Hendley v. Springhill Memorial Hosp.
Decision Date | 07 September 1990 |
Parties | Sherrea HENDLEY v. SPRINGHILL MEMORIAL HOSPITAL and West Mobile Therapy Associates. 89-494. |
Court | Alabama Supreme Court |
Richard E. Browning of Briskman, Binion & Browning, P.C., Mobile (at time of filing of original brief), and of Sherling, Browning & York, P.C., Mobile (at time of filing of reply brief), for appellant.
Wade B. Perry, Jr. and Steven J. Allen of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees.
Sherrea Hendley appeals from a partial summary judgment holding that, at all pertinent times, defendant Jack Sands was not an agent of either of the movants, but, rather, was an independent contractor. On December 1, 1989, the circuit court heard the arguments and considered the briefs and supporting evidentiary materials filed by the parties. The circuit court granted a partial summary judgment in favor of Springhill Memorial Hospital ("Springhill") and West Mobile Therapy Associates ("West Mobile"). The court's well-reasoned opinion stated, in part:
We affirm.
Hendley alleged that Sands represented himself as an agent of Springhill and performed an unauthorized vaginal examination on her. Sands was a vendor of "TENS" units through his company, Electro-Med, Inc. TENS units provide pain relief to patients by delivering electrical stimulation through electrodes attached to indicated areas of the body. Whenever a TENS unit was prescribed, Sands would make rounds to establish if the unit was functioning properly by checking the battery strength and modality settings. If a patient indicated that a unit was not providing proper relief, Sands would make the necessary adjustments to the unit or replace the electrodes. In order for a patient to be eligible for a TENS unit treatment, a doctor had to make a recommendation to the physical therapy department. In order for Springhill to provide this service, a contractual agreement was entered between Springhill and West Mobile that gave West Mobile the exclusive right to provide physical therapy services at Springhill. An additional provision in the contract required West Mobile to maintain a listing in the telephone book that read "Physical Therapy Department" of Springhill. On a daily basis, a report of billings generated as a result of physical therapy provided by West Mobile was submitted to Springhill. West Mobile was then paid a flat rate of 40% of the submitted figure. Springhill provided the space for West Mobile in the hospital and on the door was a sign reading "Physical Therapy Department." Sands, as the sole provider of TENS units, billed the hospital on a one-time flat fee each time a patient was given a TENS unit treatment. This charge was then passed on to the patient as part of his or her overall bill.
There was no written employment contract between Sands and Springhill or Sands and West Mobile. No personnel file on Sands existed at either the hospital or at West Mobile's place of business, and while in the hospital Sands usually appeared in a business suit with no form of identification. Whenever a physician prescribed a TENS unit treatment, Sands would bill the hospital directly for service rendered and equipment supplied, at a flat per-use fee of $59.30.
On a normal day, Sands would go into the physical therapy department and check the in-patient board to see who was equipped with or was in need of a unit. Sands's equipment was stored in a file cabinet located in the physical therapy department. Sands testified that he was obligated to have a nurse accompany him into the room of a female patient and to be supervised for the duration of the visit. Sands was to approach the nurse's station and inform the nurses that he was going into the room and would be in need of an escort.
Hendley was admitted to Springhill as an in-patient in January 1988. Because of the pain Hendley was experiencing in her coccyx (tailbone), her physician prescribed a TENS unit treatment. On January 23, 1988, Sands entered Hendley's room to check on the unit, only to discover that the unit was not functioning properly. There is conflicting testimony as to what subsequently transpired. Hendley testified as follows:
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