Russell v. Orr

Decision Date09 October 1997
Docket NumberNo. 95-CA-00888-SCT,95-CA-00888-SCT
Citation700 So.2d 619
PartiesJennie RUSSELL v. Dr. Edwin R. ORR and Pontotoc Health Services, Inc.
CourtMississippi Supreme Court

Roy O. Parker, Jr., Tupelo, for Appellant.

Cecil M. Heidelberg, James A. Becker, Jr., Watkins & Eager, Jackson; John G. Wheeler, L.F. Sams, Jr., L. Bradley Dillard, Mitchell McNutt Threadgill Smith & Sams, Tupelo; Robert K. Upchurch, Holland Ray & Upchurch, Tupelo, for Appellees.


BANKS, Justice, for the Court:

¶1 Ms. Jennie Russell appeals this medical malpractice action from a grant of summary judgment in favor of defendants Dr. Edwin R. Orr and Pontotoc Health Services, Inc. We conclude there are genuine issues of material fact in dispute regarding the employment status of Dr. Orr and Russell. Further, even assuming that Russell and Dr. Orr were co-employees of PHS, neither Dr. Orr nor PHS is immune from liability under Miss.Code Ann. § 71-3-9(1995). Accordingly, the grant of summary judgment by the circuit court is reversed and the case remanded for a full trial on the merits.


¶2 On December 25, 1989, Ms. Jennie Russell injured her ankle while working as a cook for her employer, Valley Innovative Management Services, Inc. (Valley), 1 at the Pontotoc Hospital. Valley had a contract with Pontotoc Health Services, Inc. (PHS) in which Valley provided foods services to the hospital. All foods and snacks served in the hospital were prepared by Valley employees like Russell.

¶3 Russell drove herself to the nearby Pontotoc Hospital emergency room seeking medical attention for her injury. There she was examined by Dr. Edwin R. Orr who worked at the hospital pursuant to a January 1, 1988 contract between PHS and Emergency Medicine Associates (EMA) (hereinafter referred to as Emergency Physicians Services (EPS)). During the examination no x-rays were taken on Russell's ankle to determine the extent of the injury. Russell claims that x-rays were not taken due to Dr. Orr's negligence. Dr. Orr claims the x-rays were not taken because Russell insisted she did not have time and had to return to her cooking duties. On December 28, 1989, Russell was examined again by Dr. Orr and was diagnosed with a fractured left fibula. Subsequently, Russell was treated by Dr. Massey for her injury. Russell received workers' compensation damages as a result of her injury.

¶4 On December 9, 1991, Russell filed a complaint against Dr. Orr and PHS charging Dr. Orr with medical negligence and PHS with vicarious liability. Dr. Orr filed an answer, and PHS filed a separate answer and motion for leave to include a cross-claim and third-party complaint against EPS. On January 17, 1995, Dr. Orr filed a motion for summary judgment requesting dismissal of the lawsuit with prejudice. Russell argued the motion for summary judgment should be dismissed because Dr. Orr asserted affirmative defenses which were not timely pled.

¶5 On July 18, 1995, the trial court granted Dr. Orr's motion for summary judgment finding there was no genuine issue of material fact in dispute. The court held that Russell and Dr. Orr were co-employees because PHS had the right to control each of them within the scope of their employment. The court then concluded that the Workers' Compensation Act barred Russell's common law action because co-employees cannot sue one another, and compensation received under the Act was her exclusive remedy. Miss.Code Ann. § 71-3-9 (1995). The court also dismissed sua sponte the complaint against PHS, on the ground that employers cannot be sued by employees. On August 17, 1995, Russell filed a notice of appeal to this Court.


¶6 In her brief Russell raises the following issues:

1. Is Plaintiff an employee of Pontotoc Hospital as well as Valley Innovative Management Services "Valley"?

2. Are both the Plaintiff and Defendant employees of Pontotoc Hospital?

3. Does Plaintiff's employment preclude her from pursuing a case in circuit court against Dr. Edwin R. Orr and Pontotoc Health Services, Inc?

4. The extent of control, if any, Pontotoc Hospital exerts over Plaintiff and/or Valley.

5. An interpretation of the covenants and agreements in the contract between Valley and Pontotoc Hospital.

6. Whether Plaintiff was employed by both Valley and Pontotoc Hospital.

7. Whether Pontotoc Hospital is immune from suit because of the Workers' Compensation Act.

8. Whether Dr. Orr is immune from suit because of the Workers' Compensation Act.

9. Whether Plaintiff can maintain her suit against Dr. Edwin R. Orr.

10. Did Orr's failure to plead injury by a fellow servant preclude his arguing that issue in his motion for summary judgment.

11. Did Dr. Orr's failure to plead the defense of immunity from suit because of the exclusivity of the Workers' Compensation Act waive the defense and preclude him from arguing same in his motion for summary judgment.

12. Are there any issues of material fact precluding summary judgment in this case.

13. Can the Circuit Court grant summary judgment to a party (Pontotoc Hospital) that did not file a motion for summary judgment?

¶7 For sake of clarity, the issues identified by the appellant have been consolidated into three issues for purposes of this opinion. Part II(a) will consolidate appellant's issues 1, 2, 3, 4, 5, 6, 9 & 12. Part II(b) will consolidate appellant's issues 7, 8 & 12. Appellant's issues 10, 11 & 13 are rendered moot by our holding and are not addressed herein.

¶8 This Court applies a de novo standard of review to a grant of summary judgment by the lower court. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).





Is Dr. Orr an Employee of PHS?

¶9 In granting summary judgment, the circuit court found that Dr. Orr was an employee of PHS. Russell challenges this contention on appeal and cites language from a contract between PHS and EPS which states that EPS subcontractors shall not be considered employees of PHS. Dr. Orr claims the circuit court's order should not be disturbed because statements in Russell's complaint and comments made by her counsel at oral argument indicate that Russell considered Dr. Orr an employee of PHS.

¶10 We agree with Dr. Orr's argument. When ruling on issues in a motion for summary judgment, the court is to consider whether 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." Miss. R. Civ. P. 56(c); Rolison v. City of Meridian, 691 So.2d 440, 442 (Miss.1997). In her complaint, Russell asserted that Dr. Orr was employed by PHS in her allegation of vicarious liability against PHS, stating that "[a]t all times herein mentioned Dr. Orr was acting in the scope of his employment as an emergency room physician for Pontotoc Health Services, Inc." Russell did not oppose the summary judgment by establishing specific facts which went beyond her pleadings. See Nationwide Mutual Ins. Co. v. Garriga, 636 So.2d 658, 661 (Miss.1994). We therefore conclude that, as to Russell, the fact of Dr. Orr's employ by PHS has been judicially admitted and is not subject to appeal.

¶11 This issue is still in dispute, however, in the third party action by PHS against EPS, since in its answer PHS denied that it employed Dr. Orr. The record shows that Dr. Orr was an emergency room physician (ERP) working for EPS at Pontotoc Hospital on the date the appellant was injured. The contract between PHS and EPS generally provides that EPS will supply ERPs to the hospital during hours designated in the contract. With regard to the employment status of the ERPs provided by EPS, the following is written:

(16) Hospital agrees and realizes that EMA is not involved in the practice of medicine and that EMA is a business corporation licensed to do business in the State of Mississippi for the purpose of providing ERP coverage to HOSPITAL or other hospitals or similar facilities. HOSPITAL also agrees and realizes that the relationship which exists between EMA and ERP is that of contractor and sub-contractor, respectively, and not that of employer and employee, and EMA shall be responsible for direct payment of ERPs. EMA shall hold the HOSPITAL harmless and indemnify it from any claims made in connection with compensation and payment of the ERPs. EMA, its employees, and all subcontractor ERPs, shall not publicly hold themselves out as employees of HOSPITAL and shall inform any patients that they are subcontractor ERPs or employees of EMA and not HOSPITAL if requested to do so. ERPs shall in no way be considered the employees and/or agents of the HOSPITAL and shall not perform any acts or actions to indicate otherwise; further, EMA shall hold the HOSPITAL harmless and indemnify it from any claim made as a result of any act and/or omission of its ERPs. EMA shall have only the responsibility of scheduling said ERPs and as also may be delineated herein.

¶12 Whether Dr. Orr is an employee of the hospital is a matter defined by the legal and/or contractual relationship between Dr. Orr and PHS. Dr. Orr indicated in his affidavit that he was a dual employee of the PHS and EPS. He relies on Hardy v. Brantley, 471 So.2d 358, 371 (Miss.1985). In Hardy, the Court dealt with a medical malpractice action in which a patient's severe abdominal pain was misdiagnosed by a physician who worked in the emergency room pursuant to a contract with a hospital. Subsequently, the patient died and the hospital and physician were sued for negligence. On appeal from directed verdicts, this Court held that where a hospital holds itself out as providing a given service, and where the hospital enters into a...

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