The opinion of the court was delivered by: JOHN H. PRATT
Before the Court is defendant Paul Pevsner's motion for summary judgment which asserts that Dr. Pevsner is entitled to immunity from liability under the Federal Tort Claiins Act because at all times relevant to this action he was an employee of the federal government. After consideration of the entire record the Court denies defendant Pevsner's motion.
On April 15, 1988, plaintiff underwent an operation to embolize a spinal arteriovenous malformation ("AVM") performed by Dr. Pevsner at Walter Reed Army Medical Center ("Walter Reed"). Plaintiff Sandra Limo alleges that as a result of negligence during the procedure she was rendered a paraplegic. After plaintiff brought suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., the United States filed an answer asserting that Pevsner, a civilian doctor, was an independent contractor. The United States also filed a third-party complaint against Dr. Pevsner for indemnification and contribution. Plaintiff later amended her complaint to add Dr. Pevsner as a defendant.
Defendant Pevsner now seeks summary judgment, claiming that he is immune from common law tort liability because at the time of the embolization he was an employee of the United States acting within the scope of his employment.
Pevsner directs the Court's attention to Spinrad v. United States, No. 85-0502 (D.D.C. January 30, 1986), in which another judge of this Court concluded that Dr. Pevsner was an employee of the United States.
The United States responds that Spinrad is not controlling in the instant case because the status of Dr. Pevsner has changed in two material ways since that decision. At the time of the Spinrad embolization, Dr. Pevsner was a principal investigator in a research protocol being conducted at Walter Reed.
The Spinrad court concluded that the United States had the level of control over the operation that indicated Dr. Pevsner was an employee for purposes of the FTCA. The United States contends that because the protocol formally ended on October 9, 1985, Pevsner's status since then was no longer that of employee. In addition, Pevsner's activities at Walter Reed have been governed since 1985 by a series of contracts specifically acknowledging he was not an employee.
In considering defendant Pevsner's motion, the Court is required to address two questions. First, we must determine what "control test" should be used in this jurisdiction to determine whether medical professionals, who must exercise some degree of independent judgment, qualify as employees. Second, the Court must decide whether Dr. Pevsner is entitled to employment status under the control test we adopt. The Court deals with each question separately.
Under the FTCA, the United States is liable for
personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.
28 U.S.C. § 1346(b). Employment, for purposes of the FTCA, is defined broadly. The definition includes
officers or employees of any federal agency . . ., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation . . . but does not include any contractor with the United States.
A. Proper Test for Determining ...