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Whitacre v. Thiele

United States District Court, W.D. Virginia, Charlottesville Division

March 20, 2017

MIKIALA A. WHITACRE, Executor of the Estate of Joy Anne Thomas, deceased, Plaintiff,
ROBERT H. THIELE, M.D., Defendant.


          Glen E. Conrad Chief United States District Judge

         Joy 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.

         Mikiala 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.


         The 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).

         Dr. Thiele is board certified in anesthesiology, critical care, and advanced perioperative transesophageal echocardiography.[1] 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 patient.").

         The Physicians Group holds itself out as a supporting organization distinct from the University of Virginia and the Medical Center.[2] 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.[3] The physicians are also provided professional liability coverage through the Piedmont Liability Trust.

         The 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.

         Effective 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. 58-4.

         Joy 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.

         Following 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.[4] 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.

         Thomas 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.

         Procedural History

          On 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 ...

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