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Insurance – Medical Malpractice – Doctor Shortage – Full-Time, Temporary Work

Insurance – Medical Malpractice – Doctor Shortage – Full-Time, Temporary Work

Cinoman v. University of North Carolina (Lawyers Weekly No. 11-16-1124, 16 pp.) (Robert N. Hunter Jr., J.) Appealed from Wake County Superior Court. (Kenneth C. Titus, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: There are genuine issues of material fact as to whether the plaintiff-physician was an independent contractor or an employee of the defendant-university hospital and as to whether or not plaintiff was required to have his own medical malpractice insurance.

We reverse summary judgment for defendants.


Plaintiff was head of the pediatric intensive care unit at Wake Medical Center (WakeMed). When defendant University of North Carolina Hospitals’ pediatric intensive care unit (UNC PICU) experienced a shortage of doctors, plaintiff agreed to help, so long as WakeMed approved. Unbeknownst to plaintiff, WakeMed and UNC PICU entered into an agreement concerning plaintiff’s work at UNC PICU (the WakeMed agreement).

Plaintiff was working for both WakeMed and UNC PICU when the underlying medical malpractice claim arose against plaintiff and others at UNC PICU. Although plaintiff was clearly covered by a medical malpractice policy through WakeMed, the underlying claim could exceed such coverage. Plaintiff also seeks coverage under the UNC Liability Insurance Trust Fund (UNC-LITF).

The trial court found that plaintiff was an independent contractor at UNC PICU; therefore, the terms of the UNC-LITF precluded coverage for him. The trial court granted summary judgment for defendants.

Independent Contractor

The UNC-LITF provides coverage for “any attending physician employed full-time” by defendants.

Defendants’ motion for summary judgment alleged that plaintiff was not a full-time employee of defendants, as he was an independent contractor and did not work full-time. Defendants also argued that even if plaintiff were a full-time employee, he would be removed from coverage by an exclusion regarding independent contractors.

Although the WakeMed agreement classifies plaintiff as an independent contractor, this classification alone is not determinative.

The WakeMed agreement did not limit plaintiff’s ability to practice outside of the UNC PICU. In fact, plaintiff continued to perform his duties at Wake Med when he was not working at the UNC PICU. This suggests plaintiff was engaged in an independent occupation, weighing in favor of an independent contractor relationship.

The method of payment, however, suggests plaintiff was an employee, not an independent contractor. The WakeMed agreement provided for payment to Wake Med based on the number of days worked.

Defendants billed patients and collected for plaintiff’s services without compensating him for those services.

The WakeMed agreement also states that plaintiff was “under the direction of the Division Chief of Pediatric Critical Care” and was “both professionally and individually responsible to the University regarding activities performed pursuant to this agreement.”

Plaintiff was not allowed to use the assistance he thought proper but was required to use defendants’ equipment and follow defendants’ procedures. The lack of freedom to secure assistance (either equipment or labor) indicates an employment relationship.

The record is unclear as to whether defendants set plaintiff’s schedule. Regardless of who created the schedule, it is clear that plaintiff was required to be on the job at certain times of the day, which suggests he was not an independent contractor.

Plaintiff’s continued employment with WakeMed does not exclude him from status as an employee of defendants. The special employment or borrowed servant doctrine holds that under certain circumstances a person can be an employee of two different employers at the same time.

There was an implied contract between plaintiff and defendants, evidenced by the acceptance by plaintiff of defendant’s offer to work at the UNC PICU. The work being done was that of defendants, and there is a question of material fact regarding whether defendants controlled the details of plaintiff’s work.

There is a forecast of evidence from which a jury could find plaintiff was an employee of defendants. On this issue, plaintiff would have the burden of showing that he comes within the insurance policy terms on the issue of whether

He is a full time employee of the defendant UNC Hospital. If the jury finds plaintiff was not a full-time employee of defendant, then plaintiff could not show under any set of facts that he would be included in the policy.

Defendants also argue plaintiff did not maintain “full-time” status as contemplated by the UNC-LITF Memorandum of Coverage. The UNC-LITF Memorandum of Coverage provides no definition of “full-time.”

It is undisputed that, when on rotation, plaintiff worked a minimum of 40 hours per week in the UNC PICU. Furthermore, the affidavit of the interim head of the UNC PICU, Dr. Michael Simmons, repeatedly states that plaintiff’s position at the UNC PICU was either a “temporary full-time” or “full-time” position.

Defendants argue that the WakeMed agreement states that plaintiff should not engage in more than “half-time” services and that he could not have been both a full-time employee at WakeMed and a full-time employee at the UNC PICU. This is a fact-dependent inquiry, and the issue of whether plaintiff was engaged in full-time employment is best left to the jury.

Finally, Art. IV, § D of the Memorandum of Coverage excludes coverage for “Any health care practitioner or independent contractor for whom commercial medical malpractice insurance coverage is required as a condition of their privileges at the University of North Carolina at Chapel Hill.”

Whether plaintiff was required to maintain medical malpractice insurance in February 1999 and is thus excluded from UNC-LITF coverage is an issue of fact best left to the jury. Because this clause is contained in an exclusion within the policy, the burden of showing by a preponderance of the evidence that plaintiff is excluded from coverage rests with defendants.

Reversed and remanded.


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