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Faris v. United States

United States District Court, W.D. Virginia, Roanoke Division

March 5, 2014



SAMUEL G. WILSON, District Judge.

This is an action by Hazel Faris, executor of the estate of Geat Faris ("Fans"), against the United States of America (the "Government"), pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. ยง 2671, et seq., alleging medical malpractice by medical personnel who were treating Faris' prostate cancer at the Veterans Affairs Medical Center ("VAMC") in Salem, Virginia. The Government has moved to dismiss Faris' complaint or for summary judgment on two grounds. First, the Government argues that Faris' did not timely file his administrative claim with the United States Department of Veterans Affairs, a jurisdictional prerequisite to suit. Second, the Government argues that irrespective of timeliness, the court nonetheless lacks subject matter jurisdiction as to claims arising from the actions of the alleged negligence of his treating physician, Dr. Anibal Medina, because Dr. Medina is an independent contractor, and the FTCA does not waive sovereign immunity for the acts of independent contractors. The court finds that Faris filed his administrative claim in a timely manner but dismisses claims arising from the alleged negligence of Dr. Medina, whom the court concludes was an independent contractor.


On November 2, 2000, Dr. Medina diagnosed Faris with non-advanced, localized prostate cancer and discussed four treatment options with him: monitoring the condition, hormone therapy, radiation therapy, and surgery. Faris consulted with another doctor at the VAMC who reiterated those options, and Faris eventually opted for hormone therapy. According to Faris, the doctors led him to believe that hormone therapy was potentially curative, which in fact it is not. Over the next eight years, Faris received hormone therapy at the VAMC with apparent success. For the most part, Faris' prostate-specific antigen (PSA) levels responded positively to the treatment, [1] permitting Faris to receive fewer treatments and even to discontinue treatment altogether at various times.

In June 2008, after the VAMC lost its urology department, Faris became disgruntled with the VAMC and sought additional care from outside physicians. (ECF No. 23 at 51-52) On July 21, 2008, Faris visited Dr. Kareem Zaki, [2] who reviewed Faris' diagnosis and treatment history. Dr. Zaki told Faris he wished "[Faris] had made a different decision [eight] years [earlier] and proceeded with a more aggressive treatment modality" but found no reason to revisit the decision and recommended its resumption. (Id. at 54-55) Dr. Zaki ordered a CT scan and bone scan, as well as a PSA test. Id . at 55. The results of the CT scan and bone scan were negative, showing that the cancer had not spread, and Faris' PSA level was 0.7. (Id. at 57-58) In light of these results, Faris chose not to resume hormone therapy. Dr. Zaki believed Faris' choice reasonable because Faris appeared "asymptomatic." (Id. at 57) Four months later, Faris' PSA levels dropped to 0.5 (as of January 5, 2009). (Id. at 61) However, beginning in mid-2009, the VAMC noted that Faris' PSA levels began to fluctuate. Faris resumed his hormone therapy, and his PSA levels again decreased. Then, in 2010, Faris' PSA levels appeared to become less responsive to the hormone therapy, as Fans' PSA levels gradually increased. (See id. at 104)

Because Faris had received hormone therapy intermittently for approximately ten years, the VAMC asked if he would be interested in participating in a clinical study on the side-effects of hormone therapy. Faris agreed, and the VAMC scheduled a CT scan and PSA test for September 2010. However, because Faris was having difficulty urinating, in July 2010, Dr. Zaki removed part of Faris' prostate.[3] Then, on August 19, 2010, Faris consulted another outside physician who discussed with Faris the "vagaries and inconsistencies of prostate cancer diagnosis and treatment." (Id. at 99)

On September 20, 2010, Faris had the clinical study CT scan. That scan revealed that Faris' cancer had metastasized. The reviewing physician did not inform Faris that his cancer had metastasized but referred him to a radiation oncologist. On September 28, 2010, the oncologist, Dr. Robert Heath, informed Faris that his prostate cancer had become "hormone refractory, " meaning that hormones could no longer prevent the growth or spread of the cancer, and that this often occurs if given enough time. As a result, Faris'"15-year survival rate" had dropped significantly from 80 percent to less than 40 percent. Though Dr. Heath did not inform Faris that his cancer had metastasized, he recommended that Faris have radiation therapy. (Faris' Dep. 24:6-26:24) Faris began radiation therapy, which continued until March 2011, when a physician told Faris that his September 20, 2010 CT scan had actually also revealed metastasis of his cancer and that Faris should have been receiving chemotherapy. (Faris' Dep. 28:9-29:15) On learning this news, Faris switched from radiation treatment to chemotherapy.

On August 17, 2012, Faris filed an administrative claim with the United States Department of Veterans Affairs, alleging medical malpractice by the VAMC medical personnel. The claim was denied on February 14, 2013. Faris died on March 4, 2013. Approximately one month later, the executor of Faris' estate filed suit in this court under the FTCA, again alleging medical malpractice by Dr. Medina and other VAMC medical personnel on the grounds that they improperly advised Faris that hormone therapy was an appropriate treatment that could cure Faris' cancer and departed from the standard of care in providing that treatment.

The Government has moved to dismiss pursuant to Rule 12(b)(1). It argues that it is immune from liability because Faris failed to file his administrative claim with the United States Department of Veterans Affairs within two years after Faris' claim accrued. Irrespective of the timeliness of the filing, the Government also argues that it is immune from suit for claims arising from Dr. Medina's negligence because he was an independent contractor and not a Government employee. Faris filed a motion to compel discovery in order to respond to the Government's motion. The court held a hearing and granted Faris' motion. After the parties completed discovery, the Government moved for summary judgment on the estate's claim arising out of Dr. Medina's course of treatment and, in support of its motion, submitted numerous declarations and exhibits. Faris responded.

According to the undisputed evidence, Dr. Medina began working at the VAMC in late 2000 under a contract with CompHealth to provide medical services to its clients as needed. CompHealth is a medical staffing company that helps place medical professionals. CompHealth, in turn, contracted with the VAMC to provide Dr. Medina's professional services to the VMAC hospital. The VAMC-CompHealth contract stated: "It is expressly agreed and understood that this is a non-personal services contract as defined in Federal Acquisition Regulation (FAR) 37.101, [4] under which the professional services rendered by the Contractor or its health care providers are rendered in its capacity as an independent contractor." (ECF No. 31-1 at 3) According to that contract's express provisions, the Government would have "no control over the professional aspects of the services rendered, including, by example, the Contractor's or its health care providers' professional medical judgment, diagnosis or specific medical treatments." (Id.) The Medina-CompHealth contract provided similarly that Dr. Medina would provide services on a "locum tenens" (temporary) basis and would perform those services "as an independent contractor" while "exercis[ing] independent judgment and control over [his] schedule, patients, and professional services as long as [he] meet[s] the requirements of the facility where [he] work[ed]." (ECF No. 16-6 at 3)

In order to meet the VAMC's need for a physician certified in urological surgery, the VAMC required that the physician supplied from CompHealth conduct weekly outpatient and inpatient clinics on Monday, Tuesday, and Thursday, as well as surgical procedures on Monday, Wednesday, and Friday. (Medina's Dep. 14:9-17:2) The physician was also required to remain on-call in the event of an emergency and to abide by all hospital by-laws and any applicable state or federal requirements. (Id.) However, despite these requirements, that physician maintained the right to work for other facilities unrelated to the VAMC and the "right to delegate any of [his] obligations under [the CompHealth] agreement to an equally qualified physician with the prior consent of CompHealth and [its] client." (ECF No. 16-6 at 3)

CompHealth, not the VAMC, paid Dr. Medina based on work actually performed (an hourly rate rather than a salary). Neither the VAMC nor CompHealth withheld any of the doctor's taxes. (ECF 16-6; 31-1; 31-2) CompHealth paid for medical malpractice liability insurance, but Dr. Medina was responsible for his own worker's compensation benefits, unemployment insurance, health insurance, and retirement plans. (Id.)


The Government has moved to dismiss and for summary judgment on the ground that Faris did not file his administrative claim with the United States Department of Veterans Affairs within two years after it accrued, a jurisdictional prerequisite to suit under the FTCA. However, because a medical malpractice claim under the FTCA does not accrue until plaintiff knows or should know both the existence of his injury and its cause, and because Faris filed his administrative claim within two years of the date he knew or should have known that his cancer had ...

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