United States District Court, W.D. Virginia, Abingdon Division
KAREN TAYLOR BAGHERI, ADMINISTRATOR OF THE ESTATE OF SHAWN MATTHEW McKEE, Plaintiff,
DWIGHT L. BAILEY, M.D., ET AL., Defendants.
OPINION AND ORDER
James P. Jones United States District Judge
S.D. Roberts Moore, Anthony M. Russell, Benjamin D. Byrd, and Andrew M. Bowman, Gentry Locke, Roanoke, Virginia, for Plaintiff; James N. L. Humphreys and Jimmie C. Miller, Hunter, Smith & Davis, LLP, Kingsport, Tennessee, for Defendant Appalachian Emergency Physicians.
In this diversity action, the plaintiff Karen Taylor Bagheri, the Administrator of the Estate of Shawn Matthew McKee (“McKee”), seeks recovery from the defendants, including Appalachian Emergency Physicians (“AEP”), for alleged malpractice associated with medical care McKee received at the Emergency Department of Russell County Medical Center (“RCMC”) in Lebanon, Virginia. AEP has moved for summary judgment. AEP asserts that the defendant Dwight L. Bailey, M.D. (“Dr. Bailey”) - McKee’s treating physician - was an independent contractor, thus precluding any claim for vicarious liability against AEP. For the following reasons, I will deny AEP’s motion.
The following facts are taken from the summary judgment record and unless otherwise stated, are not disputed by the parties.
The decedent McKee went to the RCMC Emergency Department on June 7, 2013. Dr. Bailey was McKee’s treating physician. McKee was discharged the same day with a diagnosis of acute bronchitis. On June 25, 2013, McKee died as a result of pulmonary artery thromboembolism and bilateral pulmonary infarcts. The plaintiff asserts that medical malpractice was the proximate cause of McKee’s death. More specifically, the plaintiff alleges that Dr. Bailey should have diagnosed and treated McKee for either a pulmonary embolism or suspected pulmonary embolism, and not acute bronchitis.
AEP is a Virginia corporation that “provides physician staffing for the emergency departments of its hospital clients including . . . Russell County Medical Center.” (Independent Contractor Physician Agreement 1, ECF No. 30-1, hereafter the “Agreement.”) AEP entered into the Agreement with Dr. Bailey, requiring him to provide “medical services in the field of emergency medicine” at RCMC. (Id.) In addition to his work at the RCMC Emergency Department, Dr. Bailey maintained an independent family practice in Russell County, Virginia. Dr. Bailey’s independent medical practice is referred to as “Family Health Care Associates, P.C.” (AEP’s Mot. for Summ. J. 2, ECF No. 30.)
According to the Agreement, AEP required Dr. Bailey to perform, in part, the following duties and responsibilities:
(1) Coverage. Provide emergency department coverage by being physically present at the emergency department of the Hospital at such times as scheduled by AEP . . .;
(2) Evaluation and Treatment. Evaluate, examine and treat each patient presented for care at the Hospital . . .;
(3) Supervision. Supervise physician extenders as requested by AEP and, as requested by AEP from time to time, enter into written practice protocols with such physician extenders addressing supervision requirements and scope of practice matters;
(4) In-House Emergencies. Respond to all the Hospital in-house emergencies and respond to all “codes” within the Hospital, provided there is no conflict with patient care in the emergency department of the Hospital;
(5) Service Contracts. Take all actions necessary to comply with the terms of AEP’s service contract with the Hospital in providing professional services at the Hospital. Without limiting the generality of the foregoing, the Physician specifically represents and warrants that he/she will maintain all qualifications required of physician providers thereunder and the Physician shall comply with all federal, state and local laws, rules, ordinances and regulations, with ...