Wolff v. CapeSide Psychiatry, PLLC

Kristy M. Wolff, FNP-C, MSN, Plaintiff, v. CapeSide Psychiatry, PLLC and CapeSide Addiction Care, PLLC, Defendants.

Civil Action No. 3:19-cv-1830-CMC-SVH

United States District Court, D. South Carolina, Columbia Division

August 16, 2021

ORDER

CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

This matter is before the court on Plaintiff Kristy Wolff's (“Plaintiff') pro se Complaint alleging breach of contract by Defendants. ECF No. 1. Defendants, CapeSide Psychiatry, PLLC (“CapeSide Psychiatry”) and CapeSide Addiction, PLLC (“CapeSide Addiction”) (collectively, “Defendants”), have moved for summary judgment. ECF Nos. 82, 83. A Roseboro Order was mailed to Plaintiff, advising her of the importance of a dispositive motion and the need to file an adequate response. ECF No. 84. Plaintiff filed a response in opposition to summary judgment. ECF No. 87.^[1]

In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(e), DSC, this matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation (“Report”). On June 11, 2021, the Magistrate Judge issued a Report recommending Defendants' motion for summary judgment be granted. ECF No. 92. The Magistrate Judge advised the parties of the procedures and requirements for filing objections to the Report and Recommendation and the serious consequences if they failed to do so. Plaintiff filed objections (ECF No. 95) and Defendants replied (ECF No. 96).

STANDARD

The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report and Recommendation of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”) (citation omitted).

BACKGROUND

Plaintiff signed and returned an agreement provided by CapeSide Addiction under which Plaintiff was to provide tele-psychiatry services for patients referred to her by CapeSide Addiction. The agreement, entitled “Independent Contractor Agreement” (“ICA”), provided in relevant part as follows:

THIS AGREEMENT is made and entered as of the 30th day of April 2018 by and between CAPESIDE ADDICTION CARE, PLLC (“Contractee”), and Kristy Wolff, NP an individual Nurse Practitioner (“Nurse Practitioner)” (hereinafter referred to collectively as the “Parties”).

WHEREAS, Contractee is a Professional Limited Liability Company in the State of North Carolina and engaged in the practice of mental/behavioral health medicine;

WHEREAS, Nurse Practitioner is licensed to practice in North Carolina as a nurse practitioner, and is otherwise qualified to perform the services required hereunder;

WHEREAS, Contractee desires to utilize Nurse Practitioner's services upon the terms and conditions hereinafter set forth, and the Nurse Practitioner desires to accept such work.

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. TERM AND TERMINATION. Initiation of agreement is contingent upon completion of all licensing and agency credentialing requirements. Thereafter, the initial term of this Agreement shall be for twelve (12) months commencing on April 30, 2018 if not sooner terminated as provided below ending May 1, 2019. Thereafter, this Agreement shall automatically renew for additional one (1) year terms. Either party may terminate this agreement without cause at any time upon ninety (90) days advance written notice to the other party . . . .

2. NURSE PRACTITIONER'S DUTIES.

2.1 Nurse Practitioner shall perform all reasonable duties within the “Scope of Practice” as determined by the Nurse Practitioner's educational preparation and national certification of a Nurse Practitioner licensed in the state of North Carolina.

2.2 Nurse Practitioner agrees to devote her full time and best efforts to the performance of these duties.

2.3 Nurse Practitioner shall abide by 21 NCAC 36.0810 &amp 21 NCAC 32M.0110 “Quality Assurance Standards for the Collaborative Practice Agreement.”

2.4 Nurse Practitioner shall abide by 21 NCAC 36.0809 &amp 21 NCAC 32M.0109 “Prescribing Authority.”

2.5 The Nurse Practitioner shall exercise independent professional judgment with respect to the care and treatment of all patients. The Nurse Practitioner agrees that the patient care services will be provided promptly, efficiently and in a strict accordance with the ethical and professional standards for the provision of healthcare services adopted by the Contractee.

2.6 The Nurse Practitioner shall be responsible for the quality of medical care rendered by the Nurse Practitioner to the patients of the Contractee and for ensuring that such care meets or exceeds currently accepted standards of medical competence.

2.7 The Nurse Practitioner will relate to colleagues, staff patients, and the public in a collegial manner and will abide by standards of conduct appropriate to the workplace.

2.8 The Nurse Practitioner shall assist in the marketing of the Practice and participate in the professional activities that promote the Practice.

2.9 The Nurse Practitioner shall keep and maintain (or cause to be kept and maintained) appropriate records relating to all professional services rendered by Nurse Practitioner under this Agreement and preparing and attending to, in connection with such services, all reports, claims and correspondence necessary and appropriate in the circumstances, all of which records, reports claims, and correspondence shall belong to the Contractee.

2.10 The Nurse Practitioner shall utilize the Contractee's electronic health record to keep and maintain appropriate records relating to all professional services rendered by Nurse Practitioner under this Agreement.

2.11 The Nurse Practitioner shall document all professional services rendered by Nurse Practitioner under this Agreement within twenty-four (24) hours of treating patient.

2.12 The Nurse Practitioner shall comply with policies and procedures established by the Contractee including participation in quality assurance and utilization review activities.

3. COMPENSATION. In consideration of the Nurse Practitioner rendering services under this Agreement, Contractee shall compensate Nurse Practitioner Seventy-Five Dollars ($75.00) per hour up to a maximum of Six Hundred Dollars ($600.00) per day which will be paid within 10 days of invoice submission. Nurse Practitioner will be responsible for all Federal, State, and Local employment taxes on all income earned. Nurse Practitioner will not be eligible for any benefits relative to this Contract for Social Security, North Carolina Workers Compensation, Unemployment Insurance, North Carolina Teachers' and State Employees' Retirement System, Federal Family & Medical Leave Act, health or disability benefits, vacation pay, sick leave or employee benefits of any kind. Contractee, in accordance with federal or state requirements, will submit a Form 1099 at calendar year-end to the Federal Government for Nurse Practitioner if gross income exceeds $600, which thereupon will be reported for income tax purposes.

4. MALPRACTICE INSURANCE. The Contractee shall, at Contractee's sole cost and expense, purchase and maintain in full force malpractice insurance for Nurse Practitioner. The policy will be a claims-made policy of $1 Million per occurrence/$3 Million annual aggregate coverage.

5. PROFESSIONAL REQUIREMENTS. Nurse Practitioner shall maintain:

5.1 An unrestricted license to practice in the state of North Carolina;

5.2 Current unrestricted D.E.A. registration; and

5.3 Maintenance of FNP-certification

6. BILLING AND FEES. Contractee shall bill and collect for any and all billable services provided by Nurse Practitioner under this Agreement. Contractee shall retain all revenues collected from such billings. Nurse Practitioner acknowledges that he/she acquires no ownership interest in or personal claim to any fees charged or revenue received for any services rendered by Nurse Practitioner hereunder whether such services be professional, advisory or administrative, and whether said fees are collected during his/her employment or after termination thereof. Nurse Practitioner agrees to execute in a timely fashion such reassignment and credentialing forms as may be required to facilitate billing and collection by Contractee.

7. CONTRACTEE RECORDS. The ownership and right of control of all reports, records and supporting documents prepared in correction with the services rendered by Nurse Practitioner shall vest exclusively with Contractee. Nurse Practitioner shall have such rights or access to such reports, records and supporting documentation as provided by Contractee's policies.

8. NON-COMPETITION, CONFIDENTIALITY, NON-SOLICITATION. Nurse Practitioner acknowledges that Contractee has invested substantial time money and resources in the development and retention of its Confidential Information (which may include trade

...