Osborne v. Adams, 25320.

• Court: United States State Supreme Court of South Carolina
• Citation: 346 S.C. 4,550 S.E.2d 319
• Decision Date: 23 July 2001
• Docket Number: No. 25320.,25320.
• Parties: Marianne OSBORNE, individually, and as Guardian ad Litem for Matthew Connor Osborne, a minor, Petitioner, 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, Defendants, of which, McLeod Regional Medical Center is, Respondent.

346 S.C. 4
550 S.E.2d 319

Marianne OSBORNE, individually, and as Guardian ad Litem for Matthew Connor Osborne, a minor, Petitioner,
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, Defendants, of which, McLeod Regional Medical Center is, Respondent

No. 25320.

Supreme Court of South Carolina.

Heard May 9, 2001.

Decided July 23, 2001.

Rehearing Denied August 22, 2001.

346 S.C. 6

Edward L. Graham, of Zeigler and Graham, of Florence, for petitioner

John S. Wilkerson, III, of Turner, Padget, Graham & Laney, P.A., of Florence, for respondent McLeod Regional Medical Center.

PLEICONES, Justice.

Marianne Osborne's ("Osborne") son, Connor, was born prematurely and received care at McLeod Regional Medical Center ("McLeod") in its neonatal care unit. After Connor developed serious physical and mental ailments, Osborne brought suit alleging negligence on the part of the abovecaptioned defendants. The trial court granted McLeod's motion for summary judgment. The Court of Appeals, relying in large part on its decision in Simmons 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 I. See Simmons v. Tuomey Regional Medical Center, 341 S.C. 32, 533 S.E.2d 312 (2000) ("Simmons II"). We reverse

ISSUE I

Did the trial court err in granting McLeod's motion for summary judgment?

ANALYSIS

In reviewing the grant of a summary judgment motion, this Court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991).

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). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Williams v. Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976).

Based on its holding in Simmons I that a hospital's nondelegable duties are confined to emergency room care, the Court of Appeals affirmed the trial court's grant of summary judgment in favor of McLeod. The Court of Appeals expressed its opinion that Section 429 of the Restatement (Second) of Torts was not an accurate reflection of the law of this State, and therefore, Osborne could not rely on that section in maintaining a cause of action against McLeod.

However, in Simmons II, this Court adopted section 429,¹ and held that a hospital owes a common law nondelegable duty

346 S.C. 8

to render competent service to its emergency room patients such that it may not avoid liability for the negligent acts of emergency room physicians hired as independent contractors under a contract between the hospital and a separate corporation

Although Simmons II involved emergency room physicians, we did not limit our decision to such physicians. The decision was limited, however, "to those situations in which a patient seeks services at the hospital as an institution, and is treated by a physician who reasonably appears to be a hospital employee." Id. at 52, 533 S.E.2d at 323. The holding did not "encompass situations in which a patient is admitted to a hospital by a private, independent physician whose only connection to a particular hospital is that he or she has staff privileges to admit patients to the hospital." Id.

In order to establish liability under section 429, a plaintiff must show that

(1) the hospital held itself out to the public by offering to provide services; (2) the plaintiff looked to the hospital, rather than the individual physician, for care; and (3) a person in similar circumstances reasonably would have believed that the physician who treated him or her was a hospital employee. When the plaintiff does so, the hospital will be held vicariously liable for any negligent or wrongful acts committed by the treating physician. The hospital may attempt to avoid liability for the physician's acts by demonstrating the plaintiff failed to prove these factors.

Id. at 51, 533 S.E.2d at 322.

We review each of these elements below.

Element 1: Holding out

In her complaint, Osborne² alleged that McLeod "holds itself out to the public as having specialized facilities,

346 S.C. 9

equipment and staff for the provision of high quality obstetrical care." In an affidavit submitted in opposition to McLeod's summary judgment motion, Osborne stated that "[t]hrough McLeod's marketing efforts the representation was made to me that McLeod had first rate physical facilities, staff, equipment and supplies for its birthing center, including a Level 3 Neonatal Intensive Care Unit (hereinafter, "NICU"); that Dr. J.E. Harlan, Jr., was director of McLeod's NICU; and that the neonatologists were an integral part of McLeod's NICU team."

Further, Osborne submitted a three-part article appearing in McLeod Magazine³ extolling McLeod's facilities and referring to "McLeod neonatologists." The article depicts Dr. Harlan standing in front of what appears to be medical equipment with his arm outstretched, and refers to Harlan as McLeod's Neonatal Intensive Care Unit Director. The article lauds the excellent facilities and care available to newborns and expectant mothers at McLeod.

Element 2: Plaintiff looked to...