Blackmon v. Tenet Healthsystem Spalding

• Decision Date: 05 October 2007
• Docket Number: No. A07A1840.,No. A07A2283.,No. A07A2284.,A07A1840.,A07A2283.,A07A2284.
• Citation: 288 Ga. App. 137,653 S.E.2d 333
• Parties: BLACKMON et al. v. TENET HEALTHSYSTEM SPALDING, INC. Tenet Healthsystem Spalding, Inc. v. Blackmon et al. Webb et al. v. Blackmon et al.
• Court: Georgia Court of Appeals

288 Ga. App. 137

653 S.E.2d 333

BLACKMON et al. v. TENET HEALTHSYSTEM SPALDING, INC.

Tenet Healthsystem Spalding, Inc. v. Blackmon et al.

Webb et al. v. Blackmon et al.

No. A07A1840.

No. A07A2283.

No. A07A2284.

Court of Appeals of Georgia.

October 5, 2007.

Reconsideration Denied October 31, 2007.

Parks, Chesin & Walbert, David F. Walbert, Thomas D. Trask, for appellants.

Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Eric J. Frisch, Insely & Race, Kevin P. Race, Brian K. Mathis, Atlanta, for appellees.

BLACKBURN, Presiding Judge.

In this medical malpractice action, Joyce Blackmon (acting in three representative capacities) appeals in Case No. A07A1840 the grant of summary judgment to hospital owner Tenet Healthsystem Spalding, Inc., which order was based on the trial court's finding that Tenet was not liable for the actions of Dr. Henry Webb, who committed the alleged malpractice that purportedly resulted in the death of Blackmon's daughter. Dr. Webb and his physician group (ACS Primary Care Physicians — Southeast, P.C. ("ACS Physicians")) cross-appeal in Case No. A07A2283, arguing that Blackmon lacked standing to bring the wrongful death portion of this action. Tenet cross-appeals on the same ground in Case No. A07A2284 and on the additional ground that the trial court erred in failing to grant its motion to transfer venue to Spalding County. We hold that some evidence showed that Dr. Webb was an employee of Tenet, and we therefore reverse in part and affirm in part the grant of summary judgment to Tenet. We further hold that the state court below had no equitable powers to allow Blackmon to bring this action, and we therefore reverse the denial of partial summary judgment to the defendants on the wrongful death claim. Finally, finding no abuse of discretion, we affirm the order denying the transfer of venue.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.¹

So viewed, the evidence shows that on April 22, 2003, Blackmon's adult daughter collapsed at work and while in a semi-conscious state was rushed by emergency personnel to Tenet's hospital only blocks away, where Dr. Webb was serving as an emergency physician. Dr. Webb twice attempted unsuccessfully to insert a central line into the daughter's subclavian vein, and in the process unknowingly lacerated that vein. The untreated laceration caused blood to flow into the daughter's lungs over the next several hours, which led to her death. She was survived by her incarcerated husband and by their female child, who became the ward of grandmother Blackmon.

Acting as legal guardian of the granddaughter, as personal representative of the deceased daughter, and as administratrix of the daughter's estate, Blackmon brought a medical malpractice and wrongful death action in Fulton County State Court against Dr. Webb and his physician group, and against Tenet as owner of the hospital. Following substantial discovery, all three defendants moved for partial summary judgment on the wrongful death claim, arguing that because the decedent's husband still lived in Georgia and could bring the claim,² Blackmon lacked the authority to bring the action. Purporting to exercise equitable powers, the state court ordered that Blackmon as guardian of the granddaughter could bring the wrongful death action and accordingly denied the motion for partial summary judgment.

Tenet also moved the trial court to transfer the venue of the case to Spalding County, which is where the hospital was located and where most of the witnesses lived. The court weighed the various factors under OCGA § 9-10-31.1(a) and denied the motion.

Tenet separately moved for complete summary judgment on the ground that Dr. Webb was an independent contractor, that the elements of apparent authority were not present, and that therefore his alleged negligence could not be attributed to Tenet. The trial court agreed and granted Tenet complete summary judgment, which Blackmon appeals in Case No. A07A1840. Dr. Webb and his physician group cross-appeal the partial summary judgment order in Case No. A07A2283. Tenet cross-appeals the partial summary judgment and venue orders in Case No. A07A2284.

Case No. A07A1840

1. Blackmon argues that the trial court erred in finding as a matter of law that under the undisputed facts, Dr. Webb was an independent contractor, which was the primary basis for the court's granting complete summary judgment to Tenet. We agree with Blackmon that some evidence shows that Dr. Webb was an employee of Tenet, and we therefore reverse this portion of the summary judgment order.

A hospital is liable for the actions of a physician if the evidence shows that the physician was an employee of the hospital and not an independent contractor. Cooper v. Binion.³ In ascertaining whether the relationship between a hospital and an emergency room physician is employer-employee or employer-independent contractor, we consider whether the hospital, "under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Hodges v. Doctors Hosp.⁴

Having struggled with this standard for many years in cases in which the contract claimed to establish an independent contractor relationship with the emergency room physician but nevertheless bore marks of control by the hospital, this Court, in 1996 in Lee v. Satilla Health Svcs.,⁵ adopted an 11-factor test gleaned from an earlier federal decision⁶ to serve as a guideline in making this determination; under the facts of Lee, we held that summary judgment to the hospital was improper. In 2004, we applied those factors again to an emergency room physician in Cooper, supra, 266 Ga.App. at 710-713(1), 598 S.E.2d 6, again concluding that under the facts as presented, summary judgment to the hospital was improper. Both cases emphasized that as the question was one of essence, not nomenclature, the labeling of the physician as an independent contractor in his contract with the hospital was not dispositive, as other factors could negate the label. Id. at 710(1), 598 S.E.2d 6; Lee, supra, 220 Ga.App. at 886(1), 470 S.E.2d 461.⁷

We need not discuss each and every one of the eleven factors here, as a discussion of five of those factors shows that some evidence indicated an employer-employee relationship between Dr. Webb and Tenet. This created a fact issue and rendered the entry of summary judgment in favor of Tenet erroneous.

At the outset, it is important to recognize that there are two contracts at issue here. First, Tenet contracted with Dr. Webb's physician group to have that group supply the hospital with emergency physician services around the clock.⁸ Second, the physician group separately contracted with Dr. Webb to have him serve as one of those providing emergency physician services at Tenet's hospital.

(a) The employer's right to make additional plans and specifications; to impose its will in lieu of the contract's provisions; and to direct the employee's work step by step. In this case, consideration of the first factor alone reflects a clearly disputed issue of fact as to whether the hospital assumed the right to control the manner and method of Dr. Webb's work. Where the hospital has the right to make additional plans and specifications, to impose its will in lieu of the contract's provisions, or to direct the doctor's work step by step, then such weighs heavily in showing the doctor was an employee of the hospital as opposed to an independent contractor. Lee, supra, 220 Ga.App. at 886(1), 470 S.E.2d 461; see Cooper, supra, 266 Ga. App. at 710-711(1)(a), 598 S.E.2d 6. Thus, when the evidence shows that the physician "could not refuse an order to do `such and such' from the hospital administrator," Lee, supra, 220 Ga.App. at 886(1), 470 S.E.2d 461, or that the contract contained a provision that the physician "must perform related work as required and other duties assigned by" an executive of the hospital, Goins v. Tucker,⁹ then an employer-employee relationship would appear to be established.

Here, the Tenet/Group contract, in which ACS Physicians covenanted to ensure that each of its physicians complied with that contract, provided that in addition to providing emergency room services for Tenet hospital patients, "Physicians shall perform such other duties as may from time to time be requested by" the hospital, the hospital's governing board, the hospital's medical staff, and/or the hospital's CEO. Dr. Webb in his contract with ACS Physicians agreed to render medical services in accordance with the requests of the hospital and further agreed that ACS Physicians could terminate him if his actions impaired or adversely affected the relationship between ACS Physicians and Tenet. Thus, as Dr. Webb under these contracts was bound to perform whatever work or duties were requested from time to time by Tenet hospital executives and staff, a jury could find that Tenet controlled Dr. Webb's manner and method of performing his work, despite the more general contract provisions that Dr. Webb and ACS Physicians would exercise professional judgment in providing medical services without direction or control from Tenet.

(b) The supplier of the equipment. It is undisputed that Tenet provided the facility and equipment with which Dr. Webb performed his job. "This would suggest that Dr. [Webb] was an employee." Cooper, supra, 266 Ga.App. at 711(1)(d), 598 S.E.2d 6; Lee, supra, 220 Ga.App. at 886-887(1), 470 S.E.2d 461. We recognize (as did ...