Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n

230 W.Va. 242

737 S.E.2d 270

Jan H. CUNNINGHAM and Lynn Cunningham, Plaintiffs Below, Petitioners

v.HERBERT J. THOMAS MEMORIAL HOSPITAL ASSOCIATION, Defendant Below, Respondent.

No. 11–0398.

Supreme Court of Appeals of West Virginia.

Submitted May 23, 2012.

Decided Nov. 20, 2012.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “ ‘ “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

4. “The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

5. “ ‘To ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together.’ Syl. pt. 1, Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966).” Syllabus point 2, Barkley v. State Workmen's Compensation Commissioner, 164 W.Va. 777, 266 S.E.2d 456 (1980).

6. “One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination.” Syllabus point 1, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

7. “There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative.” Syllabus point 5, Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).

8. “If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done.” Syllabus point 2, Spencer v. Travelers Insurance Co., 148 W.Va. 111, 133 S.E.2d 735 (1963).

9. “An owner who engages an independent contractor to perform a job for him or her may retain broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract—including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work—without changing the relationship from that of owner and independent contractor, or changing the duties arising from that relationship.” Syllabus point 4, Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999).

10. “ ‘A joint venture or, as it is sometimes referred to, a joint adventure, is an association of two or more persons [or entities] to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge. It arises out of a contractual relationship between the parties. The contract may be oral or written, express or implied.’ Syl. pt. 2, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 (1987).” Syllabus point 5, Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000).

Marvin W. Masters, The Masters Law Firm LC, Charleston, WV, for Petitioners.

Thomas J. Hurney, Jr., Rob J. Aliff, Jennifer M. Mankins, Jackson Kelly PLLC, Charleston, WV, for Respondent.

PER CURIAM:

In this appeal from an order granting summary judgment in favor of Herbert J. Thomas Memorial Hospital Association (hereinafter referred to as “Thomas Hospital” or “the hospital”), a defendant in the action below, the petitioners, Jan H. Cunningham and Lynn Cunningham (hereinafter collectively referred to as “the Cunninghams”), who are the plaintiffs below, ask this Court to find that certain physicians were employees or actual agents of Thomas Hospital, and therefore, Thomas Hospital may be held vicariously liable for any negligence committed by the physicians pursuant to W. Va.Code § 55–7B–9(g) (2003) (Repl. Vol. 2008). In the alternative, the Cunninghams seek to hold Thomas Hospital vicariously liable under the theory that the various defendants to this lawsuit were engaged in a joint venture. We find no error in the circuit court's award of summary judgment. Therefore, this case is affirmed.

I.FACTUAL AND PROCEDURAL HISTORY

In April 2007, Dr. Jan Cunningham (hereinafter individually referred to as “Dr. Cunningham”) was taken to the Thomas Hospital Emergency Department by his wife, Lynn Cunningham. Dr. Cunningham was suffering from a physical ailment, the details of which are not necessary to our resolution of the issues herein presented. Upon arrival at the hospital, Dr. Cunningham was evaluated by a physician in the Emergency Department and referred to Hossam Tarakji, M.D., a hospitalist ¹ and a defendant in this action (hereinafter referred to as “Dr. Tarakji”). Dr. Tarakji admitted Dr. Cunningham ² into the hospital, and provided care and treatment to Dr. Cunningham during his hospitalization. During a period when Dr. Tarakji was on vacation, Dr. Cunningham received treatment and care from another hospitalist associated with Dr. Tarakji, Thomas J. Rittinger, M.D. (hereinafter referred to as “Dr. Rittinger”), who is also a defendant in this action. Dr. Rittinger arranged for a consultation with a surgeon, Richard A. Fogle, M.D. (hereinafter referred to as “Dr. Fogle”), another defendant in this action. Dr. Fogle performed exploratory surgery within a few days of Dr. Cunningham's admission to the hospital. Following the surgery, Dr. Cunningham developed a serious infection that apparently resulted from the surgery. Dr. Cunningham ultimately required several follow-up surgeries ³ and alleges that he has suffered permanent injury as a result of the infection.

Thereafter, Dr. Cunningham filed the instant medical malpractice action against Thomas Hospital, Dr. Tarakji, Dr. Rittinger, and Dr. Fogle. Also included as defendants in this malpractice action are Hospitalist Medicine Physicians of Kanawha County, PLLC (hereinafter referred to as “Hospitalist Medicine”), and Delphi Healthcare Partners, Inc. (hereinafter referred to as “Delphi”). Doctors Tarakji and Rittinger were employed by Hospitalist Medicine and treated patients exclusively at Thomas Hospital in accordance with a contractual relationship between Thomas Hospital and Hospitalist Medicine. Delphi contracted with Thomas to provide a “surgicalist” program. The parties to this appeal represent that the “surgicalist program” was a unique arrangement, similar to a hospitalist program, that provided the hospital with surgeons.⁴ Dr. Fogle provided surgical services at Thomas Hospital in accordance with a contract he executed with Delphi.⁵ The Cunninghams sought to hold Thomas Hospital vicariously liable for the alleged negligence of Drs. Tarakji, Rittinger and Fogle on the theory that the doctors were employees or actual agents of the hospital, or that the doctors and corporate defendants Delphi and Hospitalist Medicine were engaged in a joint venture with the hospital.

Thomas Hospital initially filed a motion for summary judgment in September 2009. The circuit court denied the motion by order entered on February 1, 2010. Thereafter, on April 23, 2010, Thomas Hospital filed a second motion for summary judgment. In its motion, Thomas Hospital argued that Drs. Tarakji, Rittinger and Fogle were not employees, actual agents, or joint venturers of the hospital. Therefore, Thomas Hospital asserted that there was no viable evidence upon which to hold the hospital vicariously liable for the actions of any of the aforementioned doctors. In addition, on April 29, 2010, Thomas Hospital filed a motion asking the circuit court to reconsider its February 1, 2010, order denying Thomas Hospital's first motion for summary judgment. By order entered February 3, 2011, the circuit court granted Thomas Hospital's motion to reconsider and, in addition, granted summary judgment in favor of Thomas Hospital. In granting summary judgment, the circuit court concluded that, when viewing the evidence in the light most favorable to the Cunninghams, Drs. Tarakji, Rittinger and Fogle were not actual agents or employees of Thomas Hospital at the time of the alleged negligence, and there was no joint venture. It is from this order that the Cunninghams now appeal.

II.STANDARD OF REVIEW

This case is before this Court for review of an order granting summary judgment to Thomas Hospital. “A ...