(d) Liability for Acts of Subordinates

It may be stated as a general rule that a PHS supervisory professional employee will not be held liable for the negligence of a subordinate, unless he directed the act complained of, or participated in it." As a corollary to the above, a subordinate professional employee cannot escape personal liability for his own negligence by alleging he was merely following the orders of his supervisor. The specialized knowledge, skills, and techniques required of physicians, dentists, nurses, and others with professional qualifications, make such persons generally responsible for their own medical judgments and conduct," and the rule is as applicable to PHS personnel as it is to private medical practitioners. By way of illustration, the surgical chief of a PHS facility would not be held liable for the negligence of a surgical resident in the performance of an operation, based solely on the surgical chief's status as head of the unit. Before he can be held liable, there must be a showing that the surgical chief either was actually in control of the operative procedure in question, or was physically present in the operating room and thereby had the right to exercise control, or (if not present) was negligent in designating the resident to perform an operation calling for a degree of skill clearly beyond the latter's capabilities and experience.*5

A nurse supervisor, chief pharmacist, or head of any other professional unit in a PHS facility, is subject to the same general rule. Accordingly, if it is shown that the head of the particular unit actually participated in the act in question, or was physically present and had

This is based on the long-established rule that public officers are not liable for the negligence of their subordinates. Robertson v. Sichel, 127 U.S. 507 (1888) (Customs officer held not liable for loss of luggage caused by negligence of subordinate); 43 AMJUR, PUBLIC OFFICERS, § 281.

"Yorston v. Pennell, 397 Pa. 28, 153 A. 2d 255, 85 A.L.R. 2d 872 (1959); McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243 (1949); see also Annotation "Liability of Physician or Surgeon for Malpractice of Another," 85 A.L.R. 2d 889 (1959).

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The basis for holding the supervisor liable in these instances is not his status as head of a unit, but his own negligence, either in failing to prevent the negligent conduct on the part of the subordinate, or in permitting an unqualified person to perform the assigned task. See memorandum, Office of General Counsel, HEW, to Assistant Director, Clinical Center, NIH: "NIH-Malpractice Insurance Liability of Supervisors for Acts of Subordinates" (Aug. 11, 1959).

the right to control the subordinate, or assigned the task to one who was clearly not qualified therefor, the supervisor may be held liable. This does not mean that the subordinate is free of liability for his own negligence, and he too may be held responsible in damages. As a practical matter, however, since both the supervisor and the subordinate are employees of the United States, the negligent conduct of either will subject the United States to tort liability under the FTCA, as mentioned earlier, thereby diminishing the likelihood of a personal suit against either of them personally, unless other legal circumstances prevent such course of action. Some of these circumstances are discussed in the following section.

(e) Increased Risks in Treating Certain Beneficiaries

The potential personal liability of the PHS employee is increased significantly when he treats two classes of patients: Federal employees and active duty members of any of the military services. The reasons for this increased hazard of liability are noted below.

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(1) Federal civilian employees The Federal Employees' Compensation Act [FECA] provides that the liability of the United States under that act, with respect to the injury or death of an employee of the United States, “shall be exclusive, and in place of all other liability of the United States . . . on account of such injury or death, in any direct judicial proceeding in a civil action . . under any Federal tort liability statute." The FECA, therefore, is the exclusive remedy available to a Federal civilian employee who sustains an on-the-job injury, and the courts have held that even if the employee's injury is aggravated in the course of treatment by the PHS, he cannot recover against the United States in a tort claim filed under the FTCA." Thus, the injured Federal employee who feels aggrieved under these circumstances has little choice but to attempt to recover damages from the PHS physician whose negligence caused the harm. While such claims are not numerous, they loom as potentially serious risks to the PHS employees involved.

17 Balancio v. United States, 267 F. 2d 135 (2d Cir., 1959). Federal civilian employees are treated in PHS facilities under the authority of 42 U.S.C. 251.

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(2) Military personnel-In Feres v. United States, the Supreme Court held that a serviceman on active duty could not sue the Government under the FTCA for injuries caused by the negligent conduct of Government employees in the course of an activity incident to the claimant's military service. The Court noted that members of the Armed Forces have been financially provided for by the Government in many different ways and that traditionally members of the military could not sue the Government for injuries received while on duty.

49

The practical result of the Feres case, from the standpoint of PHS personnel, is to increase the hazard of personal liability for negligence arising out of the treatment of members of the military, particularly members of the U.S. Coast Guard, since this group constitutes one of the largest class of beneficiaries entitled to care and treatment by the Service under the provisions of the Public Health Service Act.50

(f) PHS Officers Detailed to Military Units

52

Two recent decisions have had the effect of extending the Governmental immunity rule of the Feres case to military doctors who are sued. In Bailey v. DeQuevedo 51 and Bailey v. Van Buskirk, the courts held that a suit by a soldier against a superior officer for negligent acts performed in the line of duty was not within the American legal concept. Accordingly, the defendant military surgeons in each case, being in a command relationship to the plaintiff service

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340 U.S. 135 (1950) (Suit was brought to recover for the death of an Army officer who had died in a barracks fire).

49 The Feres rule applies only to claims by active duty military personnel for acts of negligence arising out of, or in the course of, an activity found to be incident to the claimant's military service. Suits by retired military personnel are not excluded under the FTCA, Watt v. United States, 264 F. Supp. 386 (D.N.Y., 1965), nor are suits brought by dependents of military personnel, or suits by active duty personnel based upon medical care given for injuries incurred in a nonmilitary context.

50 Members of the Coast Guard receive care and treatment by the Public Health Service under the provisions of 42 U.S.C. 253.

51 241 F. Supp. 335 (D. Pa., 1965).

52 345 F. 2d 298 (9th Cir., 1965). Petition for certiorari denied 383 U.S. 948 (1966).

man, were held immune from liability for the tortious conduct involved. 53

There is reason to believe the same rule of immunity would be applied to members of the PHS Commissioned Corps who are detailed to military units under the authority of 42 U.S.C. § 215(a). The U.S. Court of Military Appeals has ruled that a PHS commissioned officer detailed to active duty with the Coast Guard is subject to military law and has a military status equivalent to officers of the Coast Guard.54 A PHS medical officer detailed to a Coast Guard unit would thus hold a command relationship with respect to members of such unit whom he has occasion to treat in his official capacity, and it is a reasonable assumption that the immunity rule of Bailey would be held applicable in a malpractice suit brought against such PHS medical officer by a Coast Guardsman whom he has treated.

It should be made clear that not every PHS medical officer who treats a member of the Coast Guard could claim personal immunity from suit, since the Bailey rule is specifically limited to those situations in which a command relationship may be said to exist―a determination possible only when the PHS officer is detailed to the Coast Guard or other military unit under the authority of 42 U.S.C. § 215(a).

(g) Representation of PHS Personnel by Department of Justice

It is the policy of the Department of Justice to provide legal counsel and representation for Federal employees involved in civil or criminal litigation arising out of acts performed in the scope of their Government employment.55 This policy is particularly beneficial in those cases in which a PHS physician or other medical employee is sued personally by a patient who is barred from bringing suit directly

53 The soldier-plaintiff brought separate suits against two Army physicians who negligently left wire sutures in his abdomen during a kidney operation at the U.S. Army's Letterman General Hospital. See also Eggenberger v. Jurek, 253 F. Supp. 630 (D. Minn. 1966) where the court ruled that a serviceman on active duty could not sue his superior officer for the negligent operation of his automobile.

54 United States v. Braud, 11 U.S.C.M.A. 192 (1960).

55 U.S. Attorneys Manual, Title 3, p. 4. See Part A.2(c) for discussion of "scope of employment."

against the United States. The reader is referred to Part A.2(d) and Part A.3 for illustrative cases involving such circumstances. Under established procedures, the request for legal counsel and representation should be made by an appropriate official of the requesting agency at the headquarters level in Washington. In situations where time does not permit the request to be made in this manner, U.S. Attorneys are authorized to afford counsel and representation upon the request of a local officer of the Federal agency involved.

It is not the policy of the Department of Justice to afford legal representation to a Federal employee who has liability insurance coverage which would afford adequate protection to him.56 One reason for declining representation when the employee has his own liability insurance coverage is the fact that the private insurance carrier is usually obligated under the terms of its policy to defend any suit which is instituted against its insured, and the majority of malpractice insurance carriers insist upon complete control of the litigation. The U.S. Attorney generally cooperates with the insurer's legal counsel in these cases.

50 To the extent that a PHS physician or other professional employee has his own malpractice insurance coverage, his interests are not prejudiced by the Government's policy against affording legal representation. He is not only assured of having experienced insurance counsel defend him in the action, but of even greater importance, he is assured of having any judgment rendered against him paid by his insurance carrier, at least to the extent of the policy limits. Moreover, in the event of an adverse judgment, most insurance companies will provide legal representation on any subsequent appeal.