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Hernandez v. Schumacher Group Healthcare Consulting, Inc.

Court of Appeals of Georgia, Second Division

October 30, 2019

HERNANDEZ et al.
v.
SCHUMACHER GROUP HEALTHCARE CONSULTING, INC. GLENN
v.
HERNANDEZ et al.

          MILLER, P. J., RICKMAN and REESE, JJ.

          REESE, JUDGE.

         These consolidated appeals arise from a medical malpractice and wrongful death action brought by Hettie Sue Hernandez, the widow and administrator of the estate of Domingo Hernandez (the "decedent"). Hernandez sued two physicians, Dr. John Glenn and Dr. James Sexton, the physicians' alleged employers, and the hospital where the physicians treated the decedent, Ben Hill County Hospital Authority d/b/a Dorminy Medical Center.

         In Case No. A19A1535, Hernandez appeals from the grant of summary judgment to Schumacher Group Healthcare Consulting, Inc. a/k/a Schumacher Clinical Partners ("Schumacher"). Hernandez contends that the trial court erred in finding, as a matter of law, that Dr. Glenn was not Schumacher's employee, independent contractor, or agent at the time of his treatment of the decedent and, as a result, Schumacher could not be held vicariously liable for Dr. Glenn's negligence. Hernandez argues that a jury issue exists as to whether Dr. Glenn was an employee or independent contractor of Schumacher. Hernandez also contends that the trial court abused its discretion in denying her request for an extension of time for her to respond to Schumacher's summary judgment motion, arguing that the court denied her the opportunity to conduct discovery as to Dr. Glenn's employment relationship with Schumacher.

         In Case No. A19A1650, Dr. Glenn appeals from the trial court's denial of his motion to set aside a default judgment entered against him or, in the alternative, to open the default.[1]

         For the reasons set forth infra, we affirm the grant of summary judgment to Schumacher in Case No. A19A1535, and we dismiss the appeal in Case No. A19A1650.

         Viewed in the light most favorable to Hernandez, as the non-moving party on summary judgment, [2] the record shows the following facts. According to Hernandez's complaint, on April 18, 2015, the decedent went to the emergency room of Dorminy Medical Center ("DMC") because he was suffering from chest pain. Dr. Glenn examined the decedent and ordered tests before admitting the decedent to DMC. The decedent's condition worsened, and, because DMC lacked the ability to treat his condition, DMC arranged to transport the decedent to a better equipped hospital. During the transport, however, the decedent went into cardiac arrest and was pronounced dead upon arrival.

         Hernandez filed a complaint for medical malpractice and wrongful death against Dr. Glenn, Schumacher, and the other defendants. Hernandez alleged that Dr. Glenn was Schumacher's employee and, thus, Schumacher was vicariously liable for Dr. Glenn's professional negligence.[3]

         In its answer, Schumacher specifically denied that Dr. Glenn had ever been its employee or agent. Similarly, in its responses to Hernandez's first interrogatories, Schumacher repeatedly denied that Dr. Glenn had been its employee or agent, and stated, instead, that Dr. Glenn was an independent contractor of Ben Hill Emergency Group, LLC.

         Dr. Glenn failed to answer Hernandez's complaint, and the trial court granted Hernandez's motion for a default judgment against him on February 1, 2018. Six weeks later, Dr. Glenn filed a motion to set aside the default judgment or, in the alternative, to open default ("default motion"). In the default motion, Dr. Glenn claimed that, when he received Hernandez's complaint, he "immediately reported the claim to his employer, . . . Schumacher[.]" He asserted that he had had a "series of communication[s] with his employer," who had provided counsel for him and "assur[ed]" him that the suit was being handled. Therefore, Dr. Glenn claimed that he "reasonably believed that [Schumacher] was managing the lawsuit on his behalf." According to the default motion, Dr. Glenn did not realize that Schumacher or the law firm purportedly representing him had not responded to the suit on his behalf until he received notice of the default judgment. Attached to Dr. Glenn's default motion was his verified answer to the complaint, in which Dr. Glenn admitted to the complaint's allegation that he "was working on behalf of Schumacher at all times relevant hereto."

         Before the trial court ruled on Dr. Glenn's default motion, Schumacher filed a motion for summary judgment, in which it asserted:

Dr. Glenn has never been an employee or agent of Schumacher. In fact, Schumacher is a holding company and has never had any employees or agents. Rather, Dr. Glenn was an independent contractor of Ben Hill Emergency Group, LLC ("Ben Hill"), which was the physician group organized for the purpose of entering into a contract to provide emergency department staffing and management services to [DMC]. Both Schumacher and Ben Hill are owned by a separate holding company, Schumacher Medical Corporation.[4] Therefore, Schumacher had no legal relationship whatsoever with Ben Hill, [DMC], or Dr. Glenn.
At the time of the medical care at issue in this case, there was a contract between Dr. Glenn and Ben Hill, pursuant to which Dr. Glenn would provide emergency physician staffing services to Ben Hill at the emergency department of [DMC]. In turn, Ben Hill had a contract with [DMC], pursuant to which Ben Hill would contract with individual physicians (i.e., Dr. Glenn) to provide emergency medicine physician staffing to DMC.
. . .
Because Dr. Glenn is an independent contractor with Ben Hill, and because Schumacher had no legal relationship with Dr. Glenn or Ben Hill, it is not possible to impose vicarious liability on Schumacher for any alleged negligence of Dr. Glenn.

         Attached to Schumacher's summary judgment motion was the affidavit of Lisha Falk, the Assistant Corporate Secretary of Schumacher, as well as the Assistant Corporate Secretary of Schumacher Medical Corporation. Falk's affidavit verified the assertions in Schumacher's motion. In addition, two contracts were attached to Schumacher's summary judgment motion. One of the contracts was between Ben Hill and DMC, and it provided that Ben Hill agreed to supply DMC with "independent contractor physicians" to provide emergency and general medical care to the hospital's patients. The other contract was a "Physician Agreement[, ]" dated April 29, 2008, between Dr. Glenn and Ben Hill, wherein Dr. Glenn agreed to work in the DMC's emergency department pursuant to the contract between Ben Hill and the DMC. Under the section entitled "Nature of Relationship[, ]" the agreement stated as follows:

It is agreed and understood by and between the parties hereto that [Dr. Glenn] is associated with [Ben Hill] only for the purposes and to the extent set forth herein, and his/her relation to [Ben Hill] shall be that of an independent contractor. [Ben Hill] shall not exercise any control or direction over the methods by which [Dr. Glenn] shall perform his/her professional work and duties while on duty. This Agreement shall not be construed as an agreement of employment, a partnership or any other form of business entity.

         In addition, Ben Hill agreed to procure professional malpractice insurance for Dr. Glenn to cover "medical services performed by [Dr. Glenn] pursuant to this Agreement." The agreement also specifically required Dr. Glenn to notify "Ben Hill Emergency Group, LLC" in writing of any professional liability claims against him. Significantly, there is nothing in the Physician Agreement to support a finding that Schumacher was a party to the agreement, that Dr. Glenn was an employee or independent contractor of Schumacher, or that some legal relationship existed between Schumacher and Dr. Glenn that would expose Schumacher to vicarious liability for Dr. Glenn's negligence.

         About two weeks after Schumacher moved for summary judgment, Dr. Glenn filed a response to Hernandez's opposition to his default motion; in his response, Dr. Glenn simply repeated some of the arguments he had asserted in his default motion. Significantly, however, Dr. Glenn omitted his earlier assertions that Schumacher was his employer, that he had sent Hernandez's complaint to Schumacher, that he had corresponded with Schumacher about the litigation, and that Schumacher had "assur[ed]" him that it was handling the complaint on his behalf. In addition, Dr. Glenn did not contest the validity of the Physician Agreement between him and Ben Hill in his response. Dr. Glenn attached a second affidavit to the response; the affidavit also failed to include Dr. Glenn's earlier assertions concerning his alleged employment relationship with Schumacher.

         Then, a few weeks later, Dr. Glenn filed his responses to Hernandez's first interrogatories, in which he affirmatively admitted that, contrary to his previous assertions, he had not forwarded Hernandez's complaint to Schumacher. He also admitted that, although he had received correspondence from "Western Litigation on behalf of Ben Hill Emergency Group, LLC, "[5] he possessed no "correspondence between [him] and [Schumacher] regarding or relating to the [instant] litigation."[6]

         Dr. Glenn's admissions were supported by Schumacher's responses to Hernandez's second interrogatories, in which Schumacher stated that Dr. Glenn had not informed Schumacher of Hernandez's claim against him, nor had Dr. Glenn forwarded Hernandez's complaint to Schumacher.

         Finally, in Dr. Glenn's second supplemental brief in support of the default motion, Dr. Glenn admitted that, even though he had "considered" Schumacher to be his employer, he had reviewed the "Physician Agreement" attached to Schumacher's summary judgment motion and, as a result, "it appears that Dr. Glenn was technically contracted with ...


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