1 28 U.S.C. §§ 2671-2680.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-8442

Summary Calendar

HANSON J. BROUSSARD

RHONDA J. BROUSSARD,

Plaintiffs-Appellants,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

(March 24, 1993)

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Hanson and Rhonda Broussard sued the United States under the

Federal Tort Claims Act (FTCA),1 alleging that the death of their

son, Jermaine resulted from the negligent treatment that he

received at military hospital. The district court granted

partial summary judgment for the United States on the issue of

FTCA liability for the action of an independent contractor
2

physician. After a full trial on the remaining issues the

district court determined that Jermaine's injuries were so severe

that nothing could have been done for him that would have saved

his life, and granted judgment for the United States. The court

also held that the Broussards failed to prove that anyone other

than the independent contractor physician was negligent. Finding

no error that warrants reversal, we affirm.

I

FACTS AND PROCEEDINGS

On June 22, 1989, three year old Jermaine Broussard was with

his mother visiting friends at Fort Polk, Louisiana. When

Jermaine went to retrieve a toy from a neighbor's driveway, he

was run over by the neighbor's vehicle. The neighbor was a medic

who immediately started CPR when he found that Jermaine did not

have a pulse. Jermaine was transported by ambulance to an Army

hospital (the Hospital). Before Jermaine arrived at the

Hospital, his pulse was restored, lost, then restored again. He

had a pulse and was breathing on his own when he arrived at the

emergency room.

The ambulance was met at the Hospital by an emergency room

physician (the E.R. Physician). He ordered a series of tests for

Jermaine, but delayed some forty-five minutes before calling for

a pediatrician and general surgeon. The pediatrician arrived at

the Hospital twenty minutes after he was called. He diagnosed

Jermaine as suffering from a closed head injury and ordered

helicopter transport to another hospital that was better equipped
3

for neurological support. But before he could be transported,

Jermaine's condition worsened and he died. 

Jermaine's cause of death was initially reported as closed

head trauma. An autopsy was performed six days later on June 28,

1989. The autopsy report, which was issued the next day,

revealed that Jermaine had suffered a torn thoracic aorta, and

reported the cause of death as severe closed-chest injuries. The

torn aorta had never been diagnosed by the Hospital emergency

room personnel.

After exhausting their administrative remedies, the

Broussards filed the instant suit on March 21, 1991, seventeen

months after Jermaine's death. The complaint alleged that his

death was caused by "various acts and omissions of negligence on

the part of defendant's agents, servants, and employees." The

United States was served on April 17, 1991 and filed its answer

on June 17, 1991. 

On December 23, 1991, the United States moved for summary

judgment on the grounds that the Broussards apparently were

relying solely on the acts of the E.R. Physician in this

negligence action, but that he was an independent contractor, a

class of actors that is excepted from the FTCA's waiver of

sovereign immunity. This was the first time that the United

States expressly claimed that the E.R. Physician was an

independent contractor for whose actions the United States was

not liable. The original answer of the United States had only

obliquely suggested such a claim when it stated: "Defendant
4

denies any negligent act or omission on its part."

The United States supported its motion with a copy of the

contract between the government and Emergency Medical Services

Associates (EMSA). This contract provided that:

It is expressly agreed and understood that the

professional services rendered by the contractor are

rendered in its capacity as an independent contractor. 

The Government retains no control over the professional

aspects of the services rendered by the Contractor,

including by example Contractors medical judgement

[sic], diagnosis or specific medical treatment. 

Contractor shall be solely liable for any liability

producing acts or omissions by it or its employees or

agents.

The contract also required EMSA to carry liability insurance of

not less than $1,000,000 per occurrence, and to indemnify the

United States against all claims caused or contributed to by EMSA

employees. The E.R. Physician was employed and paid by EMSA. 

The United States had no role in hiring him or in his direct

supervision.

The district court granted partial summary judgment for the

United States in so far as any negligence of the E.R. Physician

was concerned, finding that he was an independent contractor. 

The district court refused to grant total summary judgment,

however, concluding that a material fact issue existed whether

the negligence of any non-independent contractor personnel at the

Hospital may have caused Jermaine's death.

The case was tried to the court without a jury, and at the

conclusion of the trial the court rendered a judgment that the

Broussards "take nothing." In its Findings of Fact and

Conclusions of Law, the district court denied the Broussards'
 

2 United States v. Mitchell, 445 U.S. 535, 538 (1980)

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).

5

motion to reconsider its previous grant of partial summary

judgment. The court also stated that it accepted the testimony

of a defense expert witness that "Jermaine Broussard's injuries

were so severe and extensive that nothing could have been done

for him that would have saved his life," and that the Broussards

"failed to prove by a preponderance of the evidence that anyone,

other than [the E.R. Physician], committed any act of negligence

in the care and treatment of Jermaine Broussard." The Broussards

timely appealed.

II

ANALYSIS

The Broussards assign four points of error in the instant

appeal: 1) The government is responsible for the E.R. Physician's

negligence; 2) the government is estopped from asserting the

independent contractor defense; 3) plaintiffs have established a

cause of action pursuant to Louisiana's Loss of Chance doctrine;

and 4) other Hospital personnel were negligent in their treatment

of Jermaine. We discuss these issues seriatim.

A. Independent Contractor Physician

"It is elementary that `[t]he United States, as sovereign,

is immune from suits save as it consents to be sued . . . and the

terms of its consent to be sued in any court define that court's

jurisdiction to entertain the suit.'"2 The United States has

statutorily consented to suits pursuant to the terms of the
 

3 28 U.S.C. §§ 2671-2680.

 

4 See 28 U.S.C. § 2671; United States v. Orleans, 425

U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973).

 

5 Logue, 412 U.S. at 528.

 

6 Orleans, 425 U.S. at 814 (quoting Logue, 412 U.S. at

528); see also, Logue, 412 U.S. at 527 ("[T]he distinction

between the servant or agent relationship and that of independent

contractor turn[s] on the absence of authority in the principal

to control the physical conduct of the contractor in performance

of the contract.") 

6

Federal Tort Claims Act.3 This consent to be sued, though, does

not extend to the acts of independent contractors.4

The Supreme Court has noted that Congress left the courts

free to define the term "contractor."5 A critical factor in

identifying a contractor "is the power of the Federal Government

`to control the detailed physical performance of the

contractor.'"6

The Broussards characterize the Supreme Court's test for

independent contractor status as a "strict control" test, in

which control over the detailed physical performance is the sole

consideration. They argue that the district court should not

have relied on the strict control test: As physicians have an

ethical obligation of independence, they can never be subject to

such a degree of control; therefore, under such a restrictive

test they will almost always be found to be independent

contractors. 

The Broussards do not state what the test for an independent

contractor physician should be, but they imply that it should be

some form of modified control test. They rely on one case each
 

7 Quilico v. Kaplan, 749 F.2d 480, 483-84 (7th Cir.

1984); Lurch v. United States, 719 F.2d 333, 337 (10th Cir.

1983), cert. denied, 466 U.S. 927 (1984).

 

8 749 F.2d 480 (7th Cir. 1984).

 

9 Id. at 485.

 

10 Id. at 487.

7

from the Seventh and Tenth Circuits as suggesting the

appropriateness of such a test.7 But we do not read these cases

as supporting the establishment of any radically different test

for determining when professionals are independent contractors. 

In Quilico v. Kaplan,

8 the plaintiffs sought to establish

that the defendant physicians))who were temporary employees of

the Veterans Administration))were independent contractors rather

than employees who would be statutorily immune from personal

liability. In order to establish that the physicians were

independent contractors, the plaintiffs urged the court to follow

the strict control test to determine the physicians' status. The

Seventh Circuit acknowledged that under the strict control test,

the physicians would not be employees, but neither would any

other physician employed by the Veterans Administration

regardless of the permanency or terms of their employment.9 The

Quilico court found that such a result would conflict with

Congress's intent in statutorily providing immunity for

physicians employed both permanently and temporarily by the

Veterans Administration.10 The court consequently rejected the

strict control test for purposes of the determining the scope of
 

11 Id. at 485.

 

12 Id. at 487.

 

13 719 F.2d 333 (10th Cir. 1983), cert. denied, 466

U.S. 927 (1984).

 

14 Id. at 337.

 

15 Id. at 337.

 

16 Id. at 337-38. The facts of this aspect of Lurch

closely parallel those of the instant case. Although the doctor

in Lurch worked in a Veterans Administration hospital, he was

actually employed by a medical school which in turn contracted to

provide physicians to the hospital. The contract between the

medical school and the hospital specified that: 1) The medical

school had the discretion to choose the physicians to fulfill its

obligations; 2) the parties stipulated that the physicians

provided under the contract would not be considered VA employees

for any purposes; and 3) the medical school assumed full

responsibility for providing workmen's compensation, insurance

and similar benefits for the physicians. Id. at 338.

8

immunity for Veterans Administration physicians,

11 and instead

relied on the relevant statutory definition of employees who were

to be immunized from liability.12

In Lurch v. United States,

13 the Tenth Circuit questioned

the use of a strict control test in determining whether a

physician is an independent contractor.14 The plaintiff in Lurch

argued that the court should adopt a modified control test in

which the "areas of medical service that are susceptible to

supervision and control should be considered in determining if a

physician is a federal employee."15 The Lurch court found that

it need not decide that issue, however, because the contractual

arrangement and its application to the physician clearly

established that he was not in an employer-employee relationship

with the United States.16 
 

17 Orleans, 425 U.S. at 814 (quoting Logue, 412 U.S.

521, 528) (emphasis added).

 

18 412 U.S. 521 (1973).

 

19 Id. at 527.

9

Apart from the fact that the Seventh and Tenth Circuits have

implicitly disapproved of a rigid control test for determining

when a given professional is a government employee, we are not

certain that such an inflexible test has ever been mandated by

the Supreme Court. As those two circuits (and the Broussards)

have noted, if such an absolute strict control test were

mandated, no professional who is required by a code of ethics to

exercise professional judgment could ever be considered an

employee of the United States for FTCA purposes. 

We believe that a more significant observation is that, even

though control of the detailed physical performance of the actor

may be the most critical factor in identifying an employee, it is

not necessarily the only factor. "A critical element in

distinguishing an agency from a contractor is the power of the

Federal Government `to control the detailed physical performance

of the contractor.'"17 In seeking to distinguish between an

employee and an independent contractor, the Supreme Court in

Logue v. United States18 relied on § 2 of the Restatement

(Second) of Agency.19 That section defines an independent

contractor as "a person who contracts with another to do

something for him but who is not controlled by the other nor
 

20 Restatement (Second) of Agency § 2.

 

21 Id. cmt. a.

 

22 Lurch, 719 F.2d at 337-38.

10

subject to the other's right to control with respect to his

physical conduct in the performance of the undertaking."20 The

comments to this section expand on this definition: "Although for

brevity the definitions in this Section refer only to the control

or right to control the physical conduct of the servant, there

are many factors which are considered by the courts in defining

the relation."21

We find the present situation to be analogous to that in

Lurch: We need not define the outer limits of the test to

determine when a physician is an independent contractor because

"on the undisputed facts here, the contractual arrangement itself

and its application placed [the E.R. Physician] outside of the

parameters of an employer-employee relationship with the

Government."22 Unquestionably, the United States did not have a

traditional employer-employee relationship with him. He was

neither hired nor paid by the United States. Instead, the United

States had a contract with EMSA to provide the services of

physicians to staff the Hospital's emergency room. Under the

terms of this contract, EMSA assumed full liability for the acts

or omissions of its employees, agreed to indemnify the United

States against all claims caused or contributed to by its

employees, and agreed to carry liability insurance for its

employees. The United States was only obligated to pay a
11

contract price to EMSA; EMSA in turn was responsible for

compensating the physician or physicians whose services it

provided to the Hospital. Even though the contract did not

expressly obligate EMSA to control and supervise the physicians

whose services it supplied, the agreement did specify that EMSA

was to provide those professional services as an independent

contractor and that the United States would retain no control

over those professional services. Under any reasonable test for

distinguishing an employee from an independent contractor, EMSA

would be defined as an independent contractor of the government

and the E.R. Physician would be defined either as an employee of

EMSA or its independent contractor. Either way, he comes within

the independent contractor exception to the FTCA's waiver of

sovereign immunity so the United States cannot be held liable for

his negligence.

B. Estoppel

The Broussards next argue that the E.R. Physician's status

as an independent contractor is an affirmative defense, and that

the United States waived that affirmative defense when it did not

plead it until after the prescriptive period (statute of

limitations) for a negligence action against the doctor had run.

The government counters that under the FTCA independent

contractor status is not an affirmative defense but a fundamental

jurisdictional defect that may be asserted at any time. The

government further insists that even if it were theoretically

possible for the United States to be estopped from asserting the
 

23 United States v. Mitchell, 445 U.S. 535, 538 (1980)

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941))

(emphasis added).

 

24 28 U.S.C. §§ 2671-2680; Orleans, 425 U.S. at 813.

 

25 Stanley v. Central Intelligence Agency, 639 F.2d

1146, 1156 (5th Cir. Unit B, March 1981).

 

26 McNutt v. General Motors Acceptance Corp., 298 U.S.

178, 189 (1936) (emphasis added).

12

E.R. Physician's independent contractor status, the present facts

would not support such an estoppel: The United States did not

engage in affirmative misconduct; and its failure to raise the

independent contractor issue earlier did not prejudice the

Broussards.

We again turn to the Supreme Court for guidance: "It is

elementary that `[t]he United States, as sovereign, is immune

from suits save as it consents to be sued . . . and the terms of

its consent to be sued in any court define that court's

jurisdiction to entertain the suit.'"23 The United States has

consented to suits pursuant to the terms of the Federal Tort

Claims Act, but this consent is limited by those terms.24 "Where

no such consent exists, a district court has no jurisdiction to

entertain a suit against the United States."25 "[T]he District

Court is vested with authority to inquire at any time whether

the[] conditions [to the exercise of its jurisdiction] have been

met."26

As the government asserts, even if we were to assume for the

sake of argument that the United States could be estopped from

asserting a person's independent contractor status, such an
 

27 I.N.S. v. Miranda, 459 U.S. 14 (1982).

 

28 28 U.S.C. § 2401.

 

29 La. Civ. Code art. 3492.

13

estoppel would not lie in the instant case. At a minimum, the

government would have to engage in affirmative misconduct before

it could be estopped, and even then affirmative misconduct may

not be sufficient.27 The district court found that the

government did not engage in affirmative misconduct, and we

cannot state that this finding was clearly erroneous. 

Additionally, the Broussards did not suffer any prejudice as

a result of the timing of the government's assertion of the

doctor's status. Jermaine died on June 22, 1989. The Broussards

did not file the present suit against the United States until

March 21, 1991, seventeen months after Jermaine's death. The

Broussards' suit against the United States was based on

negligence. The FTCA is subject to a two year statute of

limitations.28 The Broussards' suit was within this statute of

limitations, but they would not have the benefit of the FTCA's

comparatively generous statute of limitations if they had elected

to sue the E.R. Physician personally for negligence. 

Under Louisiana law, "[d]elictual actions are subject to a

liberative prescription of one year. This prescription commences

to run from the day injury or damage is sustained."29

Consequently, any negligence action against the E.R. Physician

had prescribed long before the Broussards filed their suit

against the government. Even if the government had pleaded that
 

30 Stanley, 639 F.2d at 1159.

 

31 Id. at 1159-60.

14

the doctor was an independent contractor the very day that the

Broussards filed their complaint, their negligence cause of

action against the E.R. Physician would have already been subject

to a valid exception of prescription.

We note didactically that, as a general rule, whenever the

United States has not waived its sovereign immunity, the district

court should dismiss the complaint for want of subject matter

jurisdiction rather than dismissing by granting a motion for

summary judgment.30 This would allow the plaintiff an

opportunity to amend his complaint so as to cure the

jurisdictional defect, assuming he is able to do so.31 The

district court here granted the government's motion for summary

judgment (which was grounded in the government's lack of consent

to be sued) to the extent that the Broussards sought to hold the

government liable for the negligence of the E.R. Physician, but

refused to grant summary judgment on the issue of any other

person's alleged negligence. Although the district court may

have mislabeled its disposition of this motion, no reversible

error was suffered as a result. The order neither disposed of

the Broussards' entire cause of action nor barred them from

amending their complaint (which in this case appears to have been

unnecessary).

C. Loss of Chance

The Louisiana Supreme Court has described that state's loss
 

32 Smith v. Louisiana, 523 So. 2d 815, 822 (La. 1988)

(second emphasis added); Hastings v. Baton Rouge General Hosp.,

498 So. 2d 713 (La. 1986).

 

33 Smith, 523 So. 2d at 822; see Urbach v. United

States, 869 F.2d 829, 831 (5th Cir. 1989).

 

34 Fed. R. Civ. P. 52(a); Anderson v. Bessemer City,

470 U.S. 564, 573 (1985).

15

of chance doctrine as follows:

The medical malpractice plaintiff does not have the

unreasonable burden of proving that the patient would

have lived if the defendant had not been negligent. 

However, the plaintiff does have the burden of

establishing by a preponderance of the evidence that

the defendant's conduct denied the patient a chance of

survival.32

The Broussards complain that the district court erroneously found

that "nothing could have been done for [Jermaine] that would have

saved his life." In support of this argument, they cite the

opinions of their two expert physician witnesses that Jermaine

had a chance of survival if he had been properly diagnosed and

treated.

The determination of whether the defendant's conduct denied

the patient a chance of survival is a causation issue, and

"[c]ausation is a question of fact."33 "Findings of fact,

whether based on oral or documentary evidence, shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of

the witnesses."34 Under the clearly erroneous standard, we may

not reverse the district court's findings of fact unless the

review of the relevant evidence leaves us with "the definite and
 

35 United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948).

 

36 See La. Civ. Code. art. 2315; Sibley v. Board of

Supervisors, 477 So. 2d 1094, 1099 (La. 1985).

16

firm conviction that a mistake has been committed."35

In its findings of fact, the district court stated: "The

court accepts the testimony of Dr. William Dalsey that Jermaine

Broussard's injuries were so severe and so extensive that nothing

could have been done for him that would have saved his life." 

The district court made no mention of the contrary opinions of

the Broussards' expert witnesses. Giving due regard for the

opportunity of the district court to judge the credibility of the

witnesses, we cannot say that the district court's finding on

this fact issue is clearly erroneous. 

D. Other Hospital Personnel

The Broussards attack the district court's finding that they

"failed to prove by a preponderance of the evidence that anyone,

other than [the E.R. Physician], committed any act of negligence

in the care and treatment of Jermaine Broussard." Even if we

were convinced that someone other than that doctor was negligent

toward Jermaine, the Broussards cannot prevail in this negligence

suit. Negligent conduct that does not cause injury is not

actionable.36 The district court found unerringly that Jermaine

would have died regardless of any course of treatment he might

have received. As the Broussards failed to establish

causation))an essential element of their cause of action))we need

not address the other elements of their negligence claim.
17

III

CONCLUSION

The United States is immune from suits except to the extant

it consents to be sued. The Federal Tort Claims Act is a

statutory waiver of that immunity, but it is a limited waiver. 

One express statutory limitation is the independent contractor

exception. As the E.R. Physician was an independent contractor,

his conduct came within that exception to the FTCA's limited

waiver of sovereign immunity. Without the United States's

consent to be sued, the district court was without jurisdiction

to enter a judgment against it for the E.R. Physician's alleged

negligence. Accordingly, the district court properly refused to

consider that aspect of the Broussards' claim.

The district court did not clearly err in finding that

Jermaine would have died regardless of how competently he might

have been diagnosed and how promptly he might have treated. It

follows inescapably then that negligence on the part of that

physician or anyone else could not have caused the child's death. 

As causation is an essential element of a negligence cause of

action, and as the Broussards have failed to establish any

causation other than the fatal automobile injury, their

negligence claim too must fail. For the foregoing reasons, the

district court's judgment for the United States is

AFFIRMED.