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Clayton v. Harkey9/26/2002
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 09/26/2002
. In this medical malpractice action filed against H. Louis Harkey, III, M.D., a staff neurosurgeon at the University of Mississippi Medical Center, the trial court granted summary judgment in favor of Dr. Harkey and dismissed him from the suit as immune from liability based on his status as a state employee pursuant to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § 11-46-7(2) (2002). The plaintiff, Jala Clayton, claims that Dr. Harkey was acting as an independent contractor and should not have been dismissed from the suit. We disagree and affirm.
FACTS
. Jala Clayton was born with a rare form of dwarfism that caused minor back problems. Clayton discussed her back problems with several physicians including Dr. H. Louis Harkey, III, a neurosurgeon at the University of Mississippi Medical Center ("UMMC"). On or about May 5, 1998, Clayton was admitted to UMMC to undergo surgery on her back. Dr. Donnie Tyler, a neurosurgical resident, dictated and performed the initial history and physical on Clayton. Dr. Tyler also signed the consent form presented to Clayton prior to the subject surgery, and he wrote the majority of the progress notes with respect to Clayton and her treatment up to and including the surgical procedure. Nevertheless, it was Dr. Harkey who actually performed the surgical procedure while Dr. Tyler observed. Dr. Harkey performed a thoracic diskectomy, but the procedure was performed on the wrong disc.
. Clayton filed suit against Dr. Harkey, Dr. Tyler, UMMC, and others alleging damages to her spine, vertebrae, back, discs and other vital body parts as a direct and proximate result of the negligence by Dr. Harkey and others. Both Clayton and Dr. Harkey filed motions for summary judgment based on Dr. Harkey's status at UMMC. After consideration of the motions and oral and written argument, the trial court denied Clayton's motion and granted summary judgment for Dr. Harkey and dismissed him as an individual defendant from the suit on the basis of immunity applicable to employees of the State of Mississippi under Miss. Code Ann. § 11-46-7(2). The judgment was certified as final in accordance with Miss. R. Civ. P. 54(b).
. It is from that judgment that Clayton appeals, arguing that Dr. Harkey was acting as an independent contractor and should not have been dismissed from the suit.
STANDARD OF REVIEW
. This Court employs a de novo standard when reviewing a trial court's grant of summary judgment. Carter v. Harkey, 774 So.2d 392, 394 (Miss. 2000). For a summary judgment motion to be granted, there must exist no genuine issues of material fact, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). If any triable issues of fact exist, the trial court's decision to grant summary judgment will be reversed. Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000).
DISCUSSION
. The Mississippi Tort Claims Act ("MTCA") provides that no state employee "shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss. Code Ann. §11-46-7(2). The MTCA defines "employee" as "any officer, employee or servant of the State of Mississippi or a political subdivision of the state" but specifically excludes from that definition an individual "acting in the capacity of an independent contractor." Id. § 11-46-1(f). Under the MTCA, there exists "a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment."
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