Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weitzman v. United States

United States District Court, M.D. North Carolina

May 18, 2018

DAVID WEITZMAN, M.D., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          N. Carlton Tilley, Jr. Senior United States District Judge.

         Plaintiff David Weitzman, M.D. filed this personal injury action against Defendant United States of America (“United States” or “Government”) pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. (Compl. [Doc. #1].) The United States has moved for summary judgment, (see Mot. for Summ. J. [Doc. #20]), on the basis that the FTCA does not waive sovereign immunity as to this action because the North Carolina Workers' Compensation Act (“NCWCA”), N.C. Gen. Stat. § 97-1 et seq., is Weitzman's exclusive remedy, (Def.'s Br. in Supp. of Mot. for Summ. J. (“Br. in Supp.”) [Doc. #21]). For the reasons that follow, the Motion is denied.

         I.

         On March 24, 2015, while working as a primary care locum tenens physician at the VA Hillandale Road Clinic 1 (“the Hillandale Clinic”) in Durham, North Carolina, Weitzman was injured when a desk chair collapsed as he sat down in it. (See Decl. of James Galkowski (Jan. 16, 2018), Ex. 1 to Br. in Supp. [Doc. #21-2]; N.C. Indust. Comm'n Notice of Accident & Order Approving Agreement, Ex. 3 to Br. in Supp. [Doc. # 21-5].) Weitzman first filed a claim with the United States Department of Labor seeking compensation through the Federal Employees' Compensation Act (“FECA”), but he was found not to be a “civil employee” as that phrase is defined by 5 U.S.C. § 8101(1) for purposes of coverage under FECA. (U.S. Dep't of Labor Notice of Decision, Ex. 2 to Corrected Br. in Resp. to Def.'s Mot. for Summ. J. (“Br. in Resp.”) [Doc. #25-1].)

         He then filed a claim with the North Carolina Industrial Commission seeking compensation through North Carolina's Workers' Compensation Act, according to which he was awarded $8, 000.00. ( N.C. Indust. Comm'n Notice of Accident & Order Approving Agreement.) Before the North Carolina Industrial Commission approved the Agreement for Final Compromise Settlement and Release, Weitzman filed the instant action against the United States alleging negligence and seeking $280, 000.00 in damages, fees, and costs. (Compl.)

         The parties agree that if Weitzman is found to be an employee of the United States, summary judgment must be granted because, as explained below, the United States will not have waived immunity from this suit. (See Br. in Resp. at 5 (“If Dr. Weitzman was an employee of the VA, he is precluded from recovering on a third party claim”.) & Reply in Supp. of Mot. for Summ. J. at 1 [Doc. #27] (“The parties agree that if North Carolina's borrowed servant doctrine applies, the Court should grant the United States' motion and dismiss the action.”).) Thus, the issue is whether, at the time of his accident, Weitzman was an employee of the United States.

         II.

         The following facts are undisputed. In 2014, the United States Department of Veterans Affairs Medical Center in Durham, North Carolina (“the Durham VA”) solicited a contract for temporary staffing of physicians or other health care providers referred to as locum tenens. (Decl. of Galkowski ¶¶ 2, 3.) Next Medical Staffing LLC (“NMS”), a temporary medical staffing agency, was awarded the contract (referred to as the “VA-NMS Contract”). (Id. ¶ 4.)

         In the VA-NMS Contract, the Durham VA required locum tenens physicians to provide appropriate medical treatment and management of general medical problems of adult patients on site at the Durham VA Medical Center five days a week between the hours of 8:00 a.m. and 4:00 p.m., manage at least fourteen thirty-minute appointment slots per day, see a mixture of new and established patients with new patient appointments lasting sixty minutes, refer to specialty clinics within the VA system, and not refer to outside providers unless reviewed by staff and authorized by the Chief of Ambulatory Care. (VA-NMS Contract §§ B.4, B.6; see also Decl. of Galkowski ¶ 9.)

         The Durham VA also required the locum tenens physicians to conduct a primary evaluation of applicants for care, perform and record medication reconciliation for each encounter, obtain appropriate consultation from on-call specialists, enter all reports for incorporation into the computer patient record system the day of the visit, complete and sign notes within twenty-four hours of an encounter, satisfy Veterans Health Administration and medical center policies, prescribe medications for patients according to the established drug formulary at the facility, and perform services within the VA policies and procedures and regulations of the medical staff bylaws of the facility. (VA-NMS Contract § B.4; see also Decl. of Galkowski ¶ 9.)

         In or around September 2014, the Durham VA asked NMS to provide candidates to fill locum tenens physician openings, including one at the Hillandale Clinic, an outpatient primary care clinic. (Id. ¶ 5.) NMS proposed Weitzman as a candidate for the opening at the Hillandale Clinic, and, per the VA-NMS Contract, would have submitted his qualifications to the Durham VA, which had the right to review candidates. (Id. ¶¶ 5, 10 (citing VA-NMS Contract § B(4)(2), Ex. 1-A to Br. in Supp. [Doc. #21-1]).) Specifically, the Associate Chief of Staff for Ambulatory Care Services for the Durham VA, Dr. Brian Hayes, handled the review and final acceptance of approved locum tenens physicians. (Id. ¶ 6.) Once a physician was accepted, the Durham VA coordinated with NMS for the locum tenens physicians to obtain VA credentials and privileges. (Id. ¶ 7 (citing VA-NMS Contract §§ B(4)(2)(b), B(6)).) This process - the same for regular VA staff physicians - included a background check, fingerprinting, and confirmation of citizenship. (Id.) Dr. Hayes and VA credentialing specialists reviewed all applications for credentials and privileges, and the Durham VA Physician Professional Standards Board also specifically reviewed the applications of physicians. (Id. ¶ 8.)

         The Durham VA approved Weitzman for locum tenens work at the Hillandale Clinic, after which he signed a Physician Confirmation with NMS for the assignment and began work as a primary care physician. (Id. ¶ 11 (citing NMS Physician Confirmation & Provider Service Agreement (Sept. 2, 2014), Ex. 1-B to Br. in Supp. [Doc. #21-3]).)

         According to the NMS Provider Services Agreement entered into between Weitzman and NMS, the Durham VA was “solely responsible for determining [Weitzman's] work assignments, schedule, number of hours worked[, ] and patients served” and Weitzman was required to cooperate with the Durham VA's orientation requirements. (NMS Physician Confirmation & Provider Service Agreement at 3[1], 4; see also Decl. of Galkowski ¶¶ 13, 14.) The Durham VA determined Weitzman's actual work hours, days off, and lunch and break times. (Decl. of Galkowski ¶ 19.) It also had the right to terminate his assignment with or without cause. (Id. ¶ 22 (citing NMS Physician Confirmation & Provider Service Agreement at 4).) The Durham VA's Contracting Officer was to “deal with issues raised concerning contract personnel's conduct” and served as the “final arbiter on questions of acceptability”. (VA-NMS Contract § B.6.)

         To facilitate Weitzman's work as a locum tenens primary care physician at Hillandale Clinic, the Durham VA provided him all necessary tools including exam rooms and tables, vital signs monitoring equipment, scales and other measurement devices, eye charts, computers, otoscopes and ophthalmoscopes, a stethoscope if not provided by Weitzman, magnification devices, all disposable medical supplies like tongue depressors, bandages, gauze, speculums, and gloves, procedure trays for suturing, incisions, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.