United States District Court, District of Columbia
CYNTHIA HARRIS-DEVAUGHN and JAMES DEVAUGHN, individually and as parents and next friends of Jayla DeVaughn, a minor, Plaintiffs,
UNITED STATES OF AMERICA Defendant.
MEMORANDUM OPINION [DKT. # 14]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
a medical malpractice case brought under the Federal Tort
Claims Act for acts performed by a member of the U.S. Navy
who was training as a medical resident. Plaintiffs are the
parents of a girl who suffered a post-operative injury when
she was under the care of the servicemember. They bring this
suit on the theory of vicarious liability against the United
States to recover damages from that injury. The question
before the Court is whether an active duty member of the
military who is employed as a full time medical resident is
acting as a federal employee for the purpose of vicarious
liability when he is rotating through an unaffiliated
hospital. Defendant, the United States, says that the
servicemember who allegedly breached the standard of care was
a "borrowed servant" when he performed the care and
so the vicarious liability properly attaches to the hospital
where he was rotating, not to it. Defendant moves for summary
judgment on this legal issue, contending that the discovery
the plaintiffs are seeking would neither inform nor alter the
resolution of this issue. Upon consideration of the
parties' pleadings, the employment contract at issue, the
affidavit describing how medical residency training works,
and the relevant case law, the defendant's Motion for
Summary Judgment is GRANTED.
daughter, Jayla DeVaughn, had orthopedic surgery at
Children's National Medical Center ("Children's
Hospital") to treat a congenital condition that
affected, among other things, her right leg. Pis.' Resp.
to Def.'s Statement of Material Facts ("Pis.'
SOF") ¶¶1, 4 [Dkt. #17-1]. At that time, Dr.
Keith Alfieri ("Alfieri"), an active duty
Lieutenant Commander in the U.S. Navy, was on a two-month
rotation at Children's Hospital as part of his residency
training program in orthopedic surgery. See Decl. of
Jerri Curtis, M.D., Ex 1. to Def.'s Mot. for Summary
Judgment ("Curtis Decl.") ¶ 4 [Dkt. #14-3];
see also Id. at ECF p. 7 (referring to the agreement
between the "National Capital Consortium, Residency in
Orthopaedic Surgey" and Children's Hospital).
Alfieri assisted the attending orthopedic surgeon in
delivering DeVaughn's care. Pis.' SOF ¶ 3.
Plaintiffs allege, and the Court accepts for the purpose of
deciding this motion, that Alfieri told DeVaughn she was
allowed to use her right leg in weight-bearing activities if
she could tolerate it. Id. at ¶ 7; Compl.
¶¶ 8, 11-14 [Dkt. #1]. This post-operative
instruction, plaintiffs allege, was negligent and caused
DeVaughn's right leg to heal improperly from surgery.
was an employee of the United States while he was rotating
through Children's Hospital. Pis.' SOF ¶ 21. His
paycheck came from the U.S. Navy and his assignment was to
complete an orthopedic surgery residency program run by the
National Capital Consortium (NCC), a "joint military
service activity" designed to provide graduate medical
education and training to servicemembers. See Id. at
¶¶ 13, 21; Curtis Decl. ¶ 1. The NCC had
contracted with Children's Hospital in order to ensure
that its orthopedic surgery residents would receive the
training in pediatric orthopedics that is necessary to meet
graduate medical education standards. See Curtis
Decl. ¶¶ 6, 9; see also Id. at
Attachment 1, Attachment 2. Although the NCC retained
"overall responsibility for the planning and
implementation of a Rotator's training in accordance with
the Program's goals and objectives, " id.
at Attachment 2, § 1.0(a), Children's Hospital was
responsible for the resident's "education,
supervision, and evaluation" while he was rotating
through the two-month pediatric orthopedics rotation.
Id. at Attachment 1, ¶ 1; see also Id.
at Attachment 2, § 2.0(c). The agreement between the NCC
and Children's Hospital explicitly contemplates that
residents, while working at Children's Hospital
remain employees of the United States performing duties
within the course and scope of their Federal employment.
Consequently, the provision of the Federal Tort Claims Act
, including its defense and immunities, will apply to
allegations of negligence or wrongful acts or omissions by
[residents] while acting within the scope of their duties
pursuant to this agreement.
Id. at Attachment 2, § 1.0(j). The NCC also
agreed to "provide professional liability coverage ...
for claims arising out of [the residents'] activities
while participating in the training at [Children's
Hospital]." Id. at § 1.0(k).
parties agree that the United States is entitled to judgment
under the FTCA if Alfieri was acting as a "borrowed
servant" when he was employed by the Navy. They do not
agree, however, whether it should be the Court or the jury
that decides if Alfieri was acting as a borrowed servant.
Unfortunately for the DeVaughns, the question of which legal
label to apply to an undisputed set of facts is one for the
Court. Union Light & Power Co. v. D.C. Dep't of
Emp't Servs., 796 A.2d 665, 669 (D.C. 2002) (lent or
borrowed employment status may be decided "as a matter
of law where the particular, undisputed critical facts compel
that conclusion and present no triable issue of fact");
see also Dellums v. Powell, 566 F.2d 216, 220-21
(D.C. Cir. 1977). And because there is no dispute about how
Alfieri's work was managed when he was caring for the
DeVaughns' daughter, or for that matter about the terms
of the agreement between the NCC and Children's Hospital,
the question of whether Alfieri met the legal standard for a
borrowed servant can, and should, be settled at summary
judgment. See Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986) (summary judgment meant to resolve actions in
a "just, speedy, and inexpensive"
of Columbia law governs whether Alfieri was a "borrowed
servant" of Children's Hospital for the purpose of
vicarious liability and the applicable test is whether the
borrowing employer had the "power to control and direct
[the employee] in the performance of [his] work."
Dellums v. Powell, 566 F.2d 216, 221 (D.C. Cir.
1997). Moreover, the United States is due judgment in its
favor only if it can also show that the NCC had relinquished
control of Alfieri's work and was not a joint master
with Children's Hospital. Dellums v.
Powell, 566 F.2d216, 221 (D.C. Cir. 1997). In other
words, the general employer remains liable for the employee
if "he is performing the business entrusted to him by
the general employer" even if "service [is also]
rendered [to] another." Dellums v. Powell, 566
F.2d 216, 221 (D.C. Cir. 1977). For the following reasons, I
conclude that Children's Hospital was the exclusive
master of Alfieri here.
District of Columbia courts have addressed the question of
what it means to "control and direct" a borrowed
employee mostly in the context of worker's compensation,
where the "control and direct" test is one of the
factors for determining whether a general or special employer
should bear the burden of worker's compensation. Indeed,
in one relatively recent such case, the D.C. Court of Appeals
found the "control and direct" test was met when a
waste management company borrowed an employee from a temp
agency. USA Waste of Maryland, Inc. v. Love, 954
A.2d 1027, 1035 (D.C. 2008). It was dispositive that the
waste company controlled day-to-day details such as "the
collection routes to be followed, the hours worked, the
equipment used, and the specific manner of performance."
Id. (quotation marks and alterations omitted).
Furthermore, it was notable to the court there that, the
employee "was indistinguishable from a regular employee
. . . doing the same work." Id. There is no
question here that Children's Hospital controlled similar
details of Alfieri's work.
Hospital had sole control to assign Alfieri's shifts, to
determine what patients he saw, and to provide the equipment
he used. Pis.' SOF ¶¶ 16, 18. In fact he was
"removed from the Navy service environment"
altogether. Id. at ¶ 21; Curtis Decl. ¶ 7.
Moreover, it is clear from the record that Alfieri was
providing care to Children's Hospital patients, and
generating revenue for Children's Hospital, only.
Pis.' SOF ¶ 20. And of course, it was also
Children's Hospital's responsibility to ensure that
its attending physicians supervised the care Alfieri provided
to patients while on his two-month rotation, including the
care he provided to Jayla DeVaughn. Curtis Decl. at
Attachment 1, ¶ 1; see also Compl. ¶ 7. As
such, plaintiffs do not contest, nor could they, that Alfieri
was indistinguishable from a Children's Hospital resident
in all these ways.
the DeVaughns argue that the NCC retained at least partial
control over Alfieri because, while rotating, he remained
responsible for adequately completing his residency training
under the graduate medical education standards supervised by
the NCC. See Pis.' SOF ¶¶ 6, 21. As
such, they contend, Children's Hospital was not
Alfieri's "sole master, " but a "joint
master" with the United States. I disagree. Having such
ultimate responsibility for multi-year goals is irrelevant to
the question of control and direction. The NCC had no
interaction with Alfieri's work for the two months that
he was rotating. Rather, the NCC's role was limited to
advance planning: assigning residents to Children's
Hospital so that they could learn in that unique environment
and agreeing with Children's Hospital that residents
would work toward certain educational objectives. Indeed, the
very purpose of such an arrangement is to ensure that the NCC
need not exercise any day-to-day control or
direction while its ...