Osborne v. Adams

• Decision Date: 13 December 1999
• Docket Number: No. 3088.,3088.
• Citation: 338 S.C. 82,525 S.E.2d 268
• Court: South Carolina Court of Appeals
• Parties: 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.

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.

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, 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.

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 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 (Ct.App.1986) (under the doctrine of respondeat superior in tort law, the employer is responsible for the acts of an employee acting within the scope of employment).

An exception to the rule that an employer is not liable for the torts of an independent contractor occurs where the employer is found to have a nondelegable duty to perform an act, in which case, the employer is liable for the actions of the independent contractor. See Durkin v. Hansen, 313 S.C. 343, 437 S.E.2d 550 (Ct.App.1993). Under the nondelegable duty doctrine, the employer is free to delegate the duty to the independent contractor; however, the employer cannot delegate the liability. Nondelegable duty is similar to strict liability in the sense that the employer need not have been at fault or committed any negligence; the independent contractor's negligence is imputed to the employer. Foltz v. Northwestern Bell Tel. Co., 221 Neb. 201, 376 N.W.2d 301, 309 (1985).

In Simmons v. Tuomey Regional Medical Center, 330 S.C. 115, 498 S.E.2d 408 (Ct.App.1998), cert. granted (April 8, 1999), this Court held a hospital's duty to its emergency room patients to provide competent medical care has evolved into a nondelegable duty. Thus, hospitals are liable for the negligence of its emergency room physicians, even if they are designated as independent contractors. In so holding, we stated, "Consideration of the effect of public policy in the medical care arena leads us to this conclusion." Id. at 118, 498 S.E.2d at 409.

The linchpin for our finding a nondelegable duty in emergency room situations is the nature of emergency room operations and the public perception of the unity of hospitals and their emergency rooms. State regulations require all hospitals to maintain an emergency room twenty-four hours a day. 24A S.C.Code Ann.Regs. 61-16 § 613 (1992). We also recognized the dynamics of emergency room treatment, particularly the fact that one cannot choose to pass by the nearest emergency room following a sudden injury or illness, as well as the fact that the operation of an emergency room is a vital service for the community. Simmons, 330 S.C. at 120,498 S.E.2d at 410.

Osborne contends we should extend the holding in Simmons beyond emergency room physicians, applying it to other independent contractor physicians, in this case to the neonatologists at McLeod. Osborne argues this Court should find McLeod had a nondelegable duty to operate the NICU and it is therefore liable for the torts of the independent contractor neonatologists, regardless of any fault or negligence on McLeod's part.

In support of her argument, Osborne asserts the doctors from Pee Dee Neonatal Associates, P.A. are the only neonatologists practicing at McLeod, and Dr. Harlan was advertised as being the medical director of McLeod's NICU. Osborne points out state accreditation regulations require all hospitals seeking designation as a Level III perinatal unit to staff the unit twenty-four hours a day, seven days a week. Because McLeod holds itself out as a Level III hospital, she contends competent and proper neonatal care of preterm newborns is integral to a Level III perinatal unit.

Osborne argues a patient is no more likely to "choose" a neonatologist for intensive care treatment of premature infants than to "choose" an emergency room. She maintains she did not choose the neonatologists who treated Connor. Rather, she chose McLeod and its NICU, in part, because of the articles by McLeod touting its NICU facilities.

Osborne called her regular obstetrician, who directed her to McLeod. Her physicians treated her for five days in the hospital, until she gave birth and the neonatologists began treating Connor. Osborne did not present herself or her son at the emergency room for treatment and neither she nor her son received treatment from an emergency room physician. Rather, she was admitted to the hospital at the direction of and under the care of her obstetrician. All hospitals are required to have emergency rooms, but all hospitals do not have to have Level III perinatal units. 24A S.C.Code Ann.Regs. 61-16 § 607 (1982 & Supp.1998). We do not agree with...