CAMPBELL COUNTY MEMORIAL HOSPITAL v. JAIME A. WILLIAMS PFEIFLE and JOSH PFEIFLE
S-13-0040
IN THE SUPREME COURT, STATE OF WYOMING
January 7, 2014
2014 WY 3
OCTOBER TERM, A.D. 2013
Appeal from the District Court of Campbell County
The Honorable Dan R. Price II, Judge
Billie LM Addleman; and Kara L. Ellsbury of Hirst Applegate, LLP, Cheyenne, WY. Argument by Mr. Addleman.
Representing Appellee:
R. Daniel Fleck and Larissa A. McCalla of The Spence Law Firm, LLC, Jackson, WY; and Jeremy D. Michaels of Michaels & Michaels, PC, Gillette, WY. Argument by Mr. Michaels.
Before HILL, VOIGT*, BURKE, and DAVIS, JJ., and SHARPE, D.J.
Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
SHARPE, District Judge.
[¶1] Campbell County Memorial Hospital (“the hospital“) appeals from a district court order denying its motion for partial summary judgment in a medical malpractice action. The district court determined that a government hospital could be vicariously liable for acts of non-employees or independent contractors under the doctrine of ostensible agency. The district court based its ruling on this Court‘s decision in Sharsmith v. Hill, 764 P.2d 667 (Wyo. 1988). On appeal, the hospital contends the district court erred in its interpretation of Sharsmith. The hospital asserts Sharsmith did not create an implied waiver of sovereign immunity under the Wyoming
ISSUES
[¶2] Appellant Campbell County Memorial Hospital presents the following issue for our consideration:
Whether a governmental entity is liable for the negligence of a non-employee under the Wyoming Governmental Claims Act (“WGCA” or “Act“).
Appellee Jamie Pfeifle restates the issues as follows:
- Whether the Wyoming Governmental Claims Act applies to Campbell County Memorial Hospital because the hospital obtained liability insurance to cover these circumstances;
- Whether the Wyoming Governmental Claims Act‘s remedy provisions apply only to tort claims brought under specific provisions of the Act and do not in any way limit contract-based claims or remedies;
- Whether Certified Registered Nurse Anesthetist Amanda Phillips fits the Wyoming Governmental Claims Act‘s definition of public employee; and
- Whether Campbell County Memorial Hospital is liable for Certified Registered Nurse Anesthetist Amanda Phillips’ negligence because the hospital created the appearance that Phillips was the hospital‘s employee.
FACTS
[¶3] Campbell County Memorial Hospital (“the hospital“) is a governmental entity in Gillette, Wyoming. The hospital contracted with Northern Plains Anesthesia Associates, P.C. (“Anesthesia Associates“) to provide anesthesia services for the hospital. Amanda Phillips (“Phillips” or “Nurse Phillips“) was a certified registered nurse anesthetist for Anesthesia Associates when the conduct in dispute occurred.
[¶4] On September 24, 2008, Jamie Pfeifle (“Pfeifle“) went to the hospital to have a baby. Although she anticipated that the baby would be delivered after labor was induced, the attending obstetrician ordered a cesarean section. In preparation for the cesarean section, Nurse Phillips attempted to administer spinal anesthesia to Pfeifle. After the first attempt failed, she tried to administer anesthesia two more times. Pfeifle claims she experienced severe pain and paresthesia during each procedure. Pfeifle maintains that Nurse Phillips’ repeated attempts to administer the anesthesia caused permanent disability and other damages.
[¶5] After complying with the claim requirements of the Wyoming Governmental Claims Act (“WGCA” or “Act“), Jamie and her husband Josh filed this action on December 28, 2010.1 The Pfeifles’ complaint alleged separate negligence claims against the hospital, Anesthesia Associates, Phillips, and another party. Plaintiffs’ complaint alleged that Nurse Phillips acted as an employee of Anesthesia Associates at the time of the spinal anesthesia procedures. Alternatively, the complaint alleged Nurse Phillips acted as an employee or agent of the hospital, thereby making the hospital vicariously liable for Phillips’ claimed negligence. In their respective answers, the hospital, Anesthesia Associates and Nurse Phillips denied that Phillips acted as an employee of the hospital at the time of the alleged negligence. Rather, the defendants asserted that Nurse Phillips was an employee of Anesthesia Associates.
[¶6] On March 22, 2012, the hospital filed a motion for partial judgment on the pleadings pursuant to
[¶8] After hearing oral arguments on the hospital‘s motion, the district court certified the following question to this Court: Does the doctrine of ostensible or apparent agency as announced in Sharsmith apply to all hospitals regardless of whether or not they are governmental entities that are protected by sovereign immunity and the requirements of the Wyoming Governmental Claims Act? This Court declined to answer the certified question on August 15, 2012, stating:
This Court finds that it should decline to answer the question. It does not appear that the certified question “may be determinative of the cause” pending in district court.
W.R.A.P. 11.01 . Even if the Hospital is immune from suit, it appears that this suit can still go forward against the other defendants.
[¶9] On September 10, 2012, the district court issued its decision letter denying the hospital‘s motion for partial summary judgment. In so doing, the district court held that Sharsmith applies to cases involving government hospitals. The district court further found that the Sharsmith factors were satisfied in this case, and that the hospital could be vicariously liable for the actions of a non-employee under the doctrine of ostensible agency.
STANDARD OF REVIEW
[¶10]
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
[¶11] Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Comet Energy Servs., LLC v. Powder River Oil & Gas Ventures, LLC, 2008 WY 69, ¶ 5, 185 P.3d 1259, 1261 (Wyo. 2008). When summary judgment involves a purely legal determination, we review de novo the trial court‘s summary judgment decision. Glenn v. Union Pacific R.R. Co., 2007 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo. 2007).
DISCUSSION
[¶12] Before considering the merits of this appeal, we first address a jurisdictional issue. The denial of a defendant‘s summary judgment motion is generally not a final appealable order. Gilstrap v. June Eisele Warren Trust, 2005 WY 21, ¶ 7, 106 P.3d 858, 861 (Wyo. 2005). This Court has recognized an exception to that rule, however, in cases involving the denial of a defendant‘s claim of qualified immunity. Park County v. Cooney, 845 P.2d 346, 349 (Wyo. 1992). In State Dep‘t of Corr. v. Watts, 2008 WY 19, ¶ 10, 177 P.3d 793, 796 (Wyo. 2008), we determined that the same rationale that favors an exception to the general rule in qualified immunity cases, also applies to summary judgment denials based on a claim of governmental immunity. We specifically
[¶13] In analyzing the district court‘s denial of the hospital‘s motion, we note that the district court accepted the factual premise that Nurse Phillips acted as an employee of Anesthesia Associates, and not the hospital, when she administered the spinal anesthesia. The district court nevertheless determined that a governmental entity can be vicariously liable for the acts of non-employees or independent contractors based on the doctrine of ostensible agency. The district court based this decision solely on its reading of Sharsmith.
[¶14] In Sharsmith, this Court considered whether a hospital in Teton County (St. John‘s Hospital) could be vicariously liable for the alleged negligence of two non-employee pathologists who failed to diagnose a malignant tumor in the plaintiff‘s leg. This Court initially noted in Sharsmith that a hospital is generally liable only for the negligence of its employees, and not for the negligence of physicians who are independent contractors. Id., 764 P.2d at 671. Relying on case law from other jurisdictions as well as the Restatements Second of Torts and Agency, however, this Court adopted the “apparent agency rule.” That rule imposes vicarious liability against hospitals for the negligence of those practitioners who are the ostensible or apparent agents of the hospital “regardless of whether they are employees or independent contractors.” Id. at 672. We summarized the apparent agency rule in Sharsmith as follows:
Where a hospital holds itself out to the public as providing a given service, *** and where the hospital enters into a contractual arrangement with one or more physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians.
Sharsmith, 764 P.2d at 672 (quoting Hardy v. Brantley, 471 So. 2d 358, 371 (Miss. 1985)). Sharsmith did not discuss or address whether the hospital in that case was a governmental entity or a private hospital. Moreover, Sharsmith did not discuss the WGCA or the doctrine of sovereign immunity, and did not consider whether the Wyoming Legislature intended to waive sovereign immunity for acts of non-employees of a government hospital under the doctrine of apparent or ostensible agency.
[¶15] The district court in this case acknowledged that Sharsmith is silent on these salient issues but determined that Sharsmith nevertheless applies to this case. The district court explained its reasoning as follows:
The court will find that the Sharsmith case applies in this situation. The main reason for the court‘s conclusion is that the hospital involved in Sharsmith is a government entity. See Guier v. Teton County Hosp. Dist., 248 P.3d 623 (Wyo. 2011). Even though the Supreme Court did not address this fact in the Sharsmith decision this court finds that since both the hospital in this case and the hospital in Sharsmith are governmental entities that the same reasoning is applicable. Also, as far as a patient is concerned, there is no difference between a hospital that is a government entity and one that is not.
[¶16] To resolve this appeal, we must first determine whether the legislature, by enacting the WGCA, intended to expressly waive sovereign immunity for acts of non-employees of a government hospital under the doctrine of ostensible agency. We must also analyze whether our decision in Sharsmith interpreted the Act to waive sovereign immunity with regard to claims of ostensible or apparent agency. Because the district court assumed that our decision in Sharsmith resulted in a waiver of governmental immunity, the starting point for our analysis requires a brief discussion of the doctrine of sovereign
[¶17] There is perhaps no common law doctrine more time honored than the doctrine of sovereign immunity. As this Court noted in Worthington v. State, 598 P.2d 796, 801 (Wyo. 1979):
There are few, if any, precedents or rules that have been recognized longer or followed with greater fidelity than the rule that was set out in the case of Hjorth Royalty Company v. Trustees of University, 30 Wyo. 309, 222 P. 9 (1924), which held that
Art. 1, § 8, Wyoming Constitution , is not self-executing; that no suit can be maintained against the State until the legislature makes provision for such filing; and, that absent such consent, no suit or claim could be made against the State.
We acknowledged in Worthington that the doctrine of sovereign immunity has its “roots in the ancient common law of England which held ‘The King can do no wrong’ and hence could not be sued in any court of law.” Id. at 803 (quoting Perkins v. State, 252 Ind. 549, 251 N.E.2d 30, 32 (1969)).
[¶18] In reality, of course, the King does “do wrong,” but the right to seek redress for such wrong is determined by the policy and will of the legislative body. The constitution of the State of Wyoming embodies this very concept. “Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.”
[¶19] In 1979, the Wyoming Legislature abrogated the common law of sovereign immunity in Wyoming, and established sovereign immunity as a legislative construct. See
(a) The Wyoming legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity and is cognizant of the Wyoming Supreme Court decision of Oroz v. Board of County Commissioners, 575 P.2d 1155 (1978). It is further recognized that the state and its political subdivisions as trustees of public revenues are constituted to serve the inhabitants of the state of Wyoming and furnish certain services not available through private parties and, in the case of the state, state revenues may only be expended upon legislative appropriation. This act is adopted by the legislature to balance the respective equities between persons injured by governmental actions and the taxpayers of the state of Wyoming whose revenues are utilized by governmental entities on behalf of those taxpayers. This act is intended to retain any common law defenses which a defendant may have by virtue of decisions from this or other jurisdictions.
(b) In the case of the state, this act abolishes all judicially created categories such as “governmental” or “proprietary” functions and “discretionary” or “ministerial” acts previously used by the courts to determine immunity or liability. This act does not impose nor allow the imposition of strict liability for acts of governmental entities or public employees.
[21] In this case, Pfeifle argues that her tort claim falls within the waiver of immunity found in
A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any public hospital or in providing public outpatient health care.
[¶22] Section
(a) A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity, including contract physicians, physician assistants, nurses, optometrists and dentists who are providing a service for state institutions or county jails, while acting within the scope of their duties.
[¶23] The term “public employee” as used in
(iv) “Public employee“:
(A) Means any officer, employee or servant of a governmental entity, including elected or appointed officials, peace officers and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation;
(B) Does not include an independent contractor, except as provided in subparagraphs (C) and (F) of this paragraph, or a judicial officer exercising the authority vested in him;
(C) Includes contract physicians, physician assistants, nurses, optometrists and dentists in the course of providing contract services for state institutions or county jails;
[¶24] The term “employees of the governmental entity” as used in
[¶25] Reading all the provisions of the Act in pari materia, as we must, we find that the plain meaning of “public employee” is clear. “Public employee” begins with the broad definition under the first subparagraph (“any officer, employee or servant of a governmental entity“).
[¶26] Accordingly, for purposes of
[27] Our conclusion that the WGCA does not provide an express waiver of sovereign immunity for non-employees of a governmental hospital does not end our analysis. The district court assumed the doctrine of ostensible agency announced in Sharsmith applies
to all hospitals, including governmental entities. The district court based its conclusion on the fact that the hospital in Sharsmith, like the hospital here, was a governmental entity.3 The district court therefore assumed that this Court‘s decision in Sharsmith establishes an implicit waiver of sovereign immunity against all hospitals whenever the hospital creates the appearance that an independent contractor is its agent. We disagree.
[¶28] The district court correctly recognized that Sharsmith does not discuss either the Wyoming Governmental Claims Act or the doctrine of sovereign immunity. Sharsmith did not address whether the hospital in that case was a governmental entity, and did not discuss whether the legislature intended to waive sovereign immunity for claims against a governmental entity under the Act for acts of an ostensible agent. In the absence of any discussion or analysis of these important topics, it was error for the district court to rely on Sharsmith as waiving sovereign immunity in this case.
[¶29] The decision whether or not to waive immunity for a governmental entity belongs to the Wyoming Legislature, not this Court.
[¶30] Finally, Pfeifle proffers additional arguments supporting the district court‘s denial of the hospital‘s motion for partial summary judgment. Pfeifle argues that the hospital waived sovereign immunity by obtaining liability insurance that covered Phillips. Pfeifle further argues that she is an intended third-party beneficiary of the contract between the hospital and Anesthesia Associates, and that the Act does not provide governmental immunity for contract claims. Pfeifle made these same arguments below, but the district court did not address them in its decision letter.
[¶31] While this Court may ordinarily affirm the district court on any ground apparent in the record, we have declined to do so when the underlying issues involve complex factual and legal arguments that were never addressed by the district court. Horse Shoe Land & Livestock v. Federal Land Bank, 740 P.2d 936, 938 (Wyo. 1987). We decline in this case to analyze Pfeifle‘s alternative legal arguments concerning insurance coverage and third-party beneficiary contract coverage in the absence of a district court determination of these issues.4 We believe it is best to allow the district court to consider these alternative arguments as it sees fit on remand, and to make findings and a record that will allow this Court to engage in a more meaningful review in the event of another appeal.
[¶32] We reverse and remand for further proceedings consistent with this opinion.