The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Regina Romero died as a result of a mistake during surgery at the Westside Medical Center, a Veteran's Administration ("VA") hospital in Chicago. Helen Monroe, the administrator of Romero's estate, has filed a suit pursuant to the Federal Tort Claims Act ("FTCA") and the Illinois Wrongful Death Act against the United States and Dr. Melissa Gilliam for medical negligence related to Romero's July 18, 2001 cervical biopsy and July 26, 2001 bowel resection procedure, both performed at the VA. Dr. Gilliam performed the cervical biopsy on Romero. According to the complaint, during the biopsy, Romero's vaginal/uterine wall was perforated, causing bleeding. The solution applied to control the bleeding entered the abdominal cavity via the perforation, causing, in turn, peritonitis and bowel perforations. Romero underwent a bowel resection procedure eight days later to repair the damage, and Dr. Gilliam assisted in that procedure. A pathology report from the bowel procedure informed Dr. Gilliam that the bowel was not reconnected after the damaged portion was removed. This condition was neither detected nor treated. The complaint alleges that Dr. Gilliam negligently (1) removed too large a specimen during the biopsy, (2) perforated the vaginal/uterine wall during the biopsy, (3) utilized inappropriate positioning during the biopsy, (4) failed to timely diagnose and appropriately treat the vaginal/uterine wall perforation, (5) introduced a caustic substance to control cervical bleeding, when knowing or when she should have known the substance would enter the abdominal cavity, (6) failed to appropriately anastomose viable bowel, and (7) failed to timely diagnose and treat inappropriately anastomosed bowel. Plaintiff claims that as a result of one or more of Dr. Gilliam's negligent acts or omissions, Romero died on September 5, 2001.
Dr. Gilliam has moved for summary judgment as to Counts III and IV of Plaintiff's Second Amended Complaint, which are the counts that name Dr. Gilliam as a defendant and allege medical negligence stemming from her care and treatment of Romero from July 18, 2001 to September 5, 2001. Plaintiff has joined Dr. Gilliam's motion for summary judgment. The motion asks that I find Dr. Gilliam is a federal employee for purposes of the FTCA and therefore exempt from personal liability for the services she performed within the scope of her employment at the VA. For the following reasons, Dr. Gilliam's motion for summary judgment, joined by Plaintiff, is denied.
On September 1, 2000, the VA entered into a one-year contract with the University of Illinois, whereby the University of Illinois ("UIC") agreed to provide the VA with a board-qualified or board-certified gynecologist to perform various services for the VA. On June 14, 2001, the contract was extended for one year. The services included providing gynecological care for VA beneficiaries, assisting in the organization of an in-service training program for the VA's nursing and other medical staff, and providing clinical and didactic instruction to the professional and ancillary staff on the current state of the art and changing concepts in gynecology. The contract stated that UIC would be responsible for furnishing workers' compensation, professional liability insurance, income tax withholding, and social security payments for the personnel provided under the contract. The contract specifically provided that "[t]he parties agree that the contractor, its employees, agents and subcontractors shall not be considered VA employees for any purpose."*fn1
Dr. Gilliam was the UIC physician who had been assigned to fulfill the requirements of the contract during the occurrences that lead to the death of Regina Romero in this case. Notwithstanding the contract language and the contractor exclusion in the FTCA, Dr. Gilliam and Plaintiff argue that the VA exercised such a degree of control over the performance of Dr. Gilliam's services that she became a federal employee. The United States argues that the various indicia of control weigh heavily in favor of finding that the contractor exclusion applies to Dr. Gilliam and that where, as here, the provisions of a contract are clear, they should be given their ordinary and plain meaning. Interim Health Care of N. Ill., Inc. v. Interim Health Care, Inc., 225 F.3d 876, 879 (7th Cir. 2000).
Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). If the moving party meets this burden, the nonmoving party must then go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the nonmoving party's favor, allowing for all reasonable inferences drawn in a light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Whether Dr. Gilliam is a federal employee for purposes of the FTCA is a question of federal law. See Quilico v. Kaplan, 749 F.2d 480, 483 (7th Cir. 1984); Ezekiel v. Michel, 66 F.3d 894, 899 (7th Cir. 1995) ("This court has characterized the inquiry of determining whether one is an "employee of the government" under FTCA as a pure question of law and a matter of statutory interpretation."). The FTCA allows a plaintiff to sue the United States "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." 28 U.S.C. § 1346(b). The FTCA defines the term "employee of the government" to include "officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." See id. The term "federal agency" includes "the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States," but it expressly excludes"any contractor with the United States." Id. (emphasis added). The United States acknowledges that the VA is an executive department of the United States. See 38 U.S.C. § 301.
The Supreme Court developed the "strict control" test to distinguish between employees and independent contractors. See Logue v. United States, 412 U.S. 521, 527 (1973) (federal funding of a local community program); United States v. Orleans, 425 U.S. 807, 814 (1976) (use of county jails for federal prisoners). Under that test, an individual's status as either employee or independent contractor "depends upon the amount of governmental agency control of the physical performance of the [individual's] day-to-day activities." Ezekiel, 66 F.3d at 901 (citing Bailor v. Salvation Army, 51 F.3d 678, 685 (7th Cir. 1995)).
Circuit courts applying the "strict control" test have held that physicians in private practice or associated with a private organization under contract to provide medical services at facilities operated by the federal government are not federal employees under the FTCA. See Carillo v. United States, 5 F.3d 1302, 1305 (9th Cir. 1993) (contract pediatrician at Madigan Army Medical Center); Leone v. United States, 910 F.2d 46, 50 (2d Cir. 1990) (private physician designated by Federal Aviation Administration as medical examiner); Lilly v. Fieldstone, 876 F.2d 857, 860 (10th Cir. 1989) (civilian physician contracted as consultant to perform emergency surgery at Army hospital); Bernie v. United States, 712 F.2d 1271, 1273 (8th Cir. 1983) (contract physician of federal Indian Health Services); Wood v. Standard Products Co., Inc., 671 F.2d 825, 829-32 (4th Cir. 1982) (contract physician of the United States Public Health Service). Those circuits relied on the need and ethical obligation of physicians to base their treatment decisions on independent judgment, which cannot be controlled by the government. Ezekiel, 66 F.3d at 902.
The Seventh Circuit, however, has found the "strict control" test inapplicable when determining whether physicians working in federal medical facilities are federal employees. Quilico, 749 F.2d at 485; Ezekiel, 66 F.3d at 902. The wisdom of this finding derives from the same reasoning that other circuit courts have used to refuse classifying contract physicians as federal employees, namely the limit of a hospital's ability to control physicians because of physicians' ethical obligation to have "free and complete exercise of [their] medical judgment and skill." Quilico, at 483-84 (quoting Principles of Medical Ethics § 6, reprinted in Opinions and Reports of the American Medical Association Judicial Council, 5 (1977)). As applied to physicians, the "strict control" test would disqualify all physicians from immunity, which is ...