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Carrillo v. United States

argued submitted seattle washington: August 6, 1993.

AMY E. CARRILLO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TYLER PRIEST, DECEASED, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-91-5278 TD. Carolyn R. Dimmick, District Judge, Presiding.

Before: Robert R. Beezer and Cynthia Holcomb Hall, Circuit Judges, and Samuel Conti,*fn* District Judge. Opinion by Judge Conti.

Author: Conti

I. INTRODUCTION

Plaintiff-Appellant Amy Carrillo appeals from the district court's entry of summary judgment against her in this Federal Tort Claims Act ("FTCA") action. Carrillo claims that the United States is liable for the alleged negligence of Dr. Carl Ozimek, a civilian pediatrician whose employer, Pediatric Providers, P.S., contracted to provide pediatric care at Madigan Army Medical Center. The district court held that Dr. Ozimek was an independent contractor and not an employee of the United States, and therefore the government was not responsible under the FTCA for Ozimek's alleged negligence. We agree with the district court and AFFIRM.

II. FACTS

The district court found that the facts were essentially undisputed, and the parties do not dispute them here.

This case arises out of the alleged negligence of Dr. Carl Ozimek. Dr. Ozimek is a pediatrician employed by Pediatric Providers, P.S.

Pediatric Providers contracted with the government to operate a pediatrics clinic at Madigan Army Medical Center ("Madigan"). This contract stated in essence that Madigan would provide "facilities, ancillary support, and therapeutic services, and equipment and supplies." Pediatric Providers would provide a receptionist and a qualified nurse, and would maintain a list of eligible practitioners. The agreement further provided that Pediatric Providers would provide its own "full professional liability insurance . . . to the same extent as is usual and customary in civilian practice in the community."*fn1

Amy Carrillo was enlisted in the Army and stationed at Fort Lewis, near Tacoma, Washington. On November 7, 1989, Carrillo brought her four-month old son, Tyler Priest, to the pediatrics clinic at Madigan. She signed a consent form bearing the legend "CHAMPUS CLINIC - PEDIATRIC PROVIDERS, P.S." at the top. The consent form also stated that "Your child is being seen today by a civilian doctor paid by CHAMPUS at no expense to you."

Tyler was examined by Dr. Ozimek. Dr. Ozimek noted a "knot on the ribs" and "nasal congestion." Dr. Ozimek diagnosed an upper respiratory infection, prescribed Dimetapp, and sent Tyler home with Carrillo. Carrillo testified that she requested x-rays of Tyler's ribs, but Dr. Ozimek said x-rays were not necessary.

Two days later, on November 9, 1989, Tyler died from child abuse. An autopsy concluded that the cause of Tyler's death was a blow to the head. The autopsy also revealed evidence of previous child abuse - partially healed broken ribs, scarring of the abdomen, knee, and hand consistent with healed burns or abrasions, and retinal hemorrhages indicating "shaken baby syndrome." Following a police investigation, Tyler's father, Tyson Priest, was charged with the second degree murder of Tyler. Tyson Priest committed suicide before his trial.

Carrillo sued the United States under the FTCA. She alleged that Dr. Ozimek's failure to diagnose child abuse on November 7, 1989 was the proximate cause of Tyler's death. She further alleged that Dr. Ozimek, through his association with Madigan, was an employee of the United States, and thus the United States was responsible for Dr. Ozimek's alleged negligence under the FTCA.

The district court granted the government's motion for summary judgment, holding that Dr. Ozimek was an independent contractor, and therefore the United States could not be held liable under the FTCA for his negligence. The district court also rejected Carrillo's argument that the government should be equitably estopped from denying ...


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