The United States Court of Appeals for the Seventh Circuit (“Federal Appellate Court”) stated in its opinion dated February 10, 2022: “there is no evidence that Dr. Mercier was acting on behalf of the VA in an official capacity. Instead, the record shows that Dr. Mercier operated independently, using the Hospital’s resources. As the district court observed, “[t]here is no indication that Dr. Mercier maintained an office at the VA or used support staff, supplies, or equipment furnished by the VA.” Finally, we note that the estate does not suggest Dr. Mercier is otherwise an “employee of the Government,” assuming § 2671 should be read as an inexhaustive list.”
“The estate failed to make a strong showing under either the federal-employee or official-capacity clauses. The undisputed evidence shows that (1) Dr. Mercier was not employed by the VA, and (2) the Hospital was not a federal agency—thus, the federal-employee clause is ruled out. The estate also offered no evidence that Dr. Mercier was (3) acting on behalf of the VA in an official capacity, or (4) otherwise an “employee of the Government” under an inexhaustive interpretation of “includes.””
The Underlying Facts
David Talignani was a United States military veteran. In 2015, he consulted a neurosurgeon with the Department of Veterans Affairs Saint Louis Health Care System (“VA”). The neurosurgeon recommended that he undergo neck surgery, but because the VA could not perform a timely surgery, the surgeon suggested Talignani obtain “evaluation and treatment” at Saint Louis University Hospital (“Hospital”). Talignani agreed and expressed a preference for the Hospital because he had previously undergone a surgery there.
In January 2016, Dr. Phillippe Mercier performed neck surgery on Talignani using the Hospital’s facility and staff. Talignani died shortly after being released.
As administrator of her deceased husband’s estate, Anne Talignani alleged her husband was “prescribed excessive pain medication prior to his discharge from St. Louis University Hospital,” which proximately caused his death. She first sought recourse by filing an administrative complaint with the VA, which was denied. Then, she filed a federal lawsuit. The government moved for summary judgment, arguing that her claim did not involve an “employee of the Government.” The district court ruled for the government and the estate appealed.
Federal Tort Claims Act
The Federal Tort Claims Act (“Act”) “waive[s] the sovereign immunity of the United States for certain torts committed by federal employees.” 28 U.S.C. § 1346(b)). To establish a claim under the Act, the plaintiff must show, among other things, that his injury was caused by an “employee of the Government.” The statutory definition of “employee of the Government” at 28 U.S.C. § 2671 controls, even if it contradicts the phrase’s ordinary meaning.
An “‘[e]mployee of the Government’ includes” five categories of personnel:
1. “officers or employees of any federal agency”;
2. “members of the military or naval forces of the United States”;
3. “members of the National Guard [with certain conditions]”;
4. “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”; and
5. “any officer or employee of a Federal public defender organization [with one exception].”
In the case it was deciding, the Federal Appellate Court stated: “Using the two available options under § 2671 applicable here—the federal-employee clause or the official-capacity clause—and relying on the statutory language and case law discussed above, the estate could meet that burden by offering evidence that would permit a reasonable juror to conclude one of the following:
1. Dr. Mercier was an “employee” of the VA;
2. Dr. Mercier was an “employee” of the Hospital and the Hospital was a “federal agency,” not a contractor;
3. Dr. Mercier was “acting on behalf of [the VA] in an official capacity, temporarily or permanently in the service of the United States”; or
4. Dr. Mercier was otherwise an “employee of the Government” under an inexhaustive interpretation of “includes.”
But the estate did not submit any evidence … The undisputed facts in the record establish that Dr. Mercier was not employed by the VA in January 2016 or any other time, nor did he hold privileges at the VA hospital. Instead, the VA authorized payment for Talignani’s neck surgery according to an outside provider’s plan of care, not its own … The evidence indisputably shows that Dr. Mercier was not a VA employee, and the statutory framework and traditional principles of agency law demonstrate that the Hospital was not a federal agency.”
“As to the official-capacity clause, there is no evidence that Dr. Mercier was acting on behalf of the VA in an official capacity. Instead, the record shows that Dr. Mercier operated independently, using the Hospital’s resources.”
The Federal Appellate Court held: “For these reasons, the Act’s limited waiver of sovereign immunity does not extend to this lawsuit. We AFFIRM the decision of the district court.”
Source Talignani v. United States of America, No. 21-1631.
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