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Clayton v. Harkey9/26/2002
rgues that Dr. Harkey received compensation indirectly, at least, because the Medicaid fees paid on her behalf go to the operation of the medical school staff. She further argues that UMMC's requirement that Dr. Harkey procure individual liability insurance is inconsistent with the notion that he is an "employee."
. Nonetheless, the record reveals that Dr. Harkey was a full-time faculty member who received a fixed contractual salary, all of which was paid from funds controlled by UMMC. Dr. Harkey was not permitted to earn any income from the practice of medicine outside of his contract. Furthermore, the fact that a physician has acquired professional liability insurance is irrelevant to the inquiry as to whether a state employee enjoys immunity under the MTCA. See Knight v. McKee, 781 So.2d 121, 123 (Miss. 2001).
CONCLUSION
. Considering the factors enumerated in Miller, the facts here weigh in favor of finding that Dr. Harkey was acting not as an independent contractor, but as a state employee at the time of the alleged negligence. Under the provisions of the MTCA, Dr. Harkey enjoys immunity in this instance. The judgment of the trial court is affirmed.
. AFFIRMED.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
McRAE, PRESIDING JUSTICE, DISSENTING:
. Whether Dr. Harkey was acting as a state employee or as an independent contractor is an issue of fact for the factfinder to decide at trial, not for the trial court to dismiss on summary judgment. A genuine issue of material fact existed; and therefore, this case should be reversed and remanded for trial. For these reasons, I respectfully dissent.
. Dr. Harkey performed the operation on Clayton. I find it difficult to believe that Clayton thought her body was being donated for teaching purposes. Did she consent to be the proverbial guinea pig? Just because there was a resident neurosurgeon in the operating room at the time does not mean that Dr. Harkey was acting as a teaching professor. Does the mere presence of a resident mean that one who has dual roles and may act as an independent contractor at times is automatically transformed into a state employee? There are many questions at issue which should be resolved at trial before a trial judge summarily decides that Dr. Harkey was not acting as an independent contractor.
. Accordingly, I dissent.
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