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Bravo v. United States

United States Court of Appeals for the Eleventh Circuit

July 2, 2008, Decided; July 2, 2008, Filed

No. 06-13052


 [*1156]  CARNES, Circuit Judge:

This is a tragic case in which the negligence of those acting for the United States government destroyed the life of a little boy and did much damage to the lives of his mother and father. The case is here not because anyone  [**2] questions whether the government should pay, but because there are good faith disagreements about issues affecting how much it must pay.

 [*1157]  I.

Raiza Bravo was entitled to care and treatment at the Naval Hospital in Jacksonville, Florida because her husband, Oscar Rodriguez, was a serviceman in the Navy. On June 10-11, 2003, Bravo was at the hospital for the birth of their child, Kevin Bravo Rodriguez. As a result of medical malpractice, Kevin was born with severe brain injuries. No one disputes that some of those whose negligence caused the injuries were full-time Naval personnel and therefore government employees for purposes of the Federal Tort Claims Act. There is a dispute about whether one doctor whose negligence contributed to the injuries is a government employee for FTCA purposes, and the resolution of that issue will determine what portion of the judgment the government is responsible for paying. There are also disputes about the size of the judgment.

One of the physicians who attended Bravo during the delivery was Dr. Kenneth Kushner, a civilian OB/GYN working at the Naval Hospital on a contractual basis. He is the negligent actor whose status as a government employee for FTCA  [**3] purposes is in issue. A description of his status requires some explanation of the contractual context in which he worked.

The Department of Defense entered into a contract with Humana Military Healthcare Services, known as the "TRICARE Contract," through which Humana would provide medical services for eligible military personnel and their dependents. The contract allowed facilities like the Naval Hospital in Jacksonville to enter into their own agreements with Humana, known as "Resource Sharing Agreements" under which Humana (or its subcontractor) provides medical staff for the hospital. These contracts were subject to the terms of the original TRICARE Contract.

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532 F.3d 1154 *; 2008 U.S. App. LEXIS 13969 **; 21 Fla. L. Weekly Fed. C 833

RAIZA BRAVO, OSCAR RODRIGUEZ, individually and as co-personal representatives of the Estate and Survivors of Kevin Bravo Rodriguez, Plaintiffs-Appellees, versus UNITED STATES OF AMERICA, Defendant-Appellant, KENNETH KUSHNER, MD., Defendant-Appellee.

Subsequent History: Rehearing denied by, Rehearing, en banc, denied by Bravo v. United States, 577 F.3d 1324, 2009 U.S. App. LEXIS 17925 (11th Cir. Fla., Aug. 3, 2009)

Rehearing, en banc, denied by Bravo v. United States, 583 F.3d 1297, 2009 U.S. App. LEXIS 21460 (11th Cir. Fla., Sept. 30, 2009)

On remand at, Findings of fact/conclusions of law at, Judgment entered by Bravo v. United States, 2010 U.S. Dist. LEXIS 157736 (S.D. Fla., Sept. 23, 2010)

Prior History:  [**1] Appeal from the United States District Court for the Southern District of Florida. D. C. Docket No. 04-21807-CV-JAG.

Bravo v. United States, 2005 U.S. Dist. LEXIS 38967 (S.D. Fla., Dec. 14, 2005)


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