Public Health Law Map - Beta 5 - Medical and Public Health Law Site

case basis. The critical element in distinguishing an "employee" of the federal
government from a "contractor" for purposes of the FTCA is the power of the
federal government to control the detailed physical performance of the contractor.
To decide whether an entity is an independent contractor of the United States, a
court analyzes the degree of control exercised by the United States, and to be
liable, the federal government must have supervised the day- to-day operations or
controlled the detailed physical performance of the contractor. In other words, the
federal government must do more than fund the operation to be liable in tort under
the FTCA. The burden of proof will be on the plaintiff to show that the government
should be liable for tort damages because the defendant is a government employee.
The federal government’s degree of control over the employee is the main element
courts analyze, but not the only one. Other important elements include the method
of pay, the intent of the parties, who pays the social security tax, who provides
liability insurance, and who supplies the tools and materials used in the work. Lilly
v. Fieldstone, 876 F.2d 857 (10th Cir. 1989). This analysis is widely used by courts
to determine worker status for jobs ranging from medical care to building
maintenance to janitorial services.
An example of this analysis and how complex it can be is Linkous v. U.S., 142 F.3d
271 (5th Cir. 1998). The plaintiff, a military dependent, sued the U.S. for injuries
received during medical treatment at an army hospital. The defendant- doctor was
compensated on a fee-for-service basis, had to provide her own liability insurance,
and provided her own nurse. Yet she used the military facilities and equipment,
abided all military medical regulations, and used army personnel for secretarial
work. The court decided that the doctor was not a federal employee, and dismissed
the claim for lack of subject matter jurisdiction. The crucial elements in the
decision were: the hospital exercised no control over the medical services the
doctor provided to her patients; the doctor was engaged in a specialized occupation
requiring a high degree of skill; she was paid on fee-for-service basis, rather than
annual salary like military doctors; parties did not believe they were creating an
employer-employee relationship, as evidenced by their contract. Thus, this is an
often difficult and unpredictable determination.
As noted above, a program does not become a government institution simply
because the government contributes funding. For example, a community action
agency, a nonprofit corporation fully funded under the Economic Opportunity Act
and receiving "in kind" contributions to supply the 20% local support which the
agency is required to receive to qualify for federal grants, was not an
"instrumentality or agency of the United States" and its employees were not federal
employees, for purposes of the FTCA. Therefore, a child injured while riding in an
automobile returning from an outing sponsored by the center could not recover
from the federal government under the FTCA. U.S. v. Orleans, 425 U.S. 807
(1976).
An interesting example involved human growth hormone treatments administered
to a child through a program funded by federal grants. The treatments allegedly
caused damage to the individual, and she eventually died years later. Her
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