Representing Appellant: Billie LM Addleman; and Kara L. Ellsbury of Hirst Applegate, LLP, Cheyenne, WY. Argument by Mr. Addleman.
Representing Appellee: R. Daniel Fleck and Larissa A. McCalla of The Spence Law Firm, LLC, Jackson, WY; and Jeremy D. Michaels of Michaels & Michaels, PC, Gillette, WY. Argument by Mr. Michaels.
Before HILL, VOIGT [*], BURKE, and DAVIS, JJ., and SHARPE, D.J.
SHARPE, District Judge.
[¶ 1] Campbell County Memorial Hospital (" the hospital" ) appeals from a district court order denying its motion for partial summary judgment in a medical malpractice action. The district court determined that a government hospital could be vicariously liable for acts of non-employees or independent contractors under the doctrine of ostensible agency. The district court based its ruling on this Court's decision in Sharsmith v. Hill, 764 P.2d 667 (Wyo.1988). On appeal, the hospital contends the district court erred in its interpretation of Sharsmith. The hospital asserts Sharsmith did not create an implied waiver of sovereign immunity under the Wyoming
Governmental Claims Act. We agree. We therefore reverse and remand for further proceedings consistent with this opinion.
[¶ 2] Appellant Campbell County Memorial Hospital presents the following issue for our consideration:
Whether a governmental entity is liable for the negligence of a non-employee under the Wyoming Governmental Claims Act (" WGCA" or " Act" ).
Appellee Jamie Pfeifle restates the issues as follows:
A. Whether the Wyoming Governmental Claims Act applies to Campbell County Memorial Hospital because the hospital obtained liability insurance to cover these circumstances;
B. Whether the Wyoming Governmental Claims Act's remedy provisions apply only to tort claims brought under specific provisions of the Act and do not in any way limit contract-based claims or remedies;
C. Whether Certified Registered Nurse Anesthetist Amanda Phillips fits the Wyoming Governmental Claims Act's definition of public employee; and
D. Whether Campbell County Memorial Hospital is liable for Certified Registered Nurse Anesthetist Amanda Phillips' negligence because the hospital created the appearance that Phillips was the hospital's employee.
[¶ 3] Campbell County Memorial Hospital (" the hospital" ) is a governmental entity in Gillette, Wyoming. The hospital contracted with Northern Plains Anesthesia Associates, P.C. (" Anesthesia Associates" ) to provide anesthesia services for the hospital. Amanda Phillips (" Phillips" or " Nurse Phillips" ) was a certified registered nurse anesthetist for Anesthesia Associates when the conduct in dispute occurred.
[¶ 4] On September 24, 2008, Jamie Pfeifle (" Pfeifle" ) went to the hospital to have a baby. Although she anticipated that the baby would be delivered after labor was induced, the attending obstetrician ordered a cesarean section. In preparation for the cesarean section, Nurse Phillips attempted to administer spinal anesthesia to Pfeifle. After the first attempt failed, she tried to administer anesthesia two more times. Pfeifle claims she experienced severe pain and paresthesia during each procedure. Pfeifle maintains that Nurse Phillips' repeated attempts to administer the anesthesia caused permanent disability and other damages.
[¶ 5] After complying with the claim requirements of the Wyoming Governmental Claims Act (" WGCA" or " Act" ), Jamie and her husband Josh filed this action on December 28, 2010. The Pfeifles' complaint alleged separate negligence claims against the hospital, Anesthesia Associates, Phillips, and another party. Plaintiffs' complaint alleged that Nurse Phillips acted as an employee of Anesthesia Associates at the time of the spinal anesthesia procedures. Alternatively, the complaint alleged Nurse Phillips acted as an employee or agent of the hospital, thereby making the hospital vicariously liable for Phillips' claimed negligence. In their respective answers, the hospital, Anesthesia Associates and Nurse Phillips denied that Phillips acted as an employee of the hospital at the time of the alleged negligence. Rather, the defendants asserted that Nurse Phillips was an employee of Anesthesia Associates.
[¶ 6] On March 22, 2012, the hospital filed a motion for partial judgment on the pleadings pursuant to W.R.C.P. 12(c). In support of its motion, the hospital relied on the answers filed by Phillips and Anesthesia Associates admitting that Phillips was an employee of Anesthesia Associates and not the hospital. The hospital argued that it could only be held liable for acts of " public employees" under the WGCA and that the Act specifically excludes " independent contractors" from the definition of public employees. Accordingly, the hospital argued it was entitled to judgment as a matter of law on the Pfeifles' claims asserting vicarious liability against the hospital for the alleged negligence of Phillips or Anesthesia Associates.
[¶ 7] In their response to the hospital's motion, the Pfeifles argued that " [p]laintiffs' case against the hospital is based on ostensible, or apparent, agency [as] recognized by the Wyoming Supreme Court in Sharsmith v. Hill and common law." The Pfeifles also asserted that Nurse Phillips was a " public employee" as defined by the WGCA. Finally, the Pfeifles argued the WGCA did not provide immunity to the hospital because the hospital had obtained insurance that covered Phillips, and because the Pfeifles were intended third-party beneficiaries of the contract between the hospital and Anesthesia Associates. The district court issued an order converting the hospital's motion for partial judgment on the pleadings to a motion for partial summary judgment. See W.R.C.P. 12(c).
[¶ 8] After hearing oral arguments on the hospital's motion, the district court certified the following question to this Court: Does the doctrine of ostensible or apparent agency as announced in Sharsmith apply to all hospitals regardless of whether or not they are governmental entities that are protected by sovereign immunity and the requirements of the Wyoming ...