Bull v. United States

Background

Edwin B. Bull sued the United States under the Federal Tort Claims Act (FTCA), alleging medical malpractice and failure to obtain informed consent for treatment at the San Francisco Veterans Affairs Medical Center. A VA surgeon biopsied a lesion on Bull’s upper back in November 2019 and diagnosed melanoma. The VA removed the lesion in January 2020 and sent tissue slides to the University of California at San Francisco (UCSF) for dermatopathology review because the VA did not have a dermatopathologist on staff.

Timothy McCalmont, a UCSF professor and dermatopathologist, reviewed the slides. The opinion says he was not a VA employee, the VA did not control his work or UCSF’s laboratory, and the contract expressly disclaimed an employer-employee relationship. Bull alleged that the pathology findings were inaccurate and that he was told no residual cancer remained. In 2021, he learned that a later review identified residual melanoma and metastatic melanoma. He then underwent additional procedures and alleged that the delay allowed the cancer to grow, spread, and metastasize.

Motion and arguments

The United States moved to dismiss for lack of subject-matter jurisdiction. Subject-matter jurisdiction is the court’s legal authority to hear a case. The government argued that the FTCA does not waive the United States’ sovereign immunity for negligence by an independent contractor such as Dr. McCalmont.

Bull argued that the government should be prevented from invoking the independent-contractor exception because VA personnel told him that the VA had misread the pathology slides, apologized, told him he could file an FTCA claim, and provided claim forms. He also argued that the exception did not apply because the government had not delegated its entire duty of care to UCSF.

Court’s reasoning

The FTCA waives the United States’ sovereign immunity for certain injuries caused by the negligence of a government employee acting within the scope of employment. The statute excludes independent contractors. The court applied the control test, under which a contractor is not treated as a government employee unless the government had authority to control the contractor’s detailed physical performance and substantially supervised the contractor’s day-to-day activities.

The court held that the FTCA does not provide subject-matter jurisdiction for Dr. McCalmont’s alleged negligence in interpreting the tissue and diagnosing Bull as cancer-free. The court relied on the facts that McCalmont was a UCSF professor, was not a VA employee, was not supervised by the VA in performing his pathology work, and worked under a contract that disclaimed an employment relationship.

The court also rejected Bull’s equitable-estoppel argument. Equitable estoppel is a doctrine that can sometimes prevent a party from taking a position inconsistent with its earlier conduct. The court held that, under the Supreme Court’s decision in Office of Personnel Management v. Richmond, estoppel cannot support a monetary claim against the federal government that would require an unauthorized payment from public funds. The court additionally said that Bull had not shown the required affirmative government misconduct beyond negligence or established that the public interest would not suffer undue harm.

Finally, the court rejected the argument that the government’s failure to delegate its entire duty of care made it liable for UCSF’s conduct. The government was not seeking dismissal based on its own alleged negligence. The court explained that its ruling did not mean the United States could avoid liability for negligence by VA personnel merely because some duties had been assigned to a contractor.

Disposition

The court granted the motion to dismiss. The case against the VA for its own alleged negligence goes forward. The order disposed of ECF No. 19.