures.       We do not believe that this contract language creates

a nondiscretionary duty on the part of the government to ensure the

safety of patient rooms in the PHP-operated inpatient ward.

       Guile’s argument that governmental medical judgments are not

covered by the discretionary function exception is not applicable

to his claims against the government, since the claims do not

involve governmental medical judgments at all. Dr. Anderson is the

only   government     employee   who   could   have   applied    any   medical

judgment with respect to Emiko Guile, and Guile does not appeal the

jury’s finding that he incurred no liability because there was no

doctor-patient       relationship.          Guile’s   argument     that    the

government’s negligence was too egregious to be protected by the

discretionary function exception appears to be in reference to the

government’s alleged failure to ensure that PHP had insurance.

There are cases denying application of the discretionary function

exception when extreme negligence was exhibited by government

employees, on the theory that such negligence could not be grounded



                                       17
in any legitimate policy consideration.             See Glickman v. United

States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985); Orlikow v. United

States, 682 F. Supp. 77, 82 (D.D.C. 1988) (both involving CIA drug

experiments on unwitting subjects).          Even if we assume that hiring

an uninsured contractor constitutes this degree of negligence,

there was no evidence presented that PHP was uninsured, much less

that the government was aware of such a situation.

      Guile’s claims against the United States largely involve

negligent supervision of PHP, with respect to either safety in

patient rooms or insurance coverage. Supervision of a contractor’s

work, including the degree of oversight to exercise, is inherently

a discretionary function. Kirchmann v. United States, 8 F.3d 1273,

1276–77    (8th   Cir.   1993).      Similarly,     a   decision    to   hire   a

contractor     and   the    choice    of    contractor     are     policy-based

discretionary decisions.        Williams v. United States, 50 F.3d 299,

310 (4th Cir. 1995).       To the extent that Guile claims that one or

more United States employees were involved in placement of the

armoires in Mrs. Guile’s room,11 this is also a discretionary

function involving balancing of considerations such as patient

safety, patient privacy, and patient convenience with regard to

storage space.       There was no evidence presented of a statute,


      11
       The trial record does not reveal exactly how or when the armoires got
into Mrs. Guile’s room. There was testimony that PHP’s head nurse learned that
the units were available and expressed interest in obtaining them for the patient
rooms. The armoires, like all of the furniture on the ward, were owned by the
government, so it is possible that some government employee approved transfer of
the armoires to PHP’s use, or even helped to move or place them.

                                       18
regulation or policy giving specific direction as to any of these

functions in a way that would make them non-discretionary.12                  See

Gaubert, 111 S.Ct. at 1273 (act is non-discretionary if a “‘federal

statute, regulation or policy specifically prescribes a course of

action for an employee to follow’”).

      Because the complained-of actions by the United States were

discretionary functions, the district court was correct to dismiss

Guile’s non-medical claims against the United States under the

discretionary function exception to the FTCA.               The United States

therefore cannot be liable for torts that would otherwise apply in

Texas, and we do not reach Guile’s arguments regarding Texas

premises liability law.13

                                   Conclusion

      For the foregoing reasons, the judgment of the district court

is

                                   AFFIRMED.14




      12
       Guile points    to a “Patient’s Bill of Rights” issued by Beaumont which
includes a patient’s   right to care and treatment “in a safe environment.” This
vague statement does   not sufficiently prescribe any particular course of action
that it would remove   the government’s discretion in respect to the PHP contract.
      13
       Guile argues that “if the discretionary function exception does not
apply,” the United States would be liable under Texas “premises liability” law.
      14
        Dr. Cruz cross-appealed the district court’s failure to conditionally
rule on her alternative motion for new trial filed with her post-verdict motion
for judgment as a matter of law as required by FED. R. CIV. P. 50(C)(1),
requesting that, in the event we do not affirm the judgment of the district court
in her favor, we alternatively remand to the district court to rule on her motion
for new trial. As we affirm the district court’s judgment in favor of Dr. Cruz,
we dismiss her conditional cross-appeal as moot.

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