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McDonald v. Hampton Training School for Nurses6/6/1997
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
In this appeal in a medical malpractice case, we consider whether the trial court properly held that, because a physician exercised independent medical judgment in performing his duties, he was an independent contractor as a matter of law.
The plaintiff, James J. McDonald, sued Hampton Training School for Nurses, d/b/a Sentara Hampton General Hospital (the Hospital) alleging that Richard F. Clark, M.D., a pathologist at the Hospital, negligently interpreted McDonald's pathology specimens and failed to timely diagnose cancer. McDonald did not allege any independent acts of negligence by the Hospital, but asserted the Hospital was liable solely through the doctrine of respondeat superior. The trial court entered an order granting the Hospital's motion to strike McDonald's evidence and dismissing the case finding that, as a matter of law, Clark was an independent contractor rather than an employee of the Hospital. Because we conclude that the evidence presented a jury question on the issue of Clark's employment status, we will reverse the judgment of the trial court and remand the case.
The doctrine of respondeat superior imposes liability on an employer for the negligent acts of its employees. If, however, the negligent acts were performed by an independent contractor rather than an employee, no master-servant relationship exists between the contractor and employer, and the employer is not liable for the negligent acts. Norfolk and Western Ry. Co. v. Johnson, 207 Va. 980, 983, 154 S.E.2d 134, 137 (1967). The factors which are to be considered when determining whether an individual is an employee or an independent contractor are well established: (1) selection and engagement; (2) payment of compensation; (3) power of dismissal; and (4) power to control the work of the individual. The fourth factor, the power to control, is determinative. Hadeed v. Medic-24, Ltd., 237 Va. 277, 288, 377 S.E.2d 589, 594-95 (1989). This factor refers to control over the means and method of performing the work. Baker v. Nussman & Cox, 152 Va. 293, 304, 147 S.E. 246, 249 (1929). It is immaterial whether the employer exercises this control; the test is whether the employer has the power to exercise such control. Smith v. Grenadier, 203 Va. 740, 746, 127 S.E.2d 107, 111-12 (1962).
The trial court's determination in this case turned upon the Hospital's lack of control over Dr. Clark's exercise of his professional judgment in carrying out his duties as a pathologist at the Hospital. The trial court found that there was "nothing contractually or factually" to suggest that the Hospital controlled the way that Dr. Clark performed his duties but that he used "his independent professional judgment, based on his education and his training and his experience to do that." Thus, the trial court held, as a matter of law, that Clark was an independent contractor, not an employee, of the Hospital.
The Hospital asserts that the trial court was correct in relying on the Hospital's inability to control Dr. Clark's exercise of his professional judgment as conclusive in the determination of his independent contractor status. We do not agree. The proposition adopted by the trial court and argued by the Hospital here may have been a correct statement of the law at one time; however, it is inconsistent with current case law in this jurisdiction and with the methods of operation currently utilized by health care providers.
As early as 1920, this Court held in Virginia Iron, Coal & Coke Co. v. Odle's Administrator, 128 Va. 280, 105 S.E. 107 (1920), that, although a mining company could be l
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