Edward CARTER
v.
H. Louis HARKEY, M.D.
Supreme Court of Mississippi.
*393 Bobby Owens, Barry H. Powell, Jackson, Rajita Moss Iyer, Brandon, Attorneys for Appellant.
Stephen P. Kruger, Jan F. Gadow, Ridgeland, Attorneys for Appellee.
Before PRATHER, C.J., McRAE AND WALLER, JJ.
PRATHER, Chief Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Edward Carter, a patient at Mississippi Methodist Rehabilitation Center ("MMRC") in Jackson, Mississippi, sued Dr. H. Louis Harkey, a fаculty-physician at the University of Mississippi Medical Center ("UMMC"), in the Circuit Court of Hinds County, First Judicial District, alleging medical malpractice. The circuit court dismissed Carter's suit, finding that Dr. Harkey was protected by the Mississippi Tort Claims Act ("MTCA"), Miss. Code Ann. §§ 11-46-1 to -23 (Supp.2000), as Dr. Harkey hаd been acting within the course and scope of his employment at the time the alleged malpractice occurred. The circuit court ruled that Carter failed to provide the required notice under the MTCA and that the one-year statute of limitations under the MTCA had expired. Carter has appealed, raising the following assignment of error:
ISSUE
A University of Mississippi Medical Center faculty-physician who operates on a private patient for a fee is not immune from personal liability for medical malpractice under the MTCA solely by virtue of his employment.
STATEMENT OF FACTS
¶ 2. Dr. Harkey is a neurosurgeon and faculty member[1] at UMMC. As such, Dr. Harkey's duties include providing medical care, teaching, researching, and performing administrative tasks. Dr. Harkey receives a base yearly salary of $67,980[2] as an employee at UMMC. In addition, Dr. Harkey may retain 100% of his net earnings from the practice of medicine up to a total income of $140,000. Dr. Harkey's contract specifically notes that such additional earnings will be derived from patient care at UMMC, the Department of Veterans Affairs Medical Center, and "other affiliated practice sites" such as MMRC. All income in excess of $140,000 is divided equally between Dr. Harkey and UMMC.[3] Dr. Harkey may not, however, earn any income from the prаctice of medicine outside of this contract. As an employee at UMMC, Dr. Harkey had the opportunity to participate in the benefit package for state employees, including health, life and disability insurance, tax sheltered annuities, cafeteria plan, and the state retirement plan. Additionally, state, federal, and social security taxes were withheld from Dr. Harkey's salary, and the accrual of vacation and sick time were governed by state law. UMMC also maintаined medical malpractice insurance on Dr. Harkey.
¶ 3. UMMC and MMRC presently have, and at the time of Carter's alleged injuries *394 had, an "Affiliation Agreement," the purpose of which was to improve "medical practice, teaching, research and service" to patients. Under the Agreement, UMMC faculty members may be called upon to consult and operate upon patients admitted to MMRC for the purposes of providing medical care, teaching, and service.
¶ 4. The рlaintiff, Edward Carter, was a patient at MMRC in June and July 1997. Carter's treating physician requested a consultation from Dr. Harkey, who later performed surgery on Carter. Carter subsequently filed suit on February 23, 1999, against Dr. Harkey, alleging negligence and breach of the stаndard of care. In response, Dr. Harkey moved for summary judgment, asserting that he had acted in the scope of his employment at UMMC and that, as a state employee, he was protected by the MTCA. Specifically, Dr. Harkey contended that Carter's suit was barred by Carter's failure to provide the required notice under the MTCA and by the running of the MTCA's one-year statute of limitations. Carter then amended his Complaint, asserting that, at all material times, Dr. Harkey had been acting outside the course аnd scope of his employment at UMMC.
¶ 5. The trial court granted Dr. Harkey's motion for summary judgment, finding Carter had failed to comply with the notice provisions and the one-year statute of limitations under the MTCA. In reaching its decision, the trial court noted that Cаrter had "conceded that Dr. Harkey was an employee for the State of Mississippi through his contract of employment with [the] Board of Trustees of the State Institution of Higher Learning" and added that "[t]he exclusive civil remedy against employees, such as Dr. Harkey, for acts giving rise to a tort suit is provided by the [MTCA]." Carter timely appealed the dismissal.
ISSUE
Is a University of Mississippi Medical Center faculty-physician who operates on a private patient for a fee immune from personal liability for medical malpractice under the MTCA solely by virtue of his employment?
STANDARD OF REVIEW
¶ 6. Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The party seeking summary judgment has the burden of establishing that there is no genuine issue of material fact and that judgment as a matter of law is appropriate. Miller v. Meeks,
¶ 7. Whеn reviewing a trial court's grant of summary judgment, this Court utilizes a de novo standard and views all evidence in the light most favorable to the non-movant. Downs v. Choo,
LEGAL ANALYSIS
¶ 8. Carter contends that, while performing the surgery, Dr. Harkey was acting outside the course and scope of his employment as a faculty member at UMMC and that, therefore, the trial court erred in granting Dr. Harkey's motion for summary judgment. Carter maintаins that Dr. Harkey freely chose to treat him as a private patient and that there was "no teaching component" to the operation. This Court cannot find, based on the record before it, whether Dr. Harkey was acting as an employee or an independent contractor at the time of Carter's operation. However, this Court does agree that the grant of summary judgment here was improper and remands the case so that the *395 trial court may consider make this determination using this Court's recently adopted five-part test in Miller,
¶ 9. The MTCA provides that employees of a governmental entity "shall [not] be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss.Code Ann. § 11-46-7(2) (Supp.2000). The MTCA defines "employee" as "any officer, employee or servant of the State of Mississippi or a political subdivision of the state" but specifically excludes from that definition an individual "acting in the capаcity of an independent contractor." Id. § 11-46-1(f). Under the MTCA, there exists "a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his emplоyment." Id. §§ 11-46-5(3) & -7(7).
¶ 10. Despite that seemingly-clear language, the MTCA "provides little guidance on the best means for determining the employment status" of an individual. Miller,
1. The nature of the function performed by the employee;
2. The extent of the state's interest and involvement in the function;
3. The degree of control and direction exercised by the state over the employee;
4. Whethеr the act complained of involved the use of judgment and discretion; and
5. Whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered.
Id. In Miller, this Court, however, cоuld not determine from the record whether Dr. Meeks, a faculty-physician at UMMC, had acted as a professor or as an independent contractor while operating on a patient at the UMMC Pavillion, an outpatient clinic on UMMC's cаmpus. Id. The Court concluded therefore, that summary judgment was improper as there was a genuine issue of disputed material factwhat status the doctor held while providing treatment to the plaintiffand remanded the case for further factual development. Id. at 310-11.
¶ 11. Shortly after adopting that five-part test in Miller, this Court again addressed the very issue raised by Carter. Sullivan v. Washington,
The State has a keen interest in cases of this nature. It is very important that faculty physicians supervise the progress of interns and residents. This provides the training necessary to ensure that Mississippi has a ready pool of competent physicians. Likewise, the resident must be able to practice medicine under the guidance of a learned physician in order to master his or her profession. The State has a strong interest in maintaining such a practical and educational *396 environment, meeting the needs of both the physicians and the patients.
Id. at 885. While the Court acknowledged that Dr. Sullivan had exercised some degree of judgment and discretion in assisting with the operation, the Court declined tо hold Dr. Sullivan to be an independent contractor, noting that "[v]irtually every act performed by a person involves the exercise of some discretion. Obviously, a professional necessarily retains a significant amount of discretion in the оperation of his profession." Id.
¶ 12. The very next week, this Court again confronted the issue raised by Carter, holding that the grant of summary judgment to Dr. Braden, an Assistant Professor of Pediatrics at UMMC who had been sued for alleged medical malpractice, was improper. Smith v. Braden,
¶ 13. In the case sub judice, this Court finds that the trial court improperly granted summary judgment. The trial court did not have the benefit of this Court's decision in Miller, and, therefore, this Court remands the case so that the trial court may reconsider, based upon the Miller factors, whether Dr. Harkey was acting as an employee or independent contractor at the time of the alleged malpractice. In doing so, this Court notes that its decision in Sullivan is distinguishable from both Miller and Braden for two reasons. First, Sullivan involved a resident-physician who assisted in surgery and a faculty-physician who merely supervised the operation. In Miller and Braden, however, the faculty-physicians actually performed the surgery themselves. Second, in Sullivan, neither doctor received any rеmuneration from the Medicaid patient, whereas the physicians in Miller and Braden did receive such compensation.
CONCLUSION
¶ 14. This Court reverses the grant of summary judgment and remands the case so that the trial court may decide, based upon the five-part test adopted in Miller, whether Dr. Harkey acted as аn employee of UMMC or an independent contractor at the time of Carter's surgery.
¶ 15. REVERSED AND REMANDED.
PITTMAN AND BANKS, P.JJ., SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., concur.
McRAE, J., concurs in result only.
NOTES
Notes
[1] Dr. Harkey served as Associate Professor of Neurosurgery and as Assistant Professor of Orthopaedic Surgery at UMMC. In July 1997, Dr. Harkey was promoted to thе position of Professor of Neurosurgery.
[2] Dr. Harkey's base yearly salary was increased to $82,400 in July 1997 at which time he was promoted to the position of Professor of Neurosurgery.
[3] Each provision discussed in this paragraph was included in all contracts between UMMC and Dr. Harkey.
[4] This Court had previously held that medical residents or interns qualified as "employees" under the MTCA and, therefore, were entitled to its protections. Owens v. Thomae,