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Drumm v. Schell

May 1, 2008


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge

(Judge McClure)



On February 23, 2007, plaintiff Jennifer Drumm instituted this civil action, setting forth a claim of state law medical malpractice against defendant physicians Kenneth Shultz, David Lindsay, Robert Pyatt, Jr., Frank D'Amelio, and Edward Wong, as well as various business entities, including EmCare Physician Services, Inc. ("EPSI"), EmCare Physician Providers, Inc. ("EPPI"), and Charles Cole Memorial Hospital ("Hospital").

Discovery has ended. On January 30, 2008, defendants EPSI and EPPI filed a motion for partial summary judgment. (Rec. Doc. No. 96.) The matter is fully briefed and ripe for disposition. For the following reasons, the court will grant the motion.


This case concerns allegedly negligent medical treatment received by plaintiff. Plaintiff has alleged that defendants EPSI and EPPI are vicariously liable for the negligence of defendants Shultz and Lindsay ("defendant physicians") because they were employees of EPSI and EPPI and were acting in the scope of their employment when they treated plaintiff. Plaintiff has also alleged that EPSI and the Hospital are directly liable to plaintiff for their alleged failure to adopt and enforce policies that would ensure safe and proper emergency medical care. As the instant motion does not contest the existence of disputed material facts with respect to the alleged negligence of the defendant physicians, but rather contends that the defendant physicians were not employees of EPSI and EPPI and that EPPI was not directly negligent, we will only discuss those facts relevant to the instant motion.

The Hospital provides emergency medical care to patients through its Emergency Department ("ED"). The Hospital contracted with EPSI in order to provide administrative management and physician staffing services for its ED. The contract between these two entities states that "[i]t is mutually understood and agreed that [EPSI] is, and at all times shall be, an independent contractor with respect to Hospital. Emergency Physicians shall perform their professional work free of any direction or control by the Hospital or EPSI." (Rec. Doc. No. 96, Ex. D, at p. 10, ¶ 11.) Specifically, EPSI assists the Hospital administrative management such as coordinating coverage in the ED and billing for services rendered by physicians in the ED. (Id., Ex. E.) EPSI also provides physician staffing services and contracted with EPPI in order to fulfill the recruiting aspect of its contract with the Hospital. The contract between EPSI and EPPI states that "[EPPI] shall require each Group Physician shall exercise his or her own independent discretion in providing medical services hereunder and in making professional judgments relating to the delivery of health care services in the Emergency Department." (Id., Ex. F, at p. 3, ¶ 1.6.) Finally, EPPI contracted with defendant physicians Shultz and Lindsay. The contracts between EPPI and Shultz and Lindsay are both entitled "Physician Independent Contractor Agreement" and contained a provision that states that "[EPPI] shall not exercise control of any nature, kind or description, relating to the manner or means in which Physician performs medical services or makes medical decisions. (Id., Ex. G, Ex. H, and Ex. I.) These contracts also state that defendants Shultz and Lindsay shall be paid an hourly rate and that EPPI can terminate their employment at any time. (Id.)

Finally, we note one more fact emphasized by plaintiff. The contract between the Hospital and EPSI stated that "[EPSI] shall designate an Emergency Physician to be Medical Director of the Emergency Department." (Id., Ex. D, at 2.) The contract goes on to state the responsibilities of the Medical Director, which include presenting qualified physicians to become emergency physicians upon approval by Hospital, coordinating emergency physician coverage in the ED, and recommending policies and procedures to Hospital concerning administration of the ED. (Id.)


I. Legal Standard

A district court may properly grant a motion for summary judgment "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." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).

Regardless of who bears the burden of persuasion at trial, the party moving for summary judgment has the burden to show an absence of genuine issues of material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (citations omitted). To meet this burden when the moving party does not bear the burden of persuasion at trial, the moving party must show that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). More simply put, a party moving for summary judgment who does not bear the burden of persuasion at trial is not required to negate the non-movant's claim, but only point out a lack of evidence sufficient to support the non-movant's claim. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1991).

To the contrary, when the moving party bears the burden of persuasion at trial, it must point to evidence in the record that supports its version of all material facts and demonstrate an absence of material facts. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). If the moving party does not meet this burden, the court must ...

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