Governments often outsource such services as medical care and prisons. The
hiring of private parties to perform traditionally governmental functions creates
implications for assessing liability. Can governments contract tort liability away
to private parties? For example, when a public health clinic employs a private
doctor to provide services, the issue is whether the doctor is a public employee
with immunity protection/tort claims act liability, or only a private physician
with normal malpractice liability. This distinction is crucial to an injured plaintiff
and any possible defendants.
In a constitutional-rights context, the general rule is that for any
the defendant must be determined to be a government employee and not
merely an independent contractor. This is because the Constitution protects
rights from the government, not from private entities. Therefore, the issue
becomes whether constitutional rights remain when the government hires
private entities to perform governmental services.