Sisto v. United States, No. 20-16435 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's dismissal of a Federal Tort Claims Act (FTCA) case brought by plaintiffs, alleging negligence by an emergency room physician. The physician treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever. Plaintiffs claimed that the physician was an "employee of the United States" under the FTCA and the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et seq., and that he negligently failed to diagnose the disease that led to Sisto's death.
The panel agreed with the district court that the FTCA and section 5321(d) do not waive the United States' sovereign immunity with respect to claims based on the negligence of employees of independent contractors providing health care pursuant to a self-determination contract under the ISDEAA. Therefore, the panel concluded that the physician was an employee of T-EM rather than the hospital, and that the FTCA and section 5321(d) do not authorize a suit against the United States based on his alleged negligence. In this case, the physician had only a contract with T-EM and he was not an individual who provided health care services pursuant to a personal services contract with a tribal organization and was therefore not an employee of the Public Health Service under section 5321(d); because hospital privileges were not issued to the physician on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 1680c(e)(1) nor 25 C.F.R. 900.199 confers FTCA coverage; and the hospital did not control the physician's actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto.
Court Description: Federal Tort Claim Act/Indian Self-Determination and. Education Assistance Act The panel affirmed the district court’s dismissal of an action brought under the Federal Tort Claims Act alleging negligence by an emergency room physician who treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever, which led to Sisto’s death. Plaintiffs alleged that Dr. Gross was an employee of the United States under the Federal Tort Claims Act (“FTCA”) and the Indian Self-Determination and Education Assistance Act (“ISDEAA”), 25 U.S.C. § 5301 et seq. At the time of treatment, Dr. Gross was working at the SCAHC hospital pursuant to a contract between SCAHC and Tribal EM, PLLC (“T-EM”) under which T-EM provided emergency room medical services at the SCAHC hospital. The district court found that Dr. Gross was an employee of an independent contractor, rather than a federal employee, and thus the United States had not waived sovereign immunity as to Plaintiffs’ claim. The district court dismissed the suit for lack of subject matter jurisdiction. SISTO V. UNITED STATES 3 In affirming the district court, the panel noted that the contract between SCAHC and T-EM explicitly provided that the contract did not establish an employer/employee relationship between SCAHC and any T-EM Provider. Instead, the contract established an independent contractor relationship between SCAHC and T-EM, and an employer/employee relationship between T-EM and T-EM Providers. The contract listed Dr. Gross by name as a T-EM Provider, and the sample Letter of Acknowledgement attached to the contract expressly stated that T-EM Providers have no employment relationship with SCAHC. The panel therefore concluded that Dr. Gross was an employee of T-EM rather than SCAHC, and that the FTCA and § 5321(d) did not authorize a suit against the United States based on his alleged negligence. Plaintiffs argued that Dr. Gross was an “individual who provides health care services pursuant to a personal services contract with a tribal organization” within the meaning of the ISDEAA § 5321(d) and that he was therefore “deemed” an employee of the Public Health Service under that provision. The panel saw nothing in the history leading to § 5321(d)’s addition to the ISDEAA, in the text of § 5321(d), or in any of the regulations, that Congress intended to expand liability under the FTCA in the manner for which Plaintiffs contend. Plaintiffs argued that because SCAHC granted Dr. Gross hospital privileges to provide emergency room services at SCAHC, he was deemed a federal employee for purposes of the FTCA under 25 U.S.C. § 1680c(e)(1) and 25 C.F.R. § 900.199. The panel disagreed. Because hospital privileges were not issued to Dr. Gross on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 4 SISTO V. UNITED STATES § 1680c(e)(1) nor 25 C.F.R. § 900.199 conferred FTCA coverage. Finally, the panel concluded that SCAHC did not control Dr. Gross’s actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto. Concurring, Judge Watford agreed with reluctance that dismissal was required. He wrote that the relevant regulation, 25 C.F.R. § 900.199, was confusingly written so that it appeared that the FTCA governed any claims the plaintiffs might assert against the doctor, but the regulation did not accurately reflect the requirements of the statutory provision it implemented. He urged that the regulation that misled the plaintiffs’ lawyers into suing the United States for the doctor’s negligence be amended so that future plaintiffs are not similarly led astray.
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