Watts v. Tsang

Decision Date17 October 2002
Docket NumberNo. 1998-CA-01316-SCT.,1998-CA-01316-SCT.
Citation828 So.2d 785
PartiesBill WATTS and Bobbie Watts v. Brian TSANG, M.D.
CourtMississippi Supreme Court

Robert L. Wells, Jackson, attorney for appellants.

C. Alleen McLain, George Q. Evans, Robert G. Jenkins, Jackson, attorneys for appellee.

EN BANC.

COBB, J., for the Court.

¶ 1. In May 1995, Bill Watts underwent a surgical procedure at the University of Mississippi Medical Center (UMMC) that rendered him a paraplegic. Watts and his wife Bonnie filed a complaint alleging negligence against Dr. Brian Tsang and others, in the Hinds County Circuit Court, First Judicial District. In the complaint, Watts alleged that Dr. Tsang was an employee of UMMC and was acting on its behalf. The circuit court later allowed Watts to amend his complaint, to no longer claim that Dr. Tsang was an employee of UMMC, but instead, to claim that he was an employee of University Anesthesia Services, PLLC, (UAS), and acting for his own personal pecuniary interest.

¶ 2. After approximately two years of discovery and other pre-trial proceedings, Dr. Tsang filed a motion for summary judgment claiming immunity under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (2002). In August 1998, the circuit court granted summary judgment in favor of Dr. Tsang and certified that judgment as final under M.R.C.P. 54(b), and aggrieved, Watts appealed.

¶ 3. Subsequent to the parties' filing their briefs on appeal, this Court decided Miller v. Meeks, 762 So.2d 302 (Miss.2000). Both Watts and Dr. Tsang supplemented their briefs, pursuant to M.R.A.P. 28(j). Although both continued to rely on authority previously set out in their briefs, they also took the opportunity to apply the new test articulated in Miller to the facts of this case. After doing so, both parties concluded that their side should still win. Watts further took this opportunity to add an additional argument, in the alternative, that, due to our decision in Miller, this case must be reversed and remanded to the circuit court because there existed a genuine issue of material fact making summary judgment improper.

¶ 4. Watts's assignments of error, edited for brevity, are:

I. WAS DR. TSANG IMMUNE UNDER THE MTCA?

II. DID THE INSURANCE POLICY WAIVE IMMUNITY TO THE EXTENT OF COVERAGE?

III. APPLYING THE MILLER TEST, WAS THERE AN ISSUE OF MATERIAL FACT?

¶ 5. Concluding that UAS is an instrumentality of the State and that Dr. Tsang was at all times acting as a state employee, we affirm the circuit court's grant of summary judgment.

FACTS

¶ 6. Bill Watts visited the UMMC emergency room suffering from severe back pain and other maladies. He was later admitted to the hospital for further medical treatment. Watts's primary physician contacted Dr. Tsang, director of UMMC's Pain Clinic, because he was unable to arrest Watts's acute pain. In order to relieve the suffering a "selective nerve root block" procedure was attempted. Dr. Brian Tsang supervised Dr. Stephen Long, who actually performed the procedure. They had attempted to perform the procedure on May 18, but even under high doses of narcotics, Watts was in such severe pain he could not hold still long enough for them to do so. They tried again the next day. Due to the level of pain Watts was experiencing, Dr. Tsang decided it would be best to put a local anesthetic around the affected nerve in Watts's spine and to have Dr. Long perform the procedure while Watts was under general anesthesia. The procedure did not go as planned, and Watts was left a paraplegic.

¶ 7. Dr. Long was a fellow in training in the pain management program at UMMC. He had completed his residency in anesthesiology and was training for an additional year as a fellow in pain management. Prior to performing the procedure, Dr. Tsang discussed the nerve block with Dr. Long, both from a book and through a skeletal model in the anesthesia library. During the procedure, Dr. Tsang was there to teach, observe and be sure the procedure was followed correctly. There is no indication in the record that Dr. Long is still a party defendant, but neither is there anything to indicate he has been dismissed. (As will be discussed further in Issue III, resident physicians have been held, as a matter of law, immune under the MTCA.)

¶ 8. Dr. Tsang was employed as an assistant professor of anesthesiology in the School of Medicine at UMMC. He had completed his education at Yale University, then a pain fellowship at Stanford University. After that he became part of the pain clinic at the University of California at Davis. He was certified in pain management by the American Board of Anesthesiologists. In 1995, Dr. Tsang was recruited from the West Coast to become the director of the Pain Clinic at UMMC.

¶ 9. Under oath, Dr. Tsang avers that at no time during his employment with the Board of Trustees of State Institutions of Higher Learning (the Board of Trustees) has he performed any private practice outside of UMMC. His duties as a professor include instruction of medical students, residents, and fellows; treatment of patients at UMMC and affiliated sites; and other duties as assigned by his superiors. He claims that all treatment he provided to Watts was done at UMMC, and that at all times he was in the course and scope of his employment with the Board of Trustees. Further, Donald Seagrove, the Director of Human Resources for UMMC, testified under oath that all treatment provided by Dr. Tsang to Watts was within the course and scope of Dr. Tsang's duties as a UMMC professor.

¶ 10. Medicare was billed for the treatment received by Watts. A portion of that money was paid to University Anesthesia Services (UAS), a UMMC medical practice group. UAS bills and collects for services performed by students, residents, interns and fellows who are supervised by the anesthesiology faculty at UMMC while performing procedures at UMMC. All of UAS's revenues are generated through treating patients at UMMC. All faculty members of the Department of Anesthesia must belong to UAS, and the income generated by UAS, inter alia, supplements the base salaries of these faculty members. However, the money generated in this fashion is not paid directly from UAS to the faculty member. Instead, UAS uses an elaborate point system whereby the department's faculty-physicians receive points for performing tasks such as teaching, making presentations, and conducting research. Dr. John Eichhorn, Chairman of the Department of Anesthesia at UMMC, at his deposition, explained how this point system works:

There are two fundamental parts. The first part is a monthly base, if you like, or just—it's a monthly compensation paid on the 15th that was discussed before his arrival, and then the second part which is more—certainly more complex—I was going to say interesting—is what we call quarterly distribution based on a rather complex point system which includes a small element as far as clinical service is concerned, but especially in the case of Dr. Tsang. He gets a significant number of points in that system for, for example, submitting an abstract to a national meeting, or he gets even more points for submitting a journal article to a scientific journal. He gets points for a grant application which is relevant since he just got a research grant. And it's through these acknowledgments of academic activity, such as publications, abstracts, papers, research grants, research activity, and even lectures—I mean, for his lecture to the medical students, okay, he got a significant number—not a huge number, but he got an appreciable number of points for giving that lecture to the second-year medical students that led to compensation—dollars flowing from University Anesthesia Services to him because of his academic activities. In his case it would be research that would be by far the largest component and very significant. He is far and away number one in the department as far as getting compensation for his research activities.

¶ 11. Thus, while UAS did bill and collect reimbursement from Watts's Medicare insurance for the medical services provided by the anesthesiology department of UMMC, Dr. Tsang's compensation was not affected by whether $0, $10 or $10,000 was collected from Watts. In fact, pursuant to the point system employed by UAS, Dr. Tsang would be compensated for a procedure he supervised whether or not the patient were a private patient, a government paid patient (Medicare/Medicaid), or a charity patient who pays nothing at all. In a letter dated December 6, 1994, from Dr. John Eichhorn to Dr. Tsang confirming the UMMC faculty position offered to him, it states the following:

Our current system of compensation from the UAS practice (while unlikely, always subject to possible revision based on faculty input) is a monthly "guarantee" check (on the 15th) and a quarterly "productivity compensation" check (about two weeks after the end of each calendar quarter), the details of which for both we discussed extensively.

(emphasis added). Dr. Tsang's employment contract with the Board of Trustees states the following:

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER CODE: UMMC—2 (ADDITIONAL INCOME/PRO RATA SHARE OF EXPENSES)
1. In accordance with policies approved by the Board, the Employee, in addition to his/her annual contracted salary, will be permitted to earn additional income from medical practice subject to the following limitations:

a) The Employee shall retain 100% of earnings from medical practice up to a total income of $ ______, effective July 1, 1992.

b) Income in excess of $ ______, will be divided 50% to the employee and 50% to the University of Mississippi Medical Center (UMMC). Of the amount allocated to the Medical Center, 60% shall be for the use of the department of the employee.

Income shall be defined as gross calendar year earnings from UMMC and the Department of Veterans Affairs Medical Center up to $ ______, plus medical practice earnings. (
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