Taylor vs Jewish Hospital & St. Mary's Healthcare, Inc. et al.
Filing
48
MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 06/11/2014. The court will: 1) deny Jewish's Motion for Summary Judgment in part (DN 13 ); 2) grant Jewish's Motion for Summary Judgment in part (DN 33 ); and 3) grant UMC's Motion for Summary Judgment in full (DNs 18 , 34 ). A separate order will be entered in accordance with this opinion. cc: Counsel (TJD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
RENETTA L. TAYLOR
PLAINTIFF
v.
CIVIL ACTION NO. 3:13-CV-00361-CRS
JEWISH HOSPITAL & ST. MARY’S
HEALTHCARE, INC., ET AL.
DEFENDANT
MEMORANDUM OPINION
This matter is before the Court on motions for summary judgment filed by Defendants
Jewish Hospital and St. Mary’s Healthcare, Inc. (“Jewish”) (DNs 13, 33), and University
Medical Center (“UMC”) (DNs 18, 34) (collectively “Defendants”). For the reasons set forth
below, the court will:
1) deny Jewish’s Motion for Summary Judgment in part (DN 13);
2) grant Jewish’s Motion for Summary Judgment in part (DN 33); and
3) grant UMC’s Motion for Summary Judgment in full (DNs 18, 34).
BACKGROUND
Unless otherwise indicated, the following facts are undisputed. Plaintiff Renetta L. Taylor
(“Plaintiff”) instituted this action as the administratrix of the estate of her late son Brandon
Pillow (“Pillow”). In the early morning hours of April 23, 2011, Pillow presented himself for
treatment at Jewish’s emergency department, complaining of severe radiating pain in his upper
right abdomen and left shoulder. Pillow was seen by Dr. Anne Lorraine Brady (“Dr. Brady”),
who took his temperature and ordered a Complete Blood Count (“CBC”). Pillow’s temperature
1
was 100.1 degrees, but the results of the CBC showed a normal white blood count. Dr. Brady
then ordered an abdominal and pelvic Computed Tomography (“CT”) Scan without contrast.
Once the CT scan was complete, Dr. Brady forwarded the results to Radiologist Dr. R.G.
Waggener (“Dr. Waggener”). Based on his review, Dr. Waggener diagnosed Pillow with
bilateral lung base pneumonia, primarily affecting his right lung. After informing Pillow of the
diagnosis, Dr. Brady discharged Pillow and prescribed him Bactrim as an antibiotic.
On April 25, 2011, Pillow returned to Jewish’s emergency department, where he was
seen by Dr. Terry McGann (“Dr. McGann”). Pillow continued to complaint of sharp pain in his
chest, which he explained was exacerbated by coughing and deep breathing. Although Pillow no
longer had a fever, Dr. McGann ordered a chest x-ray. After reviewing the x-ray, Dr. McGann
prepared the following “Radiology Interpretation:”
Radiology report has been reviewed. Infiltrate right base. Pt. was seen here 2 days
ago and had extensive workup. His blood cultures were neg. His CXR today
shows more dense infiltrates rt. Base. The one from two days ago was read as
negative. Will switch to Cipro if he can afford the $4.00.
After confirming that he could afford it, Dr. McGann prescribed Pillow Ciprofloxacin and
discharged him with instructions to return to the emergency department if his symptoms
worsened or if he developed shortness of breath or chest pain.
On April 28, 2011, Pillow presented himself for treatment at UMC’s emergency
department, where he was seen by second-year resident Dr. Robert McKnight (“Dr.
McKnight”). Pillow continued to complain of breathing problems and indicated that his
pain level was a “10” on a scale of 1 to 10. After taking his temperature and ordering a
CBC, Dr. McKnight determined that Pillow did not have a fever and had a normal white
blood count. Accordingly, Dr. McKnight ordered a chest x-ray, which was ultimately
reviewed by radiologist Dr. Kragha. In his report, Dr. Kragha indicated that the x-ray
2
exhibited “Blunting of both costophrenic angles, right much greater than left, suggestive
of atelectasis, infiltrates and pleural effusion.” After reviewing Dr. Kragha’s report, Dr.
McKnight diagnosed him with atypical pneumonia and prescribed him Amoxicillin as an
antibiotic, instructing him to return to the emergency department if his conditions
worsened.
On April 30, 2011, Pillow was discovered collapsed on the floor of his
grandmother’s home. Pillow was immediately rushed to Jewish’s emergency department,
where he was pronounced dead at 4:29 P.M. On May 1, 2011, Dr. Donna Stewart (“Dr.
Stewart”) performed an autopsy of Pillow on behalf of the Jefferson County Coroner.
According to Dr. Stewart’s report, the cause of Pillow’s death was pulmonary
thromboembolism, which resulted from two pulmonary emboli present in his right lung.
PROCEDURAL HISTORY
On May 17, 2011, Plaintiff filed the present action in Jefferson County Circuit Court,
alleging medical negligence against Defendants Jewish and UMC based on their alleged failure
to properly diagnose Pillow’s condition. On March 22, 2013, Defendants removed the action on
the basis of federal question jurisdiction, arguing that Plaintiff’s assertion of an Emergency
Medical Treatment and Active Labor Act (“EMTALA”) claim in her Fourth Amended
Complaint presented a federal question sufficient to confer jurisdiction under 18 U.S.C. § 1331.
Subsequently, Plaintiff moved to remand the action on the grounds that she did not intend to
assert an independent EMTALA claim, but instead merely sought to incorporate EMTALA’s
standard of care into her state-law medical negligence claim. On October 31, 2013, we denied
the motion to remand, holding that Plaintiff had asserted an independent claim for relief under
EMTALA sufficient to establish federal question jurisdiction.
3
STANDARD
Before granting a motion for summary judgment, the Court must find that there is no
genuine issue of material fact such that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of
establishing the nonexistence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986), a burden which may only be satisfied by “citing to particular parts of materials
in the record...” or “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” Fed. R. Civ. P. 56(c)(1). If the moving party satisfies this burden, the burden of
production shifts to the non-moving party, who must then identify evidence demonstrating the
existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322.
In resolving a motion for summary judgment, the Court must view the evidence in a light
most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, the
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Thus, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the nonmoving party fails to satisfy its burden of counterproduction, the court must grant the motion for
summary judgment.
DISCUSSION
The Court will address the motions for summary judgment in turn.
i. Jewish’s Motion for Summary Judgment
a. Medical Negligence
4
Jewish argues that summary judgment is warranted on Plaintiff’s medical negligence
claim because there is no genuine dispute that Physicians in Emergency Medicine (“PEM”)1 and
its physician-employees are independent contractors, rather than Jewish’s actual or ostensible
agents.2 In support of this argument, Jewish relies on the following undisputed facts:
1) Pillow signed a consent form provided by Jewish wherein he acknowledged
his understanding that “physicians… are not employees of this facility but
rather are independent contractors for which this facility is not responsible;”
2) the Agreement between Jewish and PEM states that PEM “is an independent
contractor for the furnishing of Physicians… who agree to render emergency
medical services to [Jewish]…. [N]one of the Physicians… provided by
[PEM] are employees, independent contractors, or agents of [Jewish]”
(Agreement, DN 17, at 7);
3) the Agreement provides that Jewish will insure its own staff, while PEM will be
responsible for insuring its physicians;
4) the Agreement provides that PEM will bill separately for its services and determine
its own fee schedule;
5) the Agreement provides that PEM will be solely responsible for compensating its
physician-employees, including withholding taxes and providing benefits.
In addition, Jewish argues that its lack of control over PEM and its physician-employees weighs
in favor of the conclusion that they were not Jewish’s actual agents.
In response, Plaintiff argues that Jewish exercised significant control over PEM by
retaining authority over the hiring and termination of its physician-employees. Specifically,
Plaintiff maintains that Jewish’s authority under Section III of the Agreement to terminate PEM
physicians in its sole discretion, as well as its authority under Section II.1 to require that all
physicians hired by PEM meet Jewish’s eligibility criteria, is more than sufficient control to
1
PEM is an independent group of emergency room physicians responsible for treating patients who present for
medical care at Jewish’s emergency departments. Pursuant to a written agreement (the “Agreement”) entered into
between Jewish and PEM, PEM is charged with “provid[ing] physicians to render emergency medical services” at
Jewish’s emergency departments located on its Jewish Hospital and Jewish Hospital Medical Center South
campuses. (Agreement, DN 17, at 1).
2
Because Plaintiff does not address Jewish’s arguments related to ostensible agency, the Court will restrict its
analysis to whether PEM and its physician-employees were the actual agents of Jewish.
5
render PEM physicians its actual agents. In addition, Plaintiff argues that Jewish exercised
further control via its bonus incentive program whereby PEM physicians may receive additional
compensation based on the quality of their performance with respect to certain performance
metrics defined by Jewish. Finally, Plaintiff emphasizes that Jewish not only provides the
instrumentalities, tools, and the place of work for PEM physicians, but also takes responsibility
for obtaining signed consent forms from patients treated by PEM physicians. Given that PEM
has delegated these significant aspects of its responsibilities for providing patient care, Plaintiff
argues that it is clear that Jewish and PEM share an employer-employee relationship. Citing
Shofner v. Baptist Healthcare Affiliates, Inc., 2003 WL 22025906 (Ky. Ct. App. Aug. 29, 2003),
Plaintiff argues that these factors taken together are sufficient to raise a genuine issue of material
fact concerning whether PEM and its physician employees were Jewish’s actual agents.
Under Kentucky law, “Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act.” McAlister v. Whitford, 365 S.W.2d
317, 319 (Ky. 1962). Under the common law doctrine of respondeat superior, “a principal is
vicariously liable for damages caused by torts of… an agent or subagent, other than an
independent contractor, acting on behalf of and pursuant to the authority of the principal.”
Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145, 151 (Ky. 2003). In determining whether a
person is acting as another’s agent or independent contractor, the following factors must be
considered:
(a) the extent of control which, by the agreement, the master may exercise over
the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
6
(c) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer; and
(i) whether or not the parties believe they are creating the relationship of master
and servant.
Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756–57 (Ky. 1955). Among
these factors, “the chief criterion is the right to control the details of the work.” Sturgill v.
Barnes, 300 S.W.2d 574, 577 (Ky. 1957) Thus, a person will generally be deemed an
independent contractor if he or she “is free to determine how work is done” while “the principal
cares only about the end result.” Nazar v. Branham, 291 S.W.3d 599, 607 (Ky. 2009).
After considering all relevant factors, the Court concludes that there remains a genuine
issue of material fact regarding whether PEM and its physician employees were the actual agents
of Jewish. Although several of the factors weigh in favor of the conclusion that PEM and its
physician employees were independent contracts, the level of control exercised by Jewish over
the work performed by the physicians outweighs these countervailing considerations such that
the Court cannot conclude as a matter of law that PEM physicians were nothing more than
independent contractors.
Among the factors that weigh in favor of concluding that PEM and its physician
employees are merely independent contractors are the following:
1) PEM physicians are engaged in the distinct occupation of practicing emergency
medicine;
7
2) practicing medicine in Louisville, Kentucky is usually done by a specialist without
supervision;
3) the skill required of emergency medical practitioners is high; and
4) Jewish and PEM clearly believed they were creating an independent-contractor
relationship given the statement in Section IV of their Agreement that “The parties
acknowledge that [PEM] is an independent contractor...” and that “[PEM] agrees
none of the Physicians… provided by [PEM] are employees, independent contractors
or agents of [Jewish].” (Agreement, DN 17, at 7).
As dictated by Sturgill, however, “the chief criterion is the right to control the details of the
work.” 300 S.W.2d at 577. With respect to the criterion of control, the following factors weigh in
favor of concluding that PEM and its physician employees were Jewish’s actual agents:
1) Jewish exercised indirect control over the details of the physicians work by designing
an incentive compensation package whereby physicians were encouraged to perform
certain job functions in a manner determined by Jewish. (Agreement, DN 17, at 9–
10). Specifically, the Agreement provided for “incentive compensation based on the
achievement by [PEM] of specific performance metrics… in the following areas: (i)
Throughput; (ii) Patient Satisfaction; and (iii) Core Measures…” (Agreement, DN 17,
at 9). In determining the amount of incentive compensation to be paid, the
performance metrics were weighted such that “Throughput” determined 50% of the
incentive compensation payable, while “Patient Satisfaction” and “Core Measures”
accounted for 25% each. As defined in the Agreement, throughput is “a measure of
the total time from the moment the patient presents [for treatment]… to the time of
disposition, be that admission to the hospital or discharge to home or other care
setting.” Thus, the incentive compensation package indirectly exercised control over
the physician’s treatment of patients by encouraging speedy treatment and
disposition; and
2) Section II.1 of the Agreement between Jewish and PEM required all PEM physicians
to meet eligibility criteria established exclusively by Jewish (Agreement, DN 17, at
4);
3) Section III of the Agreement between Jewish and PEM granted Jewish the exclusive
authority to terminate physicians in its “sole discretion” for a variety of reasons,
including “[t]he willful engaging by a Physician… in conduct materially injurious to
[Jewish] as reasonably determined by [Jewish].” (Agreement, DN 17, at 6).
Additionally, Jewish supplied the the instrumentalities, tools, and the place of work for PEM and
its physician employees.
8
Given the extent of Jewish’s control over the hiring and termination of PEM physicians,
as well as its indirect control over the details of their work via the incentive compensation
package, the Court concludes that there remains a genuine issue of material fact regarding
whether PEM physicians were the actual agents of Jewish. For these reasons, and in accordance
with Shofner v. Baptist Healthcare Affiliates, Inc., 2003 WL 22025906 (Ky. Ct. App. Aug. 29,
2003), “We conclude that [Jewish] exerted sufficient control over the methods and materials
used by [PEM and its physician employees] to raise a question about [their] status” as either
independent contractors or employees. Id. at *5. Accordingly, the Court will deny Jewish’s
Motion for Summary Judgment with respect to Plaintiff’s medical negligence claim.
b. EMTALA
EMTALA “imposes two duties upon emergency room departments.” Hines v. Adair
Cnty. Pub. Hosp. Dist. Corp., 827 F. Supp. 426, 431 (W.D. Ky. 1993). First, hospitals must
provide all patients with “an appropriate medical screening examination within the capability of
the hospital's emergency department.” 42 U.S.C. § 1395dd(a). In this context, the term
“appropriate” does not relate to the quality of the screening per se, but instead requires only that
the screening is not “deficient in any way peculiar to the patient's characteristics.” Cleland v.
Bronson, 917 F.2d 266, 269 (6th Cir. 1990). In other words, the phrase “appropriate medical
screening” means a screening that is not “in any way different than would have been offered to
any other patient.” Id. at 269.
Second, hospitals must stabilize any “emergency medical condition” prior to transferring
or discharging a patient. 42 U.S.C. § 1395dd(b). As defined by 42 U.S.C. § 1395dd(e)(1)(A), the
term “emergency medical condition” means:
9
a medical condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) such that the absence of immediate medical attention
could reasonably be expected to result in(i) placing the health of the individual… in serious jeopardy;
(ii) serious impairment to bodily functions; or
(iii) serious dysfunction of any bodily organ or part.
Importantly, a hospital’s duty to stabilize is not triggered “[a]bsent actual knowledge of an
emergency medical condition.” Hines, 827 F. Supp. at 431. As explained by the Sixth Circuit, “If
the emergency nature of the condition is not detected, the hospital cannot be charged with failure
to stabilize a known emergency condition.” Cleland, 917 F.2d at 271.
According to Jewish, summary judgment is warranted with respect to Plaintiff’s
EMTALA claim because Plaintiff has failed to establish either: 1) that Jewish failed to provide
appropriate screening based on Pillow’s financial status; or 2) that Jewish failed to provide
necessary stabilizing treatment for Pillow’s emergency medical condition. In response, Plaintiff
argues that: 1) Jewish failed to provide appropriate screening insofar as Drs. Brady and McGann
should have conducted more comprehensive diagnostic testing before arriving at their diagnoses;
and 2) Pillow suffered from an emergency medical condition requiring stabilizing treatment
insofar as he complained of “severe pain” within the meaning of 42 U.S.C. § 1395dd(e)(1).
In support of her argument that Jewish failed to provide appropriate medical screening,
Plaintiff cites 42 U.S.C. § 1395dd(a)’s requirement that an “appropriate medical screening” must
be designed “to determine whether or not an emergency medical condition exists.” According to
Plaintiff, the testimony of her expert Dr. Sorabh Khandelwal clearly establishes that Jewish
failed to provide an “appropriate medical screening” because the extent and severity of Pillow’s
symptoms warranted further diagnostic testing. Although Plaintiff may well be correct that
further diagnostic testing was advisable, her failure to present evidence demonstrating that the
10
diagnostic screening that Pillow did receive was “in any way different than would have been
offered to any other patient,” Cleland, 917 F.2d at 269, is fatal to her claim that Jewish failed to
provide an appropriate medical screening. Accordingly, summary judgment is warranted on
Plaintiff’s claim that Jewish violated EMTALA by failing to provide an appropriate medical
screening.
With respect to her claim that Jewish failed to provide necessary stabilizing treatment,
Plaintiff argues that Pillow’s complaints of “severe and acute pain” were sufficient to provide
Jewish with actual knowledge that Pillow was suffering from an emergency medical condition.
In response, Jewish argues that, because it is undisputed that “neither Jewish… employees nor
any of the emergency room physicians… had knowledge of any life-threatening condition,
including the pulmonary embolism…,” (Response, DN 44, at 4), Jewish cannot be deemed to
have had actual knowledge that Pillow suffered from an emergency medical condition.
In order to successfully establish her claim that Jewish failed to provide necessary
stabilizing treatment, Plaintiff must demonstrate that Jewish had actual knowledge that Pillow
was suffering from:
a medical condition manifesting itself by acute symptoms of sufficient severity
(including severe pain) such that the absence of immediate medical attention
could reasonably be expected to result in(i) placing the health of the individual… in serious jeopardy;
(ii) serious impairment to bodily functions; or
(iii) serious dysfunction of any bodily organ or part.
42 U.S.C. § 1395dd(e)(1)(A). Given the fact that Pillow was diagnosed with pneumonia on both
of his visits to Jewish’s emergency department, the Court concludes that Jewish did not have
actual knowledge that Pillow was suffering from an emergency medical condition. Critically,
Plaintiff has failed to establish that the severity of the pneumonia with which Pillow was
11
diagnosed constituted a condition which, in the absence of immediate medical attention, could
reasonably have been expected to result in: (i) placing Pillow’s health in serious jeopardy; (ii)
serious impairment to Pillow’s bodily functions; or (iii) serious dysfunction of any of Pillow’s
bodily organs or parts. Because there is no evidence that Jewish was aware of any medical
condition other than pneumonia,3 the Court concludes that Jewish did not fail to provide
necessary stabilizing treatment. Accordingly, summary judgment is warranted on Plaintiff’s
claim that Jewish failed to provide necessary stabilizing treatment.
ii. UMC’s Motion for Summary Judgment
a. Medical Negligence
UMC argues that summary judgment is warranted with respect to Plaintiff’s medical
negligence claim because: 1) Dr. McKnight is not an actual agent of UMC, but is instead an
independent contractor; and 2) UMC did not engage in conduct inducing Pillow to believe that
Dr. McKnight was the ostensible agent of UMC.4 In support of this argument, UMC relies on:
1) the Emergency Professional Services Agreement (“EPSA”) between UMC,
University of Louisville School of Medicine, and University Emergency
Medical Associates5; and
2) the Consent and Acknowledgement Form (“Consent Form”) signed by Pillow
upon admission to UMC.
Specifically, UMC cites the following language from the EPSA:
Department and all Physicians are performing services and duties under this
Agreement as independent contractors and not as employees, agents, partners of,
or joint ventures with Hospital.
3
Indeed, Plaintiff’s own expert conceded that Jewish was unaware that Pillow was suffering from a pulmonary
embolism. (Khandelwal Deposition, DN, at 162:1–6) (“Obviously they didn’t [think Pillow suffered from a
pulmonary embolism], because they didn’t diagnose him for one.”)
4
Because Plaintiff fails to address UMC’s arguments regarding ostensible agency, the Court will restrict its analysis
to determining whether Dr. McKnight was the actual agent of UMC.
5
University Emergency Medical Associates (“UEMA”) is is an independent group of emergency room physicians
responsible for treating patients who present for medical care at UMC’s emergency department.
12
(Emergency Professional Services Agreement, DN 18-4, at 6). According to UMC, “This section
clearly establishes that, as a Resident with the Department, Dr. McKnight is an independent
contractor.” (Mot. for Summ. J., DN 18-1, at 7). Similarly, UMC cites the following language
from the Consent Form:
Physicians are not hospital employees and the hospital is not responsible for the
actions of physicians. I understand and agree that I may require the services of
physicians or groups of physicians who are not hospital employees…
(Consent and Acknowledgement Form, DN 18-3, at 1). UMC argues that, to the extent Pillow
specifically acknowledged that “emergency room physicians” such as Dr. McKnight “are not
hospital employees,” Plaintiff cannot now maintain that Dr. McKnight was an agent of UMC.
In response, Plaintiff cites City of Somerset v. Hart, 549 S.W.2d 814 (Ky. 1977), in
support of her argument that Dr. McKnight was the dual agent of UMC and UEMA. In City of
Somerset, the plaintiff sued the hospital where he had undergone bladder surgery after
postoperative complications led to the discovery that a scalpel was left in his abdomen during the
surgery. As detailed by the court, the relevant facts were as follows:
The Hospital supplied the operating room and staffed it with a supervisor,
a scrub nurse and a circulating nurse. This staff was selected, paid and generally
supervised by the Hospital. The staff was required to set up the room, lay out the
instruments, including scalpels with blades attached, hand instruments to the
surgeon and generally assist him during the operation. The operating surgeon was
authorized to supervise and direct the staff in the operating room.
The Hospital supplied the instruments in the form of an instrument pack.
This pack is a set of instruments of a type and number prescribed by the Hospital
sufficient to perform the operation scheduled by the surgeon. The packs are
assembled by employees of the Hospital. The rules of the Hospital do not require
that the number of instruments be verified by their operating room staff by either
a preoperation or preclosing instrument count. However, the Hospital does require
its operating room staff to make a post operation count at the time the instruments
are cleaned, to keep count of the number of scalpel blades used and to report any
deficiency. No such report was made here either to the hospital administration or
13
the operating surgeon. If a scalpel blade becomes dull during an operation it is the
duty of the operating room staff on request of the surgeon to obtain a new blade,
replace the dull one on the handle and dispose of the used blade. No one recalls
whether such a replacement was made here.
Id. at 816. Although negligence on the part of the operating room staff was clear, the hospital
argued that “the operating room staff are the borrowed servants of the surgeon” such that it could
not be held liable for their negligence. Id. In response, the plaintiff argued that “there is
distinction between administrative and medical acts, that the Hospital is the master in regard to
administrative acts, that the surgeon is the master in regard to medical acts, and that the failure to
account for a scalpel blade is an administrative omission chargeable to the Hospital.” Id.
Ultimately, the court rejected the assumption that “only one of them [the surgeon or the
hospital] could have been liable because the hospital employee could not simultaneously have
been the servant of both” on the grounds that such an assumption would “ignore the legal
principle that a person may be the servant of two masters…” Id. at 816–17. As explained by the
court:
Frequently, if not most often, the hospital nurse or other employee who is
temporarily lent to the physician or surgeon, in every realistic sense continues to
carry on her hospital duties. Her work is of mutual interest to both of two
employers, the physician or surgeon and the hospital, and is performed to effect
their common purpose. The doctrine of respondeat superior is therefore equally
applicable to both employers.
Id. at 817. Accordingly, the court held that, because “the accurate accounting for scalpel blades
is of mutual interest to both the surgeon and the hospital…,” and because “the surgeon issued no
orders to the operating room staff in regard to the accounting for scalpel blades which conflicted
with those of the Hospital,” the operating room staff was serving as the dual agents of the
hospital and the surgeon. Id.
14
Based on City of Somerset, Plaintiff argues that Dr. McKnight must be deemed the dual
agent of UMC and UEMA as an “intern”6 acting in their mutual interest and subject to their
mutual control. Specifically, Plaintiff argues that:
There is no doubt that University Hospital shared the services of the physician
and residents. University Hospital and University Emergency Medicine
Associates had an agreement regarding the terms and that Agreement clearly
provides that both had a right to exercise control over the resident. Undoubtedly
while in the hospital Dr. McKnight was subject to University Hospital’s control,
rules, policies and regulations while serving as a resident, and he was subject to
the control and supervision of Dr. O’Brien, the attending physician and member
of University Emergency Medicine Associates.
(Response to Mot. for Summ. J., DN 24, at 11).
After careful review, the Court concludes that summary judgment is warranted because
Dr. McKnight cannot be deemed the actual agent of UMC. Although City of Somerset clearly
supports Plaintiff’s contention that a person can serve as a dual agent, this does little to resolve
the central issue of whether Dr. McKnight was acting as an agent of UMC. In Nazar v. Branham,
291 S.W.3d 599 (Ky. 2009), the Kentucky Supreme Court explained that:
In City of Somerset, the court held that where there are facts sufficient to support a
dual agency relationship, a surgical nursing staff may be the dual agents of both a
surgeon and a hospital. City of Somerset did not displace the traditional inquiry
required for all agency determinations, but instead was founded upon it: agency
relationships are created when one party has the authority to control the details of
another's work.
Id. at 607. Accordingly, rather than rely exclusively on City of Somerset, the Court must focus its
attention on whether the facts and circumstances surrounding the relationship between UMC and
UEMA (and Dr. McKnight in particular) suggest that Dr. McKnight was the actual agent of
UMC under traditional principles of agency.
6
Although Plaintiff attempts to categorize Dr. McKnight as an “intern,” the Court notes that a medical resident is a
licensed physician and therefore cannot properly be deemed an intern.
15
Under Kentucky law, “Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act.” McAlister v. Whitford, 365 S.W.2d
317, 319 (Ky. 1962). Under the common law doctrine of respondeat superior, “a principal is
vicariously liable for damages caused by torts of… an agent or subagent, other than an
independent contractor, acting on behalf of and pursuant to the authority of the principal.”
Williams v. Kentucky Dep't of Educ., 113 S.W.3d 145, 151 (Ky. 2003). In determining whether a
person is acting as another’s agent or independent contractor, the following factors must be
considered:
(a) the extent of control which, by the agreement, the master may exercise over
the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
(c) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer; and
(i) whether or not the parties believe they are creating the relationship of master
and servant.
Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756–57 (Ky. 1955). Among
these factors, “the chief criterion is the right to control the details of the work.” Sturgill v.
Barnes, 300 S.W.2d 574, 577 (Ky. 1957) Thus, a person will generally be deemed an
16
independent contractor if he or she “is free to determine how work is done” while “the principal
cares only about the end result.” Nazar v. Branham, 291 S.W.3d 599, 607 (Ky. 2009).
After considering all relevant factors, the Court concludes that Dr. McKnight cannot be
deemed the actual agent of UMC. First, the Agreement itself clearly demonstrates that the parties
intended to establish an independent-contractor relationship with no control exercised by the
hospital over the physicians except “to the extent required by statute, regulation, and the
accreditation standards applicable to Hospital.” (Emergency Professional Services Agreement,
DN 18-4, at § 6.5). Indeed, the Agreement specifically provides that the hospital’s responsibility
“is limited to establishing the goals and objectives for the [physicians’ medical treatment] and
requiring that services to be rendered in a competent, efficient, and satisfactory manner in
accordance with applicable standards and legal requirements.” (Emergency Professional Services
Agreement, DN 18-4, at § 6.5).7 Because “[t]he right to control is considered the most critical
element in determining the principal's liability for the tortious acts of an agent,” Brooks, 289
S.W.3d at 212, and because a person will generally be deemed an independent contractor if he or
she “is free to determine how work is done” while “the principal cares only about the end result.”
Nazar, 291 S.W.3d at 607, the hospital’s lack of control over the physician’s professional duties
merits special weight and emphasis.
Second, the degree of skill required of licensed physicians is particularly high and thus is
ordinarily executed in the locality without significant control or supervision on the part of
hospitals. Third, there can be no question that Dr. McKnight, as a licensed physicians, “is
engaged in a distinct occupation.” Sam Horne, 279 S.W.2d at 756. Finally, hospitals themselves
7
Although it is true that, like Jewish, UMC retains authority to terminate physicians, the circumstances under which
termination are appropriate are much more objective and consequently less dependent upon UMC’s discretion. Most
importantly, unlike Jewish, UMC does not possess the authority to terminate physicians for conduct materially
injurious to UMC, as reasonably determined by UMC.
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are not regularly engaged in the business of providing medical care and treatment, but instead
focus exclusively on maintaining the facilities and staff necessary for the performance of medical
care and treatment by physicians.
Notwithstanding these considerations, Plaintiff contends that Dr. McKnight must be
deemed the actual agent of UMC because the Agreement provides that “Hospital agrees to pay
Department… to support operational costs of the Department’s programs located at Hospital,
inclusive of resident and student teaching programs.” (Emergency Professional Services
Agreement, DN 18-4, at § 1.1). According to Plaintiff, because UMC indirectly pays Dr.
McKnight, it cannot reasonably be disputed that he is acting as its actual agent. However, as
correctly noted by UMC, the only relevant consideration is the method of payment, not its
source. Accordingly, the Court concludes that UMC’s indirect payment of Dr. McKnight is
insufficient to render him the hospital’s actual agent.
Thus, while it is true that UMC supplies the instrumentalities, tools, and place of work,
the Court concludes that the relevant factors weigh heavily in favor of concluding that Dr.
McKnight was merely an independent contractor. Accordingly, UMC’s Motion for Summary
Judgment on Plaintiff’s medical negligence claim will be granted.
b. EMTALA
UMC argues that summary judgment is warranted on Plaintiff’s EMTALA claim because
there is no genuine dispute that it complied with the requirements of the statute. According to
UMC, Plaintiff has failed to produce evidence that: 1) UMC failed to provide such medical
screening as it would have provided any other patient; or 2) UMC failed to provide necessary
stabilizing treatment for an emergency medical condition of which they were aware. In response,
Plaintiff argues that: 1) UMC failed to provide an appropriate medical screening insofar as they
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entrusted Pillow’s care exclusively to second-year resident Dr. McKnight without the
supervision of his attending physician; and 2) Pillow’s complaints of severe pain and labored
breathing should have alerted UMC that Pillow was suffering from an emergency medical
condition for which stabilizing treatment was necessary.
As was the case with respect to Plaintiff’s EMTALA claim against Jewish, Plaintiff’s
failure to produce evidence demonstrating that the diagnostic screening provided by UMC was
“in any way different than would have been offered to any other patient,” Cleland, 917 F.2d at
269, is absolutely fatal to her claim that UMC did not provide an appropriate medical screening.
Accordingly, summary judgment will be entered on this basis.
As for Plaintiff’s claim that UMC failed to provide necessary stabilizing treatment, the
Court concludes that Pillow’s complaints of severe pain and labored breathing were insufficient
to provide UMC with actual knowledge that Pillow was suffering from an emergency medical
condition. Because actual knowledge of an emergency medical condition is a necessary element
of a failure-to-stabilize claim under EMTALA, summary judgment is appropriate.
A separate order will be entered in accordance with this opinion.
C al R Smpo I , ei J d e
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U i dSae Ds i C ut
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June 11, 2014
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