Joy Ward, Individually and as Guardian Ad Litem of Jacob R. Kinser v. Richard Gordon, M.D. United States of America

Richard Gordon and the United States appeal interlocutorily the district court’s order reinstating Lieutenant Colonel Richard Gordon, M.D., as a defendant in a medical malpractice action and refusing to substitute the United States in his place. We consider the interrelationship of the Federal Tort Claims Act, the Federal Employees Liability Reform and Tort Compensation Act, the Gonzalez Act, and the State of Washington’s “scope of employment” and “borrowed servant” doctrines. We vacate the order of the district court and remand for substitution of the United States as a party defendant and for appropriate proceedings under the FTCA.

I.

Joy Ward initiated this medical negligence action in her individual capacity and on behalf of her son, Jacob Kinser, against Richard Gordon, M.D., and other defendants. At the time of the alleged negligence, Gordon, an active-duty officer in the United States Army, was enrolled in a six-month residency program at Children’s Hospital and Medical Center, a private health care facility, where Gordon treated Jacob Kinser.

The United States Attorney for the Western District of Washington certified that Gordon was acting within the scope of his…