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Jennings v. St. Vincent Hospital and Health Care Center8/17/2005
, because he was a nurse, of course he otherwise used St. Vincent's "equipment." He could hardly be expected to drag his own x-ray machine to work, nor to supply his own medications, needles, and other disposable items that are a nurse's stock-in-trade.
In addition, the contract that StarMed and St. Vincent signed clearly, unambiguously, and directly denominates Jennings as StarMed's employee and only StarMed's employee. It is clear to me that St. Vincent did not believe Jennings was its employee nor did it want Jennings to be its employee, at least until such time as it became legally convenient in the present lawsuit for Jennings to be its employee. Jennings was not eligible for St. Vincent employment benefits, did not fill out an employment form for the hospital, and did not punch the St. Vincent time clock. St. Vincent did apparently retain the right to dismiss Jennings, provided it first notified StarMed of its intent to do so. This should be given minimal weight as an indicator that Jennings was St. Vincent's employee. It is hard to imagine an independent contractor arrangement that would not allow the hiring company to discharge the worker if it was unsatisfied with him or her. See Nowicki v. Cannon Steel Erection Co., 711 N.E.2d 536, 545 (Ind. Ct. App. 1999) (Kirsch, J., dissenting), trans. denied. In sum, I agree with the Mississippi Supreme Court when it said, "neither of the parties should be permitted to dispute a contractually-created independent contractor relationship between them when to do so adversely affects an injured third party." Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 150 (Miss. 1994). Allowing St. Vincent to disavow its previous designation of Jennings as an independent contractor adversely affects Jennings.
Although I agree with the majority that "control" over a worker is an important aspect of this equation, I disagree that the facts presented in this case mandate the result the majority reaches. Certainly Jennings, as a nurse, followed orders given to him by the physicians at the hospital, as any nurse would and should. The record, however, indicates that these physicians were themselves independent contractors and not employees of the hospital. This makes it even more problematic to come to the conclusion that co-employee status for Jennings should be inferred. The majority responds to this concern by asserting, "that these physicians may have been independent contractors makes no difference, inasmuch as they were acting on behalf of St. Vincent when instructing Jennings." Slip op. p. 14. I would assume St. Vincent would disagree vehemently with this statement were it the defendant in a medical malpractice suit alleging negligence on the part of an independent contractor physician working at the hospital. Indeed, the law would be with St. Vincent that it would not be responsible for the acts of an independent contractor physician, provided it gave written notice to its patients at the time of admission that the physicians were independent contractors and not employees of the hospital. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind. 1999).
Likewise, the length of employment criterion militates against the majority's finding, in my view. There was a finite time, defined by a clear and unambiguous contract for a specific task. That, to me, is a straightforward indicator of independent contractor status for Jennings.
Although the majority concedes that the definition of "work boundaries" is not clear, I do not give this much weight at all because of the nature and gist of the agreement between StarMed and St. Vincent. That document called for a nurse to work in the St. Vincent emergency room. We should not be taken aback o
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