Johnson v. Lebonheur Children's Medical Center5/25/2000
In this medical malpractice case, the plaintiff sued a hospital and several physicians, including a resident physician in the University of Tennessee training program. The complaint alleges, among other things, that the hospital is liable to plaintiff pursuant to respondeat superior for alleged negligence on the part of two University of Tennessee resident physicians. The hospital sought partial summary judgment as to any liability by virtue of acts of the resident physician, because the resident physicians are immune from suit pursuant to the Tennessee Claims Commission Act; thus, they assert that since the agent or servant cannot be held liable, the principal or master cannot be held liable. From the order of the trial court denying hospital a partial summary judgment, Hospital was granted an interlocutory appeal.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court is Affirmed and Remanded
Crawford, P.J., W.S., delivered the opinion of the court, in which Highers, j., and Farmer, j., joined.
OPINION
This is a medical malpractice case. Plaintiff, Mary Johnson, individually and on behalf of her daughter, Amman Johnson, sued LeBonheur Children's Medical Center (hereinafer referred to as LeBonheur), Donald C. Watson, M.D., Michael Citak, M.D., Michael Barron, M.D., Pediatric Anesthesiologists, P.A., and U. T. Medical Group, Inc., seeking damages for injuries incurred by Ammon Johnson when she suffered cardiac arrest that led to permanent brain damage while undergoing surgery for a heart condition known as Tetralogy of Fallot. The complaint alleges, inter alia, that Dr. Citak and Dr. Martindale, both resident physicians in the University of Tennessee training program, were acting as agents and servants of defendant, LeBonheur, when they committed negligent acts resulting in injuries to plaintiff, and that LeBonheur is liable for their alleged negligence by virtue of respondeat superior. Because defendant, Dr. Citak, was a medical resident in the University of Tennessee training program and technically an employee of the State of Tennessee, claims against him personally were transferred to the Tennessee Claims Commission by consent order. Since Dr. Martindale was not named as a defendant, there was no order entered concerning the allegations about him.
On December 8, 1999, the trial court entered an order denying LeBonheur's motion for partial summary judgment "on the issue of LeBonheur's liability based upon the asserted negligence of two physicians, Michael Citak, M.D., and Michael Martindale, M.D., who were medical residents working at Lebonheur Children's Medical Center on rotations, while in the residency program of the University of Tennessee."
LeBonheur was granted a Rule 9, Tenn.R.App.P., interlocutory appeal, and the only issue for review is whether LeBonheur can be held vicariously liable for the acts of the resident physicians while they were acting as Lebonheur's agents when the residents are immune from suit as a matter of law.
LeBonheur asserts that Tennessee law is clear that a master cannot be held liable pursuant to respondeat superior for the actions of a servant when the servant is immune from suit. Lebonheur cites several authorities for this proposition of the general law. We have no quarrel with these authorities. However, we have found no authority dealing with the factual situation presented in the instant case, i.e., when a servant's immunity is granted by statute for the servant's acts while acting for the state, and where the state's immunity is waived and the servant is acting for another entity.
Art. I, Sec. 17, Constitution of the State of Tennessee provides in par
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