Medical malpractice suit survives summary judgment

Daily Record (Rochester, NY), Jul 22, 2005 by Helen Nguyen

In a medical malpractice suit where the defendant asserted it was not vicariously liable for the doctor's actions because the doctor was an independent contractor, the U.S. District Court for the Western District of New York determined several issues of fact existed to preclude summary judgment.

In Manuel Tesillo v. Emergency Physician Associates, Inc., Judge David G. Larimer ruled the defendant was not entitled to summary judgment since there were issues as to the degree of control the defendant had over the doctor and subsequently whether the defendant was liable for the doctor under the principle of respondeat superior.

Malpractice Suit

In December 2002, the plaintiff, Manuel Tesillo, was admitted to the Schuyler Hospital Emergency Department as a result of acute pain in his lower abdomen and groin area. He was seen by Dr. William Shepherd who diagnosed him with probable gastritis. The doctor administered Toradol and discharged Tesillo.

Tesillo continued to experience pain and returned to the hospital six hours later. He was seen by another doctor who diagnosed him with testicular torsion, resulting in him undergoing immediate surgery.

Claiming Dr. Shepherd committed malpractice by failing to refer him to a urologist, Tesillo filed a lawsuit against the defendant, Emergency Physician Associates, Inc. (EPA). EPA had entered into a contract with Schuyler Hospital to supply doctors and perform all services in the hospital's emergency department.

Tesillo did not name Dr. Shepherd as a defendant, asserting that EPA, who hired Dr. Shepherd, was vicariously liable under the principle of respondeat superior. Specifically, Tesillo argued the doctor acted as an agent or employee of EPA.

Summary Judgment Motion

Asserting it was not liable for Dr. Shepherd's actions, EPA filed a motion for summary judgment. EPA argued the doctor was acting at all times as an independent contractor and not as an agent or employee of the company.

To support its claim, EPA referred to a contract it had entered into with Dr. Shepherd. The contract stated the doctor was an independent contractor, where he agreed to provide emergency medical services at the hospital for one year in exchange for a flat fee of $90 per hour.

Court's Discussion, 'Respondeat Superior'

In order to determine if EPA was vicariously liable for Dr. Shepherd's actions, the court reviewed the contract between the hospital and EPA, as well as the contract between Dr. Shepherd and EPA.

The contract between the hospital and EPA stated: EPA shall assume and discharge all responsibilities required by the hospital for the professional direction and medical supervision and management of emergency services in the hospital.

In the preamble of the agreement between EPA and Dr. Shepherd, it states, Whereas, it is the desire [of the parties] that physician contract ... as an independent contractor to provide professional emergency services in the emergency department(s) of Schuyler Hospital....

While the contract explicitly described the doctor as an independent contractor, the court noted, [D]escribing one as an 'independent contractor' does not necessarily make it so if the employer retains the ability to control the manner in which the independent contractor does his work (emphasis added), Melbourne v. New York Life Ins., Co., 271 AD2d 296, 297 (First Dept. 2000).

Specifically, Judge Larimer found the degree of control that EPA had over Dr. Shepherd would determine whether the doctor was an independent contractor, or an agent or employee of EPA.

Despite contractual provisions to the contrary, if an employer retains the right to control the manner in which the work is done by the so-called independent contractor, the independent contractor will be considered an employee and the employer will be subject to the principle of respondeat superior, regardless of the nomenclature used by the parties, explained Judge Larimer.

For example, in Mduba v. Benedictine Hosp., 52 AD2d 450, 452 (Third Dept. 1976), the court held that despite the doctor being described as an independent contractor in the contract, the doctor was an employee of the hospital since the hospital maintained control over the manner in which the doctor operated the emergency room.

In the instant case, Judge Larimer determined there were a number of issues of fact regarding EPA's role in the management of the emergency department and the nature of the relationship that it had with Dr. Shepherd. Specifically, the judge found there were issues regarding whether EPA conducted any peer review of its doctors and how much control the EPA had over Dr. Shepherd.

At this juncture, the court cannot decide, as a matter of law, whether Dr. Shepherd was an employee of EPA under the circumstances and whether EPA's contractual obligation to manage and supervise the emergency department is of such a nature that it should be vicariously liable for the alleged malpractice of Dr. Shepherd, concluded the judge, citing Malamood v. Kiamesha Concord, Inc., 210 AD2d 26, 26 (First Dept. 1994).