Wray By and Through Wray v. Samuel U. Rodgers' Community Health Center

• Citation: 901 S.W.2d 167
• Decision Date: 18 April 1995
• Docket Number: No. WD,WD
• Parties: Jacquelyn WRAY and Joshua Wray, Minor Children, By and Through their Father, Joseph R. Wray, Appellants, v. SAMUEL U. RODGERS' COMMUNITY HEALTH CENTER, INC., Respondent. 49801.
• Court: Court of Appeal of Missouri (US)

Page 167

901 S.W.2d 167

Jacquelyn WRAY and Joshua Wray, Minor Children, By and Through their Father, Joseph R. Wray, Appellants, v. SAMUEL U. RODGERS' COMMUNITY HEALTH CENTER, INC., Respondent.

No. WD 49801.

Missouri Court of Appeals,

Western District.

April 18, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Application to Transfer Denied July 25, 1995.

David R. Morris and John E. Rogers, Overland Park, for appellants.

Timothy M. Aylward and Scott Martin, Kansas City, for respondent.

Before FENNER, C.J., P.J., and BERREY and ULRICH, JJ.

BERREY, Judge.

The Wrays appeal the trial court's granting of partial summary judgment as to respondent Samuel U. Rodgers' Clinic.

Deborah Wray was admitted to Truman Medical Center in April, 1989. On April 2, she gave birth to her second child. During this hospital stay, her blood tests revealed a severe anemia. Appellants contend that her physician, Dr. Robert Chang, and other Truman Medical Center physicians failed to properly diagnose the anemia. The doctors did not determine Mrs. Wray was suffering from a blood condition that if left untreated would lead to thrombotic thrombocytopenic purpura ("TTP"). This disease is often fatal. She was discharged from Truman Medical Center on April 4, 1989, and Dr. Chang instructed her to return to Samuel Rodgers' Clinic in two weeks for follow-up.

Mrs. Wray's condition worsened so that she returned to Truman Medical Center's emergency room on April 7, 1989, and was admitted to the hospital. Mrs. Wray received treatment for TTP; however, on May 13, 1989, she died.

Appellants contend that the failure of Dr. Chang to properly diagnose her condition resulted in her death.

Appellants raise two points of error 1) that the trial court erred as a matter of law in granting summary judgment to respondent because Dr. Chang was its employee and as such respondent was vicariously liable for his negligent acts or omissions and 2) that alternatively Dr. Chang was the agent of respondent and was acting within the scope of his agency sufficiently for respondent to be vicariously liable for his negligent acts or omissions. "The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute." ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 378 (Mo. banc 1993).

In considering an appeal from a summary judgment, the court will review the record most favorable to the party against whom summary judgment was entered. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). Facts set forth by affidavit or otherwise in support of a summary judgment motion are taken as true unless denied by the non-moving party's response to the motion. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75 (Mo. banc 1978). Essentially, our review of a summary judgment is de novo. ITT Commercial Fin., 854 S.W.2d at 376.

Robert M. Chang, M.D., graduated from Jefferson Medical College in Philadelphia, PA. He took his four years of residency in obstetrics and gynecology at St. Barbabas Medical Center, Livingston, N.J. Dr. Chang is board certified in OB/GYN. Dr. Chang received a National Health Service Corp. (NHSC) scholarship while attending Jefferson Medical College for three years. This scholarship was a year-for-year pay back program. Every year of scholarship Chang received from NHSC obligated him for one year of service at an indigent health care center approved by NHSC. Respondent's clinic was such a center. The NHSC approved the match up between Chang and respondent. Chang received his pay from NHSC. NHSC provided various benefits to Chang. Chang carried a government rating as a GS 12 or 13 while working at respondent's clinic. Vacation time, continuing medical education, time off and pension was provided Chang along with other federal employees. Chang testified he was not an employee of respondent during this time frame. He was not paid by respondent, except for his first two months of service with them. He did not wear a respondent name tag or lab coat. He worked with respondent's staff in staffing and rotation duties. Marilyn Sims Reynaud, M.D., was employed as staff physician by respondent and did not supervise Chang although on occasion they treated the same patients. Dr. Chang was not under direct supervision of Dr. Sims.

By unchallenged affidavit, Dr. Sims stated that neither she nor any other physician or administrator of respondent "exercise control--or have the right to control--the details of the manner in which Dr. Chang provided medical care to patients either in the health center or at Truman Medical Center." Dr. Sims also acknowledged that decisions by Dr. Chang about whether or how to treat a patient was in his sole discretion and not subject to prior review or approval.

Dr. Chang was assigned to respondent's clinic by the federal government. According to the unrefuted affidavit of Dr. Samuel U. Rodgers, former medical director of Samuel U. Rodgers' Community Health Center, Dr. Chang was a federal employee. Dr. Rodgers acknowledged he executed a Memorandum of Agreement with the United States Department of Health and Human Services and that Dr. Chang worked at respondent's clinic to satisfy his obligation for scholarship funds received from NHSC while a medical student. Under this obligation, he was to provide medical services in an area designated as a Health Manpower Shortage Area (HMSA) to fulfill his financial obligations to the federal government. Dr. Rodgers' affidavit substantiated Dr. Chang's deposition testimony concerning his salary and moving expenses being paid by the federal government. The Memorandum of Agreement between respondent and the United States Department of Health and Human Services provided that Chang's professional services were to be monitored, supervised and controlled by the federal government.

Pursuant to Section A(6), Obligations of the Secretary, of the Memorandum of Agreement, the federal government would undertake any defense to a claim of medical negligence brought against Dr. Chang.

Appellant first alleges Dr. Chang was a servant of respondent acting within the scope of his employment when he treated Deborah Wray.

Section 220, Restatement (Second) of Agency (1957), sets forth with specificity the definition of servant. Section 220(1) states "A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." Dr. Chang was employed by the NHSC to practice medicine at Rodgers' Clinic. This employment and assignment was made by NHSC to satisfy Dr. Chang's financial obligation to the federal government.

The record discloses that Rodgers' Clinic did not exercise control of or have a right to control Dr. Chang. Appellants' allegations regarding control over Dr. Chang are not persuasive when viewed against the whole record.

Appellants cite Keller v. Missouri...