Foncannon v. Se. Emergency Physicians, LLC, Civil Action No. 6: 16-039-DCR

STACY A. FONCANNON, Plaintiff, v. SOUTHEASTERN EMERGENCY PHYSICIANS, LLC, Defendant.

Civil Action No. 6: 16-039-DCR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION (at London)

April 11, 2017

MEMORANDUM OPINION AND ORDER*** *** *** ***

I.

On February 17, 2015, Plaintiff Stacy Foncannon inadvertently dislodged her feeding tube ("g-tube") while at home. [Record No. 59-2, p. 8] Within fifteen minutes of the incident, she arrived at the emergency department of the Lake Cumberland Regional Hospital in Somerset, Kentucky. [Record No. 59-2, p. 7] There, she was treated by Dr. Sean Rogers and Erika Todd, a physician's assistant. Apparently the emergency department did not have an appropriate g-tube on hand. As a result, Rogers and Todd decided to replace the displaced tube with a Foley catheter. Id. at p. 3. After placement of the catheter, a CT scan was attempted at Rogers and/or Todd's direction. See id. at p. 4. However, Foncannon was in intense pain and instructed the CT technician not to go forward with the scan. Id. She was subsequently discharged with instructions to follow-up with her treating surgeon, Dr. Jorge Rodriguez, as soon as possible. Id. at p. 5.

Very early the next morning, the plaintiff's husband drove her to Louisville, Kentucky to see Dr. Rodriguez. [Record No. 59-2, p. 9] During an exploratory laparotomy, Dr. Rodriguez confirmed that the plaintiff's small bowel was injured. [Record No. 54-2, p. 1] The plaintiff contends that the injury was caused by Rogers' and Todd's actions.

On February 11, 2016, the plaintiff filed suit against Lake Cumberland Regional Hospital ("Lake Cumberland") in state court, alleging that it was responsible for the negligence of its agents or employees. [Record No. 1-1] Lake Cumberland removed the matter to this Court based on diversity jurisdiction. On June 8, 2016, the plaintiff was granted leave to amend the Complaint, and Foncannon added Southeastern Emergency Physicians, LLC ("SEP") as a defendant, alleging that SEP had injured her through the negligence of its agents or employees. [Record No. 21] Shortly thereafter, Lake Cumberland filed a crossclaim for indemnity against SEP [Record No. 24] and a third-party claim for indemnity against Rogers and Todd. [Record No. 36]

The Court granted Lake Cumberland's unopposed motion for summary judgment in January 2017. [Record No. 67] The parties agreed that Lake Cumberland could not be liable for the alleged negligence of Rogers and Todd because they were not employees or agents of Lake Cumberland. The plaintiff acknowledged that she had repeatedly signed consent forms indicating her awareness that physicians and other clinicians were not hospital employees. [See Record No. 59-8] Lake Cumberland's indemnity claims against SEP, Todd, and Rogers were dismissed as moot.

SEP, the only remaining defendant, has now moved for summary judgment. [Record Nos. 66, 68] For the reasons that follow, summary judgment will be granted in its favor.

II.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there isno genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Once the moving party has met its burden of production, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Keeneland Ass'n, Inc. v. Earnes, 830 F.Supp. 974, 984 (E.D. Ky. 1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party cannot rely on the assertions in its pleadings; rather, it must come forward with probative evidence to support its claims. Celotex, 477 U.S. at 324. In making its determination on the motion for summary judgment, the Court will view all the facts and inferences from those facts in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587.

III.

A. There is no genuine issue of material fact regarding vicarious liability.

The plaintiff does not allege that SEP acted negligently. Instead, she asserts that it is liable for the actions of its "agents or employees"—namely, Sean Rogers and Erika Todd. [See Record No. 21] Conversely, SEP contends that Rogers and Todd were not its agents or employees and, therefore, SEP cannot be held liable for their alleged negligence. [Record No. 68]

The doctrine of respondeat superior imputes vicarious liability on the employer or principal for a tortious act of the employee or agent in certain situations. Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005). In support of its motion, SEP provided the affidavit ofJennifer Daly, who is familiar with SEP's business operations. [Record No. 68-2] Daly attested that neither Rogers nor Todd was an employee of SEP during the relevant time period. Id. at p. 2. According to Daly, Rogers was SEP's independent contractor, while Todd was employed by"a wholly different company" -- Southeastern Emergency Services, PC ("SES"). Id. Daly stated that SEP had an agreement with SES whereby SES would provide clinicians, as independent contractors, to staff hospitals with which SEP had a staffing agreement.¹ Id. The defendant also provided a portion of the Medical Professional Independent Contractor Agreement between SEP and Sean Rogers, M.D.:²

Professional's relationship to Company is that of an independent contractor and not an employee. Professional shall exercise Professional's independent professional medical judgment in the performance of Professional's Services and Company does not exercise any control or direction over the methods or manner by which Professional performs Services at Facilities. Professional is not entitled to participate in any employee benefit plans provided by the Company or Facilities for their employees. Professional is free to dispose of Professional's time during such times as Professional sees fit, including providing services at other healthcare facilities.

An independent contractor is traditionally defined as "a person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control to all its details." City ofWinchester v. King, 266 S.W.2d 343, 345 (Ky. 1954). Generally, an employer is not liable for the torts of an independent contractor in the performance of his or her job. Miles Farm Supply v. Ellis, 878 S.W.2d 803, 804 (Ky. Ct. App. 1994). Courts recognize that it would be an unfair application of the rule to hold the would-be employer liable for harm that it had no way of guarding against, and over which it had no control of the act or instrumentality that caused the injury. See Bowen v. Gradison Constr. Co., 32 S.W.2d 1014 (1930). See also King v. Shelby Rural Elec. Coop. Corp., 502 S.W.2d 659, 660 (1973).

Under Kentucky law, courts generally consider ten factors in determining whether a person is an employee rather than an independent contractor:

(1) the extent of control which, by the agreement, the master may exercise over the details of the work; (2) whether or not the one employed is engaged in a distinct occupation or business; (3) 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; (4) the skill required in the particular occupation; (5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the person is employed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is a part of the regular business of the employer; (9) whether or not the parties believe they are creating the relationship of master and servant; and (10) whether the principal is or is not in business.

Ky. Unemp. Ins. Comm'n v. Landmark Cmty. Newspapers of Ky., Inc., 91 S.W.3d 575, 580 (Ky. 2002) (citing Restatement (Second) of Agency, § 220 (1958)). See also Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756-57 (Ky. 1955). No one factor is determinative, and "each case must be decided on its own particular facts." Ky. Unemp. Ins. Comm'n, 91 S.W.3d at 580 (quoting Locust Coal Co. v. Bennett, 325 S.W.2d 322, 324 (1959)).

The relevant factors weigh in favor of concluding that Rogers and Todd were independent contractors. Daly attested that SEP does not employ physicians or advancepractice clinicians "with respect to healthcare provided by them," and that it does not "affect or control the care or treatment provided" by physicians or clinicians. [Record No. 68-2, p. 2] Rogers' Independent Contractor Agreement established that SEP would not exercise any control over the methods or manner in which Rogers practiced medicine. And since Todd worked for a different company, there is no suggestion that SEP had the ability to exercise control over the details of her work. Additionally, SEP did not have an office in Kentucky and, therefore, physical supervision or control of Rogers' and Todd's work was not feasible. Id. at p. 3.

Rogers and Todd, an emergency medicine physician and physician's assistant, respectively, were engaged in distinct occupations that required a high degree of skill. Practicing medicine is normally done by a specialist without supervision. While Ms. Todd would have been supervised by a physician in some instances, there is no indication that SEP, a company that does not provide medical care, supervised her work in any way. [See Daly Affidavit,...