HERNANDEZ et al.
SCHUMACHER GROUP HEALTHCARE CONSULTING, INC. GLENN
HERNANDEZ et al.
MILLER, P. J., RICKMAN and REESE, JJ.
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.
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.
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
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.
in the light most favorable to Hernandez, as the non-moving
party on summary judgment,  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.
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.
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.
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
the trial court ruled on Dr. Glenn's default motion,
Schumacher filed a motion for summary judgment, in which it
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. 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
. . .
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.
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
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.
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.
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, " he possessed no
"correspondence between [him] and [Schumacher] regarding
or relating to the [instant] litigation."
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.
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 ...