SMITH EX REL. SELMON v. Braden
| Decision Date | 24 August 2000 |
| Docket Number | No. 98-CA-00235., No. 97-CA-01290-SCT |
| Citation | 765 So.2d 546 |
| Parties | Sharon Selmon SMITH, Natural Mother of Brian Lamont SELMON, Deceased, and Natural Mother and Guardian of Brandon Lamar Scurlark and Brittney Lashaun Smith, Minors and Natural Siblings of Brian Lamont Selmon, Deceased, and Steve Selmon, Natural Father of Brian Lamont Selmon, Deceased, All Wrongful Death Beneficiaries of Brian Lamont Selmon, Deceased v. David Steven BRADEN, M.D. |
| Court | Mississippi Supreme Court |
L. Christopher Breard, Gulfport, Attorney for Appellants.
Stuart G. Kruger, C. York Craig, Jr., Jackson, Attorneys for Appellee.
EN BANC.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. This appeal comes to this Court from the Circuit Court of Hinds County, Mississippi, First Judicial District, where summary judgment was granted in favor of Dr. David S. Braden upon a finding that Dr. Braden is an employee of the University of Mississippi Medical Center and that the plaintiffs failed to file their action within the one-year statute of limitations provided by Miss.Code Ann. § 11-46-11 (Supp.1999). We find that at present there is a genuine material issue of fact. Therefore, this case is remanded for additional discovery and application by the trial judge of the five-part test recently adopted by this Court in Miller v. Meeks, 762 So.2d 302 (Miss.2000), in determining whether Dr. Braden is an employee or an independent contractor.
STATEMENT OF FACTS
¶ 2. Brian Lamont Selmon, age two, died July 13, 1994, subsequent to a cardiac catheterization performed by Dr. David S. Braden at the University of Mississippi Medical Center. Dr. Braden is an Assistant Professor of Pediatrics at the University. Brian's parents, Sharon Selmon Smith and Steve Selmon, brought a negligence suit for damages individually and on behalf of Brian's siblings, against Dr. Braden, University Hospital and Cindy Wilson, R.N. The action was filed in the Circuit Court of Hinds County, Mississippi, First Judicial District, on July 12, 1996.
¶ 3. The University and Cindy Wilson were subsequently dismissed from the action pursuant to the trial court's finding that the plaintiffs failed to meet the one-year statute of limitations set forth in Miss.Code Ann. § 11-46-11(3) (Supp.1999). Dr. Braden filed a Motion to Dismiss pursuant to the same rationale, asserting that he is an employee of the University. In his order of March 19, 1997, the trial judge stated that he would take Dr. Braden's motion to dismiss under advisement pending limited discovery on the issue of Dr. Braden's employment status. The trial judge stated that, in addition to outstanding discovery, the plaintiffs would be permitted to propound ten interrogatories to Dr. Braden, ten interrogatories to the University, five requests for production of documents to the University, and five requests for production of documents to Dr. Braden. The plaintiffs were not allowed to take any depositions. The court stated that after such discovery was completed and plaintiffs had presented evidence regarding Dr. Braden's employment status to the court, the court would then determine whether additional discovery should be allowed, including whether the plaintiffs would be allowed to depose Dr. Braden.
¶ 4. The plaintiffs propounded three sets of interrogatories to Dr. Braden, five sets of requests for production of documents to the University, and four sets of requests for production of documents to Dr. Braden. The plaintiffs also served upon Medical Assurance Company of Mississippi, Dr. Braden's malpractice carrier, a subpoena duces tecum requesting, among other things, all documents relating to Dr. Braden, including Dr. Braden's application for membership, application for insurance, employment status, bills for coverage and notice of any negligence claims. In response to the subpoena, Medical Assurance filed a motion to quash and for a protective order, stating that the trial court should first rule upon Dr. Braden's Motion to Dismiss before considering the appropriateness of the subpoena duces tecum. Dr. Braden filed a motion joining the motion to quash filed by Medical Assurance, claiming attorney-client privilege and the work product doctrine. The plaintiffs filed a response to the motions to quash. These subpoenas were never answered, and the trial court never ruled on the motions.
¶ 5. The plaintiffs requested at the time of the hearing before the trial court on Dr. Braden's motion to dismiss that they be allowed to pursue production of the subpoenaed documents and to take the depositions of Dr. Braden and other individuals at the University and at Medical Assurance. The request for further discovery was denied. The court treated Dr. Braden's Motion to Dismiss as a Motion for Summary Judgment according to M.R.C.P. 12(b). The court granted summary judgment in favor of Dr. Braden on August 26, 1997. The court found that Dr. Braden is an employee of the University, within the meaning of Miss.Code Ann. § 11-46-1(f), and that the plaintiffs' action is time-barred because it was filed outside the one-year statute of limitations found in Miss.Code Ann. § 11-46-11. The Plaintiffs filed a Motion to Reconsider Dismissal and a Rule 60 Motion for Relief from Judgment or Order and to Reconsider Dismissal. Both motions were denied. Aggrieved, plaintiffs timely filed their Notice of Appeal on September 24, 1997, raising the following issues:
STANDARD OF REVIEW
¶ 6. This Court reviews de novo a grant of summary judgment. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). A motion for summary judgment is granted only when the trial court finds that the plaintiff would be unable to prove any facts to support his claim. Delahoussaye v. Mary Mahoney's, Inc., 696 So.2d 689, 690 (Miss.1997). On appeal, the trial court's decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999) (citing Box v. State Farm Mut. Auto. Ins. Co., 692 So.2d 54, 56 (Miss.1997)).
DISCUSSION OF LAW
IN FAVOR OF DR. BRADEN AND IN PERMITTING ONLY LIMITED DISCOVERY ON THE ISSUE OF DR. BRADEN'S EMPLOYMENT STATUS.
¶ 7. If Dr. Braden is an employee of the University, he is entitled to the protections of the Tort Claims Act, Miss. Code Ann. §§ 11-46-1 et seq. (Supp. 1999). Because this action was filed outside the one-year statute of limitations provided in § 11-46-11(3), a finding that Dr. Braden is an employee of the University would result in the plaintiffs' action being time-barred under the Act. The plaintiffs argue that the trial court erred in finding that Dr. Braden is an employee of the University. The plaintiffs do not dispute that Dr. Braden is an employee of the University in his role as Assistant Professor of Pediatrics, but they argue, that Dr. Braden is not an employee of the University in his practice of medicine. They submit that there exists an issue of material fact as to whether Dr. Braden is strictly an employee, and that, at the very least, they should be allowed to conduct further discovery on the issue.
¶ 8. Facts pertinent to the employment relationship between Dr. Braden and the University are as follows. Dr. Braden's position at the University is Assistant Professor of Pediatrics. On September 16, 1993, the Board of Trustees of State Institutions of Higher Learning approved Dr. Braden's change in status from Assistant Professor of Pediatrics, School of Medicine, to Assistant Professor of Pediatrics, School of Medicine and Attending Physician, University Hospital. Dr. Braden's salary remained the same despite the change in status. Dr. Braden was informed of this change by interdepartmental memorandum dated September 17, 1993. However, the change in status was not delineated in Dr. Braden's next employment contract, effective July 1, 1994, which states simply that he is Assistant Professor of Pediatrics.
¶ 9. The contract between the University and Dr. Braden is entitled "Employment Contract," and it refers to Dr. Braden as an "employee" numerous times. Under the contract in force at the time of the alleged negligence, Dr. Braden was to receive an annual salary of $52,770.00.1 However, the contract also provides that Dr. Braden, in addition to his annual contracted salary, will be permitted to earn additional income from medical practice. Dr. Braden is permitted to retain 100% of the earnings from his practice up to a total income of $140,000. Income in excess of $140,000 is divided fifty/fifty between Dr. Braden and the University. Dr. Braden is responsible for all billing and collection of income from the patients he treats. The University bills separately for hospital services. Both the University and Dr. Braden have the right to terminate the employment relationship at will. Dr. Braden receives State employee health insurance. He is eligible for State employee retirement benefits. His malpractice insurance is discounted based on his employment at the University.
¶ 10. Dr. Braden states in his affidavit that his practice at the University differs from the practice of private physicians in that private physicians have admitting privileges at various hospitals and are not employees of those hospitals. Dr. Braden states that he teaches students and treats patients as part of his employment at the University and that patient care is a vehicle for teaching at the University. He states that he does not have a private practice independent of the University. Dr. Braden states that he is prohibited from...
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