Womack et al v. United States of America (MAG+)(LEAD)

Filing 36

MEMORANDUM OPINION AND ORDER directing that: (1) The 32 Magistrate Judge's Recommendation that this court grant the United States's 25 Motion to Dismiss Ganesia L. Womack's Complaint is ADOPTED. The 25 Motion to Dismiss, therefor e, is GRANTED, and Ganesia L. Womack's action is DISMISSED without prejudice. DIRECTING the Clerk to close Ganesia L. Womack's case, Civil Action No. 2:08cv664-WKW; (2) The 32 Magistrate Judge's Recommendation that this court grant t he United States's 23 Motion to Dismiss Vernesia Womack's claim alleging a HIPAA violation is ADOPTED. The 23 Motion to Dismiss the HIPAA claim, therefore, is GRANTED, and Vernesia Womack's HIPAA claim is DISMISSED without prejudic e; (3) The 32 Magistrate Judge's Recommendation that this court grant the United States's 23 Motion to Dismiss Vernesia Womack's FTCA claim, pursuant to Rule 12(b)(1) is REJECTED, and the 23 Motion to Dismiss the FTCA claim is DE NIED; (4) The 32 Magistrate Judge's Recommendation to deny as moot the United States's 23 Motion for Summary Judgment is REJECTED, and the 23 Motion instead is DENIED as premature, with leave to renew if and when appropriate; (5) Vernesia Womack's FTCA claim is REFERRED BACK to the Magistrate Judge for further proceedings not inconsistent with this opinion. Signed by Honorable William Keith Watkins on 8/12/2009. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION V E R N E S IA LEE WOMACK, ) ) P la in tif f , ) ) v. ) CASE NO. 2:08-CV-534-WKW[WO] ) UNITED STATES OF AMERICA, ) ) D e f e n d a n t. ) _______________________________________ G A N E S IA LEE WOMACK, ) ) P la in tif f , ) ) v. ) CASE NO. 2:08-CV-664-WKW[WO] ) U N IT E D STATES GOVERNMENT, ) D E P A R T M E N T OF VETERAN AFFAIRS, ) ) D e f e n d a n t. ) M E M O R A N D U M OPINION AND ORDER B efo re the court is the Recommendation of the Magistrate Judge (" R e c o m m e n d a tio n " ). (Doc. # 32.1 ) Plaintiffs, who are proceeding pro se, filed objections to the Recommendation. (Doc. # 33.) For the reasons to follow, the Magistrate Judge's R e c o m m e n d a tio n is due to be adopted in part and rejected in part. 1 The filings are referred to by their assigned docket number, with the exception of exhibits. I. BACKGROUND A. T h o s e Portions of the Recommendation to Which No Objection Is Made P la in tif f s raise no objection to the Recommendation that the United States's Motion to Dismiss Ganesia L. Womack's Complaint (Doc. # 25) be granted. The Recommendation f o u n d that Constitutional tort claims are not cognizable under the jurisdictional grant of the F e d e ra l Tort Claims Act ("FTCA"), 28 U.S.C. 2671-2680. (Doc. # 32, at 9-10 (citing F .D .I.C . v. Meyer, 510 U.S. 471 (1994)).) There also is no challenge to the Recommendation th a t Vernesia Womack's claim alleging a violation of the Health Insurance Portability and A c c o u n ta b ility Act of 1996 ("HIPAA") be dismissed. The Recommendation noted that " H IP A A does not create a private cause of action." (Doc. # 32, at 11.) The Magistrate Judge is correct on both grounds, and no objection having been lodged as to these re c o m m e n d a tio n s , the Recommendation is due to be adopted. W o m a c k 's lawsuit, but not Vernesia Womack's. B. T h o s e Portions of the Recommendation to Which Objection Is Made 1. V e r n e s ia Womack's FTCA Claim This ends Ganesia L. In addition to her HIPAA claim, Vernesia Womack brings a claim under the FTCA a g a in s t the United States for receiving inadequate and delayed medical care on November 1 8 , 2005, when she sought treatment for abdominal pain at the Central Alabama Veterans H e a lth Care System ("CAVHCS") in Montgomery, Alabama. In her Complaint (Doc. # 1), V e rn e sia Womack avers that the emergency room physician, Dr. Stuart Smalheiser 2 ("Smalheiser"), provided inadequate "medical treatment" by failing to "determine the s e v e rity of [her] symptoms" (Doc. # 1 5). According to the Complaint, that delay began w h e n Dr. Smalheiser sent Vernesia Womack home on the night of November 18, with d ire c tio n s to return to the CAVHCS for an ultrasound the following Monday (Doc. # 1 5), a n d the delay further was exacerbated by a chain of events that had the effect of prolonging h e r surgery until November 27, 2005.2 The delay allegedly caused Vernesia Womack's " [ g a ll]s to n e s [to] extract[] from [her] gall bladder and lodge in [her] liver and common bile d u c t," thus resulting in an "intense" five-hour surgery and "eleven day stay in SICU/CCU." (Doc. # 1 5.) As to the delay, the Complaint contains the following allegations. After the ultrasound on that Monday, Vernesia Womack "was dismissed home again with no answers or follow up from any medical staff" at the CAVHCS, but the "intolerable" and "unbearable" pain caused her to seek treatment at a local hospital's emergency room (Doc. # 1 5). It was only after events that occurred at the local hospital that she was admitted to the CAVHCS on November 25, 2005, for emergency surgery. On November 25, Lakshmipathi Namineni, M.D. ("Namineni"), a surgeon employed by the Veteran's Administration, examined her. (Namineni Decl. 6-7 (Ex. 2 to Doc. # 24 ).) Based upon his diagnosis of "cholelithiasis (gallstones) and cholecystitis (inflammation of the gallbladder)," Dr. Namineni requested a surgical consultation from Dr. John Tinglin, who "performs all laporoscopic cholecystectomies" at the CAVHCS. (Namineni Decl. 8-9; Tinglin Decl. 5 (Ex. 3 to Doc. # 24).) After that consultation, Vernesia Womack was scheduled for surgery. (Namineni Decl. 9.) The surgery initially was scheduled for November 25 (Doc. # 1 5), but was rescheduled for Saturday, November 26, because "the [a]nesthesiologist had a prior obligation" (Doc. # 1 5). The surgery was postponed again because the "anesthesiologist had made plans with his family for the weekend." (Doc. # 1 5.) Dr. Tinglin performed the gallbladder surgery on November 27. (Doc. # 1 5; Namineni Decl. 10.) He "first attempted laporoscopic cholecystectomy, but due to the severely diseased condition of the gallbladder, [he] converted the procedure to an open cholecystectomy." (Tinglin Decl. 6.) 2 3 2. T h e United States's Motion to Dismiss for Lack of Subject Matter J u ris d ic tio n and Vernesia Womack's Response T h e United States moved for dismissal of Vernesia Womack's FTCA claim for lack o f subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil P ro c e d u re .3 (Doc. # 23, at 1; Doc. # 24, at 6, 8-10.) As grounds for its Rule 12(b)(1) motion, th e United States argued that Vernesia Womack cannot hold it responsible for Dr. S m a lh e is e r's alleged negligent acts because, at all material times to this litigation, he was an in d e p e n d e n t contractor excepted from the FTCA's waiver of sovereign immunity. (Doc. # 24, at 5-6.) The United States pointed out that under the FTCA, which embodies a limited w a iv e r of the United States's sovereign immunity, suits against the United States are p e rm itte d only for acts committed by "an employee of the Government while acting within th e scope of his office or employment," 28 U.S.C. 1346(b). (Doc. # 24, at 9.) Sovereign im m u n ity, the United States argued has not been waived "for the actions of `any contractor w ith the United States.'" (Doc. # 24, at 9 (citing 28 U.S.C. 2671).) In support of its motion to dismiss, the United States submitted a declaration from Dr. S m a lh e is e r. In that declaration, Dr. Smalheiser, who is board certified in internal medicine, a tte s ts that, "[f]rom July, 2005 until June, 2006, [he] worked as a contract doctor in the As to Vernesia Womack's FTCA claim, the United States's singular motion (Doc. # 23) is twofold. First, it moved for dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. (Doc. # 24, at 6, 8-10.) Second, and alternatively, the United States moved for summary judgment on the ground that Dr. Smalheiser did not breach the appropriate standard of care in providing medical treatment to Vernesia Womack. (Doc. # 24, at 7, 10-14.) Both grounds are addressed infra, in Section III of this opinion. 3 4 emergency room, Life Support Unit (LSU), at [CAVHCS] Hospital in Montgomery, A la b a m a ." (Smalheiser Decl. 3 (Ex. 1 to Doc. # 24).) He further attests, "I was not a D e p a rtm e n t of Veterans Affairs (VA) employee. I was paid on an hourly basis for my s e rv ic e s in the LSU. The VA did not supervise my day-to-day care and treatment of patients. Rather, I exercised independent clinical judgment at all times when treating patients in the L S U ." (Smalheiser Decl. 4.) The Magistrate Judge opined that the United States was raising a Rule 12(b)(1) factual a tta c k (as opposed to a facial attack) to subject matter jurisdiction and entered an Order g iv in g Vernesia Womack a deadline by which to file a response to the motion and any e v id e n tia ry materials in support of her position that Dr. Smalheiser was a federal government e m p lo ye e . (Doc. # 27, at 2.) The Magistrate Judge noted that "any evidentiary materials s u b m itte d should be restricted to the establishment of jurisdiction." (Doc. # 27, at 1 n.1.) In response, Vernesia Womack argued that Dr. Smalheiser was a participant in a f e l l o w s h ip program funded by the VA. (Doc. # 29.) She also submitted several exhibits. (See, e.g., Exs. 3, 4 & 5 (Doc. # 29).) As described by the Magistrate Judge, one exhibit " a p p e a r[ e d ] to be a physician's profile printout from the Florida Department of Health" (Doc. # 32, at 14); the other two exhibits "appear[ed] to be excerpts from a [VA] Health A d m in is tra tio n Handbook" (Doc. # 32, at 14). In rebuttal, the United States submitted a s e c o n d declaration from Dr. Smalheiser, who said that he "was not a VA resident or fellow a t CAVHCS and ha[d] never been enrolled in a VA training program." (Smalheiser 2d Decl. 5 3 (Ex. 6 to Doc. # 30).) Nor was he "supervised by the VA as a resident or fellow." (Smalheiser 2d Decl. 3.) He reiterated that he "was working as a contract physician using [ h is ] independent clinical judgment as a licensed, board certified internist." (Smalheiser 2d D e c l. 3.) 3. T h e Magistrate Judge's Recommendation A f te r considering the evidence, the Magistrate Judge concluded that Vernesia W o m a c k 's exhibits constituted hearsay (Doc. # 32, at 15), that Dr. Smalheiser provided " s p e c if ic factual declarations" within his personal knowledge, and that Vernesia Womack f a ile d to rebut those declarations. (Doc. # 32, at 15-16.) Because Vernesia Womack " p ro f f e re d no competent evidence to establish jurisdiction in opposition to the denials of the ju ris d ic tio n a l allegations contained in Dr. Smalheiser's affidavit," the Magistrate Judge re a s o n e d that "she ha[d] not met her burden of establishing jurisdiction[.]" (Doc. # 32, a t 16.) Consequently, the Magistrate Judge recommended dismissal of Vernesia Womack's F T C A claim, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. # 32, a t 16.) 4. V e r n e s ia Womack's Objections to the Recommendation V e rn e s ia Womack objects to the Recommendation on what appears to be two main g ro u n d s . First, she asserts that Dr. Smalheiser's facts are "unclear" as to whether he is an e m p lo ye e or an independent contractor. (Doc. # 33, at 3.) Second, she contends that she was " c le a rly misled by the United States about the employment status of Dr. Stuart Smalheiser 6 for approximately 2 years after the incident; therefore, stripping [her] of [her] legal right to file suit in State Courts." (Doc. # 33, at 3.) Vernesia Womack, thus, argues that the U n ite d States should not be permitted to "bring evidence that Dr. Smalheiser was not an e m p lo ye e of the United States." (Doc. # 33, at 3.) II. STANDARD OF REVIEW T h e court reviews "de novo . . . those portions of the [Recommendation] or specified p ro p o s e d findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1). III. DISCUSSION A. T h e United States's Rule 12(b)(1) Challenge T h e re are two principal Rule 12(b)(1) issues, one substantive and one procedural. The s u b s ta n tiv e issue is whether Dr. Smalheiser is an employee of the federal government or an in d e p e n d e n t contractor. The FTCA only waives sovereign immunity for injuries caused by a n "employee of the Government." 28 U.S.C. 1346(b)(1); Means v. United States, 176 F .3 d 1376, 1379 (11th Cir. 1999) ("The alleged tortfeasor's status as an `employee of the g o v e rn m e n t' is the sine qua non of liability under the FTCA." (citation omitted)). Injuries c a u s e d by "`any contractor with the United States'" are excluded from that waiver. United S ta te s v. Orleans, 425 U.S. 807, 814 (1976) (quoting 28 U.S.C. 2671). The procedural issue is whether the appropriate standard of review was applied when a s s e s sin g whether Dr. Smalheiser was an independent contractor or a federal government e m p lo ye e . The Magistrate Judge stated, on one hand, that he would apply a "summary 7 judgment standard" but, on the other hand, that he was "free to weigh the evidence." (Doc. # 32, at 14; see also Doc. # 32, at 7.) As will be explained, the Magistrate Judge's former s ta te m e n t is correct, but the latter is not. In Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990), the Eleventh Circuit e x p la in e d that, on a Rule 12(b)(1) factual attack, the district court "`may proceed as it never c o u l d under'" Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. Id. at 1529 (c ita tio n and internal quotation marks omitted). "Because at issue in a factual 12(b)(1) m o tio n is the trial court's jurisdiction its very power to hear the case there is substantial a u th o rity that the trial court is free to weigh the evidence and satisfy itself as to the existence o f its power to hear the case." Id. (citation and internal quotation marks omitted); accord M a k r o Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008). The court, however, is not at liberty to weigh the evidence when the factual attack " a ls o implicates an element of the cause of action." Lawrence, 919 F.2d at 1529. The E le v e n th Circuit "ha[s] cautioned . . . that the district court should only rely on Rule 12(b)(1) `[ i]f the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause o f action.'" Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (citation o m itte d );4 accord Miccosukee Tribe of Indians of Fla. v. United States, 105 F.3d 599, 603 In Morrison, brought under the Family Medical Leave Act ("FMLA"), 29 U.S.C. 2601-2654, the Eleventh Circuit reversed the district court's ruling that the defendants' Rule 12(b)(1) motion to dismiss attacked only subject matter jurisdiction, and that "it [the district court] could properly act as a `fact finder,' and `weigh the evidence submitted by the parties.'" 323 F.3d at 924. The Morrison court held that "[t]he district court's decision to treat [the defendants'] attack as purely jurisdictional and resolve disputed issues of fact . . . erroneously invaded the province of the jury." Id. at 930. "The proper course in this case was to resolve the attack under Rule 56[.]" Id. 4 8 (11th Cir. 1997); ("[T]he jurisdictional question [was] intertwined with the merits of the [ p la in tif f 's ] claims"; hence, "the district court should [have] appl[ied] a summary judgment s ta n d a rd when ruling on the motion to dismiss as a factual attack on subject matter ju r is d ic tio n [ .] " ). In Lawrence, relied upon in Morrison, the Eleventh Circuit reiterated "the standard b y which a district court should decide factual attacks on subject matter jurisdiction when the d e f e n d a n t's attack also implicates an element of the cause of action." Lawrence, 919 F.2d at 1529. It explained: [T]he proper course of action for the district court . . . is to find that ju ris d ic tio n exists and deal with the objection as a direct attack on the merits o f the plaintiff's case. . . . Judicial economy is best promoted when the e x is te n c e of a federal right is directly reached and, where no claim is found to e x is t, the case is dismissed on the merits. This refusal to treat indirect attacks o n the merits as Rule 12(b)(1) motions provides, moreover, a greater level of p ro te c tio n to the plaintiff who in truth is facing a challenge to the validity of h is claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 5 6 . . . both of which place great restrictions on the district court's d is c re tio n . . . . [A]s a general rule a claim cannot be dismissed for lack of s u b je c t matter jurisdiction because of the absence of a federal cause of action. T h e exceptions to this rule are narrowly drawn, and are intended to allow ju ris d ic tio n a l dismissals only in those cases where the federal claim is clearly im m a te ria l or insubstantial. Id . (quoting Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir. May 1981)5 ); see also M o r r is o n , 323 F.3d at 922 (The Rule 12(b)(1) standard "is far less deferential to the plaintiff" th a n the Rule 56 standard.). In Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981. Id. at 1209. 5 9 Simpson v. Holder, 184 F. App'x 904 (11th Cir. 2006), although unpublished, is in s tru c tiv e . In Simpson, the Eleventh Circuit held that a Rule 12(b)(1) attack on subject m a tte r jurisdiction is "intertwined with the merits" of an FTCA claim when the assertion is th a t the allegedly negligent actor is not an employee of the United States. Id. at 909. Hence, in Simpson, the Eleventh Circuit held that "[w]hether the . . . medical staff [were] g o v e rn m e n t employees or independent contractors affect[ed] both subject matter jurisdiction u n d e r the FTCA and the merits of the FTCA claim," id. (citing Lawrence, 919 F.2d at 1529), a n d that, therefore, Rule 56's standard of review was implicated because matters outside the p le a d in g s were considered, id. Here, the United States filed its motion to dismiss pursuant to Rule 12(b)(1), c h a lle n g in g subject matter jurisdiction on the basis that "Dr. Smalheiser [was] an in d e p e n d e n t contractor, not a VA employee." (Doc. # 24, at 7.) It further asserted that its m o tio n was "a factual attack on subject-matter jurisdiction" (Doc. # 24, at 7), and that the M a g is tra te Judge could "resolve any disputed issues of fact . . . material to the jurisdictional is su e " (Doc. # 24, at 6). The United States's reliance upon Rule 12(b)(1)'s standard for analyzing factual a tta c k s on subject matter jurisdiction is misplaced. Applying Simpson and the other a u th o ritie s cited above, the issue of whether Dr. Smalheiser is an "employee" of the United S ta te s, see 28 U.S.C. 1346(b)(1), or an "independent contractor," see 28 U.S.C. 2671, im p lic a te s both subject matter jurisdiction and the merits of Vernesia Womack's FTCA 10 claim. The Magistrate Judge, therefore, was required to "`find that jurisdiction exists and d e a l with the objection as a direct attack on the merits of the . . . case.'" Lawrence, 919 F.2d a t 1529 (quoting Williamson, 645 F.2d at 415-16). Because the United States's motion in d ire c tly challenged the merits of the FTCA claim, the motion should have been analyzed u n d e r either Rule 12(b)(6) or Rule 56, not Rule 12(b)(1). O n this record, the Magistrate Judge's statement that, under Rule 12(b)(1), he was " f re e to weigh the evidence" (Doc. # 32, at 14), although understandable in light of the U n ite d States's urging, was in error. Moreover, because evidence outside the pleadings was s u b m itte d and relied upon by the Magistrate Judge, review under Rule 12(b)(6) would have b e e n inappropriate. See Morrison, 323 F.3d at 924 ("[T]he district court could not have c o n s id e re d [the plaintiff's] motion under Rule 12(b)(6) because in rendering its decision the c o u rt relied on extrinsic evidence outside the pleadings." (citations omitted)). Rule 56, thus, p ro v id e s the correct standard of review.6 See Lawrence, 919 F.2d at 1530 ("When the ju ris d ic tio n a l basis of a claim is intertwined with the merits, the district court should apply a Rule 56 summary judgment standard when ruling on a motion to dismiss which asserts a f a c tu a l attack on subject matter jurisdiction."). H a v in g clarified the governing standard of review, the court finds that the Magistrate J u d g e 's recommendation that the United States's motion be granted is due to be rejected. It does not appear that the Magistrate Judge actually weighed the evidence, as there essentially was no evidence to weigh. This is because, as the Magistrate Judge correctly found, Vernesia Womack's evidence was largely hearsay and, thus, not admissible. (Doc. # 32, at 14-16.) Nonetheless, elaboration on the correct standard of review is necessary to the ultimate disposition of the FTCA claim. 6 11 This court's ruling is based upon the procedural posture of the case, not the merits of whether D r. Smalheiser was an independent contractor. In Eaton v. Dorchester Development, Inc., 692 F.2d 727 (11th Cir. 1982), which was b ro u g h t under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. 1701-1720, the E le v e n th Circuit reversed the district court's Rule 12(b)(1) dismissal of the complaint based o n a factual attack on subject matter jurisdiction. Id. at 734. The court explained that, b e c a u s e the question "of whether the court has subject matter jurisdiction will hinge on w h e th e r the defendant owe[d] a duty to plaintiffs under the Act, that determination will, at th e same time, effectively decide the merits of plaintiffs' claim." Id. And, "[w]here the ju ris d ic tio n a l issues are intertwined with the substantive merits, `the jurisdictional issues s h o u ld be referred to the merits, for it is impossible to decide one without the other.'" Id. a t 733 (quoting Chatham Condo. Ass'ns v. Century Village, Inc., 597 F.2d 1002, 1011 (5th C ir. 1979)). The court "remand[ed] for further discovery of jurisdictional facts." Id. It o b s e rv e d , "[T]he argument against premature dismissal on 12(b)(1) grounds is particularly s tro n g when the basis of jurisdiction is also an element of plaintiffs' cause of action on the m e rits ." Id. Similarly, in Chatham Condominium Ass'ns, the former Fifth Circuit cautioned that " d is m is s a l for lack of subject matter jurisdiction . . . prior to giving the plaintiff ample o p p o rtu n ity for discovery, should be granted sparingly." 597 F.2d at 1012. In that case, the " d is c o v e ry had barely begun" when the district court entered its dismissal order based upon 12 the absence of subject matter jurisdiction. Id. "With the facts not fully developed, a fair and c o n c lu s iv e resolution of the jurisdictional issue [could] not be made[.]" Id. And so it is here also. An overview of the substantive law explains why a Rule 56 ru lin g would be premature. In Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008), the E le v e n th Circuit reiterated that in this circuit "the `control test' [governs] whether an in d iv id u a l is a government employee or an independent contractor." Id. at 1159. "`[A] p e rs o n is an employee of the Government if the Government controls and supervises the d a y-to -d a y activities of the alleged tortfeasor during the relevant time." Id. (quoting P a tte r so n & Wilder Constr. Co. v. United States, 226 F.3d 1269, 1274 (11th Cir. 2000)). The c o n tro l test "does not require that the government exercise actual control over an individual. It is enough that the government has reserved the power or authority to control him." Id.; see a ls o Simpson, 184 F. App'x at 909 ("The distinction between an employee and an in d e p e n d e n t contractor turns on the power of the United States `to control the detailed p h ys ic a l performance of the contractor.'" (quoting Logue v. United States, 412 U.S. 521, 5 2 7 -2 8 (1973))). Bravo also held that the focus for resolving whether a tortfeasor is a federal g o v e r n m e n t employee is on the United States's authority to control the contractor's p e rf o rm a n c e , and not on whether the United States actually exercised that authority. See 532 F .3 d at 1159-60. "`[I]t is not necessary that the Government continually control all aspects o f the individual's activities, so long as it has the authority to do so given the nature of the 13 task.'" Id. at 1159-60 (quoting Patterson, 226 F.3d at 1274); see also Linkous v. United S ta te s, 142 F.3d 271, 275-76 (5th Cir. 1998) ("[I]f control were the only factor, then no p ro f e ss io n a l who exercises professional judgment could be considered a federal employee u n d e r the FTCA.").7 In Bravo, the contractual provisions were paramount in the determination of whether th e negligent physician, who worked at a naval hospital, was a federal government employee, a n d were relied upon almost exclusively by the court. See 532 F.3d at 1160 ("The question o f whether the Naval Hospital reserved the right to control [the physician's] activities is one w h o s e answer depends on the various contractual provisions."). In Broussard v. United S ta te s, 989 F.2d 171 (5th Cir. 1993), the Fifth Circuit also relied principally on an e x a m in a tio n of the governing contract to determine whether the emergency room physician In Linkous, the Fifth Circuit also cited the non-exhaustive factors listed in 220 of the Restatement (Second) of Agency on the definition of a servant. See 142 F.3d at 276. Those factors are: "(a) [T]he extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business." Id. (quoting Restatement (Second) of Agency 220). 7 14 was an independent contractor. See id. at 176 (holding that the contractual arrangement g o v e rn in g the physician's relationship with the army hospital placed the physician "`outside o f the parameters of an employer-employee relationship with the Government.'" (citation o m itte d )). T h e foregoing principles of substantive law reveal the shortcomings in the evidentiary re c o rd . Vernesia Womack's evidence, as the Magistrate Judge correctly found, is based la rg e ly upon hearsay and, thus, not admissible under the summary judgment standard.8 (Doc. # 32, at 14-16.) At the same time, however, the United States's evidence also is lacking. The U n ite d States did not support its motion with a copy of the contract governing Dr. S m a lh e is e r's working relationship with the CAVHCS. If there was not such a contract, that f a c t has not been argued or established.9 Here, the United States's only evidence consists of tw o declarations from Dr. Smalheiser.1 0 The statements in those declarations are, for the m o s t part, conclusory. They do not permit a meaningful analysis of the control test. On this re c o rd , the court believes that the best course is to reject the Magistrate Judge's 8 On a motion for summary judgment, a court can consider evidence that is admissible on its face, or that can be reduced to admissible form and complies with Federal Rule of Civil Procedure 56(e). Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Macuba v. DeBoer, 193 F.3d 1316, 1322-24 (11th Cir. 1999). Whether a contract exists is one question that needs to be answered before a ruling can be issued. Obviously, if there is a contract, it needs to be submitted. In those declarations, Dr. Smalheiser says that during the pertinent time, (1) he was "a contract doctor in the emergency room" (Smalheiser Decl. 3), (2) he was not a VA employee (Smalheiser Decl. 4), (3) he "was paid on an hourly basis" (Smalheiser Decl. 4), (4) he was not supervised by the VA (Smalheiser 2d Decl. 3), (5) he "exercised independent clinical judgment at all times when treating patients" (Smalheiser Decl. 4), and (6) he "was not a VA resident or fellow at CAVHCS and ha[d] never been enrolled in a VA training program" (Smalheiser 2d Decl. 3). 10 9 15 recommendation that Vernesia Womack's FTCA claim be dismissed pursuant to Rule 1 2 (b )(1 ), and to refer that claim back for further discovery, and for later disposition, if a p p ro p ria te , on a properly-filed motion to be reviewed under Rule 56's strictures. B. T h e United States's Rule 56 Challenge T h e United States also has argued that it is entitled to summary judgment on the g ro u n d that "the care and treatment [Vernesia Womack] received at the VA Hospital c o m p lie d with the applicable standard of care." (Doc. # 24; see also Doc. # 23).) The M a g is tra te Judge has recommended that the Rule 56 motion be denied as moot. (Doc. # 32, a t 18.) Given that Dr. Smalheiser's status as either a federal government employee or an in d e p e n d e n t contractor cannot be resolved on the present record, the United States's s u m m a ry judgment motion (Doc. # 23), challenging Vernesia Womack's claim that she re c e iv e d inadequate medical care, will be denied as premature. The United States may re n e w , if necessary, its Rule 56 summary judgment motion at the appropriate time.1 1 I V . CONCLUSION For the foregoing reasons, it is ORDERED that: (1) T h e Magistrate Judge's Recommendation (Doc. # 32) that this court grant the U n ite d States's Motion to Dismiss Ganesia L. Womack's Complaint (Doc. # 25) is A D O P T E D . The motion to dismiss (Doc. # 25), therefore, is GRANTED, and Ganesia L. In light of the court's findings herein, it is unnecessary to address Vernesia Womack's objection suggesting that the United States should be equitably estopped from asserting that Dr. Smalheiser is not a federal government employee. Should Ms. Womack desire to rely upon that argument in the future, it must be raised again. 11 16 Womack's action is DISMISSED without prejudice. The Clerk of the Court is DIRECTED to close Ganesia L. Womack's case, Civil Action No. 2:08-CV-664-WKW. (2 ) T h e Magistrate Judge's Recommendation (Doc. # 32) that this court grant the U n ite d States's motion to dismiss (Doc. # 23) Vernesia Womack's claim alleging a HIPAA v io la tio n is ADOPTED. The motion to dismiss the HIPAA claim (Doc. # 23), therefore, is G R A N T E D , and Vernesia Womack's HIPAA claim is DISMISSED without prejudice. (3) T h e Magistrate Judge's Recommendation (Doc. # 32) that this court grant the U n ite d States's motion to dismiss Vernesia Womack's FTCA claim (Doc. # 23), pursuant to R u le 12(b)(1), is REJECTED, and the motion to dismiss (Doc. # 23) the FTCA claim is D E N IE D . (4 ) T h e Magistrate Judge's Recommendation (Doc. # 32) to deny as moot the U n ite d States's summary judgment motion (Doc. # 23) is REJECTED, and the motion (Doc. # 23) instead is DENIED as premature, with leave to renew if and when appropriate. (5) V e rn e s ia Womack's FTCA claim is REFERRED BACK to the Magistrate J u d g e for further proceedings not inconsistent with this opinion. D O N E this 12th day of August, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 17

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