of private relief bills introduced in Congress. The confessed inability of Congress to fairly judge each of these cases on the merits, and the sheer number of bills presented each year, prompted enactment in 1946 of the Federal Tort Claims Act,' under which the Government waived its sovereign immunity to tort suits and placed the United States in a position similar to that of any other employer. (b) Basis of Governmental Liability

The pertinent part of the FTCA which sets forth the basis of the Government's liability reads as follows:

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the district courts shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 8

In accordance with the expressed intent of the statute, the Government's liability is equated with that of any other employer under similar circumstances, and is predicated upon the legal doctrine of respondeat superior, which holds a master liable for the tortious acts of his employees while acting within the scope of their employment." In addition, the statute specifies that the Government's liability shall be measured by the law of the place where the act or omission occurred.10 Accordingly, every suit against the Government under the FTCA necessarily brings into play the substantive tort law of the State in which the alleged negligent act took place, and only if a cause of action is determined to exist under State law will the United States be held liable under the FTCA.1

11

7 Act of Aug. 2, 1946, Ch. 753, 60 Stat. 843, as amended, 28 U.S.C. 1346 (b) and 2674 (hereinafter referred to as the FTCA).

9

8 28 U.S.C. 1346 (b). For recent procedural change in the FTCA, see note 193. The U.S. Government is a sovereign body politic and can act only through the medium of its duly authorized officers or employees. Liability of the Government under respondeat superior presupposes that the employee's tortious act was committed while carrying out the Government's business, and not while engaged in a mission of his own. 10 This accords with the common law rule that it is the lex loci delicti which determines liability-creating conduct. RESTATEMENT, CONFLICT OF LAWS, §§ 377-379 (1934). Maryland, to the use of Burkhardt v. United States, 165 F. 2d 869 (4th Cir., 1947).

11

Local law applies not only to the merits of the claim, but also to substantive defenses such as contributory negligence, burden of proof, and measure of damages.

(c) Employee and Scope of Employment

Two prerequisites to governmental liability under the statutory language are that the negligent conduct must have been performed by an "employee" of the Government, and that such employee must have been "acting within the scope of his office or employment.” Ordinarily, it is not a difficult matter to determine if an individual is an employee of the United States, the matter being resolved by reference to Federal law, Civil Service regulations, and other Federal evidentiary materials.1 In this respect, a listing of all PHS employees who are clearly within the coverage of the FTCA as employees of the United States would include all PHS personnel employed on a full-time basis, whether members of the PHS Commissioned Corps or holding Civil Service appointments; all PHS fellows employed under 42 CFR §§ 61.2-61.4; and all part-time PHS personnel compensated in accordance with Government salary scales. Under appropriate circumstances, still others may be held to be employees of the United States for purposes of FTCA coverage based upon consideration of the following factors: (1) who hired the individual and paid him; (2) in what kind of program or activity was he engaged (i.e., was he employed on a primarily Federal pursuit); (3) his entitlement to Civil Service retirement benefits, employee's compensation, health benefits, reemployment rights, and other similar indicia of Federal employment, and (4) who had the fundamental right to control the individual's activities. Without question, the right to control is the most important factor of all, from the standpoint of governmental liability under the FTCA. Under affiliation agreements between the PHS and private hospitals, many non-Government interns, pharmacists, nurses, and other medical personnel regularly participate in direct patient care activities in PHS facilities. While thus engaged, such persons are

12 Notwithstanding the fact that the tort liability of the United States under the FTCA is to be determined by reference to local law, the status of an individual as an employee of the United States is an exclusively Federal question. Courtney v. United States, 230 F. 2d 112 (2d Cir., 1956); see also Gottlieb, I.: "State Law Versus a Federal Common Law of Torts," 7 Vand. L. Rev. 206, 215 (1964). It is deemed impractical to consider here the legal effect of the innumerable types of employment arrangements made by the PHS, and only the salient criteria for determining employee status are given in the text.

invariably subject to the control and direction of PHS supervisory personnel, thereby bringing their activities within the scope of the FTCA. By contrast, the activities of volunteer workers in PHS facilities, such as Red Cross Gray Ladies and Girl Scout CandyStripers, would not be within the purview of the FTCA since these activities are neither sponsored by the PHS nor directly related to PHS patient care. While engaged in volunteer duties within PHS facilities, these individuals would be deemed invitees only.

Many PHS medical employees are detailed to activities sponsored by State and local health departments, universities, and research institutions, and questions often arise with respect to their status while in these non-PHS environments, particularly where negligent conduct is involved. The tortious act of a PHS employee detailed to assist a State or local government in carrying out a non-Federal program (even though involving Federal financial grants-in-aid of such activity) will not ordinarily subject the United States to liability under the FTCA.13 While working on an assignment of this type, the PHS employee is legally considered to be a "loaned servant" for whose torts the borrowing State or local government is liable.1* Despite the fact that the PHS employee's assignment may be made pursuant to a Federal statute, and in furtherance of a general Federal objective (e.g., a medical research or training program), this would not ordinarily be sufficient to bring the detailed employee's acts while thus engaged within the FTCA. The crucial determinant in these cases is the right of Federal control and supervision over the acts of the individual while he is in the non-PHS environment, whether or not this right is actually exercised. In the usual situation, the Federal Government neither exercises, nor has the right to exercise, direct control and supervision over the detailed employee's activities, and the Government accordingly has not agreed to assume responsibility for the employee's negligent conduct under these circumstances.

13 Fries v. United States, 170 F. 2d 726 (6th Cir., 1948). (No liability under the FTCA for the negligent act of a PHS employee loaned to a county board of health.)

1* "When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former." Denton v. Yazoo & Mississippi Valley Ry. Co., 284 U.S. 305 (1931).

In accordance with the express language of the FTCA, employee status alone will not give rise to the Government's liability unless the employee's negligent conduct occurred while he was acting within the scope of his office or employment. This is the fundamental basis of vicarious responsibility under the doctrine of respondeat superior. The Government has not consented to be sued or to be liable for injuries caused by the negligent acts of employees while engaged in their own personal or private enterprises. PHS medical personnel are frequently given duty assignments requiring them to be "on call” for a period of 24 hours, but their actual duty assignments do not call for their professional services for the entire portion of this period. Merely because a PHS medical officer is technically "on call" at all times would not bring his conduct within the purview of the FTCA if, for example, he gave negligent medical treatment to someone at the scene of an accident while on his way home.15 The ultimate test of FTCA coverage is whether or not the specific conduct complained of occurred while the PHS medical officer was carrying out professional responsibilities arising directly out of his Government employment, or reasonably related thereto. His actions outside the Government frame of reference, however laudable or morally motivated, would not be deemed to be acts within the scope of his Government employment within the meaning of the FTCA.

(d) Statutory exclusions

Congress did not completely abrogate the sovereign immunity doctrine when it passed the FTCA, for it expressly created a number of exclusions from its coverage, several of which are pertinent to claims which might arise out of patient care or related activities. Thus, the FTCA excludes claims against the United States arising out of (a) the exercise of a discretionary function or duty, (b) assault and battery, (c) false imprisonment, or (d) misrepresentation. In

15 In Rutherford v. United States, 73 F. Supp. 867 (D. Tenn., 1947), aff'd 168 F. 2d 70 (6th Cir., 1948), a Navy petty officer injured a pedestrian while driving home after completing a radio broadcast dealing with naval recruitment. In holding the Government not liable under the FTCA for the petty officer's negligence, the court stated: "Upon completion of the broadcast, his duty was finished. Thereafter he was on his own. In traveling to his home, neither was he performing any special duty assigned nor was he performing any general duty imposed by his superiors."

addition to these specific exclusions, there are two major groups of claimants who are generally barred from bringing suit against the Government under the FTCA: civilian employees of the United States who sustain on-the-job injuries, and members of the military on active duty who sustain injuries incident to their military service. It is of the utmost importance to note that, since the Government cannot be held liable for acts falling within any of the statutory exclusions, or for claims brought by Federal employees or servicemen under the circumstances described above, the likelihood of a suit being brought against the negligent Government employee personally is increased significantly. Reserving for later discussion the matter of personal liability of PHS personnel, and their right to representation by Government legal counsel when sued personally, the statutory exclusions noted above are reviewed here to demonstrate their general pertinence to hospital management and patient care.

16

(1) Discretionary functions-The FTCA excludes any claim against the United States based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a Government employee, whether or not the discretion involved be abused. The courts have held that the decision whether or not to admit a patient to a Government hospital is a discretionary function, and that no action will lie against the United States based on the refusal to admit a patient." On the other hand, the courts have consistently held that once the discretion is exercised and the patient admitted, the discretionary function exclusion no longer applies and the Government will be liable for any subsequent

16 See page 10 et seq.

17 Denny v. United States, 171 F. 2d 365 (5th Cir., 1948) cert. denied 337 U.S. 919 (1949). The question of an applicant's eligibility for admission to a PHS facility is an administrative determination made by the medical officer in charge. Beneficiary status alone does not make admission mandatory. Even a private hospital is under no obligation to admit every patient who seeks admission. Le Jeune Road Hospital, Inc. v. Watson, 171 So. 2d 202 (Fla., 1965). However, the rule may be different with respect to emergency patients. See Wilmington General Hospital v. Manlove, 174 A. 2d 135 (Del., 1961), discussed in 14 Stanford L. Rev. 910 (1962), in which the court held a hospital liable for refusing to admit a patient to its emergency ward where an unmistakable medical emergency existed.