Opinion
Civil Action No. 99-1725 Section `T'
September 19, 2001
Before the Court are Cross-Motions for Summary Judgment filed on behalf of the plaintiff, Dr. Michele Brochner, defendants, Ochsner Clinic, L.L.C., Alton Ochsner Medical Foundation, and St. Paul Fire and Marine Insurance Company, and plaintiffs-in-intervention, Office of Risk Management, Division of Administration, Office of the Governor and the Louisiana State University Eye Center. The parties came before the Court on May 23, 2001 for oral argument, whereupon the matter was taken under submission for, further consideration. The Court, having considered the arguments of counsel, the evidence presented, the applicable law and jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Plaintiff Dr. Michele Brochner (herein referred to as `Dr. Brochner'), a medical resident, brought this action to recover damages for personal injuries she sustained while working at Ochsner Clinic L.L.C., against Ochsner Clinic, L.L.C., Alton Ochsner Medical Foundation (herein collectively referred to as `Ochsner'), and St. Paul Fire and Marine Insurance Company. Alton Ochsner Medical Foundation is the owner and operator of Ochsner Hospital and the owner of Ochsner Clinic L.L.C.
In December of 1996, Dr. Brochner was a resident physician at the University of Mississippi in the field of general surgery when she elected to pursue a specialization in ophthalmology. Upon researching many different programs, Dr. Brochner decided to apply to the Louisiana State University and Agricultural and Mechanical College Department of Ophthalmology (herein referred to as `LSU' or `University'). The application process used by LSU required her to submit her application materials to a Central Application Service and to identify the medical facilities in which she was interested. LSU selected Dr. Brochner for an interview. Following interviews, both LSU and Dr. Brochner submitted individual rank lists to the Matching Program. On January 20, 1997, Dr. Brochner and LSU were advised that they had `matched', and that Dr. Brochner would be a resident physician with the LSU Department of Ophthalmology. As of January 20, 1997, Dr. Brochner was contractually obligated to the LSU program which was set to commence on July 1, 1998.
At the time of the interview, the potential candidates to the LSU program were advised of the possibilities of a merger with the Ochsner Ophthalmology Resident Physician Program. During the interview process, Dr. Eustis, an Ochsner physician and also Co-Program Director of the ensuant Joint Ophthalmology Residency Program (hereafter referred to as `Joint Program'), was present to answer any questions that the candidates might have had regarding the program/possible merger.
LSU School of Medicine and Alton Ochsner Medical Foundation merged their separate ophthalmology residency programs into one known as the Joint Ophthalmology Residency Program which became effective July 1, 1998. All residents commencing their training on or after July 1, 1998 were part of this joint program. The merger of the programs is governed by a written contract entitled the "Integration Agreement for a Combined Ophthalmology Residency Training Program" (herein referred to as the `Integration Agreement'). The Integration Agreement provides the manner in which residents were to be selected, trained, compensated, evaluated, and disciplined. Additionally, the terms of the Integration Agreement set forth the administrative process by which the parties were to handle expenses and reimbursements.
Beginning July 1, 1998, Dr. Brochner reported to LSU where she signed an employment contract entitled "House Officer Agreement." This agreement, perfected between LSU School of Medicine-New Orleans and Dr. Brochner, provided guidelines pertaining to medical licensing requirements. compensation, insurance, position description, extracurricular employment, support services for house officers, cancellation and renewal procedures, and due process grievance procedures. The signatures on the House Officer Agreement indicate that the only parties to this contract are LSU School of Medicine and Dr. Brochner. For Dr. Brochner's first rotation, she was assigned to the Ochsner Hospital and Ochsner Clinic for the period of July 1, 1998 to December 31, 1998.
On September 10, 1998, Dr. Brochner sustained knee and cervical injuries when she fell on Ochsner's premises while exiting an elevator. Dr. Brochner was participating in the Ophthalmology Program as a medical resident at the time of the incident. Upon her exit from the elevator, Dr. Brochner slipped on the brick flooring which is covered in a clear laminated finish. Dr. Brochner's injuries have required surgeries to repair the damaged tendons and cartilage in her knee and to treat her cervical spine. As of the date of the Plaintiff's memorandum in support of Summary Judgment, Dr. Brochner had incurred more than $100,000 in medical expenses as a result of her injuries.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
Defendant asks the Court to grant the Motion for Summary Judgment on the basis that alternatively: (1) Ochsner was, in conjunction with the LSU, a joint employer of Dr. Brochner; (2) Ochsner was the sole employer of Dr. Brochner; or (3) Dr. Brochner was the borrowed employee of Ochsner. As such, defendant argues that there is no genuine issue as to any material fact, and Ochsner is immune from tort liability under the Louisiana Workers' Compensation Act, LA-R.S. § 23: 1032(A)(1)(a).
Plaintiff filed a cross-motion for summary judgment denying the allegations of the defendant. Additionally, the plaintiff urges the Court to find that Dr. Brochner was neither an employee or joint-employee of Ochsner nor a borrowed servant of Ochsner, but in fact an employee solely of LSU thereby allowing the tort action to continue.
Office of Risk Management, Division of Administration, Office of the Governor and the Louisiana State University Eye Center, acting as plaintiffs-in-intervention, filed a cross-motion for summary judgment asking this Court to grant summary judgment based upon the grounds that the pleadings and documentary evidence show that there exists no genuine issue as to any material fact because Dr. Brochner was clearly not an employee of Ochsner. Accordingly, plaintiffs-in-intervention argue that the defendants are not immune from tort liability, and plaintiffs-in-intervention are entitled to recover such sums out of any payment or judgment obtained by Dr. Brochner equal to the workers' compensation benefits and medical expenses paid to date. Alternatively, plaintiffs-in-intervention seek to establish that if Dr. Brochner is found to be a borrowed servant, that they are entitled to recover one-half of all past, present, and future workers' compensation benefits paid on behalf of LSU.
III. LAW AND ANALYSIS:
A. Law on Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment beats the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Law on Borrowed Servant:
Whether a person is a borrowed servant constitutes an issue of law for the district court to decide. Melancon v. Amoco Prod. Co., 834 F.2d 1238 (5th Cir. 1988); Fanguy v. Dupre Bros. Const. Co., 588 So.2d 1251 (La.App. 1 Cir. 1991). In Louisiana, there is a presumption that the general employer retains control of his employee. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951). In Rider v. Pool Offshore Co., 987 F. Supp. 943, 945 (E.D.La. 1997), this Court outlined a ten (10) factor guideline to determine if the borrowed servant doctrine applies:
(1) Right of Control;
(2) — Selection of Employees;
(3) Payment of Wages;
(4) Power of Dismissal;
(5) Relinquishment of Control by the General Employer;
(6) Which employer's work was being performed at the time in question;
(7) Agreement, either implicit or explicit, between the borrowing and lending employer;
(8) Furnishing of instructions and place for performance of the work in question;
(9) Length of employment; and,
(10) Acquiescence by the employee in the new work situation.Ruiz v. Shell Oil, 413 F.3d 310 (5th Cir. 1969); Walters v. Metropolitan Erection Co., 94-0162 (La.App. 4 Cir. 10/27/94); 644 So.2d 1143; writs denied, 94-2858 and 94-2870 (La. 2/9/95); 649 So.2d 420; Garvin v. Perret, 95-217, (La.App. 5 Cir. 2/14/96); 670 So.2d 1250; writ denied, 96-0674 (La. 5/10/96); 672 So.2d 92; Dustin v. DHCI Home Health Services, Inc., 95-1989 (La.App. 1 Cir. 5/10/96), 673 So.2d 356.
These factors are to be weighed as appropriate in each particular case; no one of these factors, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed servant relationship. Id.
(1) Right of Control:
Section 9(A) of the Integration Agreement grants control over the resident physicians to LSU, and provides: "[r]esidents shall remain under the general administrative control of the Program Director throughout their training in the Integrated Program." Moreover, the Integration Agreement prohibits any control of the employees by Ochsner, providing in Section 5 that,
[n]othing in this agreement is intended nor shall be construed to create an employer/employee relationship . . . or to allow Ochsner to exercise control or direction over the manner or method in which University or University physicians perform the physician services which are the subject matter of this Agreement.
This was confirmed in the depositions of Dr. Bergsma, Joint Ophthalmology Program Director, and Barbara Hill, Education Coordinator for LSU. Notwithstanding, Section 7 of the Integration Agreement states, "[t]he Departments of Ophthalmology at University and Ochsner will oversee the residents' assignments at their respective institutions."
Plaintiff maintains that Dr. Brochner was under the immediate control of LSU at the time of the fall, and that the Integration Agreement is clear and unambiguous. They continue that in order for an employee to be classified as a borrowed servant, the level of control should rise to the level of total control over the work that is being performed. Howell v. American Cas. Co. of Reading, Pennsylvania, 96-0694 (La.App. 4 Cir. 03/19/97), 691 So.2d 715, 729. In her activities at Ochsner, plaintiff asserts that LSU set the scheduling of the rotations and assigned the residents to different venues while Ochsner merely provided the times that the residents could report to work. See Deposition of Barbara Hill, p. 97. Moreover, plaintiff claims that the remaining activities enumerated by the defendant are merely supervisory in nature and do not rise to the level of control necessary for borrowed servant status.
In contrast, the defendant alleges that Ochsner maintained control over Dr. Brochner based upon certain restrictions in her duties. Ochsner states that they provided all medical assignments to Dr. Brochner, while the tasks performed by LSU were strictly ministerial. See Deposition of Dr. Brochner, p. 96, 100. Defendant points to the fact that Dr. Brochner did not have admitting privileges, and could not treat Ochsner patients without the supervision of Ochsner physicians or staff; Dr. Brochner did not have her own patients nor individual fees, and she was controlled by Ochsner on all patient issues. See Deposition of Dr. Bergsma, p. 24, 39, 40, 47, 66. Defendant further points out that while serving at Ochsner, Dr. Brochner was subject to the Ochsner Hospital Staff Rules and Medical Staff Bylaws. See Deposition of Barbara Hill, p. 169. Also, Ochsner held two (2) of the four (4) seats on the Executive Committee of the Joint Program.
Plaintiff does not contest that Dr. Brochner received her assignments from Ochsner during her time at Ochsner facilities, and the defendant does not contest that the general administrative functions of the Joint Program remained with LSU. Both programs, pursuant to the Integration Agreement, maintained a degree of control over not only the program, but also the individual medical residents.
While this Court is cognizant of the strong language contained within the Integration Agreement setting forth the proposition that residents are the employees of LSU alone, the reality of the situation, as established by the evidence presented, suggests otherwise. The evidence clearly shows that while assigned to Ochsner for an ophthalmology rotation, Dr. Brochner was under the complete control of the defendant. Dr. Brochner's training as an ophthalmology resident was conducted on a daily basis under the direction of Ochsner physicians and personnel. Dr. Brochner was given daily assignments, as well as being subject to daily evaluation and supervision by Ochsner staff, all performed on Ochsner premises. LSU can in no way be found to have exercised control over Dr. Brochner at the time of the accident, with the exception of general administrative duties. Accordingly, based upon the circumstances and evidence presented, the first factor, right of control, weighs in favor of finding borrowed servant status.
(2) Selection of Employees:
Plaintiff argues that LSU was the only entity involved in the selection process, and that the selection process utilized by LSU required Dr. Brochner to submit her application materials to the Central Application Service whereupon the service forwarded her application materials on to LSU. Subsequently; plaintiff states, LSU elected to interview Dr. Brochner, completed the interview, and submitted its `rank list' to the Central Application Service. Further, plaintiff states that Dr. Brochner and LSU were matched on January 20, 1997; the merger was not effective until July 1, 1998, eighteen months later.
Defendant alleges that Ochsner and LSU physicians participated jointly in the interview process and development of the `match list' of residents. Ochsner asserts that the residents who were recruited to the program were recruited as potential LSU-Ochsner residents, and that the LSU faculty who `selected' Dr. Brochner were `selecting' residents for the Joint Program. Additionally, Ochsner states that the application submitted by Ochsner and LSU to the NCGME confirmed that residents recruited for the 1998 Ophthalmology Residency Program would be residents in the Joint Program.
While it may be more probable than not that LSU was the sole entity to engage directly with the Central Application Services, and to actively participate in the recruitment of Dr. Brochner's class of medical residents, this unilateral activity does not provide an insurmountable bulwark to Ochsner's assertions regarding their involvement in the selection of the medical residents. It is the finding of this Court that there is sufficient evidence that, prior to the merger of the independent LSU and Ochsner programs, the residents applying for the LSU Ophthalmology Residency Training Program were informed of the potential merger, and that, if accepted for the 1998 residency training program, they would be residents in the Joint Program if the merger was effected. Dr. Brochner was so informed at the time of her interview with LSU in December of 1996. Id. at 133, 227. Furthermore, Dr. Eustis, Co-Program Director of the ensuant Joint Program was present at the interviews, albeit not actively participating in the selection of the candidates, in case any of the interviewees had questions regarding the possible merger of the two independent programs. Id. at 17; Deposition of Dr. Bergsma, p. 130. It was during this process that Dr. Brochner was informed of the possibility that the two programs were going to merge. Accordingly, while LSU may have been the entity involved in the actual selection of Dr. Brochner, Ochsner was not completely left out of the process. As such, while this factor tips the scale in favor of LSU, the Court finds it to be of little weight in light of Ochsner's involvement in the interview process.
(3) Payment of wages:
The parties do not dispute the fact that the medical residents were placed on LSU payrolls and paid according to the LSU pay scale; however, the parties do dispute the source of the funds used to pay the medical residents.
The plaintiff argues that LSU paid all of her wages, and that she never received a payment directly from Ochsner, nor was she allowed to accept any wages or compensation from Ochsner pursuant to Section 5 of the Integration Agreement. Furthermore, plaintiff asserts that the defendant has provided no evidence that the monies that it paid to LSU went towards the program payrolls, and that while the Integration Agreement provides for some reimbursement, it does not earmark specific items. The defendant claims that while Dr. Brochner was paid directly by LSU, it reimbursed LSU for all of the expenses associated with Dr. Brochner while she was working at Ochsner. See Deposition of Terry Ullrich, p. 19; See Deposition of Dr. Bergsma, p. 18. Defendant argues that, "[t]he reason for AOMF's (Ochsner's) reimbursement of LSU, as opposed to direct payment of Dr. Brochner, is purely administrative. National standards dictate that, when a joint training program is in place, one institution must be designated the primary institution and all residents must be paid by that institution while the secondary institution reimburses the primary institution for the resident's pay." Defendants' Memorandum in Support, 12/13/2000; See Deposition of Dr. Bergsma, p. 22. Since LSU was acting as administrator in this situation, defendant asserts that the checks were drawn on an LSU account. Also, Ochsner points to the administrative fees paid to LSU to cover the costs of administering payroll expenses.
The Integration Agreement has numerous provisions relating to the payment of different expenses of the Joint Program. Section 4 states, in part, that:
• All residents will be placed on the University resident training program payroll;
• Ochsner agrees to compensate the University for the cost of the residents in the integrated program, including fringe benefits and fees specified below;
• Ochsner agrees that it shall reimburse the University, in addition, to the monthly stipend for the Residents, an amount equal to the amount paid by the University as employer contribution to F.I.C.A . . . to that amount equal to the University's portion of the monthly health insurance premium . . . to that amount equal to University's portion of the insurance coverage;
• Ochsner agrees to reimburse University, in addition to the monthly stipend and other benefits for each resident assigned to the Integrated Program . . . for beeper service for House Officers;
• Ochsner agrees to reimburse University $3,000 per month for administrative support of the Integrated Program;
• University will provide Ochsner an itemized bill on a monthly basis for stipend, F.I.C.A., beeper fee, Resident Support Service Fee, benefit allowance, and any other fees due for that period.
Accordingly, it is the opinion of this Court that while it is apparent that LSU directly paid Dr. Brochner, the Integration Agreement provides several provisions detailing the reimbursement of numerous expenses. It is clear that pursuant to the Integration Agreement LSU retained `control' of the disbursement of the funds; however, in reality, LSU merely functioned as a gatekeeper. Ochsner was required under said agreement to pay a significant amount towards the expenses of the program. The Court however notes that the evidence presented does not conclusively show one way or the other, that specific monies paid to LSU went directly to Dr. Brochner. As such, the payment of wages as a factor of consideration in deciding borrowed servant status does not weigh heavily one way or the other.
(4) Power of Dismissal:
The plaintiff argues that the power of dismissal rested solely with LSU, and that pursuant to the House Officer Agreement, any disciplinary action, such as dismissal, was to be accorded full due process in accordance with LSU Medical School Institutional Policy.
The defendant asserts that while Dr. Brochner was working at its facilities it had the power of dismissal. It bases its argument on the idea that the power of dismissal is based on the critique and evaluations of Dr. Brochner which were completed by Ochsner physicians. Hence, failure to pass such an evaluation would be determinative of continued participation in the Joint Program. Defendant states that all of the decisions were made by the Executive Committee, composed of LSU and Ochsner physicians; equivocally, both LSU and Ochsner were involved in the disciplinary decisions and policy making. See Deposition of Barbara Hill, p. 211, 212, 216. Defendant argues that Dr. Bergsma admitted in deposition that unilateral suspension from Ochsner could have a detrimental effect on a resident's ability to complete the Joint Program. See Deposition of Dr. Bergsma, p. 44-45.
The Integration Agreement provides that Ochsner had the authority to suspend, unilaterally, any resident that might discredit the Hospital or the Joint Program; however, the Plaintiff points out that this power of suspension is limited to suspension from Ochsner's facility. (Emphasis added by the Court). Ochsner could not suspend a resident physician from participation in the overall program nor from other facilities. Ochsner had the power to suspend residents from Ochsner and Ochsner alone. Section 9 provides:
[r]esidents shall remain under the general administrative control of the Program Director throughout their training in the Integrated Program. Disciplinary action shall be the joint responsibility of University and Ochsner. Each institution acting through the Program Director shall have authority to suspend unilaterally any resident from participation in the Integrated Program at its Institution for actions that may endanger patient care or discredit the Institution.
The power of dismissal is clearly different from the power of suspension from a given facility. Even so, jurisprudence indicates that the absence of the power of dismissal does not preclude a situation of borrowed servant status. In Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993), Brown was injured while working on an offshore platform and pursued action against the owner of the platform. Brown was employed by Gulf Inland Contractors, Inc., which provided services to Union pursuant to a service contract. Union provided Brown's transportation, food, lodging, and tools. Union did not have the right to terminate Brown's employment with Gulf Inland, but it had the right to terminate Brown's work relationship with Union. Gulf Inland paid Brown and provided him with employee benefits. The Court of Appeals for the Fifth Circuit decided that this factor did not preclude a finding of borrowed servant status. "Although Union did not have the right to terminate Brown's employment with Gulf Inland, it had the right to terminate Brown's relationship with Union (borrowing employer). This arrangement is sufficient to support a finding of borrowed servant." Brown, 984 F.2d at 679.
In weighing this factor, the Integration Agreement makes clear that disciplinary action is the joint responsibility of both LSU and Ochsner. The Agreement further provides that Ochsner may suspend a resident from Ochsner facilities with ultimate dismissal subject to the disciplinary action of the Joint Program. As such, the Court considers this factor to weigh equally between Ochsner and LSU as both entities exercise a certain degree of control over the power of dismissal.
(5) Relinquishment of control by the general employer:
Plaintiff relies on the language of Section 5 of the Integration Agreement which states unequivocally, "[n]othing in this agreement is intended . . . to allow Ochsner to exercise control or direction over the manner or method in which University or University physicians perform the physician services which are subject matter to this agreement." Also see Deposition of Barbara Hill, p. 96. In contrast, defendant argues that Dr. Brochner was under the general supervision of LSU, but such control was limited to administrative duties. Consequently, actual daily control was exercised by Ochsner and its physicians.
The Court finds that the evidence presented shows that, as previously stated, Dr. Brochner was under the general daily supervision of Ochsner physicians and staff. However, LSU maintained all of the administrative functions of the program. While the Integration Agreement provides that LSU would not relinquish control of the resident physicians nor the program, the evidence indicates that Dr. Brochner's daily activities were at Ochsner and not at any LSU facility. Furthermore, evidence indicates that Ochsner provided the plaintiff with all materials, assignments, facilities, and medical supervision during her rotation at Ochsner. See Deposition of Dr. Bergsma, p. 24, 39, 40, 47. 66; See Deposition of Dr. Brochner, p. 236. Accordingly, LSU effectively relinquished control of the day-to-day activities and training of Dr. Brochner to Ochsner.
(6) Which employer's work was being performed at the time in question:
Defendant argues that, at the time of the accident, the plaintiff was engaged in patient care, academic activities, and research activities as required by her assignment at Ochsner; therefore, the work performed was providing patient care to Ochsner patients. See Deposition of Dr. Brochner, p. 236, 261. Defendant parallels the factual situation at present to the role of a sub-contractor and contractor in the construction of a building. Defendant states that if an employee of a sub-contractor is injured, the Court will consider the task which the employee was performing when he was injured to determine whose work was being performed. Under this analysis, the Court will not consider the work to be the `construction of a building', but rather the specific job in which the employee was engaged such as `hanging sheetrock.' Defendant contends that Dr. Brochner was engaged in the care of patients. This care is the substantive component of the training of medical residents. Also, defendant states that Ochsner provided Dr. Brochner with the facilities, the equipment, and the patients necessary to complete her residency requirements. When the plaintiff was injured, the defendant claims that she was in the course and scope of her employment as a borrowed servant at Ochsner.
On the other hand, the plaintiff defines the `work' of Dr. Brochner not as the care of patients, but as the `training of the ophthalmology resident;' therefore, the training of the resident is the substantive aspect of the Joint Program. Plaintiff contends that residents are unnecessary components of patient care without which hospitals would function adequately; furthermore, the primary work accomplished by teaching institutions in hiring resident physicians is to train the resident physicians in a medical specialization. See Deposition of Barbara Hill, p. 98.
Upon consideration of this sixth factor, it is the finding of this Court that it was the work of Ochsner being performed at the time in question. Dr. Brochner was assigned to the Ochsner facilities pursuant to her residency program wherein she engaged in patient care, academic activities and research activities. It was within the performance of these duties that the slip and fall occurred. As such, this factor weighs in Ochsner's favor in the determination of borrowed servant status.
(7) Agreement, either implicit or explicit, between LSU and Ochsner:
The Joint Program is governed by the Integration Agreement. Section 5 of the Integration Agreement states,
[i]t is expressly acknowledged and stipulated by University and Ochsner that each University physician and student assigned in any capacity to Ochsner pursuant to this Agreement is and shall be an employee or student solely of University and shall not, for any purpose whatsoever, be or be considered an employee, representative or agent of Ochsner.
However, the existence of such a provision in an agreement does not preclude the finding of a borrowed servant relationship. See, Rider, 984 F. Supp. at 947; Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993); 96-2175 (La.App. 4 Cir. 11/27/96), 684 So.2d 550. `The parties' actions in carrying out the contract can impliedly modify, or waive the express provision." Id. at 677, citing Melancon, 834 F.2d at 1245.
Plaintiff points to the language of the Integration Agreement and urges that the language of the Integration Agreement is clear and unambiguous. She claims that Ochsner is not prohibited from waiving the affirmative defenses as a statutory employer under LA-R.S. § 23:1033; rather, the statute merely precludes Ochsner from contractually avoiding its obligation to pay compensation benefits to the detriment of the employee.
Ochsner argues that the Integration Agreement clearly anticipates that Dr. Brochner will undertake patient care in the Ophthalmology Clinic at Ochsner, and that LSU and Ochsner have implicitly modified the agreement whereby Ochsner is responsible for the clinical, academic, and research activities of the residents involved in the Program. In addition, Ochsner states that regardless of any other factors, Louisiana statutory law and jurisprudence establish that the defenses provided to a statutory employer may not be waived. See LA-R.S. § 23:1033; See Hanks v. Shell Oil Co., 93-737 (La.App. 5 Cir. 01/25/94), 631 So.2d 1189, rev'd on other grounds, 94-0483 (04/04/94), 635 So.2d 1118.
As stated previously, the language of the Integration Agreement is very strong in stating the intention that in no way were the students assigned to Ochsner to be considered Ochsner employees; however, our jurisprudence requires that this Court look to the realties of what actually occurred. The evidence clearly shows that LSU and Ochsner jointly operated a residency training program. Dr. Brochner was assigned to Ochsner for a four month rotation wherein it was fully anticipated that Dr. Brochner would undertake patient care, perform research, as well as, other academic assignments, all at the direction and under the supervision of Ochsner doctors and personnel. As such, it is the opinion of this Court that the contract provisions are counter-balanced by the scope of control exercised by Ochsner. Therefore, this factor does not lend overwhelming support for either side in the borrowed servant evaluation.
(8) Furnishing of instructions and place for performance of the work in question:
The parties involved do not dispute that the plaintiff performed duties at Ochsner facilities; however, they do dispute the course and scope of her duties. Defendant asserts that Dr. Brochner received all work assignments, work materials and equipment, and all instructions from the attending Ochsner Clinic. See Deposition of Dr. Bergsma, p. 24, 39, 40, 47, 66-67; Deposition of Dr. Brochner. p. 236. In addition, defendant points to the deposition of Dr. Brochner, p. 96-97, wherein she stated that her patient schedule was dictated by Ochsner Clinic L.L.C., and she was supervised by Ochsner Clinic physicians. By contrast, the plaintiff alleges that Ochsner engaged in `supervisory' acts while the medical residents were at the facilities.
Section 6 of the Integration Agreement states, "[t]he Co-Program Program [sic] Director shall be responsible for direct supervision of residents during their assignments to the Ochsner site." The Co-Program Director, in this instance, was Dr. Eustis, an ophthalmologist at Ochsner.
The Court finds the evidence presented clearly shows that while assigned to Ochsner all of Dr. Brochner's instruction and place of performance of said duties occurred at Ochsner facilities. The Court believes that the control exercised by Ochsner was much greater than a mere supervisory capacity as argued by plaintiff. Accordingly, this eighth factor weighs in favor of Ochsner in establishing a borrowed servant relationship.
(9) Length of employment:
On January 20, 1997, Dr. Brochner and LSU `matched' to participate in a four (4) year ophthalmology residency program; however, the length of time that the plaintiff was slated to participate in a rotation at Ochsner facilities was four (4) months. See Deposition of Barbara Hill, p. 104. This rotation was scheduled to be completed between July 1, 1998 to December 31, 1998. The plaintiff was injured during the course and scope of her duties as a resident physician at Ochsner. While the plaintiff argues that the length of the rotation should be considered in conjunction with the length of the overall program, this Court finds significant the fact that during the rotation, plaintiff was assigned to Ochsner and only Ochsner. Moreover, Dr. Brochner was not supposed to perform services for anyone else besides Ochsner during this period.
Accordingly, looking to the period of time in which Dr. Brochner was injured, she was assigned to a four month rotation at Ochsner wherein all assignments were being handed out, all work was being performed, and all supervision was taking place. These facts lead this Court to the conclusion, pursuant to this factor of consideration, namely, length of employment, that during this four month period Dr. Brochner was acting as a borrowed servant.
(10) Acquiescence by the employee in the new work situation:
Defendant asserts that Dr. Brochner chose to accept enrollment in the Ophthalmology Residency Training Program with knowledge that there would likely be a merger of the pre-existing LSU program with the pre-existing Ochsner program. See Deposition of Dr. Brochner, p. 64. Ochsner claims that Dr. Brochner did not, at any time, object to the Integrated Program or to participation at Ochsner, and that she completed an Ochsner Medical Institution Employee's Report of Occupational Injury or Illness thereby acknowledging her employee status. See Deposition of Barbara Hill, p. 133. Finally, defendant states that there was no waiver of tort immunity in the Integration Agreement. Since Section 5 of the Integration Agreement does not expressly refer to the University's residents, there is no waiver of tort immunity. For the purposes of any waiver, only LSU physicians and students, not residents, are `employees' of LSU. Ochsner claims that Dr. Brochner is a resident; therefore, no waiver of tort immunity is applicable.
Plaintiff argues that when Dr. Brochner applied, interviewed and matched with LSU the program was an independent program of LSU. While the residents who previously matched with LSU were advised of the possibility of the merger, they were not given an alternative to participation in the combined residency program. See Id. at 24, 103, 106. Thus, she was contractually bound to participate in the LSU ophthalmology program regardless of its status with the Ochsner program.
It is clear that Dr. Brochner voluntarily and without objection went to work at Ochsner facilities as assigned by LSU. However, it is likewise clear to this Court that Dr. Brochner had little choice in the matter. LSU and Ochsner merged programs for which Dr. Brochner became a part on July 1, 1998. As part of her residency training, Dr. Brochner was to satisfactorily perform her rotations as assigned. As such, this Court does not give considerable weight to this tenth factor under the circumstances presented in this case.
In Conclusion:
Applying the above factors to the present case, Ochsner has shown that there is no genuine issue of material fact, in keeping with FED. R. CIV. P. 56(c). As this Court has discussed in factors one. five, six, eight, and nine, the evidence weighs in favor of finding borrowed servant status; whereas, only the second factor slightly weighed against such a finding. Moreover, this Court found that the evidence presented in consideration of factors three, four, seven, and ten, either weighed equally or were neutral on consideration of borrowed servant status. Accordingly, balancing the above stated factors, it is the finding of this Court that the defendant has established that the plaintiff was acting in a capacity as a borrowed servant. Therefore, the plaintiffs exclusive remedy is under the Louisiana Workers' Compensation Act. Since this Court finds that the plaintiff was acting in the capacity of a borrowed servant, it is not necessary for this Court to address whether Ochsner was the employer or joint-employer of Ochsner. Rider v. Pool Offshore Co., 987 F. Supp. 943 (E.D.La. 1997).
Accordingly,
IT IS ORDERED that the cross-motion for summary judgment of defendants, Ochsner Clinic L.L.C., Ochsner Hospital, Alton Ochsner Medical Foundation, and St. Paul Fire and Marine Casualty Insurance Company, on the issue of borrowed servant be GRANTED.
IT IS FURTHER ORDERED that the motion of defendants, Ochsner Clinic L.L.C., Ochsner Hospital, Alton Ochsner Medical Foundation, and St. Paul Fire and Marine Casualty Insurance Company, for summary judgment on the issue of the status of Ochsner as the employer or joint-employer of the plaintiff is hereby MOOT.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of the plaintiff, Michele Brochner, is hereby DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of plaintiffs-in-intervention, Office of Risk Management, Division of Administration, Office of the Governor and the Louisiana State University Eye Center, is hereby DENIED to the extent said motion was based on a finding that Dr. Brochner was solely the employee of LSU. However, pursuant to the determination of this Court regarding the status of plaintiff as a borrowed servant, the summary judgment of plaintiffs-in-intervention, seeking to recover one half of all past, present, and future worker's compensation benefits paid is hereby DEFERRED for ruling at a later date upon additional briefing and evidence presented.