as reversed the district court's granting of the motion for summary judgment on behalf of fended lake regional hospital your honor what we have here is a instance where we have alleged that on july first two thousand and eleven  our cause of action against richmond medical center doing business as a central medical center dr nielsen dr johnson among others we filed that cause of action on june twenty eighth two thousand and thirteen but unfortunately unable to provide the aff merits required by section five three eight two zero five it was dismissed without prejudice on january eighth two thousand and fourteen under the missouri saving statute of section five one six two three zero we refile that on january fifth of two thousand and fifteen yes your honor when it when it comes to whether or not we timely filed our federal tort claim act we like the court to take particular attention to the state of bout if you will and the state of bauman of course the court recognized that looking at section two six seven ninety five there's basically four requirements basically there must be an initial cause of action in which the united states was substituted as the party defendant the initial cause of action must have been dismissed pursuant to section two six seven five so paragraph  only at the fact that we did file federal tort claims act requirement in conjunction with our refiling within the missouri saving statute we would like the court to particular take note that not only does the state of the state that it provides protections for plaintiffs who are unaware that the particular employee in this case a doctor may be protected under the f t c a and therefore be considered a federal employee not only that but  but still unaware that the in this case the defendant doctor is an employee there are certain provisions which allow the f t c a claim to be filed outside the required two years  when in this particular case your honor what we're basically saying is that the cause of action was originally filed against the defendant doctors and central ozarks in this case ritual and medical center as well as a notice of substitution asking for the united states of america to be substituted for dr johnson dr nielsen and richmond medical center now because we believe that it was time to filed i like to  of lake regional hospital at the time almost a dual employee if you will also an employee of richland medical center and in that point you know if he commits acts of medical negligence as the employee of late regional hospital we do not believe he should be  given the protections under the  that the matter was was removed we have not had an opportunity yet to take the depositions of dr nielsen we only took the depositions of the corporate representatives from the lake regional hospital in richland medical center as a determination yes your honor and that was one point that i specifically wanted to focus on was in the district court order there was great emphasis put on the fact of yes he did have staff privileges but that doesn't necessarily make an employee i would s in this court in our brief we have provided a considerable amount of factual evidence provided by the corporate presented for lake regional hospital saying what requirements they had for dr nielsen he had to live within a certain amount in the paperwork before you we did include what we were able to obtain which was a letter granting him staff privileges from lake regional hospital staff one in your honor i'm not arguing that the sta privileges in and of themselves constituted employment wh get terminations of his of his ability to be able to work there for lack of a better word your honor that he also had to keep up a certain certifications  he was required to undergo performance review every two years he was like regional hospital restricted him to the certain types of treatments that he could perform on patients while at lake regional hospital they also required him revoke his operating theatre privileges that was never given distinct answer it was just stated that they would not do that and your honor we believe that if one were to look at the instances if you will of the type of control that lake regional hospital exerted over dr nielsen i believe that that type of control shows that there was a principal agent relationship between the two and  a place in court on behalf of the united states of america i would like to urge the court to affirm the very well reasoned order of substitution and dismissal by judge harpole in this case in order to answer judge question and give you just a little bit of context at the facts of this case down in the osage beach area like the ozarks there's a little clinic the central ozarks medical center it's part richland medical center and a couple several miles away is lake regional hospital which is really the only hospital in that area until you get to jefferson city or columbia so in this particular case this little centralized arks medical center a little one stor in this case mrs wilcox was seen in two thousand and eleven by dr johnson who referred her out for radiology services to determined diagnosis for a suspicious finding in one of her breasts she then went to lake regional medical center independently she did have to go there for the radiology services they were performed by dr vieira the plaintiffs in his first state court lawsuit the images were never even transfer to centralise arps they just get a radiology report saying that the findings are benign those are reviewed by dr nielsen he does have privileges that like regional dr johnson doesn't even have privileges there and the privileges are limited to n care so when mister when he refers to and assign patients that like regional he's talking about if you're there to deliver one of your patients babies and somebody comes and he doesn't have a doctor united states the u s attorney tammy dechen said that the time issued a declaration that these doctors and this clinic were all within the course and scope of their employment in all of the actions that they took in this case that is  the united states should be substituted in an attempt to prevent dismissal of the case pursuant to the statute of limitations the plaintiff then began making this sort of tortured argument that these doctors were employees of lake regional because he wanted to proceed against these doctors under the state courts statute of limitations the federal statute of limitations is two years from a kernel of the cause of action you have to file and administrate of a claim with the appropriate federal agency here the plaintiff indicated he did it in two thousand and fifteen if you look at the record your honour's have it was actually two thousand and sixteen so we have treatment by these doctors in two thousand and eleven and we have the federal tort claim filed eventually in two thousand and and it is between the doctors and regional medical center and it's an exclusive employment contract those doctors are not allowed to be employed by any other entity they're not allowed he referred her for radiology he referred her for further study of her condition the entire year to refile that case so now we're in two thousand and fifteen when he reviles the second case all because of actions and delays by the plaintiffs there's no effort during this time period to determine that these doctors were federal doctors to pursue the case against the united states in any way by filing that federal tort claim so really that's the only challenge to the united states attorney's declaration and the court correctly points out even if even if you say that under some limited circumstances when the doctors are practicing o b g y n they might be considered a dual employee even then you still have to substitute the united states you still have to substitute the united states for  johnson there is no argument as to him there's no argument as to richland medical center even being attempted to mate by the plaintiffs in this case by the appellate so because and then when you look at the facts you see that there weren't any over actions taken to care for miss wilcox regional by these doctors who were in federal employees so you can't just make a conclusory statement  suits against the united states because it's a way perhaps of an immunity you have to strictly construe that statute of limitations the only way to save a defective state court file cause of action if plaintiff mistakenly you look at that actually supports the united states arguments the first state court case there was no substitution of the united states the case the first state court case was not dismissed pursuant to section twenty six seventy nine d the first state court case although timely filed once it was dismissed there was no administrative claim made against the united states within sixty days so the first state court case did not take three of the four boxes that you have to take under section twenty six seventy nine fails to get an affidavit of merit for his state court case you can extend the federal statute of limitations statute twenty six seventy nine d also must be strictly construed because it is a waiver of the sovereign immunity that that's my final argument that they the federal statute limitations can be septic to equitable tolling and equitable tolling is of course only reserved for exceptional circumstances and here we're talking about the most garden variety nickel act and delay failure to get an affidavit dismissal and then waiting until the saving statute has almost expired in state court to refile a state court case making no attempt to determine that these doctors were make no effort to determine that a federal employee is a federal employee the medical malpractise mark is held to a standard of realizing that there are the federal health care centers act there are federally supported health care centers particularly in rural areas and it's incumbent upon the plaintiff to discover that unless the united states were to have taken some affirmative action to hide the fact that they were federal employees rather than putting it on the website for the are related soley to the issue of vicarious liability the only allegations of negligence are against dr johnson and dr nielsen as has been stated their work there was a radiologist in a radiology group who were originally sued they were dismissed because there was no affidavit as required by statute against those meaning that they couldn't find an expert to say that there was any deviation from the standard of care as regard to those radiologists so the only allegations here against lake regional are based on the actions of dr johnson and dr nielsen a originally the pla had said that dr johnson was an employee of lake regional they have sent back from that and said that he has he was not an employee of state of lake regional so the only claim left is with dr nielsen and answer the pleading questions there are no allegations  nielsen then read a radiology report and somehow his staff privileges at lake regional are being bootstrap to say he's an employee of lake region you have to understand this is a hospital in a rural area that pulls in patients from a very large population and because of that they have physicians and clinics all over the area that are required to do treatments at the hospital if they're to perform surgery or like dr nielsen to deliver babies he can't deliver babies in his clinic he has to go somewhere to do that and arguing that his staff privileges at lake regional somehow equate to employment are conflating the issue of patient safety which the hospital is required to have for its patients and dr nielsen some point the brick quire mints of the staff privileges at lake regional are meant to protect the patients that are treated at the hospital dr nielsen is there's no dispute that as part of his privileges he's required to live in a within a certain distance of the hospital because if he has a patient that comes into the hospital that needs immediate treatment he needs to be available to care for that patient and i put the particular provision in my brief but there's a provision in the contract that says that the physician shall not directly or indirectly own manager operator control or be employed by or participate in the ownership management operational control of or be connected in any manner with any business which is directly competitive with the health center and the physician shall not render professional services on his or her own behalf or on behalf of any party other than health center and less so directed in authorized by the health center the uncontroverted testimony in this case by the president of original medical center is dr nielsen never asked for permission to be employed anywhere else and in fact he can't even volunteer his services for charitable causes or anything else without getting permission from the health center which never happen there's no evidence in this case the dr nielsen at any time was employed by late regional health system and the missouri statutes on medical malpractise are very clear an entity cannot be held liable for the actions of someone who is not its employee and that's section five thirty eight point two one zero point two wrist moat subsection three the plaintiff tries to in his brief compare this case to the scott scott decision which is a two thousand and two missouri case talking about employment factors but the thing that the that the plaintiff ignores is that cases distinguishable as pointed out by judge carpooled because in that case it was a radiology group at a hospital who provided services soley for that hospital who was provided office space by the hospital who was billed through the hospital and it gave the appearance that that radiology group was acting on behalf of the hospital here none of those factors apply we have a contract that says dr nielsen can't be employed by anyone paper that was provided by a radiologist and he read it he didn't provide any care in the hospital he didn't do anything at the hospital and there is no factors here and no facts that show that dr nielsen in any way was employed by like the missouri saving statute applies to federal law but then there is no prohibition that i've been able to find and case law stating that it's not i would take a certain amount of exception to the fact that there was a statement made that there was no diligence done by plaintiffs counsel or to determine whether or not they were federal employees we we we did like said when we did find out about it  we did time we filed a federal tort claims act notification as it pertains to the employment we are alleging that lake regional hospital is vicariously liable for the actions of its employee definity olsen specifically i would like the court if they would like to look at some of the employment factors cited for scott that is in pages thirty three and thirty four for richard brief but overall factors that made to fit nielsen an employee of the hospital not only with the distance requirement but he was required to have those certifications above and beyond those required by lake regional lake regional did keep a separate employee file for defendant nielson he was definitely also was a member of a lake regional department separate from that of richmond medical center in fact lake regional hospital actually promoted him or advertised him on their website as as being one of their doctors