Stewart v. Midani, Civ. A. No. C80-161R

• Decision Date: 05 November 1981
• Docket Number: C80-162R.,Civ. A. No. C80-161R
• Citation: 525 F. Supp. 843
• Parties: Charlotte STEWART, Plaintiff, v. Mohammed MIDANI, Richard E. Schmidt and Bartow County Hospital Authority, d/b/a Sam Howell Memorial Hospital, Defendants. Charlotte STEWART, Executrix of the Estate of Ronald A. Stewart, Deceased, Plaintiff, v. Mohammed MIDANI, Richard E. Schmidt and Bartow County Hospital Authority, d/b/a Sam Howell Memorial Hospital, Defendants.
• Court: U.S. District Court — Northern District of Georgia

525 F. Supp. 843

Charlotte STEWART, Plaintiff, v. Mohammed MIDANI, Richard E. Schmidt and Bartow County Hospital Authority, d/b/a Sam Howell Memorial Hospital, Defendants.

Charlotte STEWART, Executrix of the Estate of Ronald A. Stewart, Deceased, Plaintiff, v. Mohammed MIDANI, Richard E. Schmidt and Bartow County Hospital Authority, d/b/a Sam Howell Memorial Hospital, Defendants.

Civ. A. Nos. C80-161R, C80-162R.

United States District Court, N. D. Georgia, Rome Division.

November 5, 1981.

Henry Angel, C. Wade McGuffey, Jr., Savell, Williams, Cox & Angel, Atlanta, Ga., for plaintiff.

George W. Hart, Phillips, Hart & Mozley, Robert G. Tanner, Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., Oscar M. Smith, C. Wade Monk, Smith, Shaw, Maddox, Davidson & Graham, Rome, Ga., for defendants.

ORDER

HAROLD L. MURPHY, District Judge.

Ronald A. Stewart died at his home in Ohio on August 15, 1978. These two actions, the first for wrongful death and the second for pain and suffering, medical and funeral expenses, were instituted by the decedent's wife and executrix of his estate against two doctors and a hospital.

Two days prior to his death, the decedent entered the emergency room at the Sam Howell Memorial Hospital complaining of chest pains, shortness of breath, teeth hurting and other ailments. The decedent was examined by Dr. Mohammed Midani who was on duty in the emergency room. The complaint alleges that Dr. Midani misdiagnosed the decedent's ailment, and failed to order certain tests which would have revealed the actual cause of the symptoms. Dr. Midani is a member of a group of physicians who provide emergency room service to the Sam Howell Memorial Hospital. Dr. Richard E. Schmidt was in charge of this group of physicians.

Before the Court are the motions for summary judgment filed by the hospital and Dr. Richard E. Schmidt. Because there are genuine issues of fact concerning the relationship between the two defendants and Dr. Midani, the question of whether these two defendants may be held vicariously liable for the acts of Dr. Midani must be presented to a jury. The motions for summary judgment are, accordingly, denied.

In 1975, Dr. Schmidt, along with two other doctors, signed a contract with the hospital to provide emergency room services. The contract is ostensibly between the hospital and the "group" of doctors; however, the group has no legal status: each doctor signed the contract individually. Nobody signed on behalf of the group.

At the time of the incident in August 1978, one of the doctors had left, and Dr. Schmidt recruited Dr. Midani to provide full-time (8 hours per day) service to the emergency room. The contract was never amended. Dr. Midani was never a signatory.

The contract provided that the doctors would charge emergency room patients a standard fee. The hospital would collect all bills and remit to the group¹ 80% of these collections. The contract provided that the group would receive a minimum of $16,666.66 per month. Originally, the three signatories divided the money sent by the hospital according to the hours they worked. Any extra money² was divided among the three doctors equally.

Dr. Midani was paid strictly by the hour: he apparently did not divide any "overage or excess." In the event that the hospital had to pay the group a sum to meet the $16,666.66 minimum, it is not apparent in the record whether Dr. Midani would share in a division of that sum. The record does not disclose the hourly wage paid to Dr. Midani; however, it was somewhat less than what the other doctors in the group paid themselves on an hourly basis. Schmidt depo. at 23.

Dr. Midani paid his own taxes (Dr. Schmidt did not withhold any federal taxes). Dr. Midani paid for his own medical malpractice insurance (which Dr. Schmidt and the contract required him to have). When asked at his deposition about who set the hours of work for the group members, Dr. Schmidt replied, "I did essentially with the advice and the consent though of the other members." Schmidt depo. at 27. Dr. Midani stated that the hours he worked were "arranged between me and Dr. Schmidt, like whenever he needs me to work for him and he will call me up and I will see if my schedule will agree ..." Midani depo. at 14. See also, id. at 24.

Dr. Schmidt characterized himself as the "head" of the group. Schmidt depo. at 10, 14. "I took over the management of the emergency room in 1975." id. at 17; "I make the decisions for the group. You know, of course with interaction and opinions from the other members in the group." id. at 15.

Dr. Midani stated that "Dr. Schmidt asked me if I was willing to do part-time work for him at the emergency room.... We agreed that I would work for him, part-time basis." Midani depo. at 13.³

The contract between the hospital and the group explicitly characterizes the group as an independent contractor. The "group" is defined as Dr. Schmidt, Dr. Burnett and Dr. May. The contract also provides that the stockholders, directors, employees and servants of the group are not the employees or servants of the hospital.

I

DISCUSSION

Although the plaintiff alleged in her complaint that Dr. Schmidt negligently supervised Dr. Midani, and was negligent in hiring Dr. Midani, it is apparent that these theories of liability have been abandoned. The plaintiff's primary thesis is that Dr. Schmidt should be held vicariously liable under the doctrine of respondeat superior.

In reviewing Georgia appellate decisions, the Court has found a legion of cases which focus on the doctor-hospital relationship. Yet, the Court has not located a case which examined the relationship between an emergency room "group" and one of its members. Nevertheless, the doctor-hospital cases are instructive.

The specific issue presented in this case — whether an individual is an employee or an independent contractor — defies facile explication. The Georgia Courts have struggled with a variety of factual situations, and although a general rule has been synthesized, its application has proven most troublesome. For a thorough review of the caselaw on this subject, the parties are invited to review this Court's order in Harris v. City of Chattanooga, 507 F.Supp. 365 (N.D.Ga.1980).

The general test is whether "the employer assumes the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Blair v. Smith, 201 Ga. 747, 748, 41 S.E.2d 33 (1947); Forte v. Lewis, 241 Ga. 109, 110, 243 S.E.2d 38 (1978). Elaborating on this rule in Employer's Mutual Liability Ins. Co. of Wausau v. Johnson, 104 Ga.App. 617, 620, 122 S.E.2d 308 (1961), the court stated,

The right to control the time of doing the job means the right to control the hours of work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he should use and procedures he shall follow.

In evaluating the relationship between a hospital and a doctor, the Georgia courts initially displayed no reluctance to apply the general rule. The decision in Pogue v. Hospital Authority of Dekalb Co., 120 Ga. App. 230, 170 S.E.2d 53 (1969) illustrates the extent to which the Georgia courts adhered to the basic doctrine. There, the plaintiff was suing the hospital for the alleged negligence of an emergency room physician, who, like here, was a member of an Emergency Room group which had a contract to provide services to the hospital. The court held,

The contract specified in detail the duties assumed by the partnership and which patients would be treated by members of the partnership. However, this was merely the identification of the work to be performed, and did not amount to a reservation of control over the manner in which services were to be performed.

. . . . .

A hospital is not liable for the negligence of a physician employed by it where the negligence relates to a matter of professional judgment on the part of the physician when the hospital does not exercise and has no right to exercise control in the diagnosis or treatment of illness or injury.

. . . . .

The contract did not give the hospital the right to direct specific medical techniques employed in rendering the services, and thus did not change the partnership's status from that of an independent contractor.

Id. at 230-31, 170 S.E.2d 53. Similar language can be found in decisions of earlier vintage. Black v. Fischer, 30 Ga.App. 109, 117 S.E. 103 (1923); Clary v. Hospital Authority of Marietta, 106 Ga.App. 134, 126 S.E.2d 470 (1962). Cf. Jeter v. Davis-Fischer Sanitarium Co., 28 Ga.App. 708, 711, 113 S.E. 29 (1922) (no explicit discussion of respondeat superior liability); Emory University v. Porter, 103 Ga.App. 752, 120 S.E.2d 668 (1961) (no allegation of vicarious liability); Mull v. Emory University, Inc., 114 Ga.App. 63, 64, 150 S.E.2d 276 (1966) (distinguishing between the doctor's exercise of medical judgment and his performance of a ministerial function).

During the last eight years, the Georgia Court of Appeals has addressed the issue in five significant cases: Newton County Hospital v. Nickolson, 132 Ga.App. 164, 207 S.E.2d 659 (1974); Hill v. Hospital Authority, 137 Ga.App. 633, 224 S.E.2d 739 (1976); Hodges v. Doctors Hospital, 141 Ga.App. 649, 234 S.E.2d 116 (1977); Overstreet v. Doctors Hospital, 142 Ga.App. 895, 237 S.E.2d 213 (1977); and Hollingsworth v. Georgia Osteopathic Hospital, Inc., 145 Ga. App. 870, 245 S.E.2d 60 (1978). Each of these cases deserves careful consideration.

In Newton County Hospital v. Nickolson, supra, the court substantially limited the breadth of the Pogue decision. Nickolson alleged that a physician in the emergency room was negligent in both the diagnosis and treatment of him. The hospital moved for summary judgment on the grounds that the doctor was an independent contractor. The court reviewed...