Perry v. Pediatric Inpatient Critical Care Servs., P.A.
| Citation | 611 F.Supp.3d 363 |
| Decision Date | 16 March 2020 |
| Docket Number | Civil Action No. SA-18-CV-404-XR |
| Parties | Dr. Melvin G. PERRY, Jr., Plaintiff, v. PEDIATRIC INPATIENT CRITICAL CARE SERVICES, P.A., et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Colin Walsh, Wiley Walsh, P.C., Austin, TX, for Plaintiff.
Angella Hebert Myers, Janice S. Parker, Sharon S. Gilmore, The Myers Law Group, LLP, Dallas, TX, for Defendant Pediatric Inpatient Critical Care Services, P.A.
Tiffany Cox Stacy, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Mark A. McNitzky, Clark Hill Strasburger, San Antonio, TX, for Defendant VHS San Antonio Partners, LLC.
On this date, the Court considered Defendants' Motions for Summary Judgment on the threshold issues of whether Plaintiff had an employment relationship with Defendants for purposes of Title VII.
Plaintiff Melvin Perry filed this lawsuit on May 3, 2018 against Defendants Pediatric Inpatient Critical Care Services, P.A. ("PICCS") and VHS San Antonio Partners, LLC d/b/a North Central Baptist Hospital, alleging claims under Title VII and 42 U.S.C. § 1981 for race discrimination. Docket no. 1. Plaintiff filed a First Amended Complaint on December 26, 2018, alleging claims for hostile work environment, discrimination (termination) based on race and/or sex, and retaliation and a claim under § 1981 for race discrimination. Docket no. 28. Plaintiff alleges that PICCS was his employer and that PICCS and VHS were "joint employers" and/or constituted a "single integrated enterprise." Id. ¶ 7. Defendants answered and denied employer status. Docket nos. 31, 33.
On June 11, 2019, the Court granted Defendants' motion to bifurcate, allowing limited discovery and the filing of dispositive motions on the threshold issues of whether Plaintiff was an employee or an independent contractor and whether PICCS and VHS were his employers for purposes of Title VII. Defendants have now filed their dispositive motions, and VHS also moves for summary judgment on Plaintiff's § 1981 claim, arguing that there is no contract. Plaintiff has responded in opposition on all issues.
Defendant PICCS is a professional association formed under Texas law in December 2014 for the practice of medicine and services ancillary thereto. Docket no. 59-1. PICCS has three directors/owners: Dr. Thomas Gowan, Dr. Hugo Carvajal, and Dr. Nelson Pedro Chavez. PICCS, standing alone, does not employ more than 15 people.
Defendant VHS runs North Central Baptist Hospital ("the Hospital"), and the Hospital maintains a pediatric intensive care unit ("PICU") on its premises. Pediatric intensivists take care of patients in the PICU, and the PICU requires 24/7 physician coverage. The Hospital employs more than 15 people, including nurses and therapists, but does not directly enter into employment relationships with physicians. Waechter depo. at 15, 17.
On or about December 12, 2014, PICCS entered into an Agreement for Pediatric Intensive Care Department Coverage with VHS ("the PICCS-VHS Coverage Agreement") to furnish physicians for full-time coverage to the Hospital's PICU. Docket no. 59-2. PICCS had no other clients and did not provide services to any other Hospital or Hospital System. Chavez depo. at 19. As part of the PICCS-VHS Coverage Agreement, PICCS agreed to provide physicians for the Hospital's PICU "to assure physician coverage of such Services." Id. The Hospital engaged PICCS "on an exclusive basis for [PICCS] to provide to Hospital the Services and supervise the operation of the [PICU] in accordance with" the Agreement.
Each Physician was required to be duly licensed and qualified to practice medicine in Texas (and be Board Certified in Pediatrics or Board eligible), be a participating physician in Medicare and in Texas's Medicaid program, and be approved for membership and/or clinical privileges on the medical staff of the Hospital in accordance with the Hospital's Medical Staff Bylaws and Rules and Regulations. The Bylaws are a form of self-governance, created by the Medical Staff of Baptist Health System. Watkins Decl. They establish standards for Medical Staff membership and Clinical Privileges and provide means to enforce those standards. Id. Physicians apply for Medical Staff Membership and Clinical Privileges to admit and treat patients at the Hospital. Id. When membership and/or privileges are granted, the physician agrees to abide by the Bylaws and rules and Regulations, as well as the Professional Code of Conduct. Id.
PICCS physicians would (1) be the exclusive providers of services in the PICU; (2) provide call coverage for the PICU; (3) administer pediatric procedural sedation to Hospital inpatients and emergency room patients; (4) respond to pediatric emergencies for both inpatients and emergency room patients, when requested by either the attending physician or emergency room physician; (5) attend any and all meetings within the Hospital that Physicians are asked to attend by the Hospital's CEO except to the extent patient care responsibilities necessitates Physician's attention; and (6) perform such other duties as may from time to time be requested by the Hospital, Hospital's Governing Board, Hospital's medical staff, and/or the CEO, and agreed to by PICCS. The Hospital was required to provide written reports of all examinations, treatments, and procedures performed pursuant to the Agreement for billing and healthcare operations. PICCS warranted that its Physicians would comply with all applicable bylaws, rules, regulations, procedures, and policies of the Hospital and its medical staff.
PICCS would also appoint, subject to the approval of the Hospital CEO, a Physician to serve as Director of the PICU while the Agreement was in effect, and the Director would (1) participate in the educational programs conducted by the Hospital and its medical staff to assure its overall compliance with accreditation and licensing requirements, and perform such other reasonable teaching functions as the Hospital may request; (2) direct non-physician PICU personnel in the performance of professional services for patients; (3) advise the Hospital with respect to the selection, retention, and termination of all personnel who may be required for the proper operation of the PICU, but the Hospital would retain ultimate decision-making authority; (4) establish schedules for all Services provided by Physicians in accordance with the terms of the Agreement; (5) supervise the development and implementation of Hospital quality assurance and quality improvement programs and procedures in the PICU; (6) assist the Hospital in the preparation and conduct of surveys by the Joint Commission and/or any other national, state, or local agency; (7) participate in the Hospital's Medicare Performance Improvement initiatives and other performance management and innovation initiatives; and (8) perform any other duties that Hospital, Hospital's Governing Board, medical staff and/or the CEO may request, as agreed to by the Director. PICCS appointed one of its director/owners, Dr. Chavez, to be the PICU Director.
The Coverage Agreement required PICCS to "cause each Physician who will provide Services under this Agreement to execute the Physician Agreement attached" to the Agreement as Exhibit A. PICCS would also ensure that each Physician maintained professional liability insurance coverage at specified limits. The Coverage Agreement also contains an Exhibit B outlining the Services that PICCS would provide. It states that "a minimum of 3 full time Physicians will be necessary" and PICCS would "provide Physicians for call coverage in the [PICU] on a 24 hour basis every day during the Term of this Agreement with in-house call coverage provided only when there is a pediatric inpatient in the [PICU] who meets the Critical Care criteria." "On or before the first day of each calendar month, [PICCS] shall provide to the Hospital CEO a schedule of Physicians assigned to provide call coverage in the Department during the calendar month and such schedule shall be posted within the [PICU]."
The Coverage Agreement provides that PICCS and the Physicians it would provide to VHS would be acting as independent contractors of VHS, and would not be considered employees or agents of the Hospital. PICCS warranted to VHS that it would pay compensation to the Physicians based on fair market value and that it would "maintain a written agreement with each physician receiving compensation from [PICCS] that is not an employee of Group (e.g., each non-employed independent contractor), which written agreement is or will be signed by the parties, and does or will specify the services covered by the arrangement." PICCS would bill on the Physicians' behalf, and would have the exclusive right to collections therefrom. VHS agreed to pay PICCS a monthly guaranteed amount of $137,500 (offset by collections). PICCS had "sole responsibility to compensate Physicians, and Director" and reserved the right, in its sole discretion, to determine the compensation payable to each Physician working in the PICU.
The Coverage Agreement further provided that, at all times, "the CEO [of the Hospital] shall have the right to request removal of any such Physician if continued service by such Physician could jeopardize patient care or safety" and PICCS "agrees to immediately remove any such Physician in accordance with Hospital's Medical Staff Bylaws." Further, the Medical Staff membership and/or clinical privileges of each Physician were "based upon the Medical Staff Bylaws" and "the Medical Staff membership and/or clinical privileges of Director and each Physician at Hospital shall terminate in accordance with the Medical Staff Bylaws"; and "the Medical Staff Bylaws shall control over this Agreement with respect to peer review."
The Coverage Agreement commenced on March 1, 2015 and was for a three-year term, with automatic extensions on a...
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