Ukaegbu v. Tuomey Regional Medical Center et al
Filing
73
ORDER AND OPINION granting 56 Motion for Judicial Notice of 501c3 status; denying 56 Motion for Extension of Time; denying 56 Motion for Extension of Time to Complete Discovery; denying 70 Motion for Extension of Time to File Response/Reply. Signed by Honorable Margaret B Seymour on 7/27/2016.(mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Nogozi Ukaegbu,
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Plaintiff,
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vs.
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Tuomey Regional Medical Center,
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et al.,
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Defendants.
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____________________________________)
C/A No. 3:14-1696-MBS
ORDER AND OPINION
Plaintiff Nogozi Ukaegbu filed the within action on April 29, 2014, against Defendants
Tuomey Regional Medical Center (“Tuomey”); Tracey D. Flemming, M.D. (“Flemming”); Gregory
A. Finch, P.A. (“Finch”); and Midlands Emergency Physicians, P.A. (“Midlands”). Plaintiff
contends that Flemming and Finch were on duty on December 31, 2011, when Plaintiff twice
presented at the Tuomey emergency room for “psychiatric problems.” Plaintiff alleges Flemming
and Finch failed to obtain a psychiatric evaluation to determine the extent of care and treatment
required for Plaintiff before discharging him. After he was discharged from the second visit,
Plaintiff was struck and severely injured by a vehicle while he walking in the road less than a mile
and a half from Tuomey. Plaintiff asserts a claim for medical negligence as to Flemming and Finch;
a claim that Midlands is liable for the acts and omissions of Flemming and Finch under the doctrine
of respondeat superior; and a claim that Tuomey is liable for the acts and omissions of Flemming
and Finch under the doctrine of a nondelegable duty, as well as for the negligence of its nurses and
other staff.
Tuomey filed an answer on May 20, 2014, in which it asserted, among other things:
25.
Tuomey asserts the protections of South Carolina Code §33-56-10, et. seq.,
known as the South Carolina Solicitation of Charitable Funds Act, including
without limitation, a bar to recovery and/or limitation of liability limits and/or
limitation of degree of actionable conduct.
ECF No. 10.
In support of its defense, Tuomey filed a motion for judicial notice of 501(c)(3) status, to
extend time, and for partial summary judgment filed by Tuomey on March 9, 2016. Tuomey
contends that it is a charitable organization under S.C. Code Ann. § 33-56-1701 because it is exempt
from taxation under section 501(c)(3) of the Internal Revenue Code, and therefore entitled to the
limits of liability under S.C. Code Ann. § 33-56-180.2 Plaintiff filed a response in opposition on
March 28, 2016. The court held a hearing on June 14, 2016.
1
Section 33-56-170 provides:
For purposes of Section 33-56-180:
(1) “Charitable organization” means any organization, institution, association,
society, or corporation which is exempt from taxation pursuant to Section 501(c)(3)
or 501(d) of Title 26 of the United States Code, as amended.
2
Section 33-56-180 provides:
A person sustaining an injury or dying by reason of the tortious act of commission
or omission of an employee of a charitable organization, when the employee is acting
within the scope of his employment, may recover in an action brought against the
charitable organization only the actual damages he sustains in an amount not
exceeding the limitations on liability imposed in the South Carolina Tort Claims Act
in Chapter 78 of Title 15. An action against the charitable organization pursuant to
this section constitutes a complete bar to any recovery by the claimant, by reason of
the same subject matter, against the employee of the charitable organization whose
act or omission gave rise to the claim unless it is alleged and proved in the action that
the employee acted in a reckless, wilful, or grossly negligent manner, and the
employee must be joined properly as a party defendant. A judgment against an
employee of a charitable organization may not be returned unless a specific finding
is made that the employee acted in a reckless, wilful, or grossly negligent manner.
....
2
At the hearing, the court observed that Tuomey, although arguing that it is entitled to
501(c)(3) status, failed to provide the court with the “necessary information” to support its claim.
See Fed. R. Evid. 201. Accordingly, the court ordered Tuomey to produce documentation
demonstrating its 501(c)(3) status. In addition, the court directed the parties to provide additional
briefing as to Plaintiff’s argument that, even if Tuomey is a charitable organization, it is not entitled
to the protections of the South Carolina Tort Claims Act because Flemming and Finch are
independent contractors rather than employees of Tuomey.
DISCUSSION
A.
501(c)(3) Status
On June 28, 2016, Tuomey provided the court with copies of correspondence and other
materials tending to show that Tuomey was granted exemption from federal income tax under
section 501(c)(3) in August 1922 and that such tax exempt status remains in effect until terminated,
modified, or revoked by the Internal Revenue Service. Tuomey also submitted an affidavit of
Thomas F. Moran, an attorney and tax specialist who is familiar with the corporate status of Tuomey
as a 501(c)(3) charitable organization. The court is satisfied that Tuomey has provided the necessary
information for the court conclude Tuomey is a charitable organization within the meaning of section
33-56-170.
B.
Affect of South Carolina Tort Claims Act
Plaintiff contends that, even if Tuomey is a charitable organization, the limitations of liability
set forth in the South Carolina Tort Claims Act do not apply because Flemming and Finch are not
employees of Tuomey, but rather are independent contractors whose services are provided for the
Tuomey emergency room through Midlands.
3
The general rule is that an employer is not vicariously liable for the negligent acts of an
independent contractor. See e.g., Rock Hill Tele. Co. v. Globe Comm’ns, Inc., 611 S.E.2d 235, 238
(S.C. 2005) (citing Duane v. Presley Constr. Co., 244 S.E.2d 509, 510 (1978)). However, Plaintiff
relies on an exception to the general rule in order to assert Tuomey’s accountability for the alleged
negligence of Flemming and Finch. The exception provides that “a person who delegates to an
independent contractor an absolute duty owed to another person remains liable for the negligence
of the independent contractor just as if the independent contractor were an employee.” Gary v.
Askew, 2016 WL 3079038 , *5 (S.C. Ct. App. June 1, 2016).
As the South Carolina Supreme Court in Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d
312, 317 (S.C. 2000), explained:
The term “nondelegable duty” is somewhat misleading. A person may delegate a
duty to an independent contractor, but if the independent contractor breaches that
duty by acting negligently or improperly, the delegating person remains liable for that
breach. It actually is the liability, not the duty, that is not delegable. The party which
owes the nondelegable duty is vicariously liable for negligent acts of the independent
contractor.
In Simmons, the supreme court held that a hospital owes a nondelegable duty to render
competent service to its emergency room patients. 533 S.E.2d at 322. In doing so, the Simmons
court adopted the approach expressed in Restatement (Second) of Torts: Employers of Contractors
§ 429:
One who employs an independent contractor to perform services for another which
are accepted in the reasonable belief that the services are being rendered by the
employer or by his servants, is subject to liability for physical harm caused by the
negligence of the contractor in supplying such services, to the same extent as though
the employer were supplying them himself or by his servants.
Simmons, 533 S.E.2d at 322.
4
It follows that, if Tuomey is liable for the negligence of Flemming and Finch “to the same
extent as though” Tuomey or its employees were supplying their services, Tuomey’s liability, if any,
is limited by the constraints on recovery set forth in the South Carolina Tort Claims Act, specifically
S.C. Code Ann. § 15-78-120(a), which provides, in pertinent part:
(a) For any action or claim for damages brought under the provisions of this chapter,
the liability shall not exceed the following limits:
(1) Except as provided in Section 15-78-120(a)(3), no person shall recover in any
action or claim brought hereunder a sum exceeding three hundred thousand dollars
because of loss arising from a single occurrence regardless of the number of agencies
or political subdivisions involved.
(2) Except as provided in Section 15-78-120(a)(4), the total sum recovered hereunder
arising out of a single occurrence shall not exceed six hundred thousand dollars
regardless of the number of agencies or political subdivisions or claims or actions
involved.
(3) No person may recover in any action or claim brought hereunder against any
governmental entity and caused by the tort of any licensed physician or dentist,
employed by a governmental entity and acting within the scope of his profession, a
sum exceeding one million two hundred thousand dollars because of loss arising
from a single occurrence regardless of the number of agencies or political
subdivisions involved.
(4) The total sum recovered hereunder arising out of a single occurrence of liability
of any governmental entity for any tort caused by any licensed physician or dentist,
employed by a governmental entity and acting within the scope of his profession,
may not exceed one million two hundred thousand dollars regardless of the number
of agencies or political subdivisions or claims or actions involved.
(5) The provisions of Section 15-78-120(a)(3) and (a)(4) shall in no way limit or
modify the liability of a licensed physician or dentist, acting within the scope of his
profession, with respect to any action or claim brought hereunder which involved
services for which the physician or dentist was paid, should have been paid, or
expected to be paid at the time of the rendering of the services from any source other
than the salary appropriated by the governmental entity or fees received from any
practice plan authorized by the employer whether or not the practice plan is
incorporated and registered with the Secretary of State.
5
Plaintiff argues that, even if the Act applies, Tuomey has failed to address which subsection
of section 15-78-102(a) applies. In the court’s view, a finding on the applicable limitation is
premature and would better be determined by the court after trial should Plaintiff obtain a verdict
in his favor.
CONCLUSION
For the reasons stated, Tuomey’s motion for judicial notice is granted. Its motions for
extension of time and partial summary judgment are denied as moot. Moreover, the court concludes
that Tuomey is vicariously responsible for the alleged torts of Flemming and Finch only to the extent
set forth in the South Carolina Tort Claims Act.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
July 27, 2016
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