William KNOWLES and Jane Knowles, on behalf of themselves and as guardians of their minor son, Kris Knowles, Appellants, v. UNITED STATES of America, Appellee.
Nos. 93-3074SD, 93-3219SD
United States Court of Appeals, Eighth Circuit
Submitted April 24, 1996. Decided Aug. 5, 1996.
91 F.3d 1147
Comstock next contends that the ALJ erred in finding that his subjective complaints of pain were not credible. We find that the ALJ properly applied the guidelines set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) in evaluating Comstock‘s subjective complaints. The ALJ found that Comstock‘s complaints were inconsistent based on the objective medical evidence, lack of regular treatment and medication, work activity, and past work history.
We agree that the lack of objective medical evidence contradicted Comstock‘s claims of disabling pain. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) (ALJ can discount claimant‘s complaints of pain when medical evidence failed to establish significant back problem). Moreover, the ALJ was entitled to discount Comstock‘s complaints based on his failure to pursue regular medical treatment. See Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir.1987) (failure to seek regular treatment or obtain pain medication inconsistent with complaints of disabling pain). The ALJ pointed to a 1982 report by Dr. Hopkins which noted that Comstock was taking “no medicine steadily and is not under regular care.” In addition, Comstock failed to seek regular treatment for his back pain from late 1982 through 1984. At the hearing, Comstock stated that he took aspirin, used a whirlpool tub, and had his wife rub ointment on his back to alleviate the pain. The ALJ properly found that these measures did not support a claim of disabling pain. See id. (disabling pain not indicated when claimant merely took hot showers and used Advil and aspirin to relieve pain).
In further support of his decision, the ALJ found that Comstock‘s work activity belied his claim of disabling pain. See Smith, 987 F.2d at 1374-75 (claimant‘s extensive daily activities, including performance of pastoral duties, inconsistent with complaints of disabling pain). Not only did Comstock work as a gas station attendant from 1983 through 1985, he also had a full-time job for several months during 1986 which required him to dig around telephone poles. Finally, the ALJ noted, that Comstock‘s prior work history was not “particularly notable and has been characterized by fairly low earnings and some significant breaks in employment.” We agree that these factors, taken together, cast doubt on Comstock‘s complaints of disabling pain.
Comstock also argues that the ALJ erred in concluding that he could return to his past relevant work as a gas station attendant. The Dictionary of Occupational Titles classifies a gas station attendant as medium work. It requires occasional lifting of twenty to fifty pounds and frequent lifting of ten to twenty-five pounds, along with occasional bending. At the hearing, Comstock stated that his basic responsibilities at the gas station included pumping gas, checking oil, and running the cash register. On vocational reports he submitted prior to the hearing, however, he listed additional duties such as changing tires, repairing minor mechanical problems, and lifting and carrying objects weighing from twenty-five to fifty pounds such as batteries, tires, and oil. The ALJ concluded that Comstock could “perform at least light work as he described it at the hearing and probably medium work as he described in the record.” In light of Comstock‘s work activity from 1983 through 1986, combined with the findings in his residual functional capacity assessments, we agree that Comstock retained the ability to work as a gas station attendant.
The order is affirmed.
Bonnie P. Ulrich, Asst. U.S. Atty., Sioux Falls, SD, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.
RICHARD S. ARNOLD, Chief Judge.
When this case was initially submitted to this Court, we held that its disposition involved novel questions of state law. Thus, we certified four questions to the Supreme Court of South Dakota. Knowles v. United States, 29 F.3d 1261 (8th Cir.1994) (Knowles I). We have received answers to those questions and the parties’ briefs in response to those answers, and are prepared to dispose of this case without further argument.
I.
The plaintiffs, William and Jane Knowles, brought this case under the Federal Tort Claims Act,
Twelve-day-old Kris Knowles was admitted to the Ellsworth Air Force Base Hospital on July 17, 1989, for treatment of a fever. His
Among those persons caring for Kris in the hospital were medical services specialists. These enlisted persons are roughly the equivalent of civilian nurse‘s aides and are charged with tasks such as taking vital signs and providing patient services. It was the responsibility of the medical services specialists on duty to take and record Kris‘s temperature, which they did. They were also to report any abnormally high or low temperatures to the nursing staff or to the attending physician. The Knowleses allege that the medical services specialists failed to perform this duty the night before Kris‘s discharge.
Following Kris‘s release, he was taken to the Ellsworth AFB Pediatrics Clinic for a blood test. There it was discovered that Kris‘s temperature had fallen to 92.9 degrees. He was immediately readmitted to the hospital for warming and other treatment for hypothermia. This treatment notwithstanding, Kris developed hypoglycemia and suffered respiratory arrest, resulting in severe and irreversible brain damage.
The Knowleses then filed this lawsuit, alleging medical negligence against the hospital and its employees. The United States admitted liability, but moved for damages to be limited to $1 million pursuant to South Dakota‘s malpractice-damages cap.
The Knowleses appealed that ruling to this Court. Noting that this case turned on several novel questions of state law, we certified four specific questions to the South Dakota Supreme Court. We have received answers to those certified questions, and will now address the issues remaining in this case.
II.
The first question certified to the South Dakota Supreme Court was whether the $1 million damages cap in
That is not the end of the limitation-of-damages question, however. Because the statute containing the $1 million cap, is “wholly unconstitutional,” Knowles II, 544 N.W.2d at 204, a predecessor statute, the Supreme Court of South Dakota held, a statute that the invalid statute purported to repeal, is revived, and “remains in full force and effect.” Id. Under that predecessor statute, 1985 S.D. Sess. Laws ch. 167, non-economic or general damages are capped at $500,000, while economic or special damages have no cap. If a cap applies in this case, it is the cap established by this revived statute. Where the negligence of the doctors, nurses, and hospital are concerned, the cap indisputably applies. The medical services specialists are a different story.
Among those medical professionals protected by the $1 million cap were “practitioners of the healing arts.” Whether medical services specialists were encompassed by this term was the second question certified to the South Dakota Supreme Court. Knowles I, 29 F.3d at 1266. This question was crucial because, as is the case with the revived statute, all of the other actors who could feasibly be responsible for Kris‘s injuries were unquestionably subject to the $1 million cap, id. at 1265, assuming its validity.
The South Dakota Supreme Court held that this question was made moot by its disposition of the first question. Knowles II, 544 N.W.2d at 192 (opinion of Sabers, J.).
Our Brother Beam would have us hold that this conclusion is foreclosed by the Westfall Act,
Employees of the United States, as the dissent points out, may not be sued for torts they commit while acting within the scope of their employment. United States v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 1184, 113 L.Ed.2d 134 (1991). Rather, a plaintiffs’ “remedy provided by the [FTCA] ... is exclusive.”
That is what we mean by saying that the United States stands in the shoes of the medical services specialists. It has, through the FTCA and the Westfall and Gonzalez Acts, removed liability from its employees and placed it on itself. It is liable to the same extent the employee would have been absent immunity from suit. If an employee would not have had the benefit of a particular defense, a damages cap for example, neither does the United States. Medical services specialists do not enjoy the cap‘s protection. Thus, neither does the United States when it is sued in place of a medical services specialist.
The Seventh Circuit case, Ezekiel v. Michel, 66 F.3d 894 (7th Cir.1995), cited by the dissent does not support its position. There, the plaintiff, a government employee, was injured by another government employee, a doctor. The plaintiff attempted to sue the doctor, but could not because the Federal Employees’ Compensation Act (FECA),
Here, on the other hand, nothing supplants the liability imposed by state law and the FTCA. To the contrary, both the Westfall and the Gonzalez Acts reinforce the fact that the FTCA‘s provisions placing liability on the United States are exclusive. That liability is the same liability that the employees, medical services specialists, would have borne absent immunity from suit.
There has, however, been no finding of negligence on the part of the medical services specialists. The United States
Our third certified question was whether South Dakota law recognized a separate cause of action for loss of consortium and emotional distress for injuries to a minor child. That State‘s Supreme Court held that no such cause of action exists. Knowles II, 544 N.W.2d at 193. We affirm the portion of the District Court‘s order that dismissed this claim.
The South Dakota Supreme Court did hold, however, that the Knowleses could assert a cause of action for loss of services and for recovery of medical expenses in their own right. Ibid. Any damages awarded under this cause of action will be special damages subject to no cap. The Knowleses have not pleaded such a cause of action, but may move for leave to amend their complaint and assert this claim on remand.
Our last certified question, whether the damages cap applies separately to each plaintiff, Knowles I, 29 F.3d at 1266, is now irrelevant. While Kris‘s cause of action may be subject to a cap depending on whether any medical services specialists were negligent, his parents’ cause of action is not. Only special damages may be awarded under their theory of recovery, and special damages are not limited under the revived statute. The two causes of action are, however, “linked in regard to liability,” so that the parents may not recover unless the child recovers. Knowles II, 544 N.W.2d at 195.
III.
This case is remanded to the District Court for proceedings consistent with this opinion. That Court should make a finding regarding whether negligence on the part of any medical services specialist caused Kris‘s injuries. If this finding is in the affirmative, no cap will apply. If it is in the negative, the District Court should separately find the amounts of general and special damages. If a motion to amend their complaint is made by Mr. and Mrs. Knowles to assert a claim for loss of services and for medical expenses for which they are liable under state law, the District Court will exercise its discretion to grant or deny the motion. There can be, in any event, no duplicate recovery for medical expenses.
It is so ordered.
BEAM, Circuit Judge, dissenting.
The court‘s opinion repeats, insofar as the United States is concerned, the $500,000 malpractice general damages cap that the South Dakota Supreme Court has just told us “remains in full force and effect.” Knowles v. United States, 544 N.W.2d 183, 204 (S.D.1996) (Gilbertson, J., writing for the majority on revival of the earlier statute). From this result, I dissent.
The issue in this appeal is whether the liability for any alleged negligence of an Air Force medical services specialist (under civilian parlance, a “nurse‘s aide“) is capped under that revived statute. The South Dakota statute mentions neither the position of medical services specialist nor nurse‘s aide. A hospital, as noted by the court, is, however, a beneficiary of the limits established by the South Dakota Act. This includes a military hospital. See Lozada v. United States, 974 F.2d 986 (8th Cir.1992) (applying Nebraska damages cap statute to a military hospital).
The court, quoting our earlier opinion in this same case, Knowles v. United States, 29 F.3d 1261, 1265 (8th Cir.1994), states that the United States is “standing in the shoes” of the medical services specialists, the government employees purportedly guilty of culpable conduct in the treatment of Kris Knowles. Supra at 1150. While the “standing in the shoes” metaphor may be a handy illustration for some purposes, it is only an
Analysis of this case must begin with a rudimentary examination of the Federal Tort Claims Act, under which this suit is brought. The FTCA provides for a limited waiver of the United States’ absolute immunity from suit. Under the FTCA, the United States, subject to specific exceptions not applicable here, has statutorily waived its sovereign immunity and voluntarily assumed liability for the wrongful act of an “employee” while “within the scope of his office or employment.”
Phrases such as “scope of employment” and “employees acting within the scope of their employment” are conspicuous in the statute. This is the language of respondeat superior. Indeed, the Knowles‘s complaint is replete with this terminology.3 These terms of art are borrowed from the common law of torts and agency. To that effect, for purposes of the FTCA, the common law of torts and agency defines the distinction between an independent contractor (for whose torts the government is not responsible), a policy-making agent (for whose torts the govern-ment is not responsible) and a servant (for whose torts the government is responsible). B & A Marine Co. v. American Foreign Shipping Co., 23 F.3d 709, 713 (2d Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 421, 130 L.Ed.2d 336 (1994); see also Toole v. United States, 588 F.2d 403, 407 n. 4 (3d Cir.1978). “Employee” in the statute is to be read as having the same general meaning as “servant” in the body of law relating to respondeat superior. United States v. Becker, 378 F.2d 319, 321 (9th Cir.1967). Thus, courts consult a state‘s applicable law of respondeat superior to determine “scope of employment” under the FTCA. See, e.g., Heuton v. Anderson, 75 F.3d 357, 360 (8th Cir.1996); Walsh v. United States, 31 F.3d 696, 699 (9th Cir.1994) (both applying Iowa respondeat superior law). And, it is hornbook law that liability under respondeat superior theory is vicarious, and not direct, liability. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 69, at 499 (5th ed. 1984). See also Sterling v. United States, 85 F.3d 1225, 1229 (7th Cir.1996) (the FTCA creates vicarious liability).
The FTCA also provides that the United States is liable “in the same manner and to the same extent as a private individual under like circumstances,”
Although the waiver of sovereign immunity extends to torts committed by government employees, the FTCA grants total immunity to employees for torts committed in the course of their employment.
Discussing the Westfall Act, the court asserts that the United States has “removed liability from its employees and placed it on itself” and thus is “liable to the same extent the employee would have been absent immunity from suit.” Supra at 1150. This is not a correct statement of the law. The government has waived its immunity with respect to acts of its employees acting within the “scope of [their] office or employment,”
Thus, the crucial question in most Federal Tort Claims Act cases becomes whether an individual is acting within the scope of his or her employment.8 Scope of employment sets the line: if an employee is inside the line, he is not subject to suit; if he is outside the line, he may be personally liable. Gutierrez de Martinez, 115 S.Ct. at 2231. For negligence committed by those inside the line, the United States is the only available defendant, and then only to the extent permitted by the FTCA. Id. The Supreme Court has made it clear under these statutes that federal employees are immune from liability even if substitution of the United States as defendant leaves the plaintiff without a remedy. Smith, 499 U.S. at 166, 111 S.Ct. at 1185 (“Congress recognized that the required substitution of the United States as defendant in tort suits filed against Government employees would sometimes foreclose a tort plaintiff‘s recovery altogether.“)9
The effect of the statutory scheme in the present case is that the United States steps into the shoes of the hospital, as employer, under respondeat superior theory. The government cannot stand in the shoes of a negligent federal employee, individually, because the employee is immune from suit.10 Here,
The court‘s approach ignores “course of employment” language in the FTCA and Westfall and Gonzalez Acts. The court effectively writes the “course of employment” language right out of these statutes. This language can mean nothing else but that the United States is vicariously liable.
In conclusion, contrary to the court‘s holding, the United States cannot step into the shoes of the medical services specialist individually—he or she is immune from suit. Instead, the plaintiff has an action, under a federal statutory grant of authority, against the medical services specialist‘s employer, the United States. Because that employer, the sole source of liability, is a hospital, the damages cap applies. I would remand this case for entry of judgment against the United States in the amount of $500,000 in general damages and for a determination of other damages not subject to the statutory limitation.