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Taylor v. Jewish Hospital & ST. Mary's Healthcare, Inc.

United States District Court, W.D. Kentucky

June 11, 2014

RENETTA L. TAYLOR, PLAINTIFF
v.
JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC., ET AL., DEFENDANT

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[Copyrighted Material Omitted]

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For Renetta L. Taylor, Administratrix of the Estate of Brandon L.Pillow estate of Brandon L. Pillow, Plaintiff: F. Thomas Conway, LEAD ATTORNEY, Conway & Conway, Louisville, KY; Jeremy T. Ogburn, LEAD ATTORNEY, Kenneth H. Baker, Louisville, KY; John Morgan McGarvey, LEAD ATTORNEY, Morgan & Pottinger, PSC, Louisville, KY.

For Jewish Hospital & St. Mary's Healthcare, Inc, doing business as Jewish Hospital, Defendant: Clay M. Stevens, Kristen H. Fowler, W. Kennedy Simpson, LEAD ATTORNEYS, Thompson Miller & Simpson PLC, Louisville, KY.

For University Medical Center, Inc., doing business as University Hospital, University Emergency medicine Associates, P.S.C., Defendants: Emily W. Newman, Paul A. Dzenitis, LEAD ATTORNEYS, Reminger Co., LPA - Louisville, Louisville, KY.

For Physicians In Emergency Medicine, P.S.C., Defendant: David Bryan Gazak, James E. Smith, LEAD ATTORNEYS, Darby & Gazak, PSC, Louisville, KY.

For Robert L. Falk, M.D., Richard G. Waggener, M.D., Defendants: Richard Paul Schiller, Terri E. Kirkpatrick, LEAD ATTORNEYS, Schiller Osbourne Barnes & Maloney, PLLC, Louisville, KY.

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MEMORANDUM OPINION

Charles R. Simpson, III, Senior United States District Judge.

This matter is before the Court on motions for summary judgment filed by Defendants Jewish Hospital and St. Mary's Healthcare, Inc. (" Jewish" ) (DNs 13, 33), and University Medical Center (" UMC" ) (DNs 18, 34) (collectively " Defendants" ). For the reasons set forth below, the court will:

1) deny Jewish's Motion for Summary Judgment in part (DN 13);
2) grant Jewish's Motion for Summary Judgment in part (DN 33); and
3) grant UMC's Motion for Summary Judgment in full (DNs 18, 34).

BACKGROUND

Unless otherwise indicated, the following facts are undisputed. Plaintiff Renetta L. Taylor (" Plaintiff" ) instituted this action as the administratrix of the estate of her late son Brandon Pillow (" Pillow" ). In the early morning hours of April 23, 2011, Pillow presented himself for treatment at Jewish's emergency department, complaining of severe radiating pain in his upper right abdomen and left shoulder. Pillow was seen by Dr. Anne Lorraine Brady (" Dr. Brady" ), who took his temperature and ordered a Complete Blood Count (" CBC" ). Pillow's temperature was 100.1 degrees, but the results of the CBC showed a normal white blood count. Dr. Brady then ordered an abdominal and pelvic Computed Tomography (" CT" ) Scan without contrast. Once the CT scan was complete, Dr. Brady forwarded the results to Radiologist Dr. R.G. Waggener (" Dr. Waggener" ). Based on his review, Dr. Waggener diagnosed Pillow with bilateral lung base pneumonia, primarily affecting his right lung. After informing Pillow of the diagnosis, Dr. Brady discharged Pillow and prescribed him Bactrim as an antibiotic.

On April 25, 2011, Pillow returned to Jewish's emergency department, where he was seen by Dr. Terry McGann (" Dr. McGann" ). Pillow continued to complaint of sharp pain in his chest, which he explained was exacerbated by coughing and deep breathing. Although Pillow no longer had a fever, Dr. McGann ordered a chest x-ray. After reviewing the x-ray, Dr. McGann prepared the following " Radiology Interpretation:"

Radiology report has been reviewed. Infiltrate right base. Pt. was seen here 2 days ago and had extensive workup. His blood cultures were neg. His CXR today shows more dense infiltrates rt. Base. The one from two days ago was read as negative. Will switch to Cipro if he can afford the $4.00.

After confirming that he could afford it, Dr. McGann prescribed Pillow Ciprofloxacin and discharged him with instructions to return to the emergency department if his symptoms worsened or if he developed shortness of breath or chest pain.

On April 28, 2011, Pillow presented himself for treatment at UMC's emergency department, where he was seen by second-year resident Dr. Robert McKnight (" Dr.

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McKnight" ). Pillow continued to complain of breathing problems and indicated that his pain level was a " 10" on a scale of 1 to 10. After taking his temperature and ordering a CBC, Dr. McKnight determined that Pillow did not have a fever and had a normal white blood count. Accordingly, Dr. McKnight ordered a chest x-ray, which was ultimately reviewed by radiologist Dr. Kragha. In his report, Dr. Kragha indicated that the x-ray exhibited " Blunting of both costophrenic angles, right much greater than left, suggestive of atelectasis, infiltrates and pleural effusion." After reviewing Dr. Kragha's report, Dr. McKnight diagnosed him with atypical pneumonia and prescribed him Amoxicillin as an antibiotic, instructing him to return to the emergency department if his conditions worsened.

On April 30, 2011, Pillow was discovered collapsed on the floor of his grandmother's home. Pillow was immediately rushed to Jewish's emergency department, where he was pronounced dead at 4:29 P.M. On May 1, 2011, Dr. Donna Stewart (" Dr. Stewart" ) performed an autopsy of Pillow on behalf of the Jefferson County Coroner. According to Dr. Stewart's report, the cause of Pillow's death was pulmonary thromboembolism, which resulted from two pulmonary emboli present in his right lung.

PROCEDURAL HISTORY

On May 17, 2011, Plaintiff filed the present action in Jefferson County Circuit Court, alleging medical negligence against Defendants Jewish and UMC based on their alleged failure to properly diagnose Pillow's condition. On March 22, 2013, Defendants removed the action on the basis of federal question jurisdiction, arguing that Plaintiff's assertion of an Emergency Medical Treatment and Active Labor Act (" EMTALA" ) claim in her Fourth Amended Complaint presented a federal question sufficient to confer jurisdiction under 42 U.S.C. § 1331. Subsequently, Plaintiff moved to remand the action on the grounds that she did not intend to assert an independent EMTALA claim, but instead merely sought to incorporate EMTALA's standard of care into her state-law medical negligence claim. On October 31, 2013, we denied the motion to remand, holding that Plaintiff had asserted an independent claim for relief under EMTALA sufficient to establish federal question jurisdiction.

STANDARD

Before granting a motion for summary judgment, the Court must find that there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of establishing the nonexistence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), a burden which may only be satisfied by " citing to particular parts of materials in the record..." or " showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1). If the moving party satisfies this burden, the burden of production shifts to the non-moving party, who must then identify evidence demonstrating the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322.

In resolving a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). However, the non-moving party " must do more than simply show that there is some metaphysical doubt as to the material facts."

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus, " [t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party fails to satisfy its burden of counterproduction, the court must grant the motion for summary judgment.

DISCUSSION

The Court will address the motions for summary judgment in turn.

i. Jewish's Motion for Summary Judgment

a. Medical Negligence

Jewish argues that summary judgment is warranted on Plaintiff's medical negligence claim because there is no genuine dispute that Physicians in Emergency Medicine (" PEM" )[1] and its physician-employees are independent contractors, rather than Jewish's actual or ostensible agents.[2] In support of this argument, Jewish relies on the following undisputed facts:

1) Pillow signed a consent form provided by Jewish wherein he acknowledged his understanding that " physicians... are not employees of this facility but rather are independent contractors for which this facility is not responsible; "
2) the Agreement between Jewish and PEM states that PEM " is an independent contractor for the furnishing of Physicians... who agree to render emergency medical services to [Jewish].... [N]one of the Physicians... provided by [PEM] are employees, independent contractors, or agents of [Jewish]" (Agreement, DN 17, at 7);
3) the Agreement provides that Jewish will insure its own staff, while PEM will be responsible for insuring its physicians;
4) the Agreement provides that PEM will bill separately for its services and determine its own fee schedule;
5) the Agreement provides that PEM will be solely responsible for compensating its physician-employees, including withholding taxes and providing benefits.

In addition, Jewish argues that its lack of control over PEM and its physician-employees weighs in favor of the conclusion that they were not Jewish's actual agents.

In response, Plaintiff argues that Jewish exercised significant control over PEM by retaining authority over the hiring and termination of its physician-employees. Specifically, Plaintiff maintains that Jewish's authority under Section III of the Agreement to terminate PEM physicians in its sole discretion, as well as its authority under Section II.1 to require that all

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physicians hired by PEM meet Jewish's eligibility criteria, is more than sufficient control to render PEM physicians its actual agents. In addition, Plaintiff argues that Jewish exercised further control via its bonus incentive program whereby PEM physicians may receive additional compensation based on the quality of their performance with respect to certain performance metrics defined by Jewish. Finally, Plaintiff emphasizes that Jewish not only provides the instrumentalities, tools, and the place of work for PEM physicians, but also takes responsibility for obtaining signed consent forms from patients treated by PEM physicians. Given that PEM has delegated these significant aspects of its responsibilities for providing patient care, Plaintiff argues that it is clear that Jewish and PEM share an employer-employee relationship. Citing Shofner v. Baptist Healthcare Affiliates, Inc., 2003 WL ...


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