Rivera v. Hospital Universitario

• Decision Date: 11 April 1991
• Docket Number: Civ. No. 90-1229 (JP).
• Citation: 762 F. Supp. 15
• Parties: Rosa RIVERA, Plaintiff, v. HOSPITAL UNIVERSITARIO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

762 F. Supp. 15

Rosa RIVERA, Plaintiff, v. HOSPITAL UNIVERSITARIO, et al., Defendants.

Civ. No. 90-1229 (JP).

United States District Court, D. Puerto Rico.

April 11, 1991.

Jorge F. Freyre, Goldman, Antonetti, Ferraiouli, Axtmayer & Hertell, Santurce, P.R., for plaintiff.

Sigfrid López González, Hato Rey Station, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it defendants Dr. David Mehne's and Dr. Félix Santiago's Motion to Dismiss, and the plaintiff Rosa Rivera's Opposition thereto. The defendants have also filed a Reply to the Plaintiff's Opposition. Diversity jurisdiction is invoked pursuant to 28 U.S.C. § 1332.

In September of 1988 the plaintiff underwent hip replacement surgery and further medical treatment at the University of Puerto Rico's "Hospital Universitario." Hospital Universitario, as part of the University of Puerto Rico, is thus an arm of the Commonwealth of Puerto Rico. The plaintiff alleges that she was a victim of medical malpractice committed by Dr. Mehne and Dr. Santiago. Dr. Mehne and Dr. Santiago are University of Puerto Rico medical professors who supervised the medical residents and treated patients at Hospital Universitario as "attending physicians". Attending Physicians are not the doctors of any one patient. Instead, Attending Physicians supervise the medical residents in whatever treatment is scheduled during the Attending's work hours.

The defendants assert that they are medical employees of the state and thus immune from liability under the law of Puerto Rico. The plaintiff contends that the doctors are independent contractors and not employees of the state entitled to immunity from suit.

As both the plaintiff and defendants have submitted documents for the Court's consideration outside of the pleadings the Motion to Dismiss shall be treated as a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 12(c).¹ The defendant's Motion to Dismiss must be granted for the following reasons.

I. SUMMARY JUDGMENT — STANDARD OF REVIEW

A motion for summary judgment is appropriate 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.

Fed.R.Civ.P. 56(c). Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989); see e.g., Medina-Muñoz v. R.J. Reynolds, 896 F.2d 5 (1st Cir.1990). A "genuine" issue is one that is dispositive, and must therefore be decided at trial. Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A "material" fact is one which affects the outcome of the suit and must be resolved before attending to related legal issues. Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d at 181.

Essentially, Rule 56(e) mandates that summary judgment be entered against a party who fails to establish the existence of an element essential to that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Thus, the burden is first on the movant, to show "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. at 325, 106 S.Ct. at 2553. Thereafter, the burden shifts to the nonmovant to establish the existence of a genuine material issue. Brennan v. Hendrigan, 888 F.2d at 191. The nonmovant, however, cannot rest upon mere allegation or denial of the pleadings. Fed.R.Civ.P. 56. In the instant case, there does not exist a genuine issue of material fact which must be decided at trial, thus the defendants' dispositive motion must be granted and judgment entered in favor of the defendants.

II. INDEPENDENT CONTRACTORS VS. EMPLOYEES

The parties agree that medical employees of Hospital Universitario are immune from suit under 26 L.P.R.A. § 4105, which provides that:

no health service professional may be included as a defendant in a civil suit for damages due to malpractice caused in the performance of his profession while said health service professional acts in compliance with his duties and functions as an employee of the Commonwealth of Puerto Rico, its dependencies, instrumentalities and municipalities.

The plaintiff contends that this statutory immunity does not apply to defendants Dr. Mehne and Dr. Santiago because they are acting as "independent contractors" rather than employees. The plaintiff cites to cases in which the Puerto Rico Court has found defendants to be acting as independent contractors in a variety of contexts, (i.e. Sierra Berdecía v. Pedro A. Pizá, Inc., 86 D.P.R. 445 (1962) (independent contractor existed in context of commissioned automobile sellers)). However, the plaintiff fails to make reference to the one case which directly considers the context of the medical profession. Flores Román v. Ramos González, 90 J.T.S. 132 (1990). Flores Román delineates the general factors which must be considered in the analysis of the independent contractor question, and the factors which specifically pertain to the medical profession context.

The question of whether an individual is an employee or an independent contractor must be analyzed on a case per case basis, as there is no precise definition for the term "independent contractor." Mariani v. Christy, 73 D.P.R. 783, 797 (1952). Thus no one factor alone is sufficient to establish an individual as an independent contractor. The general elements which must be examined by the Court are: 1) the form and manner of the employment contract concerning provisions of full-time or part-time employment; 2) whether the employment contract provides for vacation time, sick leave, or a retirement program; 3) the extent and nature of control the individual has over the execution of his duties; 4) the form of payment; and 5) the ownership status of equipment which is utilized. In addition, Flores Román provides that in the medical profession context, the Court must also examine the following factors: 1) whether professional malpractice insurance is paid for by the government; 2) whether the individual pays for the rent, water bill, electric bill or telephone bill of the treatment facility; 3) whether the patients were attended to at the government hospital or at the individual doctor's own private practice office; and 4) whether the method of payment was by service rendered or on a salary basis.

In the instant case, Dr. Mehne and Dr. Santiago were both contracted as "Catedráticos Auxiliares" (Assistant Professors), and both worked on a part-time basis. Plaintiff's Opposition to Motion to Dismiss, Exhibits H & I (University of Puerto Rico Notification of Appointment as Assistant Professor) hereinafter Opposition Exhibit. Dr. Mehne worked approximately eight hours per week, and Dr. Santiago worked twenty hours per week. As part-time employees, both defendants were entitled to a number of employment benefits. Defendant's Reply to Plaintiff's Opposition to Our Motion to Dismiss, Exhibit 33 hereinafter Reply Exhibit. Both part-time and full-time employees are entitled to vacation time and sick leave, in proportion with the amount of hours worked per week. Id. In addition, part-time employees are entitled to: a ten percent library discount; participation in the retirement plan; unemployment insurance; a Christmas bonus; and free university enrollment. Id. Because Dr. Santiago worked a minimum of twenty (20) hours per week, he was automatically entitled to more benefits. Reply Exhibit 35, at 3. But Dr. Mehne could apply to receive the same benefits commensurate with his work schedule. See Opposition Exhibit B, at 24 (Mehne Deposition "Right, yes, I was paid for the fifty two (52) weeks of the year and I was getting my vacations"). Thus, their entitlement to vacation time, in addition to other benefits, would be a factor weighing in favor of deeming the defendants employees rather than independent contractors. Sierra Berdecía v. Pedro A. Pizá, Inc., 86 D.P.R. 447, 456 (1962). In Flores Román, the independent contractors were not entitled to any of the benefits that the regular employees received.

As Assistant Professors and attending physicians, the defendants in effect maintained great control over the exercise of their own duties.

The most important criteria in the determination of an employee status, vel non, is the control the employer may have over the work performed, regardless of whether or not said control is exercised. It is the existence of the right or authority to so intervene or control on the part of the employer or principal that makes the other person an employee and not an

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