FRYMAN (PATRICK D.) VS. FLEMING COUNTY HOSPITAL
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RENDERED: APRIL 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000865-MR
PATRICK D. FRYMAN
v.
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 07-CI-00313
FLEMING COUNTY HOSPITAL,
D/B/A FLEMING COUNTY
HOSPITAL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND WINE, JUDGES.
WINE, JUDGE: Appellant Patrick Fryman appeals from the entry of a summary
judgment in favor of the appellee, Fleming County Hospital District, d/b/a Fleming
County Hospital, wherein the Fleming Circuit Court found that Fleming County
Hospital was entitled to judgment as a matter of the law on sovereign immunity
grounds. Fryman contends that Fleming County Hospital cannot properly be
considered an instrumentality of the state entitled to sovereign immunity. We
disagree.
Background
On the morning of December 18, 2006, Fryman presented to the
emergency room of the Fleming County Hospital (“FCH”). He was seen in the
emergency room by Dr. Jane Wiczkowski, before being transferred to the intensive
care unit (“ICU”). Once transferred to ICU, he was seen by cardiologists who
ordered his transfer to the cardiac catherization laboratory of St. Joseph East
Hospital via helicopter.
Thereafter, Fryman sued Dr. Wiczkowski and the Fleming County
Hospital District (“the District”), d/b/a Fleming County Hospital. Fryman alleged
in his complaint that Dr. Wiczkowski “intentionally, maliciously and negligently
failed and refused to provide a diagnosis and treatment of [his] illness,” and that
such failure caused him to suffer “grave and extensive injuries to his body and
mind; pain and suffering; lost wages and a permanent loss of earning capacity;
mental anguish, loss of enjoyment of life; disfigurement; and medical expenses.”
After FCH filed its answer, it later filed a motion for summary judgment on the
ground that the claims against it were barred by the doctrine of sovereign
immunity.
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The trial court heard arguments on the motion and granted summary
judgment in favor of FCH, holding that FCH and the District was an
instrumentality of the state entitled to the protection of sovereign immunity.
Standard of Review
Upon review of a granted motion for summary judgment, our task is
to determine whether the trial court was correct in finding that there were no
genuine issues of material fact and that the moving party was entitled to judgment
as a matter of law. Steelvest, Inc v. Scansteel Service Center, Inc., 807 S.W.2d
476, 480 (Ky. 1991). When asking this question, we review the record “in a light
most favorable to the party opposing the motion.” Booth v. CSX Transportation,
Inc., 211 S.W.3d 81, 83 (Ky. App. 2006). As the summary judgment process
involves no fact-finding, we review the judgment de novo, giving no deference to
the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
Sovereign Immunity
At issue in the present case is whether FCH and the District are
entitled to immunity from claims of medical negligence against them for care
rendered at FCH.
Sovereign immunity is a doctrine of law harking back to the common
law of England and recognized in the Commonwealth through Section 231 of the
Kentucky Constitution. Reyes v. Hardin County, 55 S.W.3d 337, 338 (Ky. 2001);
Withers v. University of Kentucky, 939 S.W.2d 340, 342 (Ky. 1997). Stated
simply, the doctrine of sovereign immunity prohibits the Commonwealth or its
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instrumentalities from being sued without consent. See Holloway Construction
Company v. Smith, 683 S.W.2d 248, 249 (Ky. 1984).
Until recently, our courts have applied the two-prong test set forth by
the Supreme Court in Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327
(Ky. 1991), to determine whether an entity is entitled to the protection of sovereign
immunity. The first prong of the test considered the degree to which the entity was
under the “direction and control of the central State government.” Id. at 331. The
second considered whether the entity was “supported by monies which were
disbursed by authority of the Commissioner of Finance out of the State treasury.”
Id.
However, after Berns, many Kentucky courts began to also place
emphasis on an implicit “third element” -whether the entity carries out a function
which is integral to state government. See, e.g., Yanero v. Davis, 65 S.W.3d 510,
527 (Ky. 2001); Withers, supra. Just recently, the Kentucky Supreme Court
changed the test altogether by doing away with the Berns analysis. Comair, Inc. v.
Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 99 (Ky. 2009).
The Court found that the two-pronged test from Berns was useful, but best left to
that case. Id. Indeed, the Comair court felt that the Berns test was too simple and
too limiting in that it failed to allow for subtlety and focused too much on central
state government rather than including county governments. Id. In establishing
the new analysis, or “test” to apply, the Court stated in pertinent part:
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[T]he basic concept behind the [two-prong test in Berns]
-whether the entity in question is an agency (or alter ego)
of a clearly immune entity (like the state or a county)
rather than one for purely local, proprietary functions-is
still useful. . . . Rather than attempting to reduce that idea
to a simple test, however, it should instead be treated as a
guiding principle, with the focus instead being on the
origins of the entity. . .[and] whether the entity exercises
a governmental function, which . . . means a “function
integral to state government.” . . . [B]oth of these
inquiries-the sources of the entity in question and the
nature of the function it carries out-are tied together to
the extent that frequently only an arm of the state can
exercise a truly integral governmental function . . . .
Id. at 99. Thus, our analysis of whether the District is entitled to the protection of
sovereign immunity turns on the District’s origins and whether it can be said to
carry out a function integral to state government.
It is well established that counties are considered direct political
subdivisions of the state and enjoy the same immunity as the state itself.
Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky. 2003). See also
Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132
(Ky. 2004). Furthermore, it has long been understood that county hospitals are
immune from suit and that such immunity has not been removed by the legislature.
OAG 75-19 (stating that “a county hospital is not suable in a tort action”). See
also OAG 62-1019; 1956 OAG 39,158. However, as there appears to be scant case
law on the issue, we reaffirm this maxim here through a brief application of the test
set forth in Comair, supra.1 But see Rather v. Allen County War Memorial
1
The Supreme Court references the sovereign immunity of county hospitals in Reyes, supra, although the
Court therein addressed the somewhat different issue of whether a county hospital could be included in an
action for the sole purpose of determining the limits of the hospital’s policy of insurance under Kentucky
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Hospital, 429 S.W.2d 860 (1968); Hill v. Ohio County, 468 S.W.2d 306, 307 (Ky.
1971).
The Comair Test
The District was formed pursuant to KRS 216.310, et seq., which was
enacted by the Legislature to allow counties to form hospital districts. The
Legislature shed light on the purpose of this legislation in KRS 216.310, which
states as follows:
This legislation is designed to permit a county to form a
hospital district or two (2) or more counties to join
together in the formation of a hospital district in order to
provide a broader basis for local support of hospitals and
related health facilities including supportive services and
the training and education of health personnel. . . .
In addition, the Legislature established county hospital districts as taxing districts
through KRS 216.317, which states as follows:
Upon the creation of a hospital district, as provided in
KRS 65.182 and 216.320, the district shall constitute and
be a taxing district within the meaning of Section 157 of
the Constitution of Kentucky and the county shall be a
participating county in the district.
Further, KRS 216.315 states that the secretary for the Cabinet for Health and
Family Services shall be the secretary for all county hospital districts. Moreover,
KRS 216.323 grants the county judge executive of the county the authority to
appoint members to the hospital district’s board. Finally, KRS 216.335 gives the
District the power to enter into contracts, buy and sell land, and exercise the power
of eminent domain.
Revised Statute(s) (“KRS”) 67.186.
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The District is a creature of statute and is funded by tax dollars. State
actors act as its secretary and appoint its board members. Thus, it is clear that
Fleming County is the District’s “parent.” As counties are arms of the state, the
Commonwealth is also the District’s “parent.” See, e.g., Comair, supra. See also
Cullinan v. Jefferson County, 418 S.W.2d 407 (1967). With this established, the
next question is whether the District and FCH carry out a function which is integral
to state government.
This task is easily accomplished, however, as it is clear that the
District is carrying out the policy of the state at large by carrying out the
Legislature’s stated purpose of providing “health and hospital care for the
collective benefit of all the people within an area.” This is defined as the state’s
objective in KRS 216.310. As such, we find that the District and FCH are
protected from suit by the doctrine of sovereign immunity.
As the Supreme Court held in Reyes, supra, a suit may still be
“brought against a county hospital for the sole purpose of measuring a negligence
claimant’s entitlement to proceeds from the hospital’s policy of liability
insurance.” Id. at 337-338 (Emphasis added). Such suit is authorized by statute
under KRS 67.186. However, we do not reach this issue here, as Fryman has not
argued for the application of KRS 67.186, either before this Court or in the trial
court. As the Kentucky Supreme Court stated in Rather v. Allen County War
Memorial Hospital, supra,
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Since KRS 67.186 creates an exception to immunity and
since that exception is by legislative enactment separate
and apart from Section 231 of the Kentucky Constitution
(which establishes immunity) it [is] incumbent upon [a]
plaintiff to plead that [he or] she [comes] within the
exception after the county . . . assert[s] its immunity as a
ground for dismissal of the complaint.
Id. at 862. Thus, we will not reverse on the ground that Fryman could have
maintained an action against FCH for the sole purpose of measuring his
entitlement to proceeds from FCH’s liability insurance policy as it is not properly
before us.
Accordingly, the judgment of the Fleming Circuit Court is hereby
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gerald W. Shaw
Ewing, Kentucky
Carol Dan Browning
Louisville, Kentucky
Frank McCartney
Flemingsburg, Kentucky
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