Lee v. Satilla Health Services, Inc., A95A2488

• Decision Date: 13 March 1996
• Docket Number: No. A95A2488,A95A2488
• Citation: 220 Ga.App. 885,470 S.E.2d 461
• Parties: LEE v. SATILLA HEALTH SERVICES, INC.
• Court: Georgia Court of Appeals

Page 461

470 S.E.2d 461

220 Ga.App. 885

LEE v. SATILLA HEALTH SERVICES, INC.

No. A95A2488.

Court of Appeals of Georgia.

March 13, 1996.

Reconsideration Denied March 28, 1996.

Certiorari Denied June 28, 1996.

Benjamin Smith, Jr. and Leon A. Wilson II, Waycross, for appellant.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., and Robert W. Lamb, Waycross, for appellee.

RUFFIN, Judge.

In this medical malpractice action, Mrs. Azalee Lee sued Dr. Clyde Tanner and Satilla Health Services, Inc. ("the hospital") for Dr. Tanner's failure to diagnose she was suffering from a stroke when she arrived at the hospital's emergency room. Mrs. Lee alleged that Dr. Tanner's negligence could be imputed to the hospital. She also alleged that the hospital negligently selected and retained Dr. Tanner to provide services in the emergency room given the number of lawsuits that have been filed against him. The hospital moved for summary judgment on four grounds, and the trial court granted the motion without specifying the grounds upon which its order was based. On appeal, Mrs. Lee contends only that the trial court erred in granting summary judgment on the issues of agency and proximate cause. Because we find that material issues of fact remain with respect to those issues, we reverse.

1. Mrs. Lee contends the trial court erred in granting the hospital summary judgment because material issues of fact remain as to whether Dr. Tanner was the hospital's employee. The hospital asserts that its contract with Dr. Tanner affirmatively established that he was an independent contractor and that nothing in the contract seeks to control the time, manner or method by which he treated patients. See Hodges v. Doctors Hosp., 141 Ga.App. 649(2), 234 S.E.2d 116 (1977). The contract, however, is nowhere to be found in the record. Moreover, the labels ascribed by a contract are not determinative of the parties' legal relationship. Gray v. Vaughn, P.C., 217 Ga.App. 872, 874(2), 460 S.E.2d 86 (1995). "The concern is with essence, not nomenclature." Stewart v. Midani, 525 F.Supp. 843, 847 (N.D.Ga.1981).

In Midani, a medical malpractice case involving this very issue, the court referenced an earlier decision, Harris v. City of Chattanooga, 507 F.Supp. 365 (N.D.Ga.1980) in which it "canvassed nearly fifty decisions of the Georgia appellate courts in an effort to distill the essence of the employee-independent contractor controversy." Midani, supra at 849. The court articulated several factors which were frequently considered by the Georgia courts in making that determination. We will consider those factors applicable to this case: (1) 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, Dr. Tanner testified that the hospital did not tell him how to perform a physical exam or diagnose a patient's condition, which would "indicate[ ] that [he] was an independent contractor." Id. But Dr. Tanner also testified that he could not refuse an order to do "such and such" from the hospital administrator. Whether such an order could affect the manner in which Dr. Tanner practiced medicine is unknown. Given the potentially conflicting nature of these statements on the issue of control, we find that a jury issue is raised with respect to this factor of the analysis. (2) Contracts to perform a service rather than to accomplish a task. "The latter are indicative of an independent contractor relationship, the former of an employee-employer relationship." Id. Because Dr. Tanner was obligated to provide 24-hour a day coverage in the emergency room, "i.e., to provide that service," this factor indicates he was the hospital's employee. Id. (3) The right of the employer to inspect the employee's work. Since there is no evidence of record that the hospital had such authority, we find that Dr. Tanner would be classified as an independent contractor under this factor. (4) Does the employer or the employee supply the equipment? Dr. Tanner testified that the hospital furnished the medical supplies and equipment such as CAT scans and x-ray machines that he used, as well as the drugs which were administered to patients in the emergency room. This would suggest that Dr. Tanner was an employee. See Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir.1993). (5) The nature or skill of the employee's work. "The more skilled the employee, the more likely he is an independent contractor." Midani, supra. Thus, Dr. Tanner would likely be an independent contractor under this test. (6) The employer's right to control the employee's time. Here, the hospital demanded that Dr. Tanner provide coverage 24 hours a day, but did not dictate his personal schedule. This factor indicates that Dr. Tanner was an independent contractor. Id.; Newton County Hosp. v. Nickolson, 132 Ga.App. 164, 167(2), 207 S.E.2d 659 (1974). (7) The method of payment. If an employee is paid "for the entire task performed, this evidences an independent contractor relationship. If, however, ... the employee is paid by the hour, that exemplifies an employee-employer relationship." Midani, supra. See also Nickolson, supra; Whitaker v. Zirkle, 188 Ga.App. 706, 708(2), 374 S.E.2d 106 (1988). Because Dr. Tanner was paid a salary rather than an hourly wage, this bodes in favor of an independent contractor relationship in this setting. However, as the Midani court pointed out in its own analysis of the most significant Georgia appellate case on the subject, the basis of the pay, i.e., whether the hospital paid the physician, is more important than "the employer's right to choose the scalpel to be used or the location of the incision." Midani, supra at 849; Hodges, supra. Here, the hospital, rather than an emergency services group, paid Dr. Tanner. This indicates that he was an employee.

Given that the foregoing evidence does not conclusively establish whether Dr. Tanner was an employee or an independent contractor, summary judgment on this basis was not appropriate.

2. Mrs. Lee also contends the trial court erred in granting summary judgment because a material issue of fact remains as to whether Dr. Tanner's treatment of her in the emergency room was the proximate cause of her injury. We agree.

In her complaint, Mrs. Lee alleged that Dr. Tanner negligently sent her home from the emergency room and "prevented the administration of therapies that could have...