Ware v. Timmons, No. 1030488 (Ala. 9/22/2006)

• Decision Date: 22 September 2006
• Docket Number: No. 1030488.,1030488.
• Parties: William P. Ware, D.O., et al. v. Johnnie Timmons, as administratrix of the estate of Brandi Timmons, deceased.
• Court: Alabama Supreme Court

Page 1

William P. Ware, D.O., et al. v. Johnnie Timmons, as administratrix of the estate of Brandi Timmons, deceased.

No. 1030488.

Supreme Court of Alabama.

May 5, 2006.

Decided September 22, 2006.

Appeal from Montgomery Circuit Court (CV-99-2769).

SEE, Justice.¹

William P. Ware, D.O., an anesthesiologist; Lil Hayes, a certified registered nurse anesthetist ("CRNA"); and Anesthesiology & Pain Medicine of Montgomery, P.C., appeal the trial court's judgment entered on a jury verdict in favor of Johnnie Timmons, as the administratrix of the estate of her daughter, Brandi Timmons, deceased. We reverse and remand.

I.

On December 23, 1998, 17-year-old Brandi Timmons underwent elective surgery to correct an overbite. Approximately 15 minutes after that surgery was completed, CRNA Lil Hayes ("Nurse Hayes") decided to remove the breathing tube that was used to counteract the effects of anesthetization. An anesthesiologist was summoned over the hospital speaker system to monitor the removal of the tube, and Dr. Ware arrived to watch Nurse Hayes remove Brandi's breathing tube. Brandi was then disconnected from the equipment that monitored her vital signs and was moved to the postanesthesia care unit ("PACU").

Minutes after she was reconnected to monitoring equipment in the PACU, Brandi went into cardiac arrest. Tests later revealed that Brandi's brain had suffered irreversible damage caused by events that occurred during her recovery from anesthesia. Brandi later died as a result of the brain damage.

Johnnie Timmons, on behalf of her daughter's estate, sued Nurse Hayes; Dr. Ware; and Anesthesiology & Pain Medicine of Montgomery, P.C., Nurse Hayes and Dr. Ware's employer at the time of Brandi's surgery, alleging medical malpractice and wrongful death.² Timmons alleged that the treatment Nurse Hayes provided to Brandi during her postoperative recovery fell below the applicable standard of care. Invoking the doctrine of respondeat superior, Timmons alleged that both Dr. Ware, as Nurse Hayes's supervising anesthesiologist, and Anesthesiology & Pain Medicine of Montgomery, P.C., as Nurse Hayes's employer, were vicariously liable for Nurse Hayes's conduct.

At trial, the defense objected to Timmons's claim that Dr. Ware could be held vicariously liable for Nurse Hayes's conduct, arguing that Nurse Hayes was an employee of Anesthesiology & Pain Medicine of Montgomery, P.C., not of Dr. Ware individually. The trial court overruled the objection and gave the jury the following instruction:

"I charge you — as it relates to agency and vicarious liability, I charge you the issue of agency in this case is not in dispute. Both the physician [Dr. Ware] and the CRNA [Nurse Hayes] were at all times working within the line and scope of their employment with Anesthesiology & Pain Medicine of Montgomery, P.C.

"Therefore, I charge you if you should return a verdict in favor of the plaintiff and against either Dr. Ware or Nurse Hayes, that necessarily requires that you also return a verdict in favor of the plaintiff against Anesthesiology & Pain Medicine of Montgomery, P.C., as well.

"The Court charges you further that the responsibility of Dr. Ware for the acts and omissions of Nurse Hayes is likewise not in dispute. Therefore, should you return a verdict in favor of the plaintiff and against [Nurse] Hayes, you must necessarily also return a verdict against Dr. Ware as well."

The jury returned a verdict against Nurse Hayes, Dr. Ware, and Anesthesiology & Pain Medicine of Montgomery, P.C. The trial court, entering a judgment on the jury's verdict, awarded Timmons $13.7 million in damages.³ Dr. Ware, Nurse Hayes, and Anesthesiology & Pain Medicine of Montgomery, P.C., appeal.

II.

The trial court instructed the jury that based on the doctrine of respondeat superior Dr. Ware is liable as a matter of law for Nurse Hayes's tortious acts. Under that doctrine, a "master shall be civilly liable for the tortious acts of his servant." Philadelphia & Reading R.R. v. Derby, 55 U.S. (14 How.) 468, 486 (1852). The dispositive issue on this appeal is whether, as Dr. Ware argues, the trial court erred in instructing the jury as to his vicarious liability for the acts of Nurse Hayes.⁴

Dr. Ware asserts that Timmons conceded at trial that Dr. Ware and Nurse Hayes were co-employees; therefore, Dr. Ware argues, he could not be held vicariously liable for Nurse Hayes's conduct under the doctrine of respondeat superior. Timmons argues, however, that she introduced uncontroverted evidence showing that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts and omissions, which, she argues, entitled the trial court to charge the jury that Dr. Ware was vicariously liable for Nurse Hayes's conduct. Thus, we must first resolve the dispute between the parties concerning the appropriate standard for determining the applicability of the doctrine of respondeat superior to the relationship between Dr. Ware and Nurse Hayes.

A trial court's "ruling on a question of law carries no presumption of correctness." Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997). Accordingly, this Court reviews de novo the trial court's conclusion as to the appropriate standard for determining whether a master-servant relationship exists. 702 So. 2d at 1221.

III.

"To recover against a defendant under the theory of respondeat superior, it is necessary for the plaintiff to establish the status of employer and employee —- master and servant." Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547, 550 (Ala. 1990). We have previously stated that "[p]roof of a master and servant relationship is tested by the degree of control the alleged master retains over the alleged servant." Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala. 1992). Thus, Timmons argues that Dr. Ware, as the supervising anesthesiologist, had a reserved right of control over Nurse Hayes's acts and omissions and is consequently liable under the doctrine of respondeat superior. The right-of-control test is pertinent to whether there is a master-servant relationship, but it is dispositive only when the question is the limited one of whether an alleged servant is in fact a servant or, instead, an independent contractor:

"The test for determining whether a person is an agent or employee of another, rather than an independent contractor with that other person, is whether that other person has reserved the right of control over the means and method by which the person's work will be performed ...."

Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala. 1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-control test is used "'to determine whether in doubtful cases the relation between a workman and those for whom he was rendering service was that of an employee or of an independent contractor'" (quoting Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 167, 149 So. 74, 78 (1933))).

The right-of-control test does not resolve the question whether a servant who is in fact a servant, and not an independent contractor, is the servant of one master or of another. In Ex parte Stewart, 518 So. 2d 118 (Ala. 1987), this Court addressed whether a rental agent could be classified as the employer of the resident manager of an apartment complex for the purpose of the manager's recovering workers' compensation benefits.⁵ We noted:

"Had the instant case presented the question of whether Stewart was an `employee' as opposed to an `independent contrctor,' the [right-of-control] test of American Tennis Courts [, Inc. v. Hinton, 378 So. 2d 235 (Ala. Civ. App. 1979),] would have resolved the issue. However, no one contends in this case that Stewart was an `independent contractor.' Indeed, it appears to be uncontested that Stewart was someone's `employee' within the meaning of the worker's compensation law. The question is: whom did she serve as an employee, Carter Realty or the owners of the apartments? As a legal and logical matter, the `control' test of American Tennis Courts often cannot provide a meaningful answer to such a question."

518 So. 2d at 119-20.

Dr. Ware does not assert that Nurse Hayes was an independent contractor, nor does he otherwise challenge Nurse Hayes's classification as a servant under the doctrine of respondeat superior. Instead, Dr. Ware questions the trial court's jury instruction that he was Nurse Hayes's master. He argues that he cannot be vicariously liable for the acts or omissions of Nurse Hayes because she was an employee of Anesthesiology & Pain Medicine of Montgomery, P.C., not of Dr. Ware individually. Dr. Ware's framing of the issue is supported by the first part of the trial court's instruction to the jury:

"I charge you — as it relates to agency and vicarious liability, I charge you the issue of agency in this case is not in dispute. Both the physician [Dr. Ware] and the CRNA [Nurse Hayes] were at all times working within the line and scope of their employment with Anesthesiology & Pain Medicine of Montgomery, P.C."⁶ Timmons proposed that the trial court use this language in instructing the jury, and Dr. Ware has conceded that this part of the trial court's instruction is correct. Thus, Dr. Ware and Timmons agreed that Anesthesiology & Pain Medicine of Montgomery, P.C., was, as a matter of law, acting as the master of both Nurse Hayes and Dr. Ware.⁷ By doing so,

PAGE CONTAINED FOOTNOTES

Timmons and Dr. Ware stipulated that Anesthesiology & Pain Medicine of Montgomery, P.C., possessed the right to control not only Nurse Hayes's actions at the time of Brandi's operation, but also Dr. Ware's actions. In light of these concessions, the propriety of the trial court's instruction concerning Dr. Ware's liability hinges upon whether Dr. Ware — as an individual whose right to control a servant stems from his own status as a servant to the same employer — satisfies the...