Houghland v. Grant

• Decision Date: 18 January 1995
• Docket Number: No. 15307,15307
• Citation: 891 P.2d 563,1995 NMCA 5,119 N.M. 422
• Parties: Cynthia HOUGHLAND, Individually and as Personal Representative for the Estate of Rhonda Shirel a/k/a Rhonda Corley, Plaintiff-Appellant, v. Kenneth GRANT, M.D., Frank Gallegos, M.D., and Northeastern Regional Hospital, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 563

891 P.2d 563

119 N.M. 422

Cynthia HOUGHLAND, Individually and as Personal Representative for the Estate of Rhonda Shirel a/k/a Rhonda Corley, Plaintiff-Appellant, v. Kenneth GRANT, M.D., Frank Gallegos, M.D., and Northeastern Regional Hospital, Defendants-Appellees.

No. 15307.

Court of Appeals of New Mexico.

Jan. 18, 1995.

[119 N.M. 423] William S. Ferguson, Will Ferguson & Associates, Albuquerque, for plaintiff-appellant.

Norman L. Gagne, Emily A. Franke, Butt, Thorton & Baehr, P.C., Albuquerque, for defendant-appellee Kenneth Grant, M.D.

Mark C. Meiering, Andrew G. Schultz, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellee Northeastern Regional Hosp.

OPINION

PICKARD, Judge.

Plaintiff, personal representative of the estate of Rhonda Corley, brings an interlocutory appeal from the district judge's order granting summary judgment in favor of Defendant Northeastern General Hospital. The sole issue on appeal is whether the district court erred in ruling that Northeastern was not vicariously liable for the alleged malpractice committed upon Corley by Dr. Kenneth Grant in Northeastern's emergency room. Because we find genuine issues of material fact regarding whether Dr. Grant was an agent or apparent agent of Northeastern, we reverse.

Northeastern's motion for summary judgment and accompanying brief sought summary judgment on the issue of Northeastern's vicarious liability for the alleged negligence of Dr. Grant and Dr. Frank Gallegos. When the district court granted Northeastern's motion, it did not distinguish between Northeastern's relationship with Dr. Grant and its relationship with Dr. Gallegos. However, at Plaintiff's urging, the only issue that the district court gave permission to pursue on interlocutory appeal, and the only issue on which this Court granted interlocutory appeal, was the issue of Northeastern's vicarious liability for Dr. Grant's actions. Thus, although Plaintiff strongly argues in her briefs that we should also consider Northeastern's relationship to Dr. Gallegos, that issue is not before us. See Ponce v. Butts, 104 N.M. 280, 282, 720 P.2d 315, 317 (Ct.App.1986) ("Questions raised [in the briefs], but not certified by the trial court or considered in granting this interlocutory appeal, will not be considered by this court."). Nonetheless, because of the interlocutory nature of the order granting summary judgment, nothing prohibits the district court from reconsidering the issue relating to Dr. Gallegos on remand. See SCRA 1986, 1-054(C)(1) (Repl.1992) (judgment adjudicating fewer than all claims is subject to revision at any time before entry of judgment adjudicating all claims).

FACTS

The following facts are taken from the record proper. On May 19, 1991, Decedent Corley presented herself three times for treatment to the emergency room at Northeastern with complaints of abdominal pain. She was treated the first two times by Dr. Grant, the third time by Dr. Gallegos. She died at home that evening.

In May 1991, Spectrum Emergency Care Inc. provided doctors to staff Northeastern's emergency room pursuant to a contract with Northeastern. Dr. Grant was an employee of Spectrum and had no contract with Northeastern. Northeastern's contract with Spectrum provided explicitly that physicians provided under the contract were considered independent contractors and that Northeastern would not exercise control over the doctors' practice of medicine. Northeastern provided space, equipment, and supplies for the operation of the emergency room. Northeastern billed patients for services rendered by physicians in the emergency room and had the power to terminate physicians provided under the contract. Physicians provided under the contract were required to comply with all policies, bylaws, rules, and regulations of Northeastern and its medical staff. Northeastern was obligated to pay Spectrum for services provided by physicians under the contract.

Northeastern's policies governing care in its emergency room included classification of patients and guidelines for utilization of the emergency department, including a list of medical procedures authorized in the emergency department. Northeastern maintained a community service plan which included among its goals the provision of twenty-four hour emergency medical services to a broad geographical area surrounding the hospital. Doctors working in Northeastern's emergency room were required to participate in a quality assurance monitoring program and were required to follow a number of other specific policies dealing with the treatment of patients according to policies adopted by Northeastern.

The district court considered all of the above facts and determined that Northeastern was entitled to judgment as a matter of law on the issue of vicarious liability. Plaintiff sought, and we granted, leave to bring an interlocutory appeal from that order.

DISCUSSION

Plaintiff argues that summary judgment was improperly granted because there is a genuine issue of material fact regarding whether Dr. Grant was an agent or apparent agent of Northeastern. Summary judgment is proper only if there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Koenig v. Perez, 104 N.M. 664, 667, 726 P.2d 341, 344 (1986). Northeastern alleged, and Plaintiff conceded, that Dr. Grant did not have a contract of employment with Northeastern. By this showing, Northeastern established a prima facie case that Dr. Grant was not its employee. Plaintiff then had the burden to raise at least a reasonable doubt as to whether liability should be imposed upon Northeastern for Dr. Grant's actions. Monett v. Dona Ana County Sheriff's Posse, 114 N.M. 452, 456, 840 P.2d 599, 603 (Ct.App.1992).

While the contract between Northeastern and Spectrum specified that any doctors provided to Northeastern under the contract would be considered independent contractors and not employees of Northeastern, contractual provisions do not control the determination of whether Dr. Grant was an employee or an independent contractor. Instead of defining the relationship by the terms which Northeastern and Spectrum assigned to it, we will view the facts of this case to determine whether sufficient facts were introduced so that a rational jury could find that Northeastern should be held vicariously liable for Dr. Grant's actions. See Chevron Oil Co. v. Sutton, 85 N.M. 679, 681, 515 P.2d 1283, 1285 (1973) ("manner in which the parties designate a relationship is not controlling, and if an act done by one person on behalf of another is in its essential nature one of agency, the one is the agent of the other, notwithstanding he is not so called"); see also Whittenberg v. Graves Oil & Butane Co., 113 N.M. 450, 456, 827 P.2d 838, 844 (Ct.App.1991), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992); Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc., 97 N.M. 266, 269, 639 P.2d 75, 78 (Ct.App.1981), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982).

Both parties spend considerable time urging us to evaluate the relationship between Dr. Grant and Northeastern from the perspective of several tests for an employer-employee relationship. The primary test to determine whether a employer-employee relationship exists is the extent of the employer's right to control the details of the work of the employee. Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 176, 740 P.2d 1159, 1160 (Ct.App.), cert. denied, 106 N.M. 174, 740 P.2d 1158 (1987); Reynolds v. Swigert, 102 N.M. 504, 508, 697 P.2d 504, 508 (Ct.App.1984), cert. quashed (N.M. Apr. 1, 1985). In determining whether an employer has the power to control an employee, a court should consider (1) direct evidence of the employer's power to control the manner and means of performance of the employee, (2) the method of payment of compensation, (3) whether the employer furnishes equipment for the worker, and (4) whether the employer has the power to terminate the employee at will. Savinsky, 106 N.M. at 176, 740 P.2d at 1160.

Plaintiff provided exhibits, affidavits, and deposition testimony that indicated that Northeastern had at least some control over the manner that Dr. Grant practiced medicine at Northeastern's emergency room. The contract between Spectrum and Northeastern stipulated that doctors provided by Spectrum under the contract were required to comply with Northeastern's policies, bylaws, rules, and regulations. These policies included specific guidelines on the classification and treatment of patients and procedures for contacting attending physicians. Although these policies may not by themselves raise an issue of material fact as to the power to control, cf. Greene v. Rogers, 147 Ill.App.3d 1009, 101 Ill.Dec. 543, 498 N.E.2d 867, 871 (Ct.1986), cert. denied, 113 Ill.2d 573, 106 Ill.Dec. 46, 505 N.E.2d 352 (1987); Overstreet v. Doctors Hosp., 142 Ga.App. 895, 237 S.E.2d 213, 214-15 (1977) (holding that requiring separately employed emergency room physicians to comply with specific emergency room policies and procedures did not indicate control of the physicians by the hospital), we consider them together with the other facts of this case.

The contract between Northeastern and Spectrum set forth that Northeastern would provide the facilities and equipment for the emergency room and that Northeastern had the power to terminate physicians provided under the contract. While Northeastern did not directly pay Dr. Grant, this factor indicating control of an employee is not dispositive. See Yerbich v. Heald, 89 N.M. 67, 69, 547 P.2d 72, 74 (Ct.App.1976) (power of termination only one item to be considered, not dispositive on issue of whether right to control existed). To overcome the motion for summary judgment, Plaintiff merely needed to show that there was a disputed issue of material fact concerning the right of control. By presenting evidence on three of the four factors...