Day on Torts

Physician employed by state university had absolute immunity under Tennessee Claims Commission Act.

Where defendant physician was employed by a state university and received no personal gain from the clinical services she rendered at a hospital, and plaintiff had brought an HCLA action based on these hospital clinical services, summary judgment pursuant to defendant’s absolute immunity under the Tennessee Claims Commission Act was affirmed.

In Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV, 2022 WL 11584155 (Tenn. Ct. App. Oct. 20, 2022), plaintiff filed this HCLA suit on behalf of her son. According to plaintiff, defendant physician failed to find a condition on the son’s ultrasound before he was born, which caused him permanent injuries. Plaintiff asserted that this negligent ultrasound reading occurred at Erlanger Hospital.

Defendant was employed by the University of Tennessee (UT) as a professor, and her job duties included both teaching/educational roles as well as “clinical care to patients in the residency clinics[.]” UT had a contract with Erlanger Health System (Erlanger) to provide “residents and supervising professors, as well as ‘coverage’ consisting of physicians to staff the residency clinics at Erlanger.” Pursuant to this contract, defendant (and other physicians) provided clinical services at Erlanger, Erlanger paid UT, and defendant physician “assigned to Erlanger her right to charge and receive payment for her professional services at Erlanger.” At all times defendant’s salary was paid by UT, and defendant stated that while she carried out her duties at Erlanger, her white coat and identification badge had the UT logo.

Defendant filed a motion for summary judgment based on the Tennessee Claims Commission Act. The trial court granted the motion, finding that defendant had absolute immunity, and the Court of Appeals affirmed.

“The Tennessee Claims Commission Act provides that all state officers and employees shall be absolutely immune from liability based on acts or omissions done within the scope of his or her employment,” but “a state employee is not absolutely immune from liability when the act or omission is done for personal gain.” (Tenn. Code Ann. § 9-8-307(h)). The dispositive issue in this case, then, was whether defendant “received personal gain for interpreting the ultrasound for [plaintiff’s mother].”

Looking to the facts of this case, the Court noted that defendant’s salary was paid by UT and that she was obligated by her job with UT to help provide coverage at Erlanger. Plaintiff argued that Erlanger’s payments to UT were essentially funneled to defendant, but the Court rejected this argument. The Court noted that defendant was not a party to the contract between UT and Erlanger, and that both UT and Erlanger benefited from the affiliation agreement. The Court ruled that “there [was] no evidence that the affiliation agreement was merely a ‘conduit’ to allow Erlanger to provide additional compensation to [defendant], and it [was] undisputed that [defendant] practicing medicine in the residency clinic was within the scope of her employment with [UT].”

As further evidence that defendant was entitled to absolute immunity, the Court pointed out that defendant “had given up her right to charge and collect payments for her professional services at Erlanger.” The Court noted that “[f]or purposes of immunity, this Court has held previously that the state-employed physician’s ability to bill for his or her professional services is the most conclusive factor in determining whether the physician has immunity,” and that here there was no evidence that defendant “directly received any money for the fetal ultrasound performed on [plaintiff’s mother].” (internal citation omitted).

Accordingly, the finding that defendant physician was entitled to absolute immunity under the Tennessee Claims Commission Act was affirmed. This case is a good example of how a court may analyze the issue of whether a defendant, particularly a physician, should be considered a state employee under the Tennessee Claims Commission Act.  It also shows the challenge that can be faced in health care liability actions in attempting to identify the employer of a physician.

This opinion was released four months after oral arguments in this case.

Note:  Chapter 98, Section 4 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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