Simmons v. Tuomey Regional Medical Center, 2788.

CourtCourt of Appeals of South Carolina
Writing for the CourtHOWELL, Chief
Citation498 S.E.2d 408,330 S.C. 115
PartiesAlethia SIMMONS, in her fiduciary capacity as Personal Representative of the Estate of P.J. McBride, Deceased, Appellant, v. TUOMEY REGIONAL MEDICAL CENTER, Einar Anderson, M.D., and Sandy T. Cooper, M.D., Defendants, Of which Tuomey Regional Medical Center is, Respondent.
Docket NumberNo. 2788.,2788.
Decision Date02 February 1998

330 S.C. 115
498 S.E.2d 408

Alethia SIMMONS, in her fiduciary capacity as Personal Representative of the Estate of P.J. McBride, Deceased, Appellant,
TUOMEY REGIONAL MEDICAL CENTER, Einar Anderson, M.D., and Sandy T. Cooper, M.D., Defendants, Of which Tuomey Regional Medical Center is, Respondent

No. 2788.

Court of Appeals of South Carolina.

Heard November 4, 1997.

Decided February 2, 1998.

Rehearing Denied March 19, 1998.

330 S.C. 116
J. Edward Bell, III, and Eugene C. Fulton, Jr., both of Bell & Moore, Sumter, for appellant

Harold W. Jacobs, Jennifer J. Aldrich and Elizabeth Ann Felder, all of Nexsen, Pruet, Jacobs & Pollard, Columbia, for respondents.

HOWELL, Chief Judge:

Alethia Simmons, as personal representative for her father, P.J. McBride, filed a medical malpractice action against Tuomey Regional Medical Center and the doctors who treated McBride. Simmons alleged that McBride died as a result of the negligent diagnosis and treatment he received at the Tuomey emergency room. The trial court granted Tuomey's motion for summary judgment. We reverse and remand.

330 S.C. 117

On January 24, 1994, McBride was involved in an accident while driving his moped. Upon learning of the accident, Simmons rushed to the scene, where she found emergency service personnel attending to an injury to the back of her father's head. McBride was taken to Tuomey where Simmons signed an admission form for her father. The admission form contained the following provision:


While in Tuomey's emergency room, Dr. Cooper and Dr. Anderson examined McBride. Despite McBride's confused state, the doctors decided to treat his contusions and release him from the hospital with the instruction to refrain from drinking alcohol. The doctors, apparently attributing McBride's confusion to intoxication, did not treat his head injury.

The next day, McBride returned to Tuomey where his head injury was diagnosed as a subdural hematoma. Ultimately, McBride was transported to Richland Memorial Hospital. Approximately six weeks later, McBride died of complications from the subdural hematoma.

When Simmons brought this suit, Tuomey moved for summary judgment by alleging it was not liable because the doctors were independent contractors. Tuomey relied on its June 1987 contract with Coastal Physicians Services, which set forth the procedures by which Coastal would provide emergency room physicians to Tuomey. The carefully-worded contract referred numerous times to the physicians as "independent contractors" and stated that Tuomey agreed not to exercise "any control over the means, manner, or methods by which any Physician supplied by [Coastal] carries out his duties." The trial court accorded great weight to the Coastal-Tuomey contract when it granted Tuomey's motion for summary judgment. Simmons appeals, arguing the trial court

330 S.C. 118
erred in granting summary judgment on the issues of actual agency, apparent agency, and nondelegable duty.1


Traditionally, employers have avoided vicarious liability for the torts of their employees, which agency law imposes through the doctrine of respondeat superior, by acting through independent contractors. Restatement (Second) of Agency § 250 (1958). However, "[a] person who delegates to an independent contractor an absolute duty owed to another person remains liable for the negligence of the independent contractor just as if the independent contractor were an employee." Durkin v. Hansen, 313 S.C. 343, 347, 437 S.E.2d 550, 552 (Ct.App.1993) (citing 57 C.J.S. Master and Servant, § 591, at 365 (1948)). We conclude that a hospital's duty to its emergency room patients to provide competent medical care has evolved into an absolute duty that is incapable of being delegated. Consideration of the effect of public policy in the medical care arena leads us to this conclusion.

Originally, most hospitals were eleemosynary or charitable organizations. Because of the public service function of hospitals, the South Carolina Supreme Court first noted in Lindler v. Columbia Hospital, 98 S.C. 25, 81 S.E. 512 (1914), "The true ground upon which to rest the exemption from liability is that it would be against public policy to hold a charitable institution [in this case a hospital] responsible for the negligence of its servants, selected with due care." Id. at 28, 81 S.E. at 513. Justice Fraser, however, dissented, arguing, "It is a principle of law as well as morals, that men must be just before they are generous. There is no higher or more just principle than that a trust fund shall remedy the evil itself has done, before it attempts to remedy the evils done by others." Id. at 35, 81 S.E. at 515.

As the function of hospitals changed, South Carolina joined other states in re-examining the prudence of permitting institutions to evade legal liability. See Martin C. McWilliams, Jr., Charitable Immunity Statutory Remnants in South Carolina,

330 S.C. 119
S.C. Lawyer, Sept.-Oct.1996, at 28. In the seminal case of Brown v. Anderson County Hospital Association, 268 S.C. 479, 234 S.E.2d 873 (1977), a widow and nine children brought suit for the death of their husband and father. Tragically, the deceased could not escape a fire in his hospital room because he was strapped to his bed. Id. at 482, 234 S.E.2d at 874. The Brown court defined the issue as "whether the defendant, a corporation not for profit, which has as its purpose the maintenance and operation of a hospital, and whose funds are derived from private donations, public agencies and paying patients, is immune from liability for injuries caused by the negligence and recklessness of one or more of its employees or servants." Id. The majority relied on Justice Fraser's dissent in Lindler to modify the impact of the charitable immunity doctrine on hospitals. Id. at 485, 234 S.E.2d at 875. The new rule held hospitals liable provided the plaintiff could prove "the injuries occurred because of the hospital's heedlessness and reckless disregard of the plaintiffs rights." Id. at 487, 234 S.E.2d at 876

The holding in Brown remained in effect until 1981, when the supreme court rendered its decision in Fitzer v. YMCA, 277 S.C. 1, 282 S.E.2d 230 (1981). Justice Ness, whose dissent in Brown argued for total abolition of charitable immunity, 268 S.C. at 488, 234 S.E.2d at 877, succinctly stated for the majority, "The doctrine of charitable immunity has no place in today's society." Fitzer, 277 S.C. at 4, 282 S.E.2d at 231. The philosophical underpinnings of Justice Ness's...

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  • Larson v. Wasemiller, A05-1698.
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    • Supreme Court of Minnesota (US)
    • August 16, 2007
    ...Johnson, 476 S.W.2d 475, 484-85 (Mo.1972); Benedict v. St. Luke's Hosps., 365 N.W.2d 499, 504 (N.D.1985); Simmons v. Toumey Reg. Med. Cr., 330 S.C. 115, 498 S.E.2d 408, 410 (1998). The terms "negligent credentialing" and "corporate negligence" are both used to describe the tort in question ......
  • Simmons v. Tuomey Regional Medical Center, 25143.
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    • June 5, 2000 both cases. The Court of Appeals reversed, addressing only the issue of the nondelegable duty. Simmons v. Tuomey Regional Medical Ctr., 330 S.C. 115, 498 S.E.2d 408 (Ct.App.1998); Cooper v. Tuomey Regional Medical Ctr., Op. No. 98-UP-077 (S.C. Ct.App. filed Feb. 17, 1998) (unpublished op......
  • Hudson v. Hudson, 3154.
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    ...after judgment; but failure so to amend does not affect the result of the trial of these issues."); Simmons v. Tuomey Reg'l Med. Ctr., 330 S.C. 115, 125 n. 2, 498 S.E.2d 408, 413 n. 2 (Ct.App.1998) (an issue not expressly mentioned in the complaint but tried without objection and incorporat......
  • St. Paul Fire and Marine Ins. v. Hanover Ins., 5:99CV164-BR-3.
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    ...of vicarious liability on the part of the delegating party regardless of any fault on its part. Simmons v. Tuomey Regional Medical Center, 330 S.C. 115, 123, 498 S.E.2d Page 593 412 (1998), cert. granted (Apr. 8, 1999).10 The North Carolina Supreme Court, however, from which this court must......
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1 books & journal articles
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    • September 22, 2008
    ...2001 WL 34779104 (N.J. Super. Ct. Law Div. Apr. 27, 2001). (161.) Id. at *26. (162.) Id. (163.) Simmons v. Tuomey Reg'l Med. Ctr., 498 S.E.2d 408, 409 (S.C. Ct. App. 1998). States might also want to follow California in requiring informed consent if teleradiology or another form of telemedi......

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