LeCroy v. Interim Health Care Staffing of No. Louisiana

J ud gm e n t re nd e re d A p r i l 2 , 2 0 0 8 .
A p p l ic a tio n fo r re h ea r in g m a y b e fi le d
w ith in th e d e la y a l low ed b y A r t . 2 1 6 6 ,
L a . C .C .P .

No. 43,080-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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Versus

P la in tiffs -A p p e lle e s

RALPH LeCROY and
EARLINE LeCROY

INTERIM HEALTH CARE STAFFING
OF NORTH LOUISIANA, INC.

D e fend an t-A p p e l lan t

* * * * *
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 03-0175

Honorable Benjamin Jones, Judge

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BLUE W ILL IAM S , LLP
B y: V irg il L acy, III

HUD SON , POTTS , & BERN STE IN
B y: W i ll iam C ra ig H en ry
Jan Pe te r C h ris tian sen

DOLLAR LA IRD , LLP
B y: Johnny E . D o lla r
John C ar l ton L a ird

BRADY DEAN K ING , II

C oun se l fo r
A ppe llan t

C oun se l fo r
A ppe llee s

C oun se l fo r D e fendan t/
A ppe llee , Lou is iana
Pa tien ts C om pen sa tion
Fund

* * * * *

Before BROWN, WILLIAMS, and CARAWAY, JJ.

CARAWAY, J., concurs with written reasons.

BROWN, CHIEF JUDGE,

On June 7, 2001, Ralph LeCroy underwent arthroscopic surgical

repair of a rotator cuff tear in his left shoulder at the Glenwood Regional

Medical Center (“Glenwood”) in West Monroe, Louisiana. While in

recovery following the surgical procedure, plaintiffs, LeCroy and his wife,

alleged that Nurse Sasha Sanders over medicated LeCroy, resulting in

respiratory distress and necessitating resuscitation. Plaintiffs further alleged

that the deprivation of oxygen resulted in serious long-term health problems

to LeCroy.

At the time of the incident, Nurse Sanders was working at Glenwood

under a staffing agreement between Glenwood and Interim Health Care

Staffing of North Louisiana, Inc. (“Interim”), by which Interim provided

Glenwood with licensed nurses to fill shortages within Glenwood’s nursing

staff. Nurse Sanders was assigned to care for LeCroy by a Glenwood

supervisory nurse.

On February 26, 2002, within the applicable one-year prescriptive

period, plaintiffs filed a medical malpractice claim with the Patients’

Compensation Fund (“PCF”) against Glenwood, a qualified health care

provider. A Medical Review Panel (“MRP”) was constituted, and during the

course of the panel proceedings, plaintiffs learned that Nurse Sanders was

Interim’s employee and that neither Interim nor Nurse Sanders was a qualified

health care provider. Thereafter, on January 14, 2003, plaintiffs filed this

petition for damages against Interim in the Fourth Judicial District Court. On

May 16, 2003, at the request of the chairman of the MRP, plaintiffs filed a

separate action in the Fourth Judicial District Court entitled “Petition for Rule”

which directed Glenwood to show cause why the court “should not decide

whether the medical review panel can address the standard of care deviation

allegations with respect to Nurse Sasha Sanders . . .”

Glenwood opposed the rule to show cause on jurisdictional grounds

but in the alternative claimed that Nurse Sanders was not an employee of

Glenwood. A petition for intervention was filed by Interim opposing any

judgment “permitting the medical review panel to consider and render an

opinion concerning the medical treatment rendered by Interim Health Care

employee, Sasha Sanders, in this case.” In its memorandum to the court,

Interim stated that Nurse Sanders “was an employee of Interim Health Care

and working a shift as an independent contractor at Glenwood. It is

undisputed that Nurse Sanders was NOT an employee of Glenwood.”

(Emphasis theirs).

The trial court found that Nurse Sanders was not a qualified health

care provider under the Louisiana Medical Malpractice Act, and as such her

conduct could not be reviewed by the MRP. Plaintiffs’ Petition for Rule

was denied and dismissed. No appeal from this ruling was taken. The MRP

then ruled that Glenwood appropriately treated LeCroy; however, it also

stated that in compliance with the court’s ruling the review panel did not

address plaintiffs’ complaint concerning Nurse Sanders’ negligence.

Plaintiffs then sued Glenwood in district court. This suit was consolidated

with the present action against Interim.

More than four years after the tort action was initiated, Interim filed

an amended answer asserting the dual employee status of Nurse Sanders.

On June 14, 2007, Interim filed a motion for summary judgment seeking a

ruling by the trial court that Nurse Sanders was a dual employee of Interim

and Glenwood.

Meanwhile, Glenwood, in the other consolidated proceeding, settled

with plaintiffs for $35,000. The judgment approving the settlement dated

August 21, 2007, provided that plaintiffs reserved all rights, claims, and

causes of action for additional compensation from the Louisiana Patients’

Compensation Fund, Nurse Sasha Sanders, Interim Health Care, and any of

their insurers. The judgment stated that, “[S]pecifically, all rights are

reserved to Interim to pursue its defense that Nurse Sanders was a dual

employee of Glenwood . . . and [is] entitled to the protections of the

Louisiana Malpractice Act.”

In September 2007, the PCF intervened to protect the Fund’s interest

and possible exposure. Plaintiffs also filed a motion for summary judgment

seeking a ruling that Nurse Sanders was solely an employee of Interim.

Plaintiffs also argued that Interim was precluded from raising the issue of

Nurse Sanders’ dual employment status as a result of the pleadings

submitted and judgment rendered on the Petition for Rule under the

doctrines of res judicata, estoppel, judicial admission, and law of the case.

The trial court denied Interim’s motion for summary judgment and

granted plaintiffs’ motion for summary judgment. The court held that

Interim’s claim that Glenwood was a “dual employer” was barred by res

judicata, estoppel, judicial admission, and, alternatively, the law of the case.

Discussion

A summary judgment is subject to a de novo review on appeal using

the same criteria as the trial court to determine whether summary judgment

is appropriate. Magnon v. Collins, 98-2822 (La. 07/07/99), 739 So. 2d 191;

Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La. App. 2d Cir.

01/23/02), 806 So. 2d 945. If the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits show there is no genuine

issue as to material fact and that the mover is entitled to judgment as a

matter of law, then summary judgment is appropriate. La. C.C.P. art.

966(B); Bumgardner, supra.

Plaintiffs filed a Petition for Rule in the Fourth Judicial District case

Ralph LeCroy and Earline LeCroy v. Glenwood Regional Medical Center,

(Docket No. M37-2033), seeking a determination by the court as to whether

the MRP could review Nurse Sanders’ standard of care. Interim intervened

and filed an opposition in the proceeding. Glenwood filed an independent

opposition. The court concluded that the MRP could not review Nurse

Sanders’ actions because she was not a qualified health care provider.

Plaintiffs argue that, in order to reach this conclusion, the trial court must

have found that Nurse Sanders was not an employee of Glenwood and that

Interim is now barred from raising the issue of Sanders’ dual employment

status under the doctrines of res judicata, judicial confession, equitable

estoppel, and law of the case.

A legal presumption exists that hospitals retain and exercise the right

to control nurses provided to the hospital by an agency. Medical Review

Panel Proceedings for Claim of Tinoco v. Meadowcrest Hosp., 03-0272 (La.

App. 4th Cir. 09/17/03), 858 So. 2d 99. In Tinoco, even though a nurse

was a direct employee of a staffing agency, the court determined that

because the hospital’s supervisory/managerial employees controlled the

daily work assignments and work activities of the agency nurses, both the

staffing agency and the hospital were responsible for the nurse’s negligence.

The court in Tinoco, 858 So. 2d at 107-08, reasoned that

nurses working under contract with a hospital can clearly be
deemed to be employees, because nurses have less autonomy
than physicians. . . . The hospital is presumed to have control
over the actions of its nurses, whether they are agency nurses or
regular hospital employees.

Under the doctrine of respondeat superior, employers are responsible

for the torts of their employees committed during the course and scope of

employment. La. C.C. art. 2320; Pender v. Elmore, 37,690 (La. App. 2d

Cir. 09/24/03), 855 So. 2d 930, writ denied, 03-2968 (La. 01/16/04), 864

So. 2d 632. In determining whether an employment relationship exists, the

jurisprudence of this state has uniformly held that the most important

element to be considered is the right of control and supervision over an

individual. Savoie v. Fireman’s Fund Ins. Co., 347 So. 2d 188 (La. 1977);

Clinton v. Reigel By-Products, Inc., 42,497 (La. App. 2d Cir. 09/19/07), 965

So. 2d 1006. Factors to be considered are the selection and engagement of

the worker, the payment of wages, and the power of control and dismissal.

Pender, supra; Franklin v. Haughton Timber Co., 377 So. 2d 400 (La. App.

2d Cir. 1979), writ denied, 380 So. 2d 624 (La. 1980). The most important

inquiry, however, is whether the principal retained the right to control the

work. In applying this test, it is not the supervision and control actually

exercised which is significant; the important question is whether, from the

nature of the relationship, the right to do so exists. Ledent v. Guaranty

National Ins. Co., 31,346 (La. App. 2d Cir. 12/28/98), 723 So. 2d 531;

Slaughter v. Georgia Casualty & Surety Co., 415 So. 2d 312 (La. App. 2d

Cir. 1982), writ denied, 420 So. 2d 979 (La. 1982).

In Morgan v. ABC Manufacturer, 97-0956 (La. 05/01/98), 710 So. 2d

1077, 1082-3, the Louisiana Supreme Court stated:

Our jurisprudence has held that special and general employers
may be solidarily liable in tort to third parties injured by the
negligence of their employees. In LeJeune v. Allstate Ins. Co.,
365 So. 2d 471 (La. 1978), we addressed the issue of whether
the general employer of a negligent employee remained liable
for its employee’s tort despite the fact that the employee had
been borrowed to perform services for a special employer at the
time of an accident. We held that a general and special
employer may be solidarily liable for injuries to a third party
caused by an employee’s negligence.

. . .

[B]oth employers had contemporaneous control over Hines,
and both contemporaneously benefitted from his labor. It is
therefore reasonable that considering the overlapping control
and shared financial interest that they share liability.

Again, we note that the Fourth Circuit in Tinoco, supra, found that a

legal presumption existed that the hospital retained and exercised the right

to control agency nurses working at the hospital.

The record does not show affirmatively that the issue of Nurse

Sanders’ possible dual employment was adjudicated in the Petition for Rule

filed by plaintiffs against Glenwood. We also note that the judgment

approving the later settlement specifically allowed Interim to pursue its dual

employment claim. Accordingly, we find that the trial court erred in

applying res judicata, judicial confession, equitable estoppel, and law of the

case to bar Interim from now claiming dual employment status for Nurse

Sanders.

Nurse Sanders was an employee of Interim and paid by Interim. She

was, however, controlled by Glenwood at the time of the alleged incident.

She was assigned by Glenwood to care for LeCroy and instructed by

Glenwood’s supervisory nurse as to that care. There were conflicting

factual questions and summary judgment was not proper. La. C.C.P. art.

966.

Conclusion

For the forgoing reasons, we AFFIRM the trial court’s denial of

Interim’s motion for summary judgment, REVERSE the granting of Ralph

and Earline LeCroy’s motion for partial summary judgment, and REMAND

for further proceedings consistent with this opinion. Costs are assessed

equally to plaintiffs and Interim.

CARAWAY, J., concurring.

I concur in the majority’s ruling and add the following.

Interim has inconsistently argued at various times in these protracted

and confused proceedings that Sanders either was not the employee of

Glenwood or was the employee of both Glenwood and Interim. What is

consistent in the arguments of Interim, however, is that Sanders was always

its employee for whom Interim is vicariously liable. Another important fact

is that Interim is afforded no protection as a health care provider covered by

the medical malpractice act. Accordingly, I find no legal relevance in the

issue of dual employment as now presented to the court in the two opposing

motions for summary judgment. The issue may become relevant in the

event the issue of prescription is raised. Likewise, should Interim choose to

seek contribution from Glenwood or the Patients’ Compensation Fund

(“PCF”) because of the solidary vicarious responsibility of the dual

employers, a factual determination of whether dual employment existed may

become relevant. In any event, none of the parties, including the PCF,

should be afforded the defense of issue preclusion or res judicata based

upon the procedurally unsanctioned and unjustified “Petition for Rule”

action which previously occurred. Cf. La. R.S. 13:4232(A)(1). That strange

proceeding, in which plaintiffs prayed for no specific relief, was denied and

dismissed, accomplishing no binding resolution of anything.