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LILLY v. FIELDSTONE

No. 87-1048.

876 F.2d 857 (1989)

Dean W. LILLY, Plaintiff-Appellant, v. Paul R. FIELDSTONE, M.D., and United States of America, Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

As Amended July 11, 1989.

Attorney(s) appearing for the Case

Steven Hornbaker (Craig J. Altenhofen with him on the brief) of Harper, Hornbaker, Hepperly and Altenhofen, Chartered, Junction City, Kan., for plaintiff-appellant.

Alleen S. Castellani, Asst. U.S. Atty., D. of Kansas (Benjamin L. Burgess, Jr., U.S. Atty., with her on the brief), Topeka, Kan., for defendants-appellees.

(James M. Warden and Melinda Swanson Whitman of Blackwell Sanders Matheny Weary & Lombardi, Overland Park, Kan., on the brief for Paul R. Fieldstone, M.D.)

Before McKAY, LOGAN, and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

In this malpractice diversity case, plaintiff appeals the district court's order allowing substitution of the parties of the United States for defendant Dr. Paul Fieldstone. The United States is the proper party defendant in "any civil action or proceeding brought in any court against any employee of the government or his estate for ... damage or injury." 28 U.S.C. § 2679(c) (1982), Tort Claims Procedure, Exclusiveness of Remedy. The propriety...

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