CHARLESTON – The Supreme Court of Appeals of West Virginia has affirmed an entry of summary judgment in favor of the Herbert J. Thomas Memorial Hospital Association, a defendant in a medical malpractice law suit.

A Kanawha County Circuit Court ruled for the hospital in February 2011 involving a 2007 injury.

According to background information, Dr. Jan Cunningham was evaluated by an emergency room physician at Thomas Hospital in April 2007 and then referred to Dr. Hossam Tarakji, a “hospitalist” who treated patients at the hospital.

“Dr. Tarakji admitted Cunningham into the hospital, and provided care and treatment to Cunningham during his hospitalization," court documents state. "During a period when Dr. Tarakji was on vacation, Cunningham received treatment and care from another hospitalist associated with Dr. Tarakji, Thomas J. Rittinger, M.D.”

A few days after admission, Dr. Richard A. Fogle performed exploratory surgery on Cunningham and he developed a serious infection “that apparently resulted from the surgery," court records state. "Dr. Cunningham ultimately required several follow-up surgeries and alleges that he has suffered permanent injury as a result of the infection.”

Cunningham filed suit against Thomas Hospital and Drs. Tarakji, Rittinger and  Fogle. He also included Hospitalist Medicine Physicians of Kanawha County, PLLC, which employed Tarakji and Rittinger, and Delphi Healthcare Partners, Inc., for whom Fogle was employed. 

“The Cunninghams sought to hold Thomas Hospital vicariously liable for the alleged negligence of Dr.s 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,” according to court records.

Judge Charles E. King of the Circuit Court of Kanawha County granted Thomas Hospital’s motion for summary judgment and the Cunninghams appealed.

The high court stated that to determine whether the doctors were “employees or actual agents of the hospital” or “independent contractors,” as the hospital asserted, it would look to the four factors the Court set out in the Paxton v. Crabtree case in 1990.

“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,” the ruling states.

On the first factor, the Court wrote, “[T]he evidence demonstrates that Dr. Fogle was recruited and engaged by Delphi, and Drs. Tarakji and Rittinger were recruited and engaged by Hospitalist Medicine. Thus, factor one favors the conclusion that Drs. Fogle, Tarakji and Rittinger were not agents of Thomas Hospital.”  

The second factor concerns the payment of compensation.  The Court wrote, “it is undisputed that Delphi and Hospitalist Medicine were compensated by Thomas Hospital for the services rendered by the physicians to the hospital.  Then, Delphi paid Dr. Fogle’s compensation and Hospitalist Medicine paid Drs. Tarakji and Rittinger.”

“It also is noteworthy that Thomas Hospital did not bill patients for the services provided by these three physicians, and Thomas Hospital did not pay for the physicians’ malpractice insurance," the ruling states. "Thus, there is no question of fact with respect to the second element of the Paxton test.”

As to the “power of dismissal,” the Court noted that while the hospital required physicians to “comply with the bylaws, rules and regulations, and policies and procedures of the hospital,” there was nothing in the agreements between the hospital and either Hospitalist Medicine or Delphi that granted Thomas Hospital the authority to terminate the doctors.

“The agreement between Dr. Fogle and Delphi set out the conditions under which that agreement would be terminated” and “the contracts between Hospitalist Medicine and Drs. Tarakji and Rittinger expressly set out the conditions under which the physicians could be terminated,” the Court wrote about each of the employment arrangements. 

“Accordingly, the third element of the Paxton test creates no question of fact and favors the conclusion that Drs. Fogle, Tarakji and Rittinger were not agents of Thomas Hospital,” the ruling states.

“As Syllabus point 5 of Paxton recognizes, the fourth element of the test, power of control, is the determinative factor in a master-servant relationship analysis.

“[W]e have carefully and thoroughly reviewed the record in this case and find no evidence to establish a question of fact with regard to the element of control exercised by the hospital over Drs. Fogle, Tarakji and Rittinger. On the contrary, the evidence is clear that the hospital merely exercised a level of control commensurate with that approved by this Court” in prior cases.

“Having carefully reviewed the evidence that was before the circuit court when it ruled on Thomas Hospital’s summary judgment motion … we affirm the circuit court’s award of summary judgment with respect to the Cunningham’s vicarious liability theory."

Turning to the alternate theory of whether Thomas Hospital was in a joint venture with the physicians and therefore vicariously liable for the physician’s actions, the Court relied on the language in the circuit court’s order granting summary judgment.

Judge King wrote and the Court quoted, “[T]he Plaintiffs cannot prove the essential element of “joint venture”, i.e., they cannot prove that Thomas Memorial Hospitalexercised the right to control the defendant physicians’ practice of medicine … there is no evidence that the other defendants had the right to control the Hospital’s practices with respect to its business.  As such, the theory of joint venture cannot provide an independent basis for liability against Thomas Memorial Hospital.

 “We find no error in this conclusion and, therefore, affirm the circuit court’s summary judgment on the issue of a joint venture.”

The opinion was issued Nov. 20 per curiam. A per curiam order is reached by a majority, anonymously.

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