UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50609

LARRY B. STARNES and LINDA STARNES, Individually and as

Representatives of the Estate of KIMBERLY STARNES, Deceased,

Plaintiffs-Appellants,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

May 5, 1998

Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

Larry and Linda Starnes appe al the decision of the district

court granting Defendant-Appellee United States of America summary

judgment. Finding error, we reverse and remand.

BACKGROUND

Larry and Linda Starnes are the natural pa rents and

representatives of the estate of their deceased daughter, Kimberly.

A few days before Christmas in 1992, Kimberly was hospitalized at

Santa Rosa Children’s Hospital (hereinafter “SRCH”) for care of

intestinal distress and dehydration. SRCH is a private hospital in2

San Antonio, Texas. Robin Hardiman, M.D., was a Brooke Army

Medical Center resident on pediatric surgical rotation at SRCH.

Dr. Hardiman was on active duty in th e United States Army at the

time and was on rotation at SRCH pursuant to a Military Training

Agreement (hereinafter “the Agreement”) between the United States

Army and SRCH. Under the Agreement, military residents were

assigned to SRCH to do a two to three month pediatric surgery

rotation. During her residency at SRCH, Dr. Hardiman’s salary was

paid by the government.

On December 22, 1992, Dr. Hardiman inserted a venous catheter

line which perforated Kimberly’s heart. Kimberly died on December

23, 1992. The Starnes allege that the negligent placement of the

subclavian line was a proximate cause of Kimberly’s death.

After filing an administrative claim, the Starnes filed suit

against the United States under the Federal Tort Claims Act (FTCA)

based upon the alleged negligence of Dr. Hardiman. The government

filed a motion to dismiss or, in the alternative, motion for

summary judgment, contending that the United States was not liable

because Dr. Hardiman was the “borrowed servant” of SRCH. The

district court granted the government’s motion for summary judgment

and dismissed the plaintiffs’ sui t after concluding that Dr.

Hardiman was the borrowed servant of SRCH. The Starnes timely

filed a notice of appeal.

ANALYSIS

T his court reviews a district court’s grant of summary3

judgment de novo

. S tults v. Conoco, Inc.

, 76 F.3d 651 (5 th Cir.

1996). The district court held that the borrowed servant doctrine

precluded the plaintiffs fr om succeeding on their FTCA action.

Under the FTCA, the United States is liable for the torts of its

employees to the same extent as a private party would be under like

circumstances, according to state law. 28 U.S.C. § 2671, et seq.

Under the FTCA, the United States can assert the same defenses

available to private citizens, including the borrowe d servant

defense. S ee Palmer v. Flaggman

, 93 F.3d 196, 199 (5th Cir. 1996).

Under Texas law, the employee of a general employer may become

a borrowed servant of another. Respondeat superior liability is

assigned to the borrowing employer who had control over the act in

question. The right to control is the key to determining borrowed

servant status. Dodd v. Twin City Fire Ins. Co. , 545 S.W.2d 766,

768 (Tex. 1977).

When a written contract between two employe rs expressly

provides that one or the oth er shall have the right of control,

solution of the question is relatively simple. P roducers Chemical

Co. v. McKay , 366 S.W.2d 220 (Tex. 1963). But see Exxon Corp. v.

Perez

, 842 S.W.2d 629, 630 (Tex. 1992)(a “contract between two

employers providing that one shall have the right of control over

certain employees is a factor to be considered, b ut it is not

controlling.”). In reaching its conclusion, the district court

relied upon Paragraph 7 of the Agreement which provides:

It is furthe r understood and agreed that the military

residents while undergoing training at the training

institution will be under the immediate professional

supervision and control of the medical specialty teaching4

chief at the training institution or his/her authorized

designee. All professional services rendered to patients

of the training institution by military residents will be

properly monitored and supervised by training

institution’s staff personnel. (emphasis added).

The district court concluded that under the contract Dr. Hardiman

was the borrowed servant of SRCH.

The government maintains that Paragraph 7 of the Agreement is

dispositive regarding borrowed servant status. We disagree. The

Agreement pro vides that residents are under the professional

supervision and control o f the medical specialty teaching chief,

not the hospital. If the parties to the Agreement wanted SRCH to

have exclusive control over the residents, they could have provided

such a provision in the Agreement. Instead, the Agreement states

that residents are under the admini strative direction of other

physicians at the hospital. These physicians are independent

contractors with privileges at the hospital, and under Texas law,

hospitals are not liable for the negligence of physicians who are

i ndependent contractors. S ee Drennan v. Community Health Inv.

Corp.

, 905 S.W.2d 811, 818 (Tex. App. -- Amarillo 1995, writ

denied).

The government argues that a recent Fifth Circuit decision,

Palmer v. Flaggman

, 93 F.3d 196 (5th Cir. 1996), supports its

position that Dr. Hardiman was the borrowed servant of SRCH. The

issue in P almer was whether a doctor had been acting within t h e

scope of his federal employment for the purposes of Westfall Act

immunity while completing a resid ency at a private hospital.

Although the government’s liability was not at issue in Palmer

, the5

court noted that the agreement between the Air Force and the

hospital gave the hospital full control over the doctor during his

residency. Thus the court concluded that the doctor was the

borrowed servant of the hospital, and the government could not be

liable.

However, the agreement in Palmer gave exclusive control over

the military residents to the hospital

. 93 F.3d at 198. Also the

hospital agreed to obtain liability insurance to satisfy any claims

brought against the resident. I d. The contract in P almer was much

clearer regarding borrowed servant status.

In this case a number of factors leads the court to the

conclusion that Dr. Hardiman was not the borrowed servant of SRCH.

First, other portions of the Agreement indicate that the resident

is responsible for patient care, and that the United States is

liable for the negligence of the resident while she is undergoing

training. Paragraph 10 of the Agreement provides that the resident

is responsible for the “workup, evaluation, and management of

patients assigned to him/her by members of the Training Institution

staff.” Paragraph 3 of the Agreement provides:

Federal Tort Claims Act (28 U.S.C. § 2671, e t seq. )

provides that the United States is lia ble for the

negligent and wrongful acts or omissions of United States

employees during the scope of their employment. The term

“United States employees” includes healthcare personnel

performing training covered by this agreement.

Paragraph 3 indicates that the United States is liable for the

negligence of residents during training covered in the Agreement.

In response to the motion for summary judgment, the Starnes

submitted evidence fr om physicians at SRCH indicating that the6

hospital does not supervise or co ntrol the medical treatment

provided to patients by staff physicians and military residents.

Dr. Richard Wayne, the Medical Director and Chief Executive Officer

at SRCH, attested that residents are under the administrative

direction of physicians who operate independently of the hospital,

and that SRCH does not direct or control patient care by residents.

Finally, Texas courts have yet to apply the borrowed servant

doctrine to physicians. In the medical malpractice context, the

borrowed servant doctrine in Texas has only been applied to nurses.

See Sparger v. Worley Hospital, Inc. , 547 S.W.2d 582 (Tex. 1977);

Elizondo v. Tavarez

, 596 S.W.2d 667 (Tex. Civ. App.

-- Corpus

Christi 1980, writ ref’d n.r.e.). Although Dr. Hardiman was a

resident, as opposed to an attending physician, the court is not

unmindful of the expansive duties of residents at a hospital.

The lack of an express provision indicating that SRCH had

control over Dr. Hardiman’s patient care, the provisio ns of the

Agreement whi ch did indicate that the United States accepted

liability for the negligence of its employees undergoing training,

and the absence of Texas case law applying the borrowed servant

doctrine to physicians, lead the court to conclude that the

borrowed servant defense does not apply to absolve the government

of liability for Dr. Hardiman’s alleged negligence.

For the foregoing reasons, the judgment of the district court

is REVERSED and REMANDED for further proceedings.

REVERSED AND REMANDED.