Keller v. Tavarone
| Decision Date | 22 June 2001 |
| Docket Number | No. S-00-107.,S-00-107. |
| Parties | Brenda L. KELLER, Appellant, v. Thomas N. TAVARONE, M.D., Appellee. |
| Court | Nebraska Supreme Court |
Richard A. DeWitt and Robert S. Lannin, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, P.C., Omaha, for appellant.
Robert W. Wagoner, Grand Island, for appellee.
The appellant, Brenda L. Keller, sued Thomas N. Tavarone, M.D., for alleged medical malpractice. The district court dismissed Keller's petition after determining that Tavarone was an employee of the Cherry County Hospital (the Hospital) and that Keller had not complied with the claim requirements of the Political Subdivisions Tort Claims Act (Tort Claims Act), Neb.Rev.Stat. ch. 13, art. 9 (Reissue 1997). This case requires that we examine the interaction between the Tort Claims Act and the Nebraska Hospital-Medical Liability Act (NHMLA), Neb.Rev.Stat. ch. 44, art. 28 (Reissue 1993 & Cum.Supp.1996).
Keller filed a petition in the district court on December 31, 1998. The petition alleged that Tavarone had performed an abdominal hysterectomy on Keller on May 27, 1997, and that complications had ensued, including a fistula and an obstructed ureter. The petition further alleged that Tavarone was negligent in failing to obtain Keller's informed consent to the procedure, in failing to advise Keller of the possible complications, and in failing to consider and follow nonsurgical treatment options. The petition waived review of the claim by a medical review panel pursuant to the NHMLA. See § 44-2840(4). The petition did not allege compliance with the Tort Claims Act. See § 13-920(1).
Tavarone answered and alleged that he was at all relevant times an employee of the Hospital, a county medical facility in Valentine, Nebraska. Tavarone alleged that Keller was admitted to and treated at the Hospital. Tavarone also alleged that no notice of tort claim had been filed with Cherry County. See § 13-905. It was stipulated at trial that Keller was admitted to the Hospital for a hysterectomy and that no notice of tort claim was filed.
The district court ordered a bifurcated trial, with the first part of the proceeding to address whether the Tort Claims Act applied to Keller's claim. Trial was had to the court, and the district court concluded, based on the evidence set forth below, that Tavarone was an employee of the Hospital and that the Hospital was a political subdivision. Accordingly, the district court dismissed Keller's petition for failure to comply with the Tort Claims Act. Keller appeals.
Tavarone graduated from the Creighton University School of Medicine in May 1991 and completed his residency at the University of Medicine and Dentistry of New Jersey in June 1996. Tavarone was hired by the Hospital pursuant to a "Surgeon Employment Agreement," executed on June 3, 1996 (the agreement). The agreement stated that the Hospital wished to recruit Tavarone to relocate to Valentine and to employ Tavarone to provide full-time medical services. Tavarone's employment was to commence on July 15 and continue indefinitely. The agreement required Tavarone to provide services at the Hospital and its clinic facilities in Valentine, as well as "such other locations as [the Hospital] may reasonably require from time to time."
The agreement provided that Tavarone was to receive a base annual salary paid in 26 equal installments and incentives based on the fees billed by the Hospital for services rendered by Tavarone. The Hospital issued Internal Revenue Service W-2 forms for Tavarone's wages for 1996 to 1998, and Tavarone accordingly filed individual income tax returns for those years showing his wage income from the Hospital. Tavarone was also provided with a signing bonus, moving expenses, and student loan repayment. The Hospital issued Internal Revenue Service 1099 forms for those expenses. The agreement set forth the number of days Tavarone would have for vacation and sick leave, the provision for leave and expenses for continuing medical education, and Tavarone's participation in the Hospital's insurance and retirement plans. The agreement also provided that the Hospital would buy professional liability insurance for Tavarone. Tavarone's application for professional liability insurance listed the Hospital as his employer.
The agreement stated that the Hospital would provide all needed facilities for Tavarone's medical practice. All employees assisting Tavarone were to be employees of the Hospital, "under the administrative and executive control of [the Hospital] and under the technical and medical supervision of [Tavarone]." The agreement provided that all referral and admission decisions were to be made by Tavarone, in the best medical interests of the patients, and that neither the Hospital nor any layperson associated with the Hospital was to have or exercise any control over Tavarone's professional medical judgment in the performance of his duties.
The Hospital was to bill, receive, and retain all fees for professional services rendered by Tavarone during the term of Tavarone's employment by the Hospital. Tavarone was not permitted to engage in the practice of medicine in any other form without the express written permission of the Hospital. The agreement barred Tavarone, if the agreement was terminated, from soliciting business from his former patients at the Hospital for a period of 6 months following termination. The Hospital was to maintain all medical and clinical records, which were to be the property of the Hospital.
Tavarone testified that he considered himself bound to the Hospital, with no other employment of any nature. Tavarone said that he received his paycheck from the Hospital and that all budgeting and billing for his treatment of patients was performed by the Hospital. Tavarone testified that all of his facilities and equipment were provided by the Hospital with the exception of his cellular telephone.
Tavarone testified that he made all medical decisions regarding patient management, including admission and discharge decisions. Tavarone did not need anyone's permission to perform surgery or use the Hospital operating room. If Tavarone had questions about patient management, he would discuss those with his colleagues, but questions about "business function" were directed to Hospital administrator Brent Petersen. Tavarone stated that he believed general surgery was a part of the business of the Hospital. Tavarone testified that Keller's care took place on Hospital premises and that at the time of Keller's care, Tavarone considered himself to be an employee of the Hospital.
Petersen testified that Tavarone was listed as an employee of the Hospital for payroll and benefit purposes on documentation provided by the Hospital to third parties. Petersen stated that Tavarone was treated like any other employee. Petersen said that he supervised Tavarone on personnel issues and did not personally critique Tavarone's medical judgment, but did have procedures in place and available to ensure that work was being performed and was within acceptable standards of care. Petersen stated that he considered Tavarone to be an employee of the Hospital, and it was stipulated that members of the Hospital's board of trustees would have testified to the same effect.
Petersen testified that the Hospital conducted billings, kept records, and provided all the supplies for Tavarone's care of patients. Petersen also testified that the Hospital paid Tavarone's malpractice insurance premium and NHMLA surcharge. Petersen testified that both Tavarone and the Hospital were covered under the NHMLA.
Petersen stated that other physicians had staff credentials at the Hospital and that three other "independent physicians," or "active staff," practiced in Valentine. Those physicians leased office space from the Hospital in an adjacent building, unlike Tavarone, whose office was part of the Hospital building. Petersen testified that the Hospital had no control over the activities of the independent physicians, other than as a lessor, and with respect to certain hospital policies when the independent physicians were using staff privileges at the Hospital. Petersen stated that the independent physicians performed their own billing.
Keller testified that she was not told that Tavarone was an employee of the Hospital. Keller stated that she did not receive a bill from anyone for Tavarone's services, but that she was covered at the time by medicare or medicaid.
Keller assigns, consolidated and restated, that the district court erred in (1) finding Tavarone to be an employee of the Hospital and (2) concluding that the Tort Claims Act provided the exclusive remedy for Keller's medical malpractice claim.
In an action brought pursuant to the Tort Claims Act, or in a bench trial of an action at law, the factual findings by the trial court will not be disturbed on appeal unless they are clearly wrong. See, Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001); Desel v. City of Wood River, 259 Neb. 1040, 614 N.W.2d 313 (2000).
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Daniels v. Allstate Indemnity Co., 261 Neb. 671, 624 N.W.2d 636 (2001); Brandon v. County of Richardson, supra.
It is undisputed on appeal that the Hospital is a governmental entity which is subject to the provisions of the Tort Claims Act. Thus, the initial question is whether Tavarone was an employee of the Hospital. In this regard, Keller argues that the district court erred in finding Tavarone to be an employee of the Hospital, as opposed to an...
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