White v. Wexford Health Sources, Inc. et al, No. 2:2009cv00161 - Document 71 (N.D. Miss. 2012)
Court Description: MEMORANDUM OPINION re 70 Order on Motion for Summary Judgment, Order on Motion for Leave to File. Signed by Glen H. Davidson on 6/21/12. (tab)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION SHIRLEY WHITE, as Wrongful Death Beneficiary of KEITH PERKINS, DECEASED v. PLAINTIFF NO.2:09-CV-Ob161-GHD-JMV WEXFORD HEALTH SOURCES, INC., and TUNICA COUNTY, MISSISSIPPI [DEFENDANTS ! MEMORANDUM OPINION A. Introduction is This matter is before the Court on Defendant Wexford Health Sources, Inc. motion (34] for I immunity from state tort liability under the Mississippi Tort Claims Act, MISS. CO~E ANN. § 11-46 1 1, et seq. ("MTCA"), and for corresponding partial summary judgment. The issue is whether . I Wexford Health Sources, Inc., a private, for-profit corporation, which has co*racted with the Mississippi Department of Corrections ("MDOC") to provide medical services rt a state prison facility, is entitled to immunity from state law medical negligence claims assertedlby inmates. , Defendant Wexford Health Sources, Inc. ("Defendant" or "Wexford"» ih support of the ! 1 motion, asserts it is a "political subdivision" of the State of Mississippi under thejMTCA because , it is a "corporate body" performing, pursuant to contract, the governmental function of providing ! medical care to state inmates. Wexford argues that as a political subdivison ofthe S~ate, it is entitled ! to immunity pursuant to Mississippi Code Annotated § 11-46-9(m), which relietes the State, its political subdivisions, and their employees of liability for state law claims for circumstances at issue here. l 1 Section 11-46-9 states in pertinent part: Governmental entities and employees; exemption from liability i~uries under the Plaintiff Shirley White ("Plaintiff') on the other hand, argues that the ~nstant motion is j I "frivolous," asserting that "[b]y definition a private corporation, such as Wexford, which has a ! I ¢ contract with a state, is not itself a "state" or a "political subdivision of a state [within the meaning of the MTCA]." Pl.'s Br. Opp. to De£ Wexford's Mot. Immunity & Partial Surntn. J. [46J at 1. For the reasons discussed below, the Court finds that although Plaintiff ~s mistaken in the blanket assertion that a private corporation having a contract with the State of Mississippi cannot, by virtue thereof, ever be deemed a political subdivision of the State within ~ meaning of the MTCA, under the particular circumstances ofthis case, and in view ofcontrolling law from both the i Mississippi Supreme Court and federal district courts of Mississippi, Wexford is pot immune from I 1 suit as a political subdivision of the State under the MTCA. Before moving forward, however, the Court notes that on December 22, 2()11, Plaintiff filed 1 a motion for leave [65] to submit supplemental briefing in opposition to Wexford's motion for j immunity and partial summary judgment. Specifically, Plaintiff points out that an tssue arose during i I a settlement conference with the court on December 13, 2011. In her proposed s4pplemental brief, I I I Plaintiff indicates that during that settlement conference, Wexford took the positiol1 that Plaintiff did I I not have a federal constitutional claim against Wexford. i Nevertheless, Plaf.ntiff goes on to I 1 i i (1) A governmental entity and its employees acting within the course and scop~ of their employment or duties shall not be liable for any claim: : (m) Of any claimant who at the time the claim arises is an inmate of any deten$on center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, p.nal farm, penitentiary or other such institution when the claim is filed; i 2 acknowledge that Wexford's motion for immunity and partial summary judgmentl"soley addressed i Plaintiff's state law claims against Wexford, and Wexford's claim ofimmuni ty und~ the Mississippi , Tort Claims Act, § 11-46-1, et seq." and that "Wexford did not attempt to address haintiff's federal j I claims in its motion." Because the issues raised by Plaintiffs proposed suppleme~tal briefhave no , i bearing on Wexford's motion for immunity and corresponding partial summary ju4gment, the Court ! I finds that Plaintiffs motion for leave to submit supplemental briefing (65] should be denied. I B. Factual Background I Plaintiff is asserting claims for the alleged wrongful death ofher brother, ~eith Perkins. At ! , the time ofMr. Perkins' death, he was a prison inmate. Initially, Perkins was incarberated at Tunica County Detention Facility, but he was subsequently transported to Central Mississ~ppi Correctional 1 Facility in Rankin County, Mississippi on lune 12, 2008. He remained there untit June 16,2008, i I when he was transported by ambulance to Central Mississippi Medical Ce+ter in Jackson, 1 Mississippi. Perkins died in that hospital approximately three days later. This action arises out of I the injuries suffered by Perkins and his ultimate death due to the alleged i neg1i~ent rendition of ! medical care by certain medical staff employed by Wexford, a private, for-prbfit, health care I corporation responsible for the provision of medical services at the subject prisoh pursuant to its t contract with the State of Mississippi. ! In her complaint, Plaintiff alleges Wexford committed various negligent ads and omissions ! i I which proximately caused or contributed to her brother's death. Wexford is al private Florida 1 corporation that provides certain medical, dental, and mental health services to ppson inmates at I , particular facilities in the State of Mississippi. The types of services provided bylWexford, along with the facilities it serves, are specified in its contract with the Mississippil Department of 3 Corrections ("MDOC,,).2 Ultimately, Wexford provides those services at some put not all of the correctional facilities at which MDOC inmates are housed. The contract between Wexford and MDOC further reveals that when it c~es to providing I inmates with medical, dental, and mental health care and to making related de~sions, there is a certain division oflabor which exists between Wexford and MDOC, and under that pivision oflabor, j MDOC exercises authority over some important matters. For example, MDOC r~tains the right to I approve key Wexford personnel, such as medical directors, physicians, mid-level ~ractitioners, and nursing directors. MDOC also establishes, through appropriate arrangements, the ~articular off-site medical centers which will be used for emergencies that cannot be treated on-~ite at a prison. , ! Additionally, MDOC makes the final decisions regarding specialty referrals. Notwithstanding this ! level of control exercised by the MDOC, however, the contract expressly definqs Wexford as an I 1 , independent contractor and denies MDOC any right to exercise control over the "method" or I "manner" by which Wexford performs its duties under the contract. C. Summary Judgment Standard i I I Summary judgment "should be rendered if the pleadings, the discovery and disclosure \ , materials on file, and any affidavits show that there is no genuine dispute as to anyjrnaterial fact and that the movant is entitled to judgment as a matter oflaw." FED. R. CIV. P. 56(a);ICelotex Corp. v. i Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986); Weav~r v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summarjr judgment, after adequate time for discovery and upon motion, against a party who fails to make a s~fficient showing wex~ord 2 See "Agreement Between the State of Mississippi Department of Corrections and Health Sources, Inc. for Onsite Inmate Health Services," attached as an exhibit to Lynda Powell's Su.mn!ary Judgment i Affidavit [34-2]. 4 to establish the existence of an element essential to that party's case, and on whi~h that party will bear the burden of proof at tria1." Celotex Corp., 477 U.S. at 322,106 S. Ct. 2548. , The party moving for summary judgment bears the initial responsibility\of informing the , district court of the basis for its motion and identifying those portions of the t1ecord it believes 1 i demonstrate the absence of a genuine issue ofmaterial fact. Id. at 323, 106 S. Ct. :¥48. Under Rule 56(a) of the Federal Rules of Civil Procedure, the burden then shifts to the nqn-movant to "go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to in*rrogatories, and j admissions on file,' designate 'specific facts showing that there is a genuine issue\for trial.' n Id. at f ! 324,106 S. Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th fir. 2001); Willis I v. Roche Biomedical Labs. , Inc., 61 F.3d313, 315 (5th Cir. 1995). "The mere exist~nce ofa scintilla 1 ! of evidence in support ofthe plaintiffs position will be insufficient" to preclude sutfmary judgment; "there must be evidence on which the jury could reasonably find for the ! plaint~ff." Anderson v. i Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1985)1 ! D. Discussion In support of its motion, Wexford asserts that the issue here has never be~ decided by the I Mississippi Supreme Court, nor is there other controlling authority specifically addtiessing the issue. i I Consequently, rather than controlling case law, Wexford relies in support of its cl~im primarily on the following arguments: 1. As a private corporation performing medical services to state pris<fers pursuant to I contract with the MDOC, Wexford fits the definition ofa "politican subdivision" as that phrase is defined under § 11-46-1 (i) of the MTCA;3 2. Although § 11-46-1(f) ofthe MTCA is not actually "directly" applicable to Wexford in this case, the language of that section, nevertheless, sheds li~t on the issue of ! 1 whether Wexford is entitled to innnunity under the MTCA, sinbe that provision I evidences a general intent of the Mississippi Legislature to exten4 innnunity under the Act broadly to cover all health care providers affiliated with governmental ! entities;4 3 Section 11-46-1 states in pertinent part: § 11-46-1. Definitions 1 ! As used in this chapter the following terms shall have the meanings herein ascribed unle~s the context otherwise requires: . , (g) "Governmental entity" means and includes the state and political subdivisions as herfin defmed. . (i) "Political subdivision" means any body politic or body corporate other than the state i responsible for governmental activities only in geographic areas smaller than that of the ~tate, ! including, but not limited to, any county, municipality, school district, conununity hospi$l as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instnu+entality thereof, whether or not such body or instrumentality thereof has the authority to levy tax~s or to I sue or be sued in its own name. 4 Subdivision Hf' of § 11-46-1 defmes "employee" this way: i "Employee" means any officer, employee or servant of the State of Mississippi or a poH~cal subdivision of the state, including elected or appointed officials and persons acting on b~alf of the state or a political subdivision in any official capacity, temporarily or permanently, in th~ service of the state or a political subdivision whether with or without compensation. The term "elnployee" shall not mean a person or other legal entity while acting in the capacity of an independe*t contractor under contract to the state or a political subdivision; provided, however, that fbr purposes of the limits ofliability provided for in Section 11-46-15, the term "employee" phall include physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering serfices I 6 3. Because the MTCA specifically grants immunity to those who iprovide medical } services in county and municipal jails, it would be "exceedinglylstrange" to deny ~ those same immunities to those providing health care services in s1/ate facilities; and , 4. Since, for purposes ofa 28 U.S.C. § 1983 action, Wexford would b~ deemed a "state : \ actor," it, therefore, should be deemed a "political subdivision" oft~e State under the MTCA and provided immunity as to state law claims. ; The Court finds that none of Wexford's arguments is persuasive. First, thbugh not cited by either party, the issue of whether a private, for-profit corporation, such a We~ford, performing services on behalfofa governmental entity is entitled to the protections ofthe MT~A was addressed I in Thompson v. McDonald Transit Associates, Inc., 440 F. Supp. 2d 530 (S.D. M~ss. 2006). In that , 1 case, the City of Jackson contracted with the defendant, McDonald Transit: Associates, Inc. I ("McDonald"), a private, for-profit, Texas corporation, to operate and maintainlthe City's public transportation system. Thompson, 440 F. Supp. 2d at 530-31. Discovery in the ~ase revealed that McDonald was paid a flat fee for its services and reimbursed its operating expens~s out ofrevenues paid the City by the public using the transportation system. Id. at 531. The City, f~r its part, retained I i substantial oversight ofthe operation ofthe public transport system and furnished ~ll equipment and under such contract. The tenn "employee" shall also include any physician, dentist or o~er health care practitioner employed by the University of Mississippi Medical Center (UMMC) ~d its departmental practice plans who is a faculty member and provides health care services hnly for patients at UMMC or its affiliated practice sites. The tenn "employee" shall also inclu* any physician, dentist or other health care practitioner employed by any university under tht control of the Board of Trustees of State Institutions of Higher Learning who practices only on th~ campus of any university under the control of the Board of Trustees of State Institutions of HigheJ Learning. The tenn "employee" shall also include any physician, dentist or other health care prac1itioner employed by the State Veterans Affairs Board and who provides health care services fcir patients for the State Veterans Affairs Board. The tenn "employee" shall also include MississipPi Department of Human Services licensed foster parents for the limited purposes of covetage under i the Tort Claims Act as provided in Section 11-46-8. 7 approved all budgets and contracts related to its operation. Id. In the course of the system's operations, a passenger was injured and sudd McDonald, the ! operator, for negligence. Id. at 530-31. McDonald essentially argued it was enritled to the same i protections as the City under the MTCA because it was performing a "governm~t activity" by its I i operation of the transport system under contract with the City. Id. at 532. Likje Wexford in the i i instant case, McDonald argued it met the literal definition of"political subdivisiorf' as defined in the , MTCA, and was, therefore, entitled to immunity under the statute. See id. Recognizing-at the time-a "scarce amount ofMississippi case law regar~ng application of , the MTCA to private companies," U.S. District Judge William H. Barbour noted t*at the Mississippi 1 Supreme Court had considered the application ofthe MTCA to at least one privat~, for-profit entity, ! ! citing Mozingo v. Scharf, 828 So. 2d 1246 (Miss. 2002). Id. at 532. The court ex1l>lained that in that l case the Mississippi Supreme Court found that a private, for-profit, legal entity did not function as ! a private entity, but rather as a "political subdivision" ofthe "State" for purposeslofthe MTCA. Id. ! at 532-533. The court noted that the Mississippi Supreme Court considered/as significant the l I following circumstances: (1) that the entity, though private, was created by the St~te to carry out the 1 mandate of the State Legislature to provide the medical services to the pUblid; (2) that the sole ! purpose of its creation was to bill and collect fees for the state hospital; (3) tha. its only members i were the state hospital physicians who were required to practice exclusively at thd state hospital; and (4) that the entity was bound by the state hospital guidelines. Id. at 533. Applying those factors to McDonald, the private, for-profit, Texas corp4ration involved in ; I Thompson, Judge Barbour found little similarity between the private entitt in Mozingo and ! McDonald. Id. McDonald had not been created for the sole purpose of fulfillin~ a state-mandated I 1 8 government service, but had, instead, presumably been created to be a profitable business for the benefit ofits shareholders. Id. Moreover, Judge Barbour noted that operation oft~e public transport system was unlikely McDonald's sole purpose for existence. Id. The court explflined: Considering McDonald is a Texas corporation, the Court presumes that McDonald is involved in other ventures in other states. This capitalistic nature is an ~verriding consideration that clearly distinguishes McDonald from an entity such as\UAS [the private entity at issue in Mozingo) which merely exists to supplement th~ salary of UMMC faculty-physicians. I McDonald also points out that the City has significant control over ~ATRAN [the public transport system) and that the City receives all revenue gertrated by JATRAN. But, McDonald overlooks the fact that it maintains ultimate cohtrol over the day-to-day operations of JATRAN, as the general manager ofthe tran~it system is a McDonald employee. Also, the City's receipt ofrevenues is oflittle si!Jtificance considering McDonald receives a yearly fee from the City for its services.\ After considering the overall nature of the contractual relationship between the City and McDonald, the Court believes that the Mississippi legislatur~ [sic) did not intend for the MTCA to extend to a private entity such as McDonald. ~e Court therefore concludes that McDonald is not protected by the MTCA. I Id. I Not long after the Thompson decision, the Mississippi Supreme Court con$idered a similar I issue as it had in Mozingo and again concluded that while it was possible for \a private entity 1 , responsible for governmental activities to properly be regarded as a political subdlvision pursuant 1 to the MTCA, there were limits on such circumstances. In Bolivar Leflore Medic41 Alliance, LLP v. Williams, 938 So. 2d 1222, 1228 (Miss. 2002), the court highlighted the cir¢umstances that I supported its holding in Watts v. Tsang, 828 So. 2d 785 (Miss. 2002). Quoting ~atts, the court stated: we are not holding that all ... [such legal entities) are per se instrumentaliti~s ofthe State. However, where as here the medical practice group was created by l¥MMC, and is overseen by UMMC, and the purpose is to supplement the inconf of its faculty; when the day-to-day oversight is left to the department chair, supject to I 9 I 1 ¢ I i 1 i i limited oversight by the vice chancellor, and its membership is compostll solely of full-time UMMC faculty physicians; where the faculty physicians can otily practice at UMMC approved sites, and the money is distributed on a point syste$ based on factors other than mere patient service, we must conclude that the medi~l practice group is a State entity. I I Bolivar Leflore Medical, 938 So. 2d at 1228 (citation omitted). I Ultimately, the Bolivar Leflore Medical court found that the particular entity at issue in that I case was entitled to the protections, limitations, and immunities ofthe MTCA bec~se ofGreenwood ! Leflore Hospital 'S5 nearly total interest in the income and losses ofthe subject enti1y, and its majority ! control over the entity's Executive Committee membership. See id. at 1229-12~2. 1 Four years after Judge Barbour's decision in Thompson, U.S. District Jud~ David Bramlette ! I analyzed a similar issue. In Natchez Regional Medical Center v. Quorum Healt~ Resources ac, I No. 5:09-cv-207-DCB-JMR, 2010 WL 3324955 (S.D. Miss. Aug. 20,2010), Q$, a private entity ! j contracting with a community hospital, argued it was entitled to the protection$, limitations, and I immunities ofthe MTCA. The court pointed out that QHR's position was "analog~us to the position t of McDonald Transit Associates, Inc. in Thompson." Natchez Regional, 2010 wi 3324955, at *4. ! Ultimately, the Natchez Regional court concluded that "QHR is not entitled t~ the protections, ! , limitations, and immunities of the MTCA." Id. The court found it important to ~ote that "QHR is ~ a Delaware company with its principal place of business in Tennessee and, Ipresumably, has I capitalistic ventures elsewhere." Id. However, the court also found that whilb the Mississippi I l Supreme Court in Estate ofFredrick ex rei. Sykes v. Quorum Health Resources, Jf;.c., 45 So. 3d 667 i (Miss. ct. App. 2009), rev'd on other grounds, 45 So. 3d 641 (Miss. 2010), had darlier determined 1 that QHR was an instrumentality of the State in that case, the findings in Sykes 5 Greenwood Leflore Hospital was a public community hospital. 10 w~re not applicable to the facts in Natchez Regional, because in Natchez Regional QHR was being sueU by a community I hospital and not by a private entity, and the Sykes court had specifically limited ~ts holding to the ! ; facts in that case. See Natchez Regional, 2010 WL 3324955, at *4 (citation omitf:ed). The holding in Sykes is worth further discussion, however. In that case; the Mississippi Supreme Court found that a review of the management agreement between ~R, a for-profit, ! Delaware corporation, and the governmental entity, a community hospital, revea*d that QHR was an instrumentality ofthe hospital. Sykes, 45 So. 3d at 674. Most importantly, the! agreement made it clear that the hospital did not "abdicate any of its control or authority over it. operation or its 1 business." Id. The agreement expressly stated that the relationship between the ~spital and QHR ; was one ofprincipal and agent and that the hospital and QHR were "not partners, j~int venturers, or I independent contractors . ... Id. at 675 (emphasis added). The court pointed 01.# that 1 [a]lthough ... [QHR] is a subsidiary ofone ofthe largest hospital corporati~ns in the United States, considering the foregoing provisions of the management aireement, it is clear that under the precise circumstances of this case and contekt of the relationship between ... [QHR] and ... [the hospital], there is no genuinf issue of material fact regarding whether ... [QHR] is an 'instrumentality' of:... [the hospital]. As an 'instrumentality' of a community hospital, ... [QHR] is dntitled to the protections, limitations[,] and immunities of the MTCA.' I I Id. (citations omitted). ! When the reasoning of the foregoing cases is applied to Wexford here, i~ is apparent that i Wexford is not entitled to immunity under the MTCA. Wexford is a private, f~r-profit, foreign corporation with business interests presumably other than those at issue here. MOreover, although I , there is some oversight by the MDOC pursuant to its contract with Wexford, bothlthe contract and ! Wexford expressly define Wexford as an independent contractor. Significantly, th~relevant section of the Agreement between MDOC and Wexford states: 11 i 1 11.6 Independent Contractor Status. The MDOC expressly acknowlefiges that Wexford is an "independent contractor," and nothing in this Agr,ement is intended nor shall be construed to create an agency relatiotiship, an employer/employee relationship, a joint venture relationship, or 4mY other relationship allowing the MDOC to exercise control or direction! over the manner or method by which Wexford or its subcontractors! perform hereunder. As such Wexford shall pay all federal, state, and local faxes that accrue to it because of this Agreement. ! J MDOClWexford Agt., Ex. to Lynda Powell Summ. J. Aff[34-2], at 34. With regard to this latter point, the Court notes that though Wexfotd contends that , I Mississippi Code Annotated § 11-46-1 (t) is not applicable to the instant case, it ne~ertheless asserts that the language of that particular section indicates an intent by the Mississippi :4gislature to cast a broad sweep ofimmunity among those providing health care services as affiliatespfthe State. This argument is unpersuasive. Indeed, concerning § 11-46-1 (t), while the Legislature ~loaks employees i of the State who provide health care services to the public with immunity, it e1preSSlY excludes independent contractors providing such services. In other words, according to this section of the j MTCA, a principal focus in determining who is entitled to immunity turns on the r,cognized control , I factors which distinguish between independent contractors and employees. The $ctors referenced , by the Mississippi Supreme Court in Mozingo and later by the Southern District pfMississippi in I i I I Thompson and Natchez Regional similarly rely on related control factors. Thus, far from supporting I Wexford's argument of immunity, § 11-46-1(t) actually undermines it. Next, the Court concludes that similarly without merit is Wexford's asse~ion that a finding i I of no immunity under the circumstances of this case would be "strange" in vieW of the fact that ! I health care providers under contract with municipalities and county jails are enti,ed to immunity. I The section of the MTCA Wexford refers to expressly limits that provision o~ immunity to the i individual physicians themselves who provide medical care to municipalities an~ counties. It does r 12 not address the provision of such care by private, for-profit corporations like We~ford in this case. , 1 Finally, the Court finds Wexford's argument that it is entitled to the benefib and protections i i of the MTCA because it would be considered a "state actor" for purposes of a § 1983 claim avails r it nothing. First, and foremost, Wexford has presented the Court with no legal ~thority remotely supporting this position. Second, as shown above, the MTCA itself defines tho~e "governmental I entities" and their "employees" entitled to its protections, limitations, and immun¥es; Wexford has ! failed to convince this Court that it fits into either category. Third, Wexford atttmpts to compare 1 apples to oranges as § 1983 contemplates claims reaching federal constitutional dtagnitude, worlds apart from the state law negligence claims at issue here. Ultimately, Wexford is simply not entitled I i to immunity from suit under the MTCA. E. Conclusion J For the foregoing reasons, Defendant Wexford Health Sources, Inc. ~s not entitled to ! ; immunity under the MTCA, and, therefore, its motion for immunity and corr~sponding partial I summary judgment [34] shall be DENIED. I Further, Plaintiffs motion for leave to file supplemental brief in opposi~on to Wexford's motion for immunity and for a corresponding partial summary judgment [65] sh~ll be DENIED. 1 A separate ordr shall issue this day in accordance therewith. THIS, ..J1 ~ day of June, 2012. i5J~ 13
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