Osborne v. Adams, 3088.

CourtCourt of Appeals of South Carolina
Citation338 S.C. 82,525 S.E.2d 268
Decision Date13 December 1999
Docket NumberNo. 3088.,3088.
PartiesMarianne OSBORNE, individually, and as Guardian ad Litem for Matthew Connor Osborne, a minor, Appellant, v. R. Stephen ADAMS, M.D., B. Edward O'Dell, M.D., Adams, O'Dell, Davidson and Lusk, OB/GYN, P.C., Evelyn H. Melnick, M.D., J.E. Harlan, Jr., M.D., Pee Dee Neonatal Associates, P.A., and McLeod Regional Medical Center, Respondents.

338 S.C. 82
525 S.E.2d 268

Marianne OSBORNE, individually, and as Guardian ad Litem for Matthew Connor Osborne, a minor, Appellant,
v.
R. Stephen ADAMS, M.D., B. Edward O'Dell, M.D., Adams, O'Dell, Davidson and Lusk, OB/GYN, P.C., Evelyn H. Melnick, M.D., J.E. Harlan, Jr., M.D., Pee Dee Neonatal Associates, P.A., and McLeod Regional Medical Center, Respondents

No. 3088.

Court of Appeals of South Carolina.

Heard October 5, 1999.

Decided December 13, 1999.

Rehearing Denied January 29, 2000.


338 S.C. 84
Edward L. Graham, of Zeigler & Graham, of Florence, for appellant

John S. Wilkerson, III, of Turner, Padget, Graham & Lacey, of Florence, for respondent McLeod Regional Medical Center; Charles E. Carpenter, Jr. and S. Elizabeth Brosnan, both of Richardson, Plowden, Carpenter & Robinson, of Columbia, for respondents Evelyn H. Melnick, M.D., J.E. Harlan, Jr., M.D., and Pee Dee Neonatal Associates, P.A.; and William L. Pope, of Pope & Rogers, of Columbia, for respondents R. Stephen Adams, B. Edward O'Dell, and Adams, O'Dell, Davidson and Lusk, OB/GYN, P.C.

PER CURIAM:

Marianne Osborne (Osborne) brought this medical negligence action for damages her son allegedly sustained at the time of his birth at McLeod Regional Medical Center (McLeod). The trial court granted summary judgment in favor of McLeod, finding Osborne failed to establish a genuine issue of material fact as to McLeod's negligence. We affirm.

FACTS/PROCEDURAL BACKGROUND

Marianne Osborne selected respondents Dr. B. Edward O'Dell and his colleagues at Adams, O'Dell, Davidson & Lusk,

338 S.C. 85
OB/GYN, P.C. to provide obstetrical care in 1992. Osborne alleges she chose McLeod Regional Medical Center as the hospital where she would give birth and obtain incidental medical services, including newborn care, because as a pharmacist employed by McLeod she was given financial incentives for using McLeod facilities and services. Osborne also stated she had confidence in McLeod's delivery and neonatal services from her employee "indoctrination" and McLeod's marketing campaign, touting its facilities and listing Dr. J.E. Harlan, Jr. (Dr. Harlan) as its neonatal intensive care unit's (NICU) medical director

On May 21, 1993, after five days in McLeod under the care of her obstetricians, Osborne gave birth to Connor, nine weeks premature. As a result of his prematurity, Connor developed respiratory distress and received treatment from Dr. Evelyn H. Melnick and Dr. Harlan, both of Pee Dee Neonatal Associates, P.A. at McLeod's NICU. Osborne alleges Connor developed severe problems including cerebral palsy and mental retardation as a result of mismanagement of his respiratory distress. Osborne stated she was not aware of the neonatologists' status as independent contractors either at the time she chose McLeod as the place to deliver her child or during the delivery.

Osborne sued all of the Respondents in May 1996 alleging Connor's injuries were directly and proximately caused by the negligence and wrongful conduct of the Respondents. McLeod denied any negligence and moved for summary judgment in May 1997.

The trial court granted McLeod's motion for summary judgment, finding Osborne "failed to present any expert testimony whatsoever ... which creates an issue of fact as to any negligence on the part of [McLeod]." The court noted it had allowed Osborne an additional forty-five days to present affidavits and other evidence in opposition to the motion, but the materials submitted by Osborne "do not relate to the allegations in the Complaint and are insufficient to create a question of fact" as to McLeod's negligence. Osborne appeals the granting of summary judgment to McLeod.

338 S.C. 86
ISSUES
I. Did the trial court err in granting summary judgment to McLeod because McLeod has a nondelegable duty to provide competent and proper medical care to newborns in its neonatal unit?
II. Did the trial court err in granting summary judgment where Osborne accepted services from the neonatologists at McLeod, reasonably believing they were agents or employees of McLeod, and where Osborne's son allegedly sustained damages as a result of the neonatologists' negligence, under Restatement (Second) of Torts § 429 (1965)?
III. Did the trial court err in granting summary judgment where discovery is not complete and further inquiry into the facts is needed to determine the application of the law concerning McLeod's respondeat superior liability for its nurse/technician employees?

STANDARD OF REVIEW

A trial court may properly grant a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c) SCRCP. See also Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997).

In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); City of Columbia v. American Civil Liberties Union, 323 S.C. 384, 475 S.E.2d 747 (1996).

ANALYSIS

I. NONDELEGABLE DUTY

Osborne argues McLeod had an absolute, or nondelegable, duty to care for its NICU patients; therefore, the hospital is liable for the torts of its neonatologists even though

338 S.C. 87
they are independent contractors, not McLeod employees. We disagree

Traditionally, an employer is not liable for the acts of its independent contractors. This absence of liability arises because the employer has no control over the acts and work of an independent contractor. Restatement (Second) of Torts § 409 cmt. b (1965). Cf. South Carolina Ins. Co. v. James C. Greene & Co., 290 S.C. 171, 348 S.E.2d 617...

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4 cases
  • Bayle v. South Carolina Dept. of Transp., 3284.
    • United States
    • Court of Appeals of South Carolina
    • January 8, 2001
    ...disturbed on appeal absent a clear showing of an abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Osborne v. Adams, 338 S.C. 82, 525 S.E.2d 268 (Ct.App.1999). An abuse of discretion occurs when the trial judge's ruling is based upon an error of law or, when based on f......
  • Osborne v. Adams, 25320.
    • United States
    • United States State Supreme Court of South Carolina
    • July 23, 2001
    ...v. Tuomey Regional Medical Center, 330 S.C. 115, 498 S.E.2d 408 (Ct.App.1998) (hereinafter, "Simmons I"), affirmed. Osborne v. Adams, 338 S.C. 82, 525 S.E.2d 268 (Ct.App.1999). We granted certiorari to review the Court of Appeals' decision, in light of our 346 S.C. 7 modification of Simmons......
  • The State v. Mclaughlin, Unpublished Opinion No. 2010-UP-503
    • United States
    • Court of Appeals of South Carolina
    • November 12, 2010
    ...the trial judge made the requisite factual finding regarding whether the juror was asleep and need take no further action); Id. at 75, 525 S.E.2d at 268 (holding, because defendant bore the burden to show the juror was actually asleep, failure to request direct examination of the juror waiv......
  • State v. McLaughlin, 2010-UP-503
    • United States
    • Court of Appeals of South Carolina
    • November 12, 2010
    ...the trial judge made the requisite factual finding regarding whether the juror was asleep and need take no further action); Id. at 75, 525 S.E.2d at 268 (holding, because defendant bore the burden to show the juror was actually asleep, failure to request direct examination of the juror waiv......

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