Mississippi Reports
THE ESTATE OF JOHNSON v. CHATELAIN, 2005-IA-00642-SCT
(Miss. 11-30-2006) THE ESTATE OF SAMUEL JOHNSON, M.D. v.
JOSHUA COSBY CHATELAIN, A MINOR, BY AND THROUGH HIS MOTHER
AND ADULT NEXT FRIEND, THERESA CHATELAIN. No.
2005-IA-00642-SCT. Supreme Court of Mississippi. November
30, 2006.
TRIAL JUDGE: HON. WINSTON L. KIDD, COURT FROM WHICH
APPEALED: HINDS COUNTY CIRCUIT COURT, DATE OF JUDGMENT:
06/07/2005.
ATTORNEYS FOR APPELLANT: MILDRED M. MORRIS, MOLLY M.
WALKER.
ATTORNEYS FOR APPELLEE: J. ANDREW PHELPS, WILLIAM L. DUCKER
NATURE OF THE CASE: CIVIL – MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND RENDERED – 11/30/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED.
BEFORE WALLER, P.J., EASLEY AND GRAVES, JJ.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶ 1. This medical malpractice case concerns a
physician who was working at a state hospital at the time
the alleged negligence occurred. The circuit court denied
the physician’s motion for summary judgment based on
sovereign immunity. We find that sovereign immunity does
apply, and we reverse the circuit court’s judgment, and
render judgment for the physician’s estate.
FACTS
¶ 2. Samuel Johnson, M.D., Professor and Director of
Ophthalmology at the University of Mississippi Medical
Center, performed surgery on Joshua Chatelain, then nearly
twenty-five (25) months old, to correct the child’s
estropia (“cross-eye” syndrome). Both parties agree that
Joshua’s estropia was corrected and has remained so; Dr.
Johnson performed tests for vision prior to and after the
surgery; Joshua seemed to pass these tests; and both Dr.
Johnson and Joshua’s mother, Theresa Chatelain, assumed
that Joshua had sight in both eyes before and immediately
after surgery.
¶ 3. A few months after the surgery, Theresa allowed
Jonathan Calkwood, M.D., a neurologist, to examine Joshua’s
eyes. Theresa alleges that Dr. Calkwood stated that Joshua
had been blind in his right eye since birth and that the
surgery performed for estropia would not have improved
visual acuity in that eye.
¶ 4. Theresa filed a medical malpractice suit in
Hinds County Circuit Court against Dr. Johnson,[fn1]
alleging that Dr. Johnson performed an unnecessary, merely
cosmetic, surgery, thereby causing unnecessary pain and
anguish which amounted to gross negligence. Theresa asked
for an award of punitive damages in addition to actual
damages.
¶ 5. The circuit court denied Dr. Johnson’s motion
for summary judgment, ruling that the question of whether
Dr. Johnson was a state employee remained in dispute and
that the issue was one for a jury to decide. We granted Dr.
Johnson permission to appeal from this ruling. See M.R.A.P.
5.
¶ 6. Johnson raises two issues: (1) whether Dr.
Johnson is protected by sovereign immunity; and (2) whether
the plaintiff provided genuine issues of material fact.
DISCUSSION
¶ 7. We conduct a de novo review when reviewing a
lower court’s grant or denial of summary judgment. Saucier
ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So. 2d 1351,
1354 (Miss. 1998). The evidence must be viewed in the light
most favorable to the non-moving party. Id.
¶ 8. Summary judgment is proper if there is no
genuine issue of material fact. M.R.C.P. 56 (c). The burden
of demonstrating that there is no genuine issue of material
fact falls upon the party requesting the summary judgment.
Corey v. Skelton, 834 So. 2d 681, 684 (Miss. 2003). We must
carefully review all evidentiary matters before the Court
— admissions in pleadings, answers to
interrogatories, depositions, affidavits, etc. — in
the light most favorable to the party against whom the
motion for summary judgment is made. Id. In Corey, we also
stated:
[When] a motion for summary judgment is made and
supported as provided in Rule 56, an adverse party may not
rest upon the mere allegations or denials of his
pleadings; his response must set forth specific facts
showing that there is a genuine issue for trial. If he
does not so respond, summary judgment, if appropriate,
shall be entered against him. If any triable issues of
fact exist, the lower court’s decision to grant summary
judgment will be reversed. Otherwise, the decision is
affirmed.
Id. at 684 (citing Miller v. Meeks, 762 So. 2d 302, 304
(Miss. 2000)). It is not our duty to weigh the competing
evidence; it is our duty to determine if there is
conflicting evidence for trial. Id.
SOVEREIGN IMMUNITY
¶ 9. Dr. Johnson performed surgery on Joshua on
March 3, 1993. The statute pertaining to sovereign
immunity, as it existed in March of 1993, provided that,
“[f]rom and after July 1, 1992, as to the state, and from
and after October 1, 1992, as to political subdivisions . .
. no employee shall 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. 1991). The presumption of an employee’s actions
being within the scope of employment is rebuttable. Miss.
Code Ann. § 11-46-5(3) (Supp. 1991).
¶ 10. The circuit court denied Dr. Johnson’s motion
for summary judgment because it found that a question of
fact existed as to Dr. Johnson’s status as a state
employee. Courts consider the following factors in
determining whether a physician is acting as a state
employee: (1) the nature of the function performed; (2)
extent of state’s interest; (3) degree of control and
direction exercised by the state over the employee; (4)
level of judgment and discretion required to perform act;
and (5) compensation received for services rendered.
Sullivan v. Washington, 768 So. 2d 881,884 (Miss. 2000);
Miller v. Meeks, 762 So. 2d 302, 310 (Miss. 2000). With few
exceptions, independent contractors are excluded from the
definition of “state employee” and therefore do not benefit
from the provisions of the sovereign immunity statutes.
1. The Nature of the Function Performed.
¶ 11. Attached to the motion for summary judgment
was an affidavit from a member of the Board of Trustees of
State Institutions of Higher Learning averring that, during
the surgery, Dr. Johnson functioned as an attending
physician and as a supervisor over a resident physician. He
did not have a private patient relationship with Joshua;
rather, he served a public function by providing care for a
patient who had little ability to pay.
2. The Extent of the State’s Interest.
¶ 12. The State has a strong interest in maintaining
a practical and educational environment for residents and
supervising physicians in its state hospitals, meeting the
needs of both the physicians and the patients. Sullivan,
768 So.2d at 885. Also, UMMC is fulfilling its operational
purpose under Miss. Code Ann. § 37-115-31 (1996) by
providing care to Joshua, regardless of his ability to pay.
3. The Degree of Control and Direction Exercised by the
State Over the Employee.
¶ 13. The fact that Dr. Johnson was obligated to
fulfill his duty as teacher and supervisor of residents at
the time of the surgery and throughout Joshua’s treatment
shows a certain amount of control exercised by UMMC. There
was less state control exercised over the actual
performance of the surgery and subsequent diagnosis and
treatment. However, state control existed in the form of
regulations.
4. Level of Judgment and Discretion Required to Perform Act
¶ 14. Dr. Johnson exercised some amount of judgment
and discretion in his treatment, observations and diagnosis
of the child. However, as in Sullivan,
while this is a consideration, it is not determinative.
Virtually every act performed by a person involves the
exercise of some discretion. Obviously, a professional
necessarily retains a significant amount of discretion in
the operation of his profession. This is especially true
of physicians who are bound to exercise their judgment
without interference from others. The Hippocratic Oath
requires that the physician ” . . . use [his] power to
help the sick to the best of [his] ability and judgment.”
Sullivan, 768 So.2d at 885 (quoting Miller v. Meeks, 762
So.2d 302, 310 (Miss. 2000)).
5. Compensation Received for Services Rendered
¶ 15. The affidavit stated that Dr. Johnson was not
an independent contractor and that billing for physician
care was done through the medical departments. It is
mandated that the money received by the Ophthalmology
Department is to be collected and shared with UMMC under a
percentage arrangement.
¶ 16. In Sullivan, we found certain factors, factors
which are also found in the present case, to be indicative
of a state employed physician, including the following:
a. Treatment of patients in a facility provided by UMMC
which was used as a base for teaching. In Sullivan, we
found that physicians-professors functioning in this
environment play a vital part in a working teaching
hospital where the primary purpose is to educate future
doctors in the State of Mississippi.
b. Supervision of the progress of interns and residents
provides the training necessary to ensure that Mississippi
has a ready pool of competent physicians, which constitutes
a strong state interest.
c. An assignment to the operating room to supervise a
student indicates state control over the employee.
d. Serving a public function by providing care for patients
unable to pay indicates state interest and state control.
e. State control is suggested where a physician cannot
choose his patients.
f. No private patient relationship with the
patient/plaintiff indicates that the physician is a state
employee rather than an independent contractor.
g. Although the physician must exercise his own discretion
and judgment in the treatment procedures, this fact does
not necessarily prove that the physician is an independent
contractor since any professional must exercise some
discretion of his own to perform his duties properly.
Sullivan, 78 So.2d at 884-85.
¶ 17. In Sullivan, we found that these factors
weighed in favor of determining that the physician is a
state employee and not an independent contractor.
¶ 18. After evaluating Dr. Johnson’s circumstances
under these factors, we find that Dr. Johnson fits well
within the definition of a state employee who enjoys
immunity.
¶ 19. There is further evidence that Dr. Johnson
acted as a state employee. The affidavit states that UMMC
employed Dr. Johnson and that the hospital is owned and
operated by the Board on behalf of the State of
Mississippi. It affirms that Dr. Johnson was employed by
that hospital throughout the treatment of the child.
¶ 20. Miss. Code Ann § 11-46-5(3) (1991), the
applicable statute at the time of the incident at issue,
states that “it shall be 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 employment.” On appeal, Theresa does not challenge the
fact that Dr. Johnson was an employee of the State.
¶ 21. Additional evidence suggests that there was
never a dispute over whether Dr. Johnson was an employee:
¶ 22. Paragraph 6 of Johnson’s motion for summary
judgment states that the physician was an employee of the
state. In response, Theresa admitted that “apparently Dr.
Johnson was an employee of the University Medical Center.”
¶ 23. Paragraph 1 of the motion for summary judgment
states that Dr. Johnson was licensed in the State of
Mississippi and was a Professor and Chairman of the
Ophthalmology Department at UMMC and then directs the
reader to Dr. Johnson’s affidavit which was attached. In the
response to the motion, Theresa admits paragraph 1 but
denies the issues in three paragraphs of the Johnson
affidavit — paragraphs 12, 13 and 14. The rest of
Johnson’s affidavit is uncontested.
¶ 24. In paragraph 4 Johnson states that he has a
contract with the State and is an employee of the State,
which is uncontested for purposes of summary judgment
consideration.
¶ 25. Johnson’s status as a state employee, the
affidavit from the Board, Theresa ‘s failure to rebut the
presumption and the fact that Johnson clearly met the
Sullivan standard of state employment lead us to find that
the circuit court’s conclusion that there were genuine
issues of material fact as to whether Johnson was a state
employee and the subsequent denial of summary judgment was
clearly in error.
¶ 26. Although the circuit court addressed only the
state employment status issue and was in error on that
issue, we will address the remaining issue of whether
sovereign immunity applied to Dr. Johnson.
¶ 27. Johnson claims that the circuit court
erroneously relied on Sparks v. Kim, 701 So.2d 1113 (Miss.
1997), as a basis for denial of summary judgment. Sparks
holds that the sovereign immunity doctrine is not to be
applied retroactively. Id. at 1114. It may be inferred that
the circuit court believed that Johnson contended the 1993
amendments to the sovereign immunity statutes applied to
him retroactively, although the circuit court never
explicitly stated so. It did, however, state that it
“acknowledges that in accordance with Mississippi law,
retroactive application of the Sovereign Immunity Doctrine
is not allowed,” and then cited to Sparks. It may be
inferred that this is one reason for the denial of summary
judgment.
¶ 28. Johnson contends that his source of defense
does not stem from the 1993 amendments, but from the
amendments to Miss. Code Ann. § 11-46-3 (Supp. 1995)
and Miss. Code Ann. § 11-46-6 (Supp. 1995) which
were made effective as of September 16, 1992, by the 1992
Extraordinary Session of the Mississippi Legislature.
¶ 29. Furthermore, he argues, the circuit court did
not apply Jones v. Baptist Memorial Hospital —
Golden Triangle, Inc., 735 So.2d 993, 996 (Miss. 1997),
which explicitly states that ” § 11-46-3 and
§ 11-46-16 of House Bill No. 2 (1992) [of the 1992
Special Session Amendments to the Mississippi Code
Annotated (1972)] as well as Miss. Code Ann. §
11-46-7 (2) . . . are controlling regarding the law of
sovereign immunity in causes of action which accrued from
September 16, 1992, until April 1, 1993.” Id. The surgery
occurred within the controlling time frame — in
March of 1993.
¶ 30. Johnson was employed by the State at the time
in question and the laws of the 1992 Extraordinary Session
provide immunity to physicians at the time of the incident.
We find that Johnson was immune from suit throughout his
treatment of the child and that, therefore, he was
erroneously denied summary judgment.
CONCLUSION
¶ 31. Because Theresa has failed to create an issue
of material fact as to Dr. Johnson’s status as a
governmental employee, we find that the circuit court erred
in denying Dr. Johnson’s motion for summary judgment.
Therefore, we reverse the circuit court’s judgment and
render judgment here finally dismissing with prejudice the
plaintiff’s complaint and this action against the Estate of
Dr. Johnson.
¶ 32. REVERSED AND RENDERED.
SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.
EASLEY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND
RANDOLPH, JJ.
EASLEY, JUSTICE, SPECIALLY CONCURRING:
¶ 33. While I am sensitive to any allegations of
harm to a child, I cannot ignore the weaknesses of this
case, both legally and factually. This case demonstrates a
complete and utter lack of a maintainable cause of action
against the late, Dr. Samuel Johnson, a former professor
and Chairman of the Ophthalmology Department at the
University of Mississippi Medical Center (UMMC). First, the
majority is correct in its holding that the cause of action
against Dr. Johnson’s estate is barred by the doctrine of
sovereign immunity.
¶ 34. The majority provides a detailed analysis of
the factors that outline Dr. Johnson’s status as an
employee of the State employed at UMMC at the time in
question that the eye surgery was performed. UMMC is a
teaching institution operated by the Board of Trustees of
State Institutions of Higher Learning, a state agency. Even
the plaintiff, Joshua Chatelain’s mother, admitted in her
affidavit in response to the motion for summary judgment
that Dr. Johnson was a state employee employed by UMMC.
Chatelain’s surgery was performed at UMMC and the billing
was handled by UMMC. Dr. Johnson was employed by UMMC
throughout the treatment provided to Chatelain.
¶ 35. In Pickens v. Donaldson, 748 So.2d 684, 687
(Miss. 1999) this Court held that:
The MTCA [Mississippi Torts Claim Act] provides:
the exclusive civil remedy against a governmental entity or
its employee for acts or omission which give rise to a
suit. See City of Tupelo v. Martin, 747 So.2d 822, 826
(Miss. 1999) (the MTCA provides the exclusive remedy for an
injured party by a governmental entity’s act or omissions);
see also Miss. Code Ann. § 11-46-7 (1).[fn2] Miss.
Code Ann. 11-46-5(3) (1992), applicable at the time,
provides:
[I]t shall be 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
employment. (Emphasis added).
¶ 36. Here, the plaintiff’s failure to rebut the
presumption that Dr. Johnson was a state employee and the
facts that demonstrate that Dr. Johnson was a state
employee at the time of the treatment leaves no question
that sovereign immunity applied. Accordingly, Dr. Johnson’s
estate is clearly immune from being sued in his individual
capacity.
¶ 37. Secondly, even if that Dr. Johnson was not
immune as a state employee, the facts regarding Chatelain’s
treatment provided by Dr. Johnson fail to demonstrate any
medical malpractice. The plaintiff failed to offer any
affidavit or sworn testimony from any medical expert that
Dr. Johnson acted with gross negligence in performing the
surgery. The trial court should have granted the motion for
summary judgment based on the plaintiff’s failure to
demonstrate the existence of a material fact. See Moss v.
Batesville Casket Co., 935 So.2d 393, 398 (Miss. 2006). In
Batesville Casket Co., this Court held:
Rule 56(c) of the Mississippi Rules of Civil Procedure
provides that summary judgment shall be granted by a court
if “the pleadings, depositions, answers to interrogatories
and admissions on file, together with 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.” M.R.C.P. 56(c); see Saucier
ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351,
1354 (Miss. 1998). The moving party has the burden of
demonstrating that there is no genuine issue of material
fact in existence, while the non-moving party should be
given the benefit of every reasonable doubt. Tucker v.
Hinds County, 558 So.2d 869, 872 (Miss. 1990). See also
Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000). A fact
is material if it “tends to resolve any of the issues
properly raised by the parties.” Palmer v. Anderson
Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.
1995).
“If, in this view, there is no genuine issue of material
fact and, the moving party is entitled to judgment as a
matter of law, summary judgment should forthwith be entered
in his favor. Otherwise, the motion should be denied.”
Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393
(Miss. 2001). Batesville Casket Co., 935 So.2d at 398
(emphasis added).
¶ 38. Had Dr. Johnson not performed the corrective
eye surgery, Chatelain would have spent the rest of his
life cross-eyed. Surely, the plaintiff does not expect the
Court to accept that she would have refused to help her son
correct this situation. The plaintiff sought Dr. Johnson to
perform the procedure, and the surgery was performed when
Chatelain was twenty-five months old. The surgery was
apparently successful. Even the plaintiff does not dispute
that the estropia, or cross-eyed syndrome, was corrected.
The facts do not reveal that Chatelain’s suffered any
complications from the surgery to correct the estropia.
¶ 39. Further, neither Dr. Johnson nor the plaintiff
was aware of Chatelain’s blindness in his right eye. Months
later, it was discovered that Chatelain had been blind in
his right eye since birth. There is no evidence or
allegation that the blindness in the right eye was
attributable to the surgery by Dr. Johnson. Based on the
facts that Chatelain only has vision in his left eye, would
the plaintiff want her son’s cross-eyed syndrome to remain
uncorrected? What harm resulted from the correction of
Chatelain’s cross-eyed syndrome?
¶ 40. In fact, the sole allegation in the complaint
amounts to Dr. Johnson performing a purely cosmetic,
unnecessary surgery on Chatelain. The plaintiff seeks not
only alleged actual damages but also punitive damages for
Dr. Johnson’s alleged gross negligence. Obviously, the
complaint is completely devoid of merit. For the reasons
stated herein, I am compelled to write separately to find
that the trial court erred in denying the motion for
summary judgment.
SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH,
JJ., JOIN THIS OPINION.
[fn1] During the course of the suit, Dr. Johnson died, and
Theresa amended the complaint to name Dr. Johnson’s estate
as the defendant.
[fn2] Miss. Code Ann. § 11-46-7(1) (1991), applicable
at the time, provides:
The remedy provided by this chapter against a
governmental entity or its employee is, from and after
July 1, 1992, as to the state, and, from and after October
1, 1992, as to political subdivisions, exclusive of any
other civil action or civil proceeding by reason of the
same subject matter against the governmental entity or
its employee or the estate of the employee for the act
or omission which gave rise to the claim or suit; and any
claim made or suit filed against a governmental entity or
its employee to recover damages for any injury for which
immunity has been waived under this chapter shall be
brought only under the provisions of this chapter,
notwithstanding the provisions of any other law to the
contrary. (Emphasis added).