Statham v. Quang

• Docket Number: A23A1419
• Decision Date: 13 March 2024
• Citation: Statham v. Quang, 899 S.E.2d 275 (Ga. App. 2024)
• Parties: STATHAM v. QUANG et al.
• Court: Georgia Court of Appeals

899 S.E.2d 275

STATHAM

v.QUANG et al.

A23A1419

Court of Appeals of Georgia.

February 29, 2024

Reconsideration Denied March 13, 2024

W. Carl Reynolds, Bradley J. Survant, Macon, Michael Grier Horner, for Appellant.

Julye Matthews Johns, Atlanta, David Norton Nelson, Norman Carter Pearson III, Macon, for Appellee.

Markle, Judge.

After Jacqueline Statham was injured following a routine gynecological surgery, she filed suit against her surgeons, David S. Quang and Tan-Loc Nguyen, and their employer, Women’s Healthcare, Inc. of Middle Georgia, P. C.("Women’s Healthcare," collectively "defendants"), for medical negligence due to their failure to properly supervise a medical student who assisted in the procedure.The parties filed cross motions for partial summary judgment, regarding whether defendants were vicariously liable for the student’s alleged medical negligence.The trial court found that defendants were not vicariously liable as a matter of law for the acts or omissions of the medical student, but that questions of fact exist as to the negligence and supervision claim.Statham now appeals, arguing that the trial court erred by finding defendants were not vicariously liable.After a thorough review of the record, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.In reviewing a grant or denial of summary judgment, we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions.Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.In doing so, we bear in mind that the party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

(Citation omitted.)Adams v. Piedmont Henry Hosp.,365 Ga. App. 257, 258, 878 S.E.2d 113(2022).

So viewed, the record shows that, in August 2019, Drs. Quang and Nguyen performed a total laparoscopic hysterectomy on Statham, with the assistance of a medical student whom they were responsible for directing and supervising.The medical student attended Philadelphia College of Osteopathic Medicine, Inc., a/k/a PCOM of Georgia, ("PCOM").As part of a clinical training affiliation agreement ("the agreement"), PCOM contracted with the surgeons to provide the student with supervised medical training through the school’s clerkship program.According to the agreement, the medical student was not considered an employee or agent of the surgeons.The student did not receive compensation or employment benefits from the surgeons, and both the school and the surgeons were mutually vested with the right to terminate the student’s participation with the doctors.PCOM paid Drs. Quang and Nguyen to supervise the medical student.

Quang was the primary surgeon and Nguyen was his first assistant, and both were employees of Women’s Healthcare.During the procedure, the student’s role was to sit between Statham’s legs and place a sponge stick into Statham’s vagina to serve as a landmark for the surgeons while performing the procedure and use it to manipulate the area as the surgeons directed.The surgeons observed the student place the sponge stick into the vagina, and it appeared to be positioned correctly.At some point during the procedure, however, the student moved the sponge stick, resulting in a two centimeter thermal burn in Statham’s rectum.When the surgeons realized the damage, they attempted to repair it during the surgery, and they prescribed her antibiotics.Following the surgery, Statham complained of a vaginal odor and discharge.Because of the injury to her rectum, Statham developed a rectovaginal fistula,¹ causing feces to enter her vagina, which required additional surgeries to repair.

Statham sued the surgeons, Women’s Healthcare, and Houston Hospitals, Inc. d/b/a Houston Medical Center ("HMC"), alleging that they breached the standard of care by failing to adequately supervise the medical, student who assisted in the procedure.Statham attached an expert affidavit to her complaint, which opined that the surgeons failed to adequately supervise the medical student’s placement of the sponge stick; failed to recognize this error and assumed the stick was properly placed; and they breached the standard of care, resulting in Statham’s rectovaginal fistula.Statham also sued PCOM and HMC, but the trial court granted both summary judgment, and Statham does not appeal from these orders.

Statham moved for partial summary judgment against the defendants, asking the trial court to declare that the surgeons were vicariously liable for the medical student’s negligence because she was a borrowed servant under their direct supervision and control at the time of the surgery, and that, by granting summary judgment to PCOM, the trial court had established as a matter of law that PCOM had no control over the student.Defendants also moved for partial summary judgment, asserting there were no genuine issues of material fact to support that they were negligent in supervising the student, and they were not vicariously liable because the student was not an agent, employee, or borrowed servant.Following a hearing, the trial court granted in part and denied in part defendants’ motion, finding that defendants were not vicariously liable for any acts or omissions of the medical student, but that questions of fact remained as to whether the surgeons negligently supervised her.It also denied Statham’s motion.This appeal followed.²

In her sole enumeration of error, Statham contends the trial court erred by finding the surgeons were not vicariously liable for the medical student’s negligence as a matter of law because they could be liable under agency principles or the borrowed servant doctrine.Statham also contends that, because the trial court has already determined as a mater of law that PCOM had no control over the student during the surgery, the surgeons are vicariously liable for the student’s negligence.We conclude the trial court properly determined the surgeons were not vicariously liable as a matter of law, and thus we affirm.

[1–4] Before reaching the merits of Statham’s argument, we first set forth the relevant law.Under vicarious liability, "[e]very person shall be liable for torts committed by … his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily."OCGA § 51-2-2;see alsoProdigies Child Care Mgmt. v. Cotton, 317 Ga. 371, 376-377 (2)(a), 893 S.E.2d 640(2023).With regard to agency principles, OCGA § 10-6-1 provides: "[t]he relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf."OCGA § 10-6-51 further provides that "[t]he principal shall be bound by all the acts of his agent within the scope of his authority[.]"Additionally,

A doctor may be found liable under the theory of respondeat superior for the negligent acts of his employees.The traditional definition of ‘employee’ has for at least a century contained within its purview borrowed servants.Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him.Accordingly, the borrowed servant doctrine is applied in the context of the tort doctrine of respondeat superior.It is a means of transferring the vicarious liability for an employee’s negligence from a lending employer to a borrowing employer.The requirements for the borrowed servant doctrine to apply are well settled in this state.In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for. the occasion; (2) the general master had no such, control, and (3) the special master had the exclusive right to discharge the servant.The three prongs of this test focus on the occasion when the injury occurred rather than the work relationship in general.

(Citations and punctuation omitted.)Hendley v. Evans,319 Ga. App. 310, 312-313 (2)(a)(i), 734 S.E.2d 548(2012);see alsoHoffman v.Wells, 260 Ga. 588, 590 (2), 397 S.E.2d 696(1990)(explaining borrowed servant doctrine’s effect on transfer of vicarious liability from lending employer to borrowing employer);Ross v. Chatham County Hosp. Auth., 258 Ga. 234, 235 (1), 367 S.E.2d 793(1988)(same).

[5] In the medical context involving the negligent acts of hospital employees during surgery, the three prong test, requires the hospital to show that it

(1) yielded control of its employees who are assisting in a surgical procedure; … (2) the employees whose negligence the hospital seeks to impute to the surgeon are under the "immediate supervision" of the surgeon; … and (3)[the] tasks [involved] professional skill and judgment.

Ross,258 Ga. at 235 (1), 367 S.E.2d 793;see alsoHendley,319 Ga. App. at 315 (2)(a)(ii), 734 S.E.2d 548.³With these principles in mind, we turn to the specifics of Statham’s arguments, finding them to be without merit.

(a)Agency principles do not apply.

Statham contends the medical student was an agent of the defendants during the medical procedure, and thus they are vicariously liable for her negligence because they had immediate supervision and control over her.Statham, however, cannot impose vicarious liability on the surgeons for the medical student’s negligence because there is no agency or employment relationship between the parties.

[6–10]Georgia law is clear that when considering the relationship between parties, a written contract controls the terms and scope of that...