Verdicts

Because a reasonable factfinder could find that the plaintiff's physician was an employee of the Bronx Veterans Administration (VA) and not an independent contractor, plaintiff's claim against the Bronx VA for the alleged malpractice of her attending physician was not subject to summary judgment based on federal government sovereign immunity. Williams v. U.S., Slip Copy, 2007 WL 951382 (S.D.N.Y., 3/22/07).

Plaintiff brought suit under the Federal Tort Claims Act against the United States for, inter alia, the alleged medical malpractice of the VA's Dr. David Schonholz. Plaintiff claimed Dr. Schonholz negligently failed to diagnose her colon cancer. The United States moved for summary judgment on the basis that Dr. Schonholz was an independent contractor, not a federal employee, a fact the United States said was conclusively proved by the doctor's employment contract specifically stating he was an independent contractor. The government noted that, in accordance with the FTCA, it waives its traditional sovereign immunity with respect to claims for personal injury only when the injury is '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.' 28 U.S.C. ' 1346(b). The FTCA defines '[e]mployee of the government' as any 'officers or employees of any federal agency ' and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.' Id. ' 2671. 'Federal agency' is defined to include 'the executive departments ' the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.' Id. (emphasis added). Thus, the court here would have subject matter jurisdiction over plaintiff's claim only if her alleged injury was caused by a government employee, not an independent contractor.