Ida Hawkins, Charlotte Hawkins, and Christopher Hawkins Individually and in their Representative Capacities of the Minor Children, S.L., E.L., C.H., and C.H. v. The Schumacher Group of Louisiana, Inc., Clinical Partners-Louisiana, PLLC, Andre Leblanc Medical Consultants, LLC, Morehouse Parish Hospital Service District d/b/a Morehouse General Hospital, Andre Michel Leblanc, CRNA, Dr. Daniel Umoh, Dr. Janos Guoth, Linda Richard, CRT, Bridget Humphrey Major, LPN, Fleta Stell, RN, Adam Clampit, RN, and Teresa Hankins, RN

Judgment rendered November 20, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,137-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

IDA HAWKINS, CHARLOTTE Plaintiffs-Appellants
HAWKINS, AND CHRISTOPHER
HAWKINS INDIVIDUALLY AND
IN THEIR REPRESENTATIVE
CAPACITIES OF THE MINOR
CHILDREN S.L., E.L., C.H., AND
C.H.

versus

THE SCHUMACHER GROUP OF Defendants-Appellees
LOUISIANA, INC., CLINICAL
PARTNERS-LOUISIANA, PLLC,
ANDRE LEBLANC MEDICAL
CONSULTANTS, LLC, MOREHOUSE
PARISH HOSPITAL SERVICE DISTRICT
d/b/a MOREHOUSE GENERAL HOSPITAL,
ANDRE MICHEL LEBLANC, CRNA,
DR. DANIEL UMOH, DR. JANOS GUOTH,
LINDA RICHARD, CRT, BRIDGET
HUMPHREY MAJOR, LPN, FLETA STELL, RN,
ADAM CLAMPIT, RN, AND
TERESA HANKINS, RN

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2015189

Honorable Robert W. Kostelka, Judge (Pro Tempore)

*****

SANGISETTY LAW FIRM, LLC Counsel for Appellants
By: Ravi K. Sangisetty
Parker N. Hutchinson

COWAN LAW FIRM Counsel for Appellees
By: Thomas C. Cowan
Philip E. Reso
Sheri S. Gilbert

*****

Before PITMAN, McCALLUM, and THOMPSON, JJ.

THOMPSON, J.

This appeal arises from the granting of a motion for summary

judgment in favor of the defendants, Clinical Partners-Louisiana, PLLC,

Emcare, Inc., Emcare Holdings, Inc., and Envision Healthcare Corporation

(hereinafter “Anesthesia Defendants”), and against plaintiffs for injuries

sustained by Charlotte Hawkins (hereinafter “Hawkins”) from repeated

incorrect intubation of Hawkins while a patient at Morehouse General

Hospital. For the reasons more fully detailed below, we reverse the granting

of summary judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Providing anesthesia services in rural hospitals, which do not have a

large enough population base to include a local anesthesiologist, is

oftentimes accomplished through various intermediaries and agreements

necessary to serve citizens in the region. In this instance Morehouse General

Hospital and its patients were served through an agreement between Indigent

Care Services of Northeast Louisiana, Inc., and Clinical Partners-Louisiana,

PLLC, to staff and manage the anesthesia services program and protocols.

Clinical Partners-Louisiana, PLLC, would in turn contract with health care

providers to deliver those services to patients.

On June 25, 2012, Hawkins was admitted to Morehouse General

Hospital to undergo a C-section. The C-section was performed without

complication by Dr. James Gouth, OB/GYN (hereinafter “Dr. Gouth”).

Defendant, Andre LeBlanc, CRNA (hereinafter “LeBlanc”), was tasked with

performing Hawkins’ anesthesia services related to and subsequent to her C-

section.

Following her C-section, Hawkins became agitated and LeBlanc

administered intravenous Benadryl to Hawkins. After the administration of

the Benadryl, Hawkins experienced respiratory depression and became

unresponsive. LeBlanc intubated Hawkins and while doing so he

improperly placed the tube in her esophagus causing air to be pumped into

Hawkins’ stomach instead of her lungs. LeBlanc “called a code” and Dr.

Guoth and Dr. Daniel Umoh (hereinafter “Dr. Umoh”), the attending ER

physician, responded. Dr. Umoh attempted to resuscitate Hawkins. Dr.

Guoth discovered that she was improperly intubated. LeBlanc again

attempted to properly intubate Hawkins, but in this second failed attempt he

placed the tube too far down her bronchus causing only her right lung to

receive oxygen. After a third attempt by LeBlanc, and several minutes after

the first failed attempt, Hawkins was finally correctly intubated. As a result

of the improper intubation, Hawkins suffered a severe hypoxic brain injury

which has caused her significant and permanent damage. Hawkins has now

been interdicted as a result of her injuries. The plaintiffs in this matter

include Hawkins and her family members.

Hawkins’ family (hereinafter “Plaintiffs”) filed an original petition,

followed by a first, second, and third supplemental petition for damages

against the following defendants: Morehouse Parish Hospital Service

District d/b/a Morehouse General Hospital (“Morehouse Hospital”); Dr.

James Guoth, the physician who performed the C-section; Linda Richard,

CRT, and Bridget Humphrey Major, LPN, Fleta Stell, RN, Adam Clampit,

RN, and Teresa Hankins, RN, the nurses and medical staff on duty the day

of Hawkins’ injury (hereinafter collectively referred to as “the Nurses”);

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Andre LeBlanc, personally and his limited liability company, Andre

LeBlanc Medical Consultants, LLC, as he was the Certified Registered

Nurse Anesthetist (“CRNA”) who intubated Hawkins and was responsible

for her care; Dr. Daniel Umoh, the emergency room physician who

responded to the code; the Schumacher Group of Louisiana; Clinical

Partners-Louisiana, PLLC, and its related corporate entities Emcare, Inc.,

Emcare Holdings, Inc., Envision Healthcare Corporation, and Iasis

Healthcare, LLC, the corporate entity Plaintiffs asserted had contracted or

assumed the contract with Anesthesia Defendants to establish and staff

Morehouse with anesthesia services among other responsibilities.

The Nurses named as defendants in the petition were dismissed by

motion and order for partial dismissal dated August 24, 2015. Defendants,

Schumacher Group of Louisiana, Inc. and Dr. Daniel Umoh, were dismissed

on February 23, 2016, via an unopposed motion for summary judgment.

Defendant Indigent Care Services of Northeast Louisiana was dismissed

from the suit on April 10, 2018, via an unopposed motion for summary

judgment and Iasis Healthcare, LLC, was added because it was the parent

company of Indigent Care Services. Defendants Morehouse and Dr. Guoth

were dismissed on August 10, 2018, via a motion for summary judgment

wherein the district court found no liability for either. Defendants, Andre

LeBlanc, CRNA and Andre LeBlanc Medical Consultants, as well as

unnamed defendants Liberty Surplus (LeBlanc’s malpractice insurer) and

the Patient’s Compensation Fund, reached a settlement agreement with

Plaintiffs and were accordingly dismissed from the suit as a product of that

settlement. The only remaining defendants in the suit are: (1) Clinical

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Partners-Louisiana, PLLC, and its parent or associated entities Emcare, Inc.,

Emcare Holdings, Inc., and Envision Healthcare Corporation (“Anesthesia

Defendants”); and (2) Iasis Healthcare, LLC.

On November 9, 2017, Anesthesia Defendants filed their first motion

for summary judgment alleging no liability for any acts, including those of

LeBlanc, because the agreement between Anesthesia Defendants and

LeBlanc defined LeBlanc as an independent contractor, and that, in

accordance with such an agreement, Anesthesia Defendants had no right to

control the delivery of LeBlanc’s anesthesia services at Morehouse.

Anesthesia Defendants claimed that LeBlanc was never supervised, trained,

or directed by Anesthesia Defendants regarding delivery of anesthesia

services. Therefore, Anesthesia Defendants claimed that they were neither

vicariously liable nor were they independently negligent with regard to

Hawkins’ medical care.

On November 29, 2017, Plaintiffs filed an opposition to Anesthesia

Defendants’ motion for summary judgment and on January 5, 2018,

Anesthesia Defendants’ motion for summary judgment was granted in part

and denied in part. The district court held that LeBlanc was an independent

contractor for Anesthesia Defendants and that Anesthesia Defendants could

not be held liable for the actions of Andre LeBlanc or Andre LeBlanc

Medical Consultants. The claims against LeBlanc, his company, Liberty

Surplus, and the Patient’s Compensation Fund were subsequently dismissed

due to settlement between the parties. Summary judgment was denied as to

the remaining claims against Anesthesia Defendants which duties and

4

responsibilities were created by either contract or applicable standard

established by the Code of Federal Regulation.

On March 9, 2018, Anesthesia Defendants filed a second motion for

summary judgment citing the following two reasons for entry:

(1) Plaintiffs were not third party beneficiaries to the contract
between Clinical Partners and Indigent Care of Northeast
Louisiana; and

(2) 42 C.F.R. 482 does not create a private cause of action for
Plaintiffs to recover from Defendants.

After a hearing, which included discussion in detail between the district

judge and both counsel, the district court granted the motion for summary

judgment and dismissed the claims against Anesthesia Defendants with

prejudice. Plaintiffs filed a motion for new trial which was denied on

December 28, 2018. This appeal followed.

PLAINTIFFS’ ASSIGNMENTS OF ERROR

(1) The district court erred in granting Defendants’ motion for
summary judgment on issues not raised as grounds for dismissal
in their motion for summary judgment;

(2) The district court erred in allowing Defendants to argue under an
entirely different theory from that stated in their motion and in
resolving questions of fact related to duty of care; and

(3) The district court erred in granting summary judgment before
Plaintiffs were able to conduct court-ordered discovery on fact
issues relevant to the scope of Defendants’ duty of care.

STANDARD OF REVIEW

De novo review is required when an appellate court considers rulings

on motions for summary judgment. Bank of New York Mellon v. Smith, 15-

0530 (La. 10/14/15), 180 So. 3d 1238, 1243.

5

DISCUSSION

In its third amended petition, Plaintiffs allege that Clinical Partners-

Louisiana, PLLC, is liable because Hawkins’ injuries and damages were

proximately and legally caused by the following acts of negligence:

 Failure to hire qualified personnel;

 Failure to train personnel;

 Failure to perform other administrative functions, including
distribution and maintenance of adequate safety protocols, such as
those related to proper intubation techniques and drug safety;

 Failure to supervise, train, and/or monitor personnel, including but
not limited to LeBlanc and the code team;

 Failure to develop and/or implement adequate policies and
procedures to competently address proper intubation of patients;

 Failure to properly staff Morehouse with adequately trained
personnel to deliver anesthesia services;

 Failure to enforce the policies, protocols, and procedures of
Morehouse;

 Failure to timely assess Mrs. Hawkins;

 Failure to exercise the appropriate standard of care for facilities in
intubating patients;

 Vicarious liability for the negligence of Andre LeBlanc, Andre
LeBlanc Medical Consultants, LLC, Adam Clampit, RN, and
Teresa Hankins, RN;

 Failure to ensure that LeBlanc was practicing anesthesia under the
sponsorship of a medical doctor or otherwise ensure anesthesia
services were delivered at the hospital in accordance with
applicable federal and state laws/regulations; and

 Failure to fulfill its contractual duties to deliver anesthesia services
in a safe and competent manner at Morehouse General Hospital.

Additionally, Plaintiffs claim that Emcare, Inc., and its parent corporations,

Emcare Holdings Inc. and Envision Healthcare Corp., are liable because

6

Clinical Partners had no employees or office of its own, but was an alter ego

of and operated as a single business enterprise with Emcare, Inc., and its

parent corporations. Therefore, Plaintiffs assert in their third amended

petition that Emcare, Inc., Emcare Holdings Inc., and Envision Healthcare

Corp. are also liable unto them for the acts of negligence detailed above.

In its oral reasons for ruling, the following exchange occurred

between counsel for the parties and the district court:

BY THE COURT:

Yes. Uh, they were, their role in this was to recruit
someone like Mr. LeBlanc, Nurse LeBlanc, someone who is
qualified to provide these services as a CRNA and have this
contract with the hospital to do so. And they did that. And as far
as the supervision of the CRNA, we had Dr. Guoth who was
there, who was actually performing the caesarean section. And
uh, he checked on his patients. Everything was fine. No signs of
distress. He walks outside. Um to do what doctors do. Dictate
their notes. And he was 60 steps away, but apparently not very
far. He was within sight of the room. As soon as the code was
called, as is custom and proper procedure, the ER doctor
responded. They both went in at the same time. Uh, roughly at
the same time. Dr. Guoth is not a trained anesthesiologist. He,
uh, he his deposition was clear on that. He was there to consult
in the event there was some need to consult with him in an area
beyond the CRNA’s field of expertise and knowledge. Um, if
there was negligence here, it was the negligence of the
CRNA. There’s no duty of these two corporate entities, two
or three.

BY MR. COWAN:

Four.

BY THE COURT:

Four corporate entities to provide supervision. Their
responsibility was to provide a CRNA that was qualified
and they did so. Um, there was no additional duty imposed
upon them to provide supervision. Their own supervision.
That was left to the, whoever that particular—in this case Nurse
LeBlanc—would have been under the supervision or working
with Dr. Guoth. It could have been any other. It could have
been another procedure or surgery procedure. It would have

7

been whoever the attending surgeon was. When the code was
called that would have been in the hands of the ER doctor. Uh,
in this case there’s no duty on behalf of these corporate
entities to provide any more services than what they’ve
done and what they’ve contracted to do at the hospital to
provide a qualified CRNA which they did. And therefore
since there is no duty and summary judgment is appropriate,
Court will grant summary judgment as prayed for.

BY MR. COWAN:

We’ll draft a summary judgment for the Court’s
consideration and get it to counsel.

BY THE COURT:

Alright. Did you want to, Mr. Sangisetty?

BY MR. SANGISETTY:

Well, I mean, I’m a little. Obviously we would like to
offer, file and introduce the record of the matter for purposes of
appeal or writ. I’m a little surprised, your Honor, that you
know, it seems like you were finding some facts associated
with uh, the contract. I mean, I’m not going to ask you to,
well, I would ask you to reconsider in that we articulated, you
know, at the last Motion for Summary Judgment breaches and
standard of care by anesthesiologist and corporate compliance
first in that creates a question of fact of whether there’s a duty.
There was other, other parts of that contract other than
them providing the CRNA. It was providing limited medical
director. Running the anesthesia quality assurance
program. Providing audits. Those things were never done.
And that was, that’s what the facts have shown in this case.
And um, you know, at this juncture, that legal question of
do they have some obligation, yes, if those obligations affect
my client, yes. And the failure to fulfill those obligations
affect my client, yes. Um, that’s what our argument at the last
motion for summary judgment. To say today that the contract
only provides that they were only required to provide CRNA’s
is a finding of fact which is not consistent with the contract.
But, I mean, that’s our, that’s been our position from the
beginning.

BY THE COURT:

Well, it appears after reviewing this that the, that if there
was an act of negligence here it involved—and there may well
have been—it was on the part of Nurse LeBlanc for improper
intubation. Um, so I’ll go back and review and if I, you know, if

8

I think I got it wrong then I can reconsider, but I don’t think, I
mean, that’s my thought on it. Because I don’t think I got it
wrong. But I’ll be glad to go back and give it another look. And
I understand your argument. But uh, but I don’t think that the
duty extends to these corporate entities. I don’t think that’s
the way the system is set up.

(emphasis added)

We disagree with the determination by the trial court that the

duties of Anesthesia Defendants were as limited as only providing a

CRNA. The agreement with Anesthesia Defendants outlines

significant other responsibilities.

The appellate court must use the same criteria that governed the

district court’s determination of whether summary judgment was

appropriate: (1) whether there exists a genuine issue of material fact and (2)

whether or not the mover is entitled to judgment as a matter of law. Clinton

v. Reigel By-Products, Inc., 42,497 (La. App. 2 Cir. 09/19/07), 965 So. 2d

1006, 1008, writ not cons., 07-2239 (La. 02/15/08), 976 So. 2d 168.

“Whether a legal duty exists is dependent upon the relationship between the

parties.” Lichti v. Schumpert Medical Center, 32,620 (La. App. 2 Cir.

01/26/00), 750 So. 2d 419, 423, writ denied, 00-0623 (La. 04/20/00), 760

So. 2d 349). “Questions of negligence are generally inappropriate for

disposition by summary judgment.” Mixon v. Davis, 31,725 (La. App. 2 Cir.

03/31/99), 732 So. 2d 628, 631. “However, a defendant is entitled to

dismissal by means of [summary judgment], if, after the opposing party has

had an adequate opportunity to develop evidence, the record is completely

devoid of any suggested basis for the defendant’s liability.” Id. In

determining whether to grant a motion for summary judgment, the court

must take the pleadings, depositions, answers to interrogatories, and

9

admissions, together with the affidavits, if any, and determine whether those

items show that there is no genuine issue as to any material fact. Catahoula

Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La.

10/15/13), 124 So. 3d 1065, 1071.

In this case, the district court determined that Anesthesia Defendants

owed no duty to Hawkins except to provide a qualified CRNA during her

procedure. De novo review of the record shows that there are genuine issues

of material fact that render summary judgment under La. C.C.P. art. 966(A)

improper. Although the trial court’s oral reasons for granting summary

judgment appear to find that the Anesthesia Defendants had no duty to

Hawkins other than to provide a qualified CRNA, the actual agreement

between Clinical Partners and Indigent Care Services, as well as responses

to requests for admission by Morehouse Hospital, Indigent Care, and Iasis

Healthcare, and the deposition testimony of Andre LeBlanc and Sean

Richardson (corporate representative for Clinical Partners) reveal that

Anesthesia Defendants’ duty extended far beyond simply providing a

competent CRNA.

To determine the responsibilities of Anesthesia Defendants we look

first to the “Agreement for Professional Anesthesia Services” (hereinafter

“the Agreement”) signed on August 1, 2011, between Indigent Care Services

and Clinical Partners. In Article 2.3 of the Agreement, Clinical Partners was

to perform all of the following non-exclusive functions:

A. Periodic review of a sample of CRNA medical charts according to
the compliance program adopted by [Clinical Partners]. Such
reviews were to be conducted in an effort to help insure that ASA
standards of care are being utilized by CRNAs.

10

B. Periodic telephone consultations at the request of CRNAs and/or
surgeons providing services at [Morehouse Hospital], if the
individual designated by [Clinical Partners] to provide the limited
Medical Director services is available at the time of such needs.

C. Oversight of the Anesthesia Quality Assurance Program, including
policy and procedure review.

Additionally, Exhibit “A” of the Agreement outlines the following functions

that Clinical Partners was to perform:

A. Description of Services. [Clinical Partners] shall provide the
Services for the patients at Morehouse General Hospital
(“Hospital”) as defined by the Agreement.

(1) CRNA Services. [Clinical Partners] shall provide the
CRNAs required by anesthesia services to Hospital’s
patients according to the service schedule outlined in
paragraph “3” of this Exhibit “A.” CRNAs shall in
accordance with the Agreement be available as on-call
providers and as such may be contacted by Hospital by
telephone, and be able to arrive at Hospital within thirty
(30) minutes of the time called.

(2) COMPLIANCE WITH 42 CFR § 482.52. [Clinical
Partners] agrees that it will provide anesthesia services in a
well organized manner under the sponsorship of a qualified
doctor of medicine or osteopathy and will otherwise insure
that such services are rendered in compliance with the
applicable Condition of Participation promulgated by
CMS.

Hawkins propounded written discovery to Morehouse Hospital and in its

responses to Plaintiffs’ requests for admission, Morehouse Hospital admitted

the following:

REQUEST FOR ADMISSION NO. 1:

Please admit that, at Morehouse General Hospital in
2012, the anesthesia department and the professional anesthesia
services associated therewith was the responsibility of Indigent
Care Services of Northeast Louisiana, Inc. pursuant to a
contract between the State of Louisiana and Indigent Care
Services.

11

RESPONSE TO REQUEST FOR ADMISSION NO. 1:

Admitted.

REQUEST FOR ADMISSION NO. 2:

Please admit that, at Morehouse General Hospital in
2012, the anesthesia department and the professional anesthesia
services associated therewith was the responsibility of Clinical
Partners-Louisiana, PLLC pursuant to a contract between
Clinical Partners and Indigent Care Services.

RESPONSE TO REQUEST FOR ADMISSION NO. 2:

Admitted.

REQUEST FOR ADMISSION NO. 3.:

Please admit that in 2012 the hospital policies at MGH
with respect to equipping of the PACU with the necessary items
for intubation was the responsibility of Clinical Partners.

RESPONSE TO REQUEST FOR ADMISSION NO. 3:

Admitted.

REQUEST FOR ADMISSION NO. 4:

Please admit that in 2012 the hospital policies at MGH
with respect to equipping of the PACU with necessary items for
monitoring the respiratory rate of patients was the responsibility
of Clinical Partners.

RESPONSE TO REQUEST FOR ADMISSION NO. 4:

Admitted.

REQUEST FOR ADMISSION NO. 5:

Please admit that Clinical Partners was responsible for
ensuring that the anesthesia services were delivered at MGH in
under the sponsorship [of a] qualified medical doctor or doctor
of osteopathy.

RESPONSE TO REQUEST FOR ADMISSION NO. 5:

Admitted.

12

REQUEST FOR ADMISSION NO. 6:

Please admit that in 2012, Clinical Partners was
responsible for the compliance with 42 C.F.R. § 482.52 at
MGH.

RESPONSE TO REQUEST FOR ADMISSION NO. 6:

Admitted.

....

REQUEST FOR ADMISSION NO. 10:

Please admit that Clinical Partners was responsible for
updating and implementing the anesthesia department policies
at MGH in 2012.

RESPONSE TO REQUEST FOR ADMISSION NO. 10:

Admitted.

....

REQUEST FOR ADMISSION NO. 12:

Please admit that no one from Clinical Partners or
Emcare communicated to the medical staff at MGH that it was
the operating surgeon’s responsibility to supervise the CRNAs
at any time before Charlotte Hawkins coded on June 15, 2012.

RESPONSE TO REQUEST FOR ADMISSION NO. 12:

Admitted.

REQUEST FOR ADMISSION NO. 13:

Please admit that in 2012 at MGH, it was Clinical
Partners’ responsibility to ensure that the operating suite was
properly staffed and equipped to deliver anesthesia services.

RESPONSE TO REQUEST FOR ADMISSION NO. 13:

Admitted.

....

In its responses to Plaintiffs’ requests for admission, Indigent Care

Services and Iasis Healthcare, LLC admitted the following:

13

REQUEST FOR ADMISSION NO. 1:

Please admit that in 2012 at MGH, it was Clinical
Partners’ and/or Emcare, Inc.’s responsibility to ensure
compliance with 42 C.F.R. § 482.52.

RESPONSE TO REQUEST FOR ADMISSION NO. 1:

ICSNL and IASIS were not responsible for ensuring
compliance with 42 C.F.R. Section 482.52 at Morehouse
General Hospital. ICSNL and IASIS admit Clinical Partners, in
Exhibit A of its contract with ICSNL, agreed, as part of Clinical
Partners’ duties, that Clinical Partners will provide anesthesia
services in compliance with 42 CFR Section 482.52. ICSNL
cannot speak to what responsibility other parties may have had
to ensure compliance.

REQUEST FOR ADMISSION NO. 2:

Please admit in 2012 at MGH, that it was Clinical
Partners’ and/or Emcare, Inc.’s responsibility to ensure that the
PACU was properly staffed and equipped to deliver anesthesia
services.

RESPONSE TO REQUEST FOR ADMISSION NO. 2:

Request for Admission No. 2 is admitted insofar as
Clinical Partners is concerned, based on the contract between
ICSNL and Clinical Partners. See the following Articles of the
contract: 1.2; 1.7; 2.3 (A)-(C); and Exhibit A(2). ICSNL
cannot speak to what responsibility other parties may have had.

REQUEST FOR ADMISSION NO. 3:

Please admit that in 2012 at MGH, it was Clinical
Partners’ and/or Emcare, Inc.’s responsibility to ensure that the
operating suite was properly staffed and equipped to deliver
anesthesia services.

RESPONSE TO REQUEST FOR ADMISSION NO. 3:

See Response to Request for Admission No. 2.

REQUEST FOR ADMISSION NO. 4:

Please admit that you took no action in equipping,
staffing, or managing the anesthesia services at Morehouse
General Hospital from 2011 through 2012.

14

RESPONSE TO REQUEST FOR ADMISSION NO. 4:

. . . IASIS has no involvement in the provision of
anesthesia services at Morehouse General Hospital. IASIS is
the parent company of ICSNL. ICSNL had no involvement in
the equipping, staffing, or managing of anesthesia services at
Morehouse General Hospital, other than to pay for those
services pursuant to a contract with Clinical Partners. Pursuant
to the contract with Clinical Partners, Clinical Partners who “is
in the business of providing anesthesia management services to
hospitals” was to equip, staff, and manage the anesthesia
services at Morehouse General Hospital. See Exhibit 1,
Agreement for Professional Anesthesia Services, Page 1,
“Recitals”(D). Clinical Partners did this in consultation with the
hospital and its’ contracted CRNAs.

REQUEST FOR ADMISSION NO. 5:

Please admit that you took no action to ensure that
anesthesia services at Morehouse General Hospital from 2011
through 2012 was appropriately staffed, managed, or equipped.

RESPONSE TO REQUEST FOR ADMISSION NO. 5:

. . . ICSNL contracted with Clinical Partners, an
anesthesia management service company, to provide anesthesia
services. See Exhibit 1. The contract required that Clinical
Partners abide by “any and all applicable federal and/or state
statutes, rules, and regulations applicable to the performance of
services under this agreement.” See Article 1.2 of Exhibit 1.

The contract also required that “all services shall be
provided in accordance with the applicable standards for
reasonable and prudent care for CRNAs…and in accordance
with all federal, state and local laws relating to or regulating the
practice of anesthesia delivery.” Id. See Article 1.2.

Exhibit A of the contract (Exhibit 1) required that
Clinical Partners provide “anesthesia in a well organized
manner under the sponsorship of a qualified doctor of medicine
or osteopathy and will otherwise ensure that such services are
rendered in compliance with the applicable Condition of
Participation promulgated by CMS”, which is 42 C.F.R. §
482.52.

....

In his deposition, LeBlanc was asked whether he was supervised in

any way by Clinical Partners and his response was “no.” The corporate

15

representative for Clinical Partners, Sean Richardson, stated in his

deposition that he “couldn’t say” whether Dr. Guoth (the physician who

performed Hawkins’ C-section) had agreed to sponsor or supervise LeBlanc.

A review of the record and Clinical Partners’ own agreement to

provide anesthesia services to Morehouse Hospital clearly establishes a duty

existed to ensure the supervision of LeBlanc. Clinical Partners was also

required under that contract to provide many other services related to the

administration of anesthesia services to patients at Morehouse Hospital,

which according to the responses to requests for admission above were not

provided.

In support of their motion for summary judgment, Anesthesia

Defendants attached only their contract with Indigent Care agreeing to

provide anesthesia services to Morehouse. In reviewing that contract and

other pertinent parts of the record, it is clear that Anesthesia Defendants did

not meet their burden of proving that no duty was owed to Hawkins as to

any of Plaintiffs’ 12 cited claims of negligence. It is clear that, under their

own contract, Anesthesia Defendants were required to do, at least, the

following:

 Ensure that LeBlanc was being supervised by either a medical
doctor or a doctor of osteopathy;

 Review a sample of CRNA medical charts according to the
compliance program;

 Provide limited Medical Director services;

 Oversee the Anesthesia Quality Assurance Program, including
policy and procedure review;

 Equip the PACU with the necessary items for intubation and
monitoring respiratory rate of patients; and

16

 Ensure compliance with 42 C.F.R. § 482.52.

There is no evidence in the record that Anesthesia Defendants did any of the

aforementioned tasks that they were to perform under their own contract.

Therefore, the district court erred when it granted Anesthesia Defendants’

motion for summary judgment on the basis that Anesthesia Defendants were

required to do nothing more than simply provide a competent CRNA. As

we have reversed due to the existence of genuine issues of material fact as to

the duty owed by Anesthesia Defendants, we pretermit discussion of other

assignments of error by Appellant.

CONCLUSION

For the reasons expressed above, the judgment of the district court is

REVERSED. Costs are assessed to Appellees.

REVERSED AND REMANDED for further proceedings

consistent with this opinion.

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