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Owens v. Thomae6/14/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED: 06/14/2005
BEFORE KING, C.J., IRVING AND GRIFFIS, JJ.
. Lucille Owens appeals the circuit court's grant of Dr. Keith R. Thomae's cross-motion for summary judgment. We find no error and affirm.
FACTS
. On November 30, 1995, Lucille Owens was admitted to the University of Mississippi Medical Center ("UMMC") for a serious stab wound to her groin area. Owens was taken to the emergency room where Dr. Keith R. Thomae, the on-call surgeon, along with resident doctors Amos, Dixon, and Killough, performed surgery. Owens remained hospitalized at UMMC through December 13, 1995. During the hospitalization, Owens underwent three additional operations, and her right leg was amputated. Throughout all of Owens' operations, Dr. Thomae was assisted by at least one resident physician.
. At the time of Owens' injury, Dr. Thomae was employed by the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi as an assistant professor of surgery at UMMC. His duties included instructing medical students and residents and treating patients at UMMC and its affiliated sites. Additionally, Dr. Thomae was employed as a surgeon by University Surgical Associates ("USA"). USA is one of many departmental practice plans at UMMC, wherein UMMC faculty-physicians, who engage in clinical practice, are allowed to earn additional income over their contractual salary pursuant to a formula devised by UMMC.
. UMMC physicians are contractually required to be part of their department's plan as approved by the Board of Trustees. As a surgeon, Dr. Thomae was in the Department of Surgery and was under the provisions of the UMMC Department of Surgery Practice Plan. The Department of Surgery Practice Plan applicable to Dr. Thomae as a surgeon was USA. The agreement for USA specifically stated that members of USA must hold faculty positions at UMMC in the Department of Surgery and also states that when a member ceases to hold a faculty position at UMMC he or she is no longer eligible to be a member of USA.
. On July 7, 1997, Owens filed a medical malpractice suit against Dr. Thomae and two resident physicians. The defendants moved for summary judgment on the basis that they were employees of UMMC and that Owens failed to comply with the notice and statute of limitations provisions of the Mississippi Tort Claims Act ("MTCA"), as required by Mississippi Code Annotated Section 11-46-7(2) (Rev. 2002). The Circuit Court of Hinds County granted summary judgment to all defendants. Owens appealed, and the Mississippi Supreme Court affirmed the grant of summary judgment in favor of the resident physicians but remanded the claim against Dr. Thomae for the limited purpose of further discovery on the issue of Dr. Thomae's employment status. Owens v. Thomae, 759 So. 2d 1117 (Miss. 1999).
. On remand, the Circuit Court of Hinds County again granted summary judgment in favor of Dr. Thomae. The court found that Dr. Thomae was an employee of UMMC and was, therefore, protected from personal liability under the MTCA. Owens now appeals to this Court. She argues that Dr. Thomae was acting as an independent contractor and not as an employee of UMMC.
STANDARD OF REVIEW
. This Court employs a de novo standard of review of a trial court's grant of summary judgment. Mozingo v. Scharf, 828 So. 2d 1246, 1249 ( ) (Miss. 2002). When there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper. Id. The burden of demonstrating that there is no genuine issue of material fact fall
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