MS: State Univ. Med. Prof.'s Dual Capacity in OR: Does State Employee Immunity Apply to Professor?

CASE FACTS: On May 30, 1993, John Conley was injured in automobile accident and transported to the University of Mississippi Medical Center. The day after the accident, Dr. Edward Warren, a cardiovascular surgeon on staff, performed an operation to repair patient's thoracic aorta, After the accident but prior to the May 31 surgery, the patient could move his legs; however, after the surgery, he was paralyzed form the waist down. The patient brought suit for medical malpractice against Dr. Warren in the Circuit Court alleging that Dr. Warren was guilty of medical malpractice in performing the surgery. Dr. Warren filed a motion for summary judgment on the grounds that the patient failed to comply with the notice provisions of state law. The trial court granted Dr. Warren's motion for summary judgment on the grounds that he was a "state employee," not an independent contractor, and was, therefore, immune under the state's Tort Claims Act.

COURT'S OPINION: The Supreme Court of Mississippi reversed the judgment of the lower court and remanded the case for the further proceedings. The court held, inter alia, that the specific issue to be determined was whether faculty physicians at the University of Mississippi Medical Center (UMMC) who engage in clinical outpatient practice under the general auspices of the university for which they are compensated are state employees acting within the course and scope of their employment for the purposes of the Mississippi Tort Claims Act (MTCA). The court found that "the traditional scope of employment analysis failed to provide sufficient guidance to the court on this issue." The court noted that the Virginia Supreme Court had examined the issue of whether faculty physicians employed by a state university were protected by sovereign immunity for acts of simple negligence. That court developed a four-part test to determine the status of these hybrid physicians. The following criteria were established: 1. The nature of the function performed by the employee; 2. The extent of the state's interest and involvement in the function; 3. The degree of control and direction exercised by the state over the employee, and 4. Whether the act complained of involved the use of judgment and discretion. In adopting this Virginia test, the court was felt compelled to add one further criterion to the list, The court noted that the trial court properly determined that there was no genuine issue of material fact regarding whether Dr. Warren was serving in a dual capacity in the operating room -- one as a teacher and one-as an attending physician. Conley v. Warren, 2001 WL 126406 So.2d -- MS