SC: life flight pilot injured on premises: employer's 'control' is key to right to sue.

CASE FACTS: John Cooke was employed as a pilot for Petroleum Helicopter, Inc., which contracted with Palmetto Richland Hospital to transport critically injured patients to the emergency room. On December 13, 1999, Cooke tripped and fell over a metal rod that an employee of the hospital used to prop open a door at the hospital. Because the injury occurred while Cooke was in the course of his employment with Petroleum Helicopter, he filed for and received workers' compensation. Cooke and his wife sued the hospital. After a court ruling that the hospital could not be sued for punitive damages because of its status as a charitable organization the Cookes added the hospital employee who propped the door open as a defendant, alleging her method of propping the door open amounted to gross negligence. In their answer, the defendants asserted, inter alia, that Cooke was either the statutory employee of the hospital or a borrowed servant at the time of the accident, and therefore, the exclusive remedy under the Workers' Compensation Act (Act) served as a complete bar to the Cookes' tort suit. The parties agreed to present the case to the trial court on the issue of whether the Act was the plaintiffs' exclusive remedy. The Richland County Circuit Court ruled that Cooke was not a statutory employee of the hospital or a borrowed servant and, thus, was not barred by the exclusive remedy provision of the Act. The defendants appealed.

COURT'S OPINION: The Court of Appeals of South Carolina affirmed the order of the lower court. The court held, inter alia, that to qualify as a statutory employee under the Act, an individual must be engaged in an activity that "is a part of [the employer's] trade, business, or occupation" if it "(1) is an important part of the [employer's] business or trade; (2) is a necessary, essential, and integral part of the [employer's] business; or (3) has previously been performed by the [employer's] employees." The court found that none of the criteria was met. The court next addressed the borrowed servant doctrine. Under the borrowed servant doctrine, when a general employer lends an employee to a special employer, that special employer is liable for workers' compensation if: (1) there is a contract of hire between the employee and the special employer; (2) the work being done by the employee is essentially that of the special employer; and (3) the special employer has the right to control the details of the employee's work. The court agreed with the lower court that while the first two prongs of the test were met, the third was not! The hospital had no control over Cooke's work. The key element--control was missing. Thus, the Cookes could sue the defendants. Cooke v. Palmetto Health Alliance, No. 4054 (S.C. App. 12/12/2005) S.E.2d--SC

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.