Faure v. Community Health Systems, Inc., et al

First MOTION for Summary Judgment on All Vicarious Liability Claims

D.N.M.October 31, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO GLORIA QUIMBEY, DECEASED, BY THE PERSONAL REPRESENTATIVE FOR THE WRONGFUL DEATH ESTATE, JOHN FAURE, Plaintiff, vs. Case No. 1:14-cv-00559-KG-KBM COMMUNITY HEALTH SYSTEMS PROFESSIONAL SERVICES CORPORATION, LAS CRUCES MEDICAL CENTER, LLC D/B/A MOUNTAIN VIEW REGIONAL MEDICAL CENTER, and ACCOUNTABLE HEALTHCARE STAFFING, INC., ACCOUNTABLE HEALTHCARE HOLDINGS CORPORATION, MEDASSETS WORKFORCE SOLUTIONS, RONALD LALONDE, and AFFILION, LLC and JOEL MICHAEL JONES, Defendants. DEFENDANT AFFILION, LLC’S MOTION FOR SUMMARY JUDGMENT ON ALL VICARIOUS LIABILITY CLAIMS COME NOW Defendant Affilion, LLC (“Affilion”), through its attorneys of record HINKLE SHANOR LLP (Kathleen M. Wilson, Esq., Hari-Amrit Khalsa Esq. and Brianna M. Jagelski, Esq.), and pursuant to Fed. R. Civ. P. 56 hereby move this Court to grant summary judgment in its favor finding as a matter of law that Dr. Joel Jones (“Dr. Jones”) was an independent contractor of Affilion at all times at issue in this case and on all claims for vicarious Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 1 of 9 2 liability if negligence is found on Dr. Jones’s behalf, which is strictly denied. In support of this Motion, Affilion states as follows: I. Introduction This medical negligence case alleges that the Decedent, Gloria Quimbey’s, wrongful death was caused by medical negligence while she was a patient at Mountain View Regional Medical Center (“MVRMC”) in Las Cruces, New Mexico, from December 11, 2012 to December 13, 2012. See generally Complaint for Wrongful Death, Negligence, Misrepresentation, and Punitive Damages (“Complaint”) filed on July 16, 2014 [Doc 24-1]. Plaintiff alleges that Mrs. Quimbey’s wrongful death was caused when she was negligently given a clot buster medication, tPA, after being admitted to the hospital. Plaintiff alleges that during the night shift, telemetry floor nurse, Ronald Lalonde, negligently gave Mrs. Quimbey tPA without following administration protocols for tPA. Plaintiff’s Complaint incorrectly alleges that prior to her admission to the hospital, while in the Emergency Room, Dr. Jones placed an order for tPA and the pharmacy prepared the tPA in accordance with the hospital’s stroke protocol. Complaint at ¶ 41. Plaintiff further incorrectly alleges that Dr. Jones failed to cancel the order for tPA which had been initiated by him “and the medication, if already prepared, should have been returned to the pharmacy.” Id. at ¶ 42. Plaintiff claims that Dr. Jones’ failure to cancel his alleged order for tPA caused it to be given to Mrs. Quimbey hours later by Nurse Lalonde in a manner contrary to administration protocols. See generally, Complaint. As to Affilion, Plaintiff alleges “Affilion, LLC is a New Mexico corporation engaged in the business of contracting with healthcare facilities, including MVRMC, to provide medical staff at all times material to this lawsuit. The causes of action made the basis of this suit arise out of such business conducted by said Defendant in the hiring, training, placement, quality control and Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 2 of 9 3 actions of Dr. Joel Michael Jones at MVRMC.” 1 Id. at ¶ 15. Plaintiff further alleges that “[t]he actions of Defendants, through their agents or employees, were malicious, willful, reckless, and/or done with wanton disregard for Mrs. Quimbey, giving rise to punitive damages against Defendants.”2 Id. at ¶ 92. Finally, Plaintiff alleges that Affilion, LLC, who contracted with Dr. Jones to provide Emergency Room coverage, is vicariously liable for Dr. Jones’s alleged negligence. Accordingly, all of Plaintiff’s claims against Affilion, LLC require proof of the alleged negligence and causation by Dr. Jones. Dr. Jones was an independent contractor of Affilion on December 11, 2012 when he provided emergency medical services to Mrs. Quimbey in the ER at MVRMC. Plaintiff cannot establish that Affilion is vicariously liable if Dr. Jones is found negligent.3 Accordingly, Affilion respectfully requests that summary judgment be granted on this issue II. Standard of Review Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Copar Pumice Company Inc. v. Morris, 632 F. Supp. 2d. 1055, 1062-1063 (10th. Cir. 2008) citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548 (1986). In a Rule 56 motion, the burden of establishing the absence of a material fact is on the movant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The movant can discharge that burden by displaying an absence of evidence to support the non-moving party’s case. See Celotex, 477 U.S. 317, 322-323. Once this burden is met, the burden shifts to the 1 Affilion is also filing a Motion for Summary Judgment on All Direct Negligence Claims Against It concurrently herewith and incorporated by reference herein. 2 Affilion filed a Motion for Summary Judgment on Plaintiff’s Vicarious Punitive Damages Claim for the Conduct of Defendant Dr. Joel Jones (“MSJ on Plaintiff’s Vicarious Punitive Damages Claim”) on 10/28/16, [Doc. 248], incorporated by reference herein. 3 Negligence or wrongdoing is not admitted on behalf of Dr. Jones. Please see Defendants Dr. Jones’s and Affilion’s Motion for Summary Judgment on All Claims (“MSJ on All Claims”) filed on 4/29/16, [Doc. 134], incorporated by reference herein. Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 3 of 9 4 non-moving party to demonstrate a genuine issue of material fact. See Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991). “The party opposing the motion must present sufficient evidence in specific, factual form for a jury to return a verdict in that party’s favor.” Id. citing Clifton v. Craig, 924 F.2d 182, 183 (10th Cir. 1991). Further, the non-moving party may not rely upon mere allegations or denials of his pleadings to avoid summary judgment. Id. citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1996). The District Court of New Mexico looks to New Mexico substantive law to determine whether vicarious liability is established. See Estate of Anderson v. Denny’s Inc., 987 F. Supp. 2d. 1113, 1145 (D.N.M. 2013). III. Statement of Undisputed Material Facts For the purposes of this Motion only, Affilion states that the following are material facts to which no genuine issue exists. Affilion does not admit negligence or wrongdoing on behalf of Dr. Jones and Plaintiff cannot establish negligence on behalf of Dr. Jones. Accordingly, Plaintiff’s vicarious liability claims against Affilion also fail. 1. Dr. Jones was an independent contractor of Affilion on December 11, 2012. See Interrogatory No. 6 and Requests for Production Nos. 1 and 6 of Relevant Portions of Affilion’s Answers and Responses to Plaintiff’s First Set of Interrogatories and Requests for Production, attached hereto as Ex. A; Request for Production No. 2 of Dr. Jones’ Answers and Responses to Plaintiff’s First Set of Discovery, attached hereto as Ex. B; Dr. Jones’ First Supplemental Answer to Interrogatory No. 11 to Plaintiff’s First Interrogatories to Dr. Jones (“Dr. Jones’ First Supplemental Answer”), attached as Ex. A of Affilion’s MSJ on Plaintiff’s Vicarious Punitive Damages Claim; Dr. Jones’ Independent Contractor Agreement with Affilion, attached as Ex. C to Affilion’s MSJ on Plaintiff’s Punitive Damages Claim. Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 4 of 9 5 2. Dr. Jones contracted with Affilion to provide emergency medical services to patients in MVRMC’s emergency department. See Affilion’s Answer to Interrogatory No. 6 of Ex. A; Dr. Jones’ First Supplemental Answer, attached as Ex. A to Affilion’s MSJ on Plaintiff’s Vicarious Punitive Damages Claim; Independent Contractor Agreement attached as Ex. C to Affilion’s MSJ on Plaintiff’s Punitive Damages Claim. 3. The Independent Contractor Agreement between Dr. Jones and Affilion provides, in part: “[Affilion] hereby engages [Dr. Jones] as an independent contractor to provide emergency medicine services at [MVRMC] for and on behalf of [Affilion], in accordance with applicable professional standards, and [Dr. Jones] hereby accepts such engagement.” See Independent Contractor Agreement, attached as Ex. C to Affilion’s MSJ on Plaintiff’s Punitive Damages Claim, at p 1. 4. The Independent Contractor Agreement between Dr. Jones and Affilion further provides, in part: “[Affilion] shall not have control over the method or means of [Dr. Jones’s] provision of medical care hereunder and, subject to the highest applicable standards of physician practice, Physician shall exercise Physician's best independent medical judgment regarding the treatment of patients.” See id. at p 2. 5. Affilion does not engage in the practice of medicine and does not control the practice of medicine rendered by independent contractor providers. See Affilion’s Answer to Interrogatory No. 11 and Request for Production No. 6 of Ex. A. IV. Argument Plaintiff cannot establish vicarious liability against Affilion because he cannot establish underlying negligence on behalf of Dr. Jones. See MSJ on All Claims. Furthermore, Dr. Jones was an independent contractor of Affilion when he provided emergency medical services at MVRMC Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 5 of 9 6 and Affilion did not have control over Dr. Jones’s practice of medicine at MVMRC. Accordingly, summary judgment is proper. 1) Plaintiff cannot establish vicarious liability against Affilion. In order to establish vicarious liability against Affilion, Plaintiff must establish negligence on behalf of Dr. Jones. See Valdez v. R-Way, LLC, 2010-NMCA-068, 237 P. 3d 1289 ¶ 4 citing Kinetics, Inc. v. El Paso Prods. Co., 1982-NMCA-160, 653 P. 2d 522 ¶ 25 (“[W]ith the release of an agent, the means by which liability can be imputed to the principal is destroyed.”) To establish vicarious liability, New Mexico Courts look to the principal’s right to control the individual performing the work. Segura v. Colombe, 895 F. Supp. 2d 1141, 1147 (D.N.M. 2012). In determining if the principal has sufficient right to control the agent to establish vicarious liability, there are a variety of factors to evaluate including: the type of occupation and whether it is usually performed without supervision; the skill required for the occupation; whether the employer supplies the instrumentalities or tools for the person doing the work; the length of time the person is employed; the method of payment, whether by time or job; whether the work is part of the regular business of the employer; whether the parties intended to create an employment relationship; and whether the principal is engaged in business. Id. Furthermore, in determining if an agency relationship exists, New Mexico courts “look at the case’s facts to determine the amount of control one party has over the other, and the information for this might come from a contract...” Estate of Anderson v. Denny’s Inc., 987 F. Supp. 2d 1113, 1149 (D.N.M. 2013) (emphasis added). Here, it is undisputed that Dr. Jones was an independent contractor of Affilion. See UMFs 1-5. Dr. Jones had an Independent Contractor Agreement with Affilion which states that the emergency medical services he provided to patients in the emergency department at MVRMC was as an independent contractor. See UMF 3; Independent Contractor Agreement, attached as Ex. C Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 6 of 9 7 of Affilion’s MSJ on Plaintiff’s Vicarious Punitive Damages Claim. Furthermore, the Independent Contractor Agreement explicitly states that Affilion “shall not have control over the method or means of Dr. Jones’s provision of medical care” and that Affilion does not engage in the practice of medicine and does not control the practice of medicine rendered by independent contractors. UMFs 4-5. There is simply no evidence in this case that Affilion had control over Dr. Jones’s provision of medical care at MVRMC. Importantly, Dr. Jones was never employed by Affilion and Dr. Jones and Affilion did not intend to create an employment relationship, which is evidenced by the Independent Contractor Agreement. See UMFs 1-5. Accordingly, if negligence or any wrongdoing on behalf of Dr. Jones is found, which is strictly denied, Affilion cannot be held vicariously liable. Plaintiff cannot establish the requisite elements of his vicarious liability claims against Affilion for the alleged negligent conduct of Dr. Jones, and thus, summary judgment for Affilion on all such claims is warranted. V. Conclusion WHEREFORE, based on foregoing, Affilion requests that the Court grant summary judgment in its favor finding as a matter of law that Dr. Joel Jones was an independent contractor of Affilion at all times at issue in this case and granting summary judgment on all claims for vicarious liability for Affilion, and for such other relief as the Court deems proper and just. Respectfully submitted, “Electronically Filed” HINKLE SHANOR LLP By: /s/ Brianna M Jagelski, Attorney at Law Kathleen M. Wilson Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 7 of 9 8 Hari-Amrit Khalsa Brianna M. Jagelski 7601 Jefferson St. NE, Suite 180 Albuquerque, NM 87109 Tel. (505) 346-4646 Email: kwilson@hinklelawfirm.com hkahalsa@hinkelalwfirm.com bjagelski@hinklelawfirm.com Attorney for Defendants Affilion, LLC and Dr. Joel Michael Jones CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 31 October 2016, I filed the foregoing MOTION through the CM/ECF System which caused the following parties or counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Dusti D. Harvey Jennifer J. Foote Caela Baker Harvey & Foote Law Firm 9202 San Mateo Blvd. NE Albuquerque, NM 87113 Email: dusti@harveyfirm.com jennifer@harveyfirm.com caela@harveyfirm.com Attorneys for Plaintiff Christopher R. Reed Josh Collins Allen Shepherd Lewis & Syra PA PO Box 94750 Albuquerque, NM 87199 Email: creed@allenlawnm.com jcollins@allenlawnm.com Attorneys for Ronald Lalonde Rick Beitler Cristina Adams Stephanie Latimer Rodey, Dickason, Sloan, Akin and Robb, PA PO Box 1888 Albuquerque, NM 87103 Email: rbeitler@rodey.com cadams@rodey.com slatimer@rodey.com William C. Madison Michael J. Dekleva M. Eliza Stewart Melissa Brown Madison, Mroz, Steinman, & Dekleva PA PO Box 25467 Albuquerque, NM 87125 Email: wcm@madisonlaw.com mjd@madisonlaw.com mes@madisonlaw.com mab@madisonlaw.com Attorneys for Community Health Systems Professional Services Corporation Chance Andrew Barnett Lorrie Krehbiel Kriebel and Barnett, PC 7770 Jefferson St. NE #315 Albuquerque, NM 87109 Email: cbarnett@lady-justice.us lkrehbiel@lady-justice.us Attorneys for MedAssets Workforce Solutions Randall Jones Adam Pollock Serpe Jones Andrews Callender & Bell PLLC America Tower 2929 Allen Parkway, Suite 1600 Houston, TX 77019 Email: apollock@serpejones.com Case 1:14-cv-00559-KG-KBM Document 249 Filed 10/31/16 Page 8 of 9 9 Attorneys for Defendants Accountable Healthcare Staffing, Inc., and Accountable Healthcare Holdings Corporation rjones@serpejones.com Attorneys for Defendant, Las Cruces Medical Center, LLC, d/b/a MountainView Regional Medical Center “Electronically Filed” /s/ Brianna M. 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