I immunity from state tort liability under the Mississippi Tort Claims Act, MISS. ANN

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1 Whte v. Wexford Health Sources nc. et al Doc. 7 N THE UNTED STATES DSTRCT COURT FOR THE NORTHERN DSTRCT OF MSSSSPP DELTA DVSON SHRLEY WHTE as Wrongful Death Benefcary of KETH PERKNS DECEASED PLANTFF v. NO.2:09 CV Ob6 GHD JMV WEXFORD HEALTH SOURCES NC. and TUNCA COUNTY MSSSSPP MEMORANDUM OPNON [DEFENDANTS A. ntroducton Ths matter s before the Court on Defendant Wexford Health Sources nc. s moton (34] for mmunty from state tort lablty under the Msssspp Tort Clams Act MSS. ANN. 46- et seq. ("MTCA") and for correspondng partal summary udgment. The ssue s whether Ị Wexford Health Sources nc. a prvate for proft corporaton whch has co*racted wth the Msssspp Department of Correctons ("MDOC") to provde medcal servces rt a state prson faclty s enttled to mmunty from state law medcal neglgence clams assertedlby nmates. Defendant Wexford Health Sources nc. ("Defendant" or "Wexford"» h support of the moton asserts t s a "poltcal subdvson" ofthe State of Msssspp under themtca because t s a "corporate body" performng pursuant to contract the governmental functon of provdng medcal care to state nmates. Wexford argues that as a poltcal subdvson ofthe t s enttled to mmunty pursuant to Msssspp Code Annotated 46 9(m) whch reletes the State ts poltcal subdvsons and ther employees of lablty for state law clams for under the crcumstances at ssue here. l Secton 46 9 states n pertnent part: Governmental enttes and employees; exempton from lablty Dockets.Justa.com

2 Plantff Shrley Whte ("Plantff') on the other hand argues that the moton s "frvolous" assertng that "[b]y defnton a prvate corporaton such as Wexford whch has a contract wth a state s not tself a "state" or a "poltcal subdvson ofa state [wthn the meanng ofthe MTCA]." Pl.'s Br. Opp. to De Wexford's Mot. mmunty & Partal Surntn. J. [46J at. For the reasons dscussed below the Court fnds that although Plantff mstaken n the blanket asserton that a prvate corporaton havng a contract wth the State ofmsssspp cannot by vrtue thereof ever be deemed a poltcal subdvson of the State wthn meanng of the MTCA under the partcular crcumstances ofths case and n vew ofcontrollnglaw from both the Msssspp Supreme Court and federal dstrct courts ofmsssspp Wexford s pot mmune from sut as a poltcal subdvson ofthe State under the MTCA. Before movng forward however the Court notes that on December 22 2() Plantff fled a moton for leave [65] to submt supplemental brefng n opposton to Wexford's moton for mmunty and partal summary udgment. Specfcally Plantff ponts out that an tssue arose durng a settlement conference wth the court on December n her proposed s4pplemental bref Plantff ndcates that durng that settlement conference Wexford took the postol that Plantff dd not have a federal consttutonal clam aganst Wexford. Nevertheless Plaf.ntff goes on to () A governmental entty and ts employees actng wthn the course and ofther employment or dutes shall not be lable for any clam: : (m) Ofany clamant who at the tme the clam arses s an nmate of any deten$on center al workhouse penal farm pententary or other such nsttuton regardless of whether such clamant s or s not an nmate of any detenton center al workhouse p.nal farm pententary or other such nsttuton when the clam s fled; 2

3 acknowledge that Wexford's moton for mmunty and partal summary udgmentl"soley addressed Plantff's state law clams aganst Wexford and Wexford's clam ofmmun ty the Msssspp Tort Clams Act 46 et seq." and that "Wexford dd not attempt to address hantff's federal clams n ts moton." Because the ssues rased by Plantffs proposed brefhave no bearng on Wexford's moton for mmunty and correspondng partal summary u4gment the Court fnds that Plantffs moton for leave to submt supplemental brefng (65] should be dened. B. Factual Background Plantff s assertng clams for the alleged wrongful death ofher brother Perkns. At the tme ofmr. Perkns' death he was a prson nmate. ntally Perkns was ncarberated at Tunca County Detenton Faclty but he was subsequently transported to Central Correctonal Faclty n Rankn County Msssspp on lune He remaned there untt June when he was transported by ambulance to Central Msssspp Medcal Ce+ter n Jackson Msssspp. Perkns ded n that hosptal approxmately three days later. Ths acton arses out of the nures suffered by Perkns and hs ultmate death due to the alleged rendton of medcal care by certan medcal staff employed by Wexford a prvate for prbft health care corporaton responsble for the provson ofmedcal servces at the subect prsoh pursuant to ts t contract wth the State ofmsssspp. n her complant Plantff alleges Wexford commtted varous neglgent ads and omssons whch proxmately caused or contrbuted to her brother's death. Wexford s al prvate Florda corporaton that provdes certan medcal dental and mental health servces to ppson nmates at partcular facltes n the State of Msssspp. The types of servces provded bylwexford along wth the facltes t serves are specfed n ts contract wth the Mssssppl Department of 3

4 Correctons ("MDOC).2 Ultmately Wexford provdes those servces at some put not all of the correctonal facltes at whch MDOC nmates are housed. The contract between Wexford and MDOC further reveals that when t nmates wth medcal dental and mental health care and to makng related to provdng there s a certan dvson oflabor whch exsts between Wexford and MDOC and under that pvson oflabor MDOC exercses authorty over some mportant matters. For example MDOC approve key Wexford personnel such as medcal drectors physcans md level nursng drectors. MDOC also establshes through approprate arrangements the the rght to and off ste medcal centers whch wll be used for emergences that cannot be treated at a prson. Addtonally MDOC makes the fnal decsons regardng specalty referrals. Notwthstandng ths level of control exercsed by the MDOC however the contract expressly defnqs Wexford as an ndependent contractor and denes MDOC any rght to exercse control over the "method" or "manner" by whch Wexford performs ts dutes under the contract. C. Summary Judgment Standard Summary udgment "should be rendered f the pleadngs the dscovery and dsclosure \ materals on fle and any affdavts show that there s no genune dspute as to anyrnateral fact and that the movant s enttled to udgment as a matter oflaw." FED. R. CV. P. 56(a);Celotex Corp. v. Catrett 477 U.S S. Ct L. Ed. 2d 265 (986); v. CCA ndus. nc. 529 F.3d (5th Cr. 2008). The rule "mandates the entry ofsummarr udgment after adequate tme for dscovery and upon moton aganst a party who fals to make a showng 2 See "Agreement Between the State ofmsssspp Department of Correctons and Health Sources nc. for Onste nmate Health Servces" attached as an exhbt to Lynda Powell's Su.mnary Judgment Affdavt [34 2]. 4

5 to establsh the exstence of an element essental to that party's case and on that party wll bear the burden of proof at tra." Celotex Corp. 477 U.S. at S. Ct The party movng for summary udgment bears the ntal responsblty\of nformng the dstrct court of the bass for ts moton and dentfyng those portons of the tecord t beleves demonstrate the absence ofa genune ssue ofmateral fact. d. at S. Ct. : 48. Under Rule 56(a) of the Federal Rules of Cvl Procedure the burden then shfts to the nqn movant to "go beyond the pleadngs and by... affdavts or by the 'depostons answers to n*rrogatores and admssons on fle' desgnate 'specfc facts showng that there s a genune ssue\for tral.' n d. at f S. Ct. 2548; Lttlefeld v. Forney ndep. Sch. Dst. 268 F.3d (5th fr. 200); Wlls v. Roche Bomedcal Labs. nc. 6 F.3d33 35 (5th Cr. 995). "The mere ofa scntlla ofevdence n support ofthe plantffs poston wll be nsuffcent" to preclude sutfmary udgment; "there must be evdence on whch the ury could reasonably fnd for the Anderson v. Lberty Lobby nc. 477 U.S S. Ct L. Ed. 2d 202 (985) D. Dscusson n support ofts moton Wexford asserts that the ssue here has never decded by the Msssspp Supreme Court nor s there other controllng authorty specfcally addtessng the ssue. Consequently rather than controllng case law Wexford reles n support ofts prmarly on the followng arguments:. As a prvate corporaton performng medcal servces to state prs<fers pursuant to contract wth the MDOC Wexford fts the defnton ofa "poltcan subdvson" as

6 that phrase s defned under 46 () ofthe MTCA;3 2. Although 46 (f) ofthe MTCA s not actually "drectly" applcable to Wexford n ths case the language of that secton nevertheless sheds on the ssue of whether Wexford s enttled to nnnunty under the MTCA snbe that provson evdences a general ntent of the Msssspp Legslature to exten4 nnnunty under the Act broadly to cover all health care provders afflated wth governmental enttes;4 3 Secton 46 states n pertnent part: 46. Defntons As used n ths chapter the followng terms shall have the meanngs heren ascrbed context otherwse requres:. the (g) "Governmental entty" means and ncludes the state and poltcal subdvsons as herfn defmed.. () "Poltcal subdvson" means any body poltc or body corporate other than the state responsble for governmental actvtes only n geographc areas smaller than that ofthe ncludng but not lmted to any county muncpalty school dstrct conununty hosp$l as defned n Secton Msssspp Code of 972 arport authorty or other nstnu+entalty thereof whether or not such body or nstrumentalty thereof has the authorty to levy or to sue or be sued n ts own name. 4 Subdvson Hf' of 46 defmes "employee" ths way: "Employee" means any offcer employee or servant of the State ofmsssspp or a subdvson ofthe state ncludng elected or apponted offcals and persons actng on ofthe state or a poltcal subdvson n any offcal capacty temporarly or permanently n servce ofthe state or a poltcal subdvson whether wth or wthout compensaton. The term "elnployee" shall not mean a person or other legal entty whle actng n the capacty of an ndepende*t contractor under contract to the state or a poltcal subdvson; provded however that fbr purposes ofthe lmts oflablty provded for n Secton 46 5 the term "employee" phall nclude physcans under contract to provde health servces wth the State Board ofhealth the State Board of Mental Health or any county or muncpal al faclty whle renderng serfces 6

7 3. Because the MTCA specfcally grants mmunty to those who provde medcal } servces n county and muncpal als t would be "exceednglylstrange" to deny those same mmuntes to those provdng health care servces n s/ate facltes; and 4. Snce for purposes ofa 28 U.S.C. 983 acton Wexford would deemed a "state : \ actor" t therefore should be deemed a "poltcal subdvson" MTCA and provded mmunty as to state law clams. State under the ; The Court fnds that none ofwexford's arguments s persuasve. Frst thbugh not cted by ether party the ssue of whether a prvate for proft corporaton such a performng servces on behalfofa governmental entty s enttled to the protectons ofthe n Thompson v. McDonald Transt Assocates nc. 440 F. Supp. 2d 530 (S.D. was addressed 2006). n that case the Cty of Jackson contracted wth the defendant McDonald Transt: Assocates nc. ("McDonald") a prvate for proft Texas corporaton to operate and mantanlthe Cty's publc transportaton system. Thompson 440 F. Supp. 2d at Dscovery n the McDonald was pad a flat fee for ts servces and rembursed ts operatng pad the Cty by the publc usng the transportaton system. d. at 53. The Cty substantal oversght ofthe operaton ofthe publc transport system and furnshed revealed that out ofrevenues ts part retaned equpment and under such contract. The tenn "employee" shall also nclude any physcan dentst or health care practtoner employed by the Unversty of Msssspp Medcal Center (UMMC) ts departmental practce plans who s a faculty member and provdes health care servces hnly for patents at UMMC or ts afflated practce stes. The tenn "employee" shall also nclu* any physcan dentst or other health care practtoner employed by any unversty under tht control of the Board of Trustees of State nsttutons of Hgher Learnng who practces only on campus of any unversty under the control of the Board of Trustees of State nsttutons of HgheJ Learnng. The tenn "employee" shall also nclude any physcan dentst or other health care practoner employed by the State Veterans Affars Board and who provdes health care servces fcr patents for the State Veterans Affars Board. The tenn "employee" shall also nclude MsssspP Department ofhuman Servces lcensed foster parents for the lmted purposes of covetage under the Tort Clams Act as provded n Secton

8 approved all budgets and contracts related to ts operaton. d. n the course ofthe system's operatons a passenger was nured and sudd McDonald the operator for neglgence. d. at McDonald essentally argued t was enrtled to the same protectons as the Cty under the MTCA because t was performng a actvty" by ts operaton of the transport system under contract wth the Cty. d. at 532. Lke Wexford n the nstant case McDonald argued t met the lteral defnton of"poltcal subdvsorf' as defned n the MTCA and was therefore enttled to mmunty under the statute. See d. Recognzng at the tme a "scarce amount ofmsssspp case law applcaton of the MTCA to prvate companes" U.S. Dstrct Judge Wllam H. Barbour noted t*at the Msssspp Supreme Court had consdered the applcaton ofthe MTCA to at least one for proft entty ctng Mozngo v. Scharf 828 So. 2d 246 (Mss. 2002). d. at 532. The court exl>laned that n that l case the Msssspp Supreme Court found that a prvate for proft legal entty dd not functon as a prvate entty but rather as a "poltcal subdvson" ofthe "State" for purposeslofthe MTCA. d. at The court noted that the Msssspp Supreme Court consdered/as sgnfcant the l followng crcumstances: () that the entty though prvate was created by the to carry out the mandate of the State Legslature to provde the medcal servces to the publd; (2) that the sole purpose ofts creaton was to bll and collect fees for the state hosptal; (3) tha. ts only members were the state hosptal physcans who were requred to practce exclusvely at thd state hosptal; and (4) that the entty was bound by the state hosptal gudelnes. d. at 533. Applyng those factors to McDonald the prvate for proft Texas corp4raton nvolved n Thompson Judge Barbour found lttle smlarty between the prvate enttt n Mozngo and McDonald. d. McDonald had not been created for the sole purpose of 8 ; a state mandated

9 government servce but had nstead presumably been created to be a proftable busness for the beneft ofts shareholders. d. Moreover Judge Barbour noted that operaton publc transport system was unlkely McDonald's sole purpose for exstence. d. The court explflned: d. Consderng McDonald s a Texas corporaton the Court presumes that McDonald s nvolved n other ventures n other states. Ths captalstc nature s an consderaton that clearly dstngushes McDonald from an entty such as\uas [the prvate entty at ssue n Mozngo) whch merely exsts to supplement salary of UMMC faculty physcans. McDonald also ponts out that the Cty has sgnfcant control over [the publc transport system) and that the Cty receves all revenue gertrated by JATRAN. But McDonald overlooks the fact that t mantans ultmate cohtrol over the day to day operatons ofjatran as the general manager ofthe system s a McDonald employee. Also the Cty's recept ofrevenues s oflttle sjtfcance consderng McDonald receves a yearly fee from the Cty for ts servces.\ After consderng the overall nature ofthe contractual relatonshp between the Cty and McDonald the Court beleves that the Msssspp [sc) dd not ntend for the MTCA to extend to a prvate entty such as McDonald. Court therefore concludes that McDonald s not protected by the MTCA. Not long after the Thompson decson the Msssspp Supreme Court con$dered a smlar ssue as t had n Mozngo and agan concluded that whle t was possble for \a prvate entty responsble for governmental actvtes to properly be regarded as a poltcal subdlvson pursuant to the MTCA there were lmts on such crcumstances. n Bolvar Leflore Medc4 Allance LLP v. Wllams 938 So. 2d (Mss. 2002) the court hghlghted the cr umstances that supported ts holdng n Watts v. Tsang 828 So. 2d 785 (Mss. 2002). Quotng stated: we are not holdng that all... [such legal enttes) are per se ofthe State. However where as here the medcal practce group was created by l MMC and s overseen by UMMC and the purpose s to supplement the nconf of ts faculty; when the day to day oversght s left to the department char supect to 9 the court

10 lmted oversght by the vce chancellor and ts membershp s compostll solely of full tme UMMC faculty physcans; where the faculty physcans can otly practce at UMMC approved stes and the money s dstrbuted on a pont syste$ based on factors other than mere patent servce we must conclude that the group s a State entty. Bolvar Leflore Medcal 938 So. 2d at 228 (ctaton omtted). practce Ultmately the Bolvar Leflore Medcal court found that the partcular entty at ssue n that case was enttled to the protectons lmtatons and mmuntes ofthe MTCA ofgreenwood Leflore Hosptal 'S5 nearly total nterest n the ncome and losses ofthe subect enty and ts maorty control over the entty's Executve Commttee membershp. See d. at Four years after Judge Barbour's decson n Thompson U.S. Dstrct analyzed a smlar ssue. n Natchez Regonal Medcal Center v. Quorum Davd Bramlette Resources ac No. 5:09 cv 207 DCB JMR 200 WL (S.D. Mss. Aug ) Q$ a prvate entty contractng wth a communty hosptal argued t was enttled to the protecton$ lmtatons and mmuntes ofthe MTCA. The court ponted out that QHR's poston was t to the poston ofmcdonald Transt Assocates nc. n Thompson." Natchez Regonal 200 w at *4. Ultmately the Natchez Regonal court concluded that "QHR s not enttled the protectons lmtatons and mmuntes ofthe MTCA." d. The court found t mportant to that "QHR s a Delaware company wth ts prncpal place of busness n Tennessee and presumably has captalstc ventures elsewhere." d. However the court also found that whlb the Msssspp l Supreme Court n Estate offredrck ex re. Sykes v. Quorum Health Resources Jf;.c. 45 So. 3d 667 (Mss. ct. App. 2009) rev'd on other grounds 45 So. 3d 64 (Mss. 200) had darler determned that QHR was an nstrumentalty ofthe State n that case the fndngs n Sykes not applcable 5 Greenwood Leflore Hosptal was a publc communty hosptal. 0

11 to the facts n Natchez Regonal because n Natchez Regonal QHR was beng sueu by a communty hosptal and not by a prvate entty and the Sykes court had specfcally lmted ; facts n that case. See Natchez Regonal 200 WL at *4 (ctaton omtf:ed). holdng to the The holdng n Sykes s worth further dscusson however. n that case; the Msssspp Supreme Court found that a revew of the management agreement between a for proft Delaware corporaton and the governmental entty a communty hosptal revea*d that QHR was an nstrumentalty ofthe hosptal. Sykes 45 So. 3d at 674. Most mportantly the agreement made t clear that the hosptal dd not "abdcate any of ts control or authorty over t. operaton or ts busness." d. The agreement expressly stated that the relatonshp between the - ; and QHR was one ofprncpal and agent and that the hosptal and QHR were "not partners venturers or ndependent contractors.... d. at 675 (emphass added). The court ponted 0.# that [a]lthough... [QHR] s a subsdary ofone ofthe largest hosptal n the Unted States consderng the foregong provsons ofthe management areement t s clear that under the precse crcumstances of ths case and contekt of the relatonshp between... [QHR] and... [the hosptal] there s no genunf ssue of materal fact regardng whether... [QHR] s an 'nstrumentalty' of:... [the hosptal]. As an 'nstrumentalty' of a communty hosptal... [QHR] s dnttled to the protectons lmtatons[] and mmuntes of the MTCA.' d. (ctatons omtted). When the reasonng of the foregong cases s appled to Wexford here Wexford s not enttled to mmunty under the MTCA. Wexford s a prvate s apparent that foregn corporaton wth busness nterests presumably other than those at ssue here. MOreover although there s some oversght by the MDOC pursuant to ts contract wth Wexford bothlthe contract and Wexford expressly defne Wexford as an ndependent contractor. Sgnfcantly ofthe Agreement between MDOC and Wexford states: secton

12 .6 ndependent Contractor Status. The MDOC expressly acknowlefges that Wexford s an "ndependent contractor" and nothng n ths Agrement s ntended nor shall be construed to create an agency relatotshp an employer/employee relatonshp a ont venture relatonshp or 4mY other relatonshp allowng the MDOC to exercse control or drecton over the manner or method by whch Wexford or ts subcontractors perform hereunder. As such Wexford shall pay all federal state and local faxes that accrue to t because of ths Agreement. MDOClWexford Agt. Ex. to Lynda Powell Summ. J. Aff[34 2] at 34. Wth regard to ths latter pont the Court notes that though Wexfotd contends that Msssspp Code Annotated 46 (t) s not applcable to the nstant case t asserts that the language ofthat partcular secton ndcates an ntent by the Msssspp :4gslature to cast a broad sweep ofmmunty among those provdng health care servces as afflatespfthe State. Ths argument s unpersuasve. ndeed concernng 46 (t) whle the Legslature J employees of the State who provde health care servces to the publc wth mmunty t epressly excludes ndependent contractors provdng such servces. n other words accordng to ths secton of the MTCA a prncpal focus n determnng who s enttled to mmunty turns on the rcognzed control factors whch dstngush between ndependent contractors and employees. The $ctors referenced by the Msssspp Supreme Court n Mozngo and later by the Southern Dstrct pfmsssspp n Thompson andnatchez Regonal smlarly rely on related control factors. Thus far from supportng Wexford's argument ofmmunty 46 (t) actually undermnes t. Next the Court concludes that smlarly wthout mert s Wexford's that a fndng of no mmunty under the crcumstances of ths case would be "strange" n vew of the fact that health care provders under contract wth muncpaltes and county als are ented to mmunty. The secton of the MTCA Wexford refers to expressly lmts that provson ndvdual physcans themselves who provde medcal care to muncpaltes 2 mmunty to the countes. t does r

13 not address the provson ofsuch care by prvate for proft corporatons lke n ths case. Fnally the Court fnds Wexford's argument that t s enttled to the benefb and protectons ofthe MTCA because t would be consdered a "state actor" for purposes ofa 983 clam avals r t nothng. Frst and foremost Wexford has presented the Court wth no legal supportng ths poston. Second as shown above the MTCA tself defnes remotely "governmental enttes" and ther "employees" enttled to ts protectons lmtatons and mmun es; Wexford has faled to convnce ths Court that t fts nto ether category. Thrd Wexford atttmpts to compare apples to oranges as 983 contemplates clams reachng federal consttutonal dtagntude worlds apart from the state law neglgence clams at ssue here. Ultmately Wexford s smply not enttled to mmunty from sut under the MTCA. E. Concluson For the foregong reasons Defendant Wexford Health Sources nc. mmunty under the MTCA and therefore ts moton for mmunty and summary udgment [34] shall be DENED. Further Plantffs moton for leave to fle supplemental bref n J ; not enttled to partal to Wexford's moton for mmunty and for a correspondng partal summary udgment [65] A separate ordr shall ssue ths day n accordance therewth. THS..J day ofjune 202. be DENED. 3