United States District Court, W.D. Virginia, Charlottesville Division
MIKIALA A. WHITACRE, Executor of the Estate of Joy Anne Thomas, deceased, Plaintiff,
ROBERT H. THIELE, M.D., Defendant.
E. Conrad Chief United States District Judge
Anne Thomas, a West Virginia resident, underwent aortic valve
replacement surgery at the University of Virginia Medical
Center ("Medical Center") in January of 2013.
Following the procedure, Thomas was transferred to the
Medical Center's Thoracic Cardiovascular Post-Operative
("TCV-PO") Unit. A few hours after her arrival,
Thomas underwent emergency surgery. She died several days
later due to neurological complications.
A. Whitacre, the executor of Thomas' estate, brought this
medical malpractice action against Robert H. Thiele, M.D.,
the attending physician responsible for intubating Thomas
prior to the emergency surgery. Whitacre claims that Dr.
Thiele acted negligently in performing the intubation, and
that Dr. Thiele's negligence was the proximate cause of
Thomas' death. Dr. Thiele has moved for summary judgment
on the basis of sovereign immunity. For the reasons set forth
below, the court will deny Dr. Thiele's motion.
following facts are either undisputed or presented in the
light most favorable to the plaintiff. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013).
Thiele is board certified in anesthesiology, critical care,
and advanced perioperative transesophageal
echocardiography. He is employed by both the University of
Virginia School of Medicine ("Medical School") and
the University of Virginia Physicians Group ("Physicians
Group"), a nonprofit corporation organized to coordinate
and deliver patient care at the Medical Center. As a member
of the faculty of the Medical School, Dr. Thiele's
"primary responsibility is to engage in the academic
pursuits of teaching, research, and other scholarly
activities." Employment Agreement at 1, Docket Nos. 26-1
& 58-7. As an employee of the Physicians Group, Dr.
Thiele assists the corporation in "its furnishing of
professional health care services to patients in the .. .
Medical Center and in affiliated hospitals and clinics."
Id., "Notwithstanding such employment, "
Dr. Thiele remains free to exercise his own judgment as to
the "appropriate healthcare to be rendered [to a]
patient." Id., ; see also Tr. of
11/29/2016 Dep. of Dr. Thiele at 14, Docket No. 58-2 ("I
provide care working as a UPG [Physicians Group] clinician
based on what I believe is in the best interests of the
Physicians Group holds itself out as a supporting
organization distinct from the University of Virginia and the
Medical Center. The business and affairs of the Physicians
Group are managed by a board of directors. The Physicians
Group also has its own chief officers, and it maintains a
separate human resources department. The Physicians Group
bills patients directly for treatment provided by its
physicians. The physicians' salaries consist of two
components: a base salary paid by the Medical School and an
additional variable salary paid from revenue generated by the
Physicians Group. The physicians are also provided
professional liability coverage through the Piedmont
Physicians Group was previously known as the University of
Virginia Health Services Foundation ("Foundation").
The Foundation was created in 1979. On December 31, 1981, the
Foundation entered into the second phase of an affiliation
agreement with the Rector and Visitors of the University of
Virginia ("University"), which delineated the
responsibilities of the Foundation and the University. The
contracting parties agreed, among other things, that the
Foundation would "provide primary and consulting patient
care services to Medical Center patients, . . . and to
patients at such other locations as may be agreed to from
time to time by the Foundation and the University, " and
that the University would "grant to the Foundation the
right to use certain University premises . . . and the
equipment located therein" at an agreed-upon cost.
Affiliation Agreement at 5-7, Docket No. 26-2. The
contracting parties also agreed that physicians would be
employed by both the University and the Foundation, and that
part of a physician's compensation would be derived from
his employment by the Foundation. They further agreed that
the University would have "no liability or
responsibility whatsoever with respect to the conduct and
operation of the activities to be conducted by the Foundation
in the assigned space, " and that the Foundation would
"indemnify and hold the University harmless against . .
. any injury to or death of any person, that may be caused by
or arise out of . . . the conduct or operation of the
Foundation's activities [or] any act of any agent... of
the Foundation in or about the assigned space[.]"
Id. at 11-12.
August 1, 2011, the Foundation changed its name to the
Physicians Group. Pursuant to the Amended and Restated Bylaws
of the Clinical Staff of the University of Virginia Medical
Center, which were revised on May 21, 2012, Dr. Thiele and
other physicians employed by the Physicians Group are granted
privileges as members of the clinical staff of the Medical
Center. Clinical staff members are required to supervise
residents participating in the University's Graduate
Medical Education program. They are also required to abide by
the Clinical Staff Bylaws, the Medical Center Policy Manual,
and all other Medical Center policies, rules, and regulations
applicable to clinical staff members. However, agreements
between the Physicians Group and the Medical Center expressly
provide that "the Physicians Group and its physician
employees are 'independent contractors' with respect
to the Medical Center, " that there is no
"employer/employee relationship, " and that
"the Medical Center does not control the professional
judgment of the Physicians Group or its physician
employees." Pl.'s Supp'l Ex. D at 3, Docket No.
Anne Thomas was referred to the University of Virginia Heart
and Vascular Center ("Heart and Vascular Center")
by a physician in Winchester, Virginia. She was accepted as a
privately insured patient by John A. Kern, M.D., an employee
of the Physicians Group who practices at the Heart and
Vascular Center. Thomas underwent aortic valve replacement
surgery on January 25, 2013.
the surgery, Thomas was transferred to the TCV-PO Unit. At
the time of her transfer, Dr. Thiele was working in the
TCV-PO Unit as the attending intensivist. He was assigned
to work in that unit by J. Michael Jaeger, M.D., another
member of the Physicians Group. As the attending intensivist,
Dr. Thiele did not have the discretion to decline to assist
Thomas when her condition declined and she required emergency
treatment. Dr. Thiele utilized the equipment provided by the
Medical Center to intubate Thomas and monitor the intubation.
He was not assisted by any residents.
died on February 1, 2013. Her death certificate identifies
the cause of death as "anoxic brain injury" due to
"esophageal intubation." Compl. at ¶ 20,
Docket No. 1.
July 30, 2013, Olan Thomas, the original executor of
Thomas' estate, filed a medical malpractice action
against Dr. Thiele in the Circuit Court for the City of
Charlottesville. Thereafter, Mikiala Whitacre was substituted
as personal ...