LINDA SISTO, a widow; TASHINA SISTO, an unmarried woman; TYRELL SISTO, an unmarried man; JEREMY SISTO, an unmarried man; KASHINA SISTO, an unmarried woman; LANNETTE SISTO, an unmarried woman; PURCELL SISTO, an unmarried man, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee.
No. 20-16435
D.C. No. 2:20-cv-00202-ESW
United States Court of Appeals for the Ninth Circuit
Filed August 4, 2021
Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.
Appeal from the United States District Court for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Argued and Submitted June 8, 2021
Seattle, Washington
Concurrence by Judge Watford
SUMMARY*
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“),
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
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
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,
COUNSEL
David L. Abney (argued), Ahwatukee Legal Office P.C., Phoenix, Arizona, for Plaintiffs-Appellants.
Brock J. Heathcotte (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Division Chief; Michael Bailey, United States Attorney; United States Attorney‘s Office, Phoenix, Arizona; for Defendant-Appellee.
W. FLETCHER, Circuit Judge:
Tyrone Sisto, a member of the San Carlos Apache Tribe, died after Dr. Rickey Gross, an emergency room physician at the San Carlos Apache Healthcare Corporation (“SCAHC“) hospital, failed to diagnose Rocky Mountain Spotted Fever. Sisto‘s mother and his children (“Plaintiffs“) filed suit against the United States under the Federal Tort Claims Act (“FTCA“). They claimed that Dr. Gross was an “employee of the United States” under the FTCA and the Indian Self-Determination and Education Assistance Act (“ISDEAA“),
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. It dismissed the suit for lack of subject matter jurisdiction. Plaintiffs timely appealed. We have jurisdiction under
I. Background
SCAHC entered into a “self-determination contract” under the ISDEAA with the Indian Health Service (“IHS“), a federal agency within the Department of Health and Human Services, to provide health care to tribal members. In the terminology of the ISDEAA, SCAHC is an “Indian contractor.” See
On August 8, 2017, Sisto was found dead in his home with a rash covering his body. There were ticks “all over the room” and one on his body. A post-mortem analysis of blood confirmed that Sisto died from Rocky Mountain Spotted Fever, a potentially fatal tick-borne disease that responds well to early antibiotic treatment.
Sisto‘s mother and his children brought suit against the United States under the FTCA, alleging negligence by Dr. Gross in failing to diagnose and treat Sisto appropriately at the SCAHC hospital. The government moved to dismiss the claim for lack of subject matter jurisdiction under 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 contract between SCAHC and T-EM provided: T-EM is and shall at all times be an independent contractor with respect to SCAHC in the performance of its obligations under this Agreement. Nothing in this Agreement shall be construed to create an employer/employee . . . relationship between SCAHC and T-EM [or] any T-EM Provider . . . . ¶ 4.1. T-EM agreed to be solely responsible for paying all expenses, including compensation, health and disability insurance, workers‘s compensation insurance, life insurance, professional liability insurance, retirement plan contributions, employee benefits, income taxes, FICA, FUTA, SDI and all other payroll, employment or other taxes and withholdings, with respect to T-EM Providers . . . . The contract further provided that doctors “employed or otherwise engaged by or under contract with T-EM . . . to provide the Services . . . under this Agreement” are “T-EM Providers.” Recitals, ¶ D. The contract listed Dr. Gross as a “T-EM Provider.” Exhibit 2.5(a). A sample “Letter of Acknowledgement” was attached to the contract, to be signed by “T-EM Provider[s].” The letter provided, “I expressly . . . [a]cknowledge that I have no employment, independent contractor or other contractual relationship with SCAHC, that my right to practice at SCAHC as a T-EM Provider is derived The district court granted the government‘s motion to dismiss, finding that Dr. Gross was an employee of T-EM rather than SCAHC. Plaintiffs timely appealed. “We review de novo a dismissal for lack of subject matter jurisdiction under the FTCA.” Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). The FTCA waives the sovereign immunity of the United States, allowing the United States to be sued for damages for injuries “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” The ISDEAA was enacted in 1975 to increase tribal participation in the management of programs and activities on reservations by authorizing tribes and tribal organizations to Tribes were faced with substantial costs in carrying out their self-determination contracts. Among them were high costs for liability insurance, particularly medical malpractice insurance. Coverage Issues Under the Indian Self-Determination Act, 22 U.S. Op. O.L.C. 65, 68 (1998). These costs were a significant disincentive to tribes contemplating self-determination contracts for medical services. When the government provided health services directly to the tribes, malpractice claims were covered by the FTCA because the services were provided by federal employees. In 1987, in order to encourage tribes to enter into self-determination contracts for medical services, Congress amended the ISDEAA to provide that personal injury claims arising out of medical malpractice claims were covered by the FTCA. The current version of the 1987 amendment is codified in Section 5321(d) is not an easy read. It is a single sentence of 336 words, punctuated by a colon after the first 253 words. Paring it down to its relevant text, For purposes of (Emphases added.) The statutory references in the text just quoted are as follows: In the normal operation of the FTCA, federal employees are covered for acts or omissions occurring in the scope of their employment. However, when an independent contractor with the United States performs a function for the government, that independent contractor (as well as its employees) are not covered. In the case before us, SCAHC has entered into a self-determination contract with the Indian Health Service to provide health services to the San Carlos Apache Tribe. It is clear that employees of SCAHC are covered by the FTCA. The question is whether an employee of an entity that has contracted with SCAHC to provide health services to SCAHC as an independent contractor is also covered by the FTCA. As we read The parties agree that, under We agree with the district court. The contract between SCAHC and T-EM, whose relevant language we quote above, explicitly provides that the contract does not establish an employer/employee relationship between SCAHC and any “T-EM Provider.” Instead, the contract establishes an independent contractor relationship between SCAHC and T-EM, and an employer/employee relationship between T-EM and T-EM Providers. The contract lists Dr. Gross by name as a T-EM Provider, and the sample “Letter of Acknowledgement” attached to the contract “expressly” states that T-EM Providers “have no employment . . . relationship with SCAHC.” We therefore conclude that Dr. Gross was an employee of T-EM rather than SCAHC, and that the FTCA and Plaintiffs make several arguments against our conclusion. We address them in turn. Plaintiffs argue 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 As we read We are reinforced in this reading by regulations promulgated by the Bureau of Indian Affairs and the Indian Health Service that seek to explain the scope of FTCA coverage under The regulations pretty clearly indicate that a “personal services contract” to which Is it necessary for a self-determination contract to include any clauses about Federal Tort Claims Act coverage? No, it is optional. At the request of Indian tribes and tribal organizations, self-determination contracts shall include the following clause[] to clarify the scope of FTCA coverage: . . . For purposes of Federal Tort Claims Act coverage, the contractor and its employees (including individuals performing personal services contracts with the contractor to provide health care services) are deemed to be employees of the Federal government while performing work under this contract. First, Does FTCA coverage extend to individuals who provide health care services under a personal services contract providing services in a facility that is owned, operated, or constructed under the jurisdiction of the IHS? Yes. The coverage extends to individual personal service contractors providing health care services in such a facility . . . . (Emphasis added.) (b) What claims may not be pursued under FTCA? (1) Except as provided in § 900.181(a)(1) and § 900.189, claims against contractors arising out of the performance of subcontracts with a self-determination contractor[.] Second, We see nothing in the history leading to Plaintiffs argue that because SCAHC granted Dr. Gross hospital privileges to provide emergency room services at Such non-Service health care practitioners may, as part of the privileging process, be designated as employees of the Federal Government for purposes of section 1346(b) and chapter 171 of Title 28 (relating to Federal tort claims) only with respect to acts or omissions which occur in the course of providing services to eligible individuals as a part of the conditions under which such hospital privileges are extended. Under Plaintiffs point to no evidence that SCAHC designated Dr. Gross an employee for purposes of the FTCA “as part of the privileging process . . . as a part of the conditions under which such [] privileges [were] extended.” Does FTCA coverage extend to health care practitioners to whom staff privileges have been extended in contractor health care facilities operated under a self-determination contract on the condition that such practitioner provide health services to IHS beneficiaries covered by FTCA? Yes, health care practitioners with staff privileges in a facility operated by a contractor are covered when they perform services to IHS beneficiaries. Such personnel are not covered when providing services to non-IHS beneficiaries. Like Plaintiffs point to the answer portion of Because hospital privileges were not issued to Dr. Gross on the condition that he provide services covered by the In some circumstances, despite language to the contrary in a contract, a court may determine that a worker is an employee based on the degree of control exercised over the worker. See, e.g., Alexander v. FedEx Ground Package Sys., Inc., 765 F.3d 981 (9th Cir. 2014). Thus, in Carrillo v. United States, 5 F.3d 1302, 1304 (9th Cir. 1993), where the question was whether a doctor working for the Veteran‘s Administration was a federal employee under the FTCA, we examined the degree of control over the manner in which the doctor practiced medicine. Plaintiffs argue that under the terms of the contract between SCAHC and T-EM, Dr. Gross “was part of an apparent employer-employee relationship and was, by reasonable inference, subject to the hospital‘s relatively continuous supervision and control.” But Plaintiffs point to nothing that shows that SCAHC had actual “control over Dr. [Gross‘s] practice of medicine.” Id. at 1305 (emphasis added). T-EM, rather than SCAHC, was responsible for supervising Dr. Gross‘s actions in diagnosing and treating patients. The contract provided that T-EM‘s professional services were to include “the evaluation, diagnosis, treatment, supervision, and management of . . . health complaints and crises . . . with respect to patients presenting to the Department.” T-EM, through its Medical Director, was to “[p]rovide medical direction for the day-to-day operations of the Department.” The contract further specified that “T-EM . . . shall ensure that T-EM Providers . . . satisfy [designated] performance standards.” We therefore conclude 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. Dr. Gross was not an “employee” of the United States under the FTCA and AFFIRMED. LINDA SISTO, a widow; TASHINA SISTO, an unmarried woman; TYRELL SISTO, an unmarried man; JEREMY SISTO, an unmarried man; KASHINA SISTO, an unmarried woman; LANNETTE SISTO, an unmarried woman; PURCELL SISTO, an unmarried man, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 20-16435 WATFORD, Circuit Judge, concurring: Like my colleagues, I vote to affirm the dismissal of the plaintiffs’ suit, but I do so with some reluctance. If the plaintiffs’ allegations are true, Tyrone Sisto died tragically and unnecessarily, due to the negligence of a doctor working at Mr. Sisto‘s local tribal hospital. That hospital was operated by the San Carlos Apache Healthcare Corporation under a contract with the Indian Health Service (IHS), an arm of the federal government. Mr. Sisto‘s mother and children could have sued the doctor and his immediate employer, Tribal EM, in state court, but their lawyers thought they instead had to sue the United States under the Federal Tort Claims Act (FTCA). One can certainly understand why the plaintiffs’ lawyers came to that conclusion. A confusingly written regulation issued by the Departments of Interior and Health and Human Services states that “health care practitioners with staff privileges in a facility operated by a contractor are covered [by the FTCA] when they perform services to IHS beneficiaries.” The problem is that the regulation as drafted does not accurately reflect the requirements of the statutory provision it implements. I hope it is not too late for the plaintiffs to pursue their claim for medical malpractice against the doctor and his employer in state court. One thing is clear, though. The regulation that misled the plaintiffs’ lawyers into suing the United States for the doctor‘s negligence should be amended so that future plaintiffs are not similarly led astray.
II. Standard of Review
III. Discussion
A. The FTCA and the ISDEAA
B. Section 5321(d)
C. Application to this Case
D. Plaintiffs’ Arguments
2. Staff Privileges
3. Control
Conclusion