### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE January 8, 2003 Se ssion SHIRLEY A. SHELBURNE, ET AL 

### . v. FRONTIER HEALTH, ET AL 

### .

Appeal by P

ermis sion from

the Court

of Appeals Circuit Court for Carter County No. C7500 Thomas J. Seeley, Jr., Judge

No. E2000-02551-SC-R11-CV - Filed May 6, 2003

Plaintiff, both individually and as next friend of her minor son, brought

su it ag ai ns t C ar te r C ou nt y, Frontier Health, and Woodridge Hospital for the wrongf ul death o f her husband . The trial court granted summary judgme

nt to Frontier and Woodridge. The Court of Appealsaffirmed, holding that Frontier and Woodri dge could not be h eld vica riously liable f or the acts or omissi ons of the ir employee because he was entitled to immunity as a state employee . We granted review to determine whether summary judgment was properly

granted in light of our decision in Johnson v. LeBonheur Children’s Medical Center , 74 S.W.3d 338 (Tenn. 2 002). We ho ld that Johnson governs thepresent case and that Frontier and Woodridge are not immune from liability for the acts or omissions of their immune employee. Ac cordingly , summary judgme nt was not appropriate. Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals R

eversed; Case Remanded
J ANICE M. H OLDER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and W IL LI AM M. B ARKER , JJ., joined.
Robert Lew is Ki ng , J oh ns on Ci ty, Te nn es se e, fo r t he Pl ai nt if f- Ap pe ll an t, Sh ir le y A . Sh elburne, Individually

and as Next Friend of Travis Le e Shelburne.
Thomas C. McKee, Johnson City, Tennessee, for the Defe ndants-Appellees, Frontier Health and Woodridg e Hospita

l.
OPINION

Factua l Background
Richard Lee Shelburne was a n inmate at the Carter County Jail. On the morning of November

12, 1997, Mr. Shelburne attempted to hang himself in his cell. Jail staff called Wood ridge Hospital (“Woodridge”), a private psy chiatric hospital wholly owned a nd operated by1 In 2000, the General Assembly amended the Tennessee Code A nnotated so that al l referenc es made to the

DMHMR were dele ted and subs tit uted wi th “t

he Department of Mental He alth and Devel opmenta l Dis abil it ies .” 2000 Tenn. Pub. Acts 947, § 6. -2- Frontie r He alth (“Frontier”). Frontier is a not-f or-profit corporation organized under the la ws of Tennessee. Frontier provides crisis response services in East Te nnessee under a grant fro m the Tennessee Department of Mental Health and Mental Retardation (“the DMHMR”). 1 The parties have not distinguished between Woodridge and Fr ontier for purposes of this litigation.
RichardKirk i s e mployed by Frontier as regional director of its Crisis Response Team (“CRT”). Mr. Kirk is a licensed social worker who has received a master ’s degree in social work. He arriv ed a t the jail on November 12, 1997, at approximately 11:30 a.m. a nd conducted a psy chiatric

evaluation of Mr. Shelburne. Mr. Kirk learned that on the eve ning before the suicide attempt, Mr. Shelburne became despondent when his wife threa tened to leave him. In a subseque nt conv ersat ion, however, Mrs. Shelburne assured Mr. Shelburne that she would not initiate divorce proceedings.
After completing the ev aluation , Mr. Kirk prepar ed two re ports, a M e nt al Health Consult that was left with j ail staff

and a Cris is Response

Evaluati on that Mr. Kirk k ept for his files at Woodridge. Both of th

esereports indicated that Mr. Shelburnewas alert, oriented, coherent, and not psy choticat the time of the evaluation. The reports also stated that Mr. Shelburne denied any suicidal in ten t an d t hat he “ pro mi sed saf ety. ” In Mr. Kirk’s opinion, Mr. Shelburne’s suicide attempt was an impulsive situational gestur e that wa s resolve d when Mr . Shelburn e was as sured tha

t Mrs. Shelburne had no intent to initiate divorce proceedings. Mr. Kirk a dvised ja il staff to maintain increased supervision over Mr. Shelburne bu t s ta te d t ha t f ur th er su ic id e p ro to co l w as no t n ec es sa ry. Mr. Kirk had no further contact with Mr. Shelburne.
On the morning of November 19, 1997, Mr. Shelburne and the other inmates were prepa ring to leave for work detail. As the supervising off ice r walked out of the jail lobby, Mr. Shelburne grabbed the pistol from the officer’s holster a nd fatally shot himself.
Mrs. Shelburne, both individually and as next friend of her son Trav is L ee Shelburne, brought suit agains t Carter

County as well as Frontier and Woodridge for the wrong ful death of her husband. The trial court granted the motion for summary judgme ntfiled by Fr

ontier and Woodridge. The Court of A

ppeals affirmed

the trial court’sjudgmen

t, holding that Fro ntier an d Woodridg e could notbe held li able for

Mr. Kirk’ s acts or

omissions under the t

heory of respo ndeat sup erior because Mr. Kirk was entitled to immunity as a state employ ee. We granted review to deter mine w hethe r summary judgmen t was prop erly

granted in light of ou r decision in Johnson v. LeBonheur Children’s Medical Center , 74 S.W.3d 338 (Tenn. 2002).2 Tenness ee Code Annot ated section 33- 2-603 wa s re peale d in 1988. 1988 Tenn. Pub. Act s 586, § 2.
3 In 2000, th e General Assembl y moved t he prov isi ons of

ti tl e 33, c hapte r 2, part 6 to tit le 33, chapt er 6, part 1. -3- Standard of Review Summary judgmen t is appropriate when “there is no ge nuine issue as to any mater ial fact and

. . . the moving party

is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. A ruling on a motion fo

r summary

judgmen t involvesonly

questionsof law and not disput ed issuesof fact

. Owner-Operator

Indep. Drivers Ass’n v. Concord EFS, Inc. , 59 S.W.3d 63, 68 (Tenn. 2001). Ac co rd in gl y, the standar d fo r reviewing a gra nt of summary judgme

nt is de novo with no presumption of correctness as to the trial court’s findings. See Webber v. State Fa rm Mut. Aut

o. In s. Co. , 49 S.W.3d 265, 269 (Tenn. 2001). The evidence must beviewed “in the lig ht most fav orable to the nonmoving party ,” and al l reason able inferences must be drawn in the nonmoving pa rty’s favor. Staples v. CBL &

Assocs. , 15 S.W.3d 83, 89 (Tenn. 2000).

Analysis I. Statutory

Immunity : Mr. Kirk’s Status as an Immune State Employ ee
Stateemploy

ees “ar e absolut ely immune fr

om liability

for acts or omissions within the scope of the . . . employee’ s . . . employment . . . .” T enn. Code Ann. § 9-8-307(h) (Supp. 1994). Tenness ee Code A

nnotated section 8 -42-101( 3)(D) pr ovides,
“State employee”also includes persons who are both member s of community-based

screening agencies that function under [Tennessee Code Annotated sections 33-2-601 to -604] 2 a nd who screen individua ls to make judgments required by [Tenne s see Code Annotatedsections 33-2-601 to -604]. . . . T he co mmissioner [of mental health and mental retardation] shall register only the names of properl y qu alified a

nd desig nated pe

rsons with

the boar d of claims. Tenn. Code Ann. § 8-42-101(3)(D) (1993). Therefore, Mr. Kirk must s atisfy two requ irementsto be deemed a state employee: 1) he must be a member of a community-based screening agency that functions under Te

nnessee Co de An notated sections 33-2-601 to -604; and 2) he must screen individua ls to deter mine if hos pitalizatio n is appro priate pursuant t

o these sections. 3 A. Community-Based Screening Agency
We shall first determine whether Mr. Kirk is a member of a c ommunity-based screening ag en cy. To make this determination, we must first addr ess whether Frontier and Woodridge are community-based

sc re ening a

gencie s that function unde r section s 33-2-60 1 to -604. I n these sections , the Gene

ral Asse mbly directs t he DMHMR to

develop a

sys tem for “ assuring

the most4 If a pers on (i) has a mast er’ s degr ee .
. . in .

. . soci al wor k . . .; and (ii ) is li cens ed or ce rti fi ed to pr acti ce i n Tennes see .
. . ; an d (iii) is a member of a c ris is serv ice pr ogra m wh ic h is under contract wi th the department to i mplemen t ch apter 2, par t 6 of

thi s t it le; and (iv) satisfacto rily com pletes a training p rogra m ap pro ved and p rovid ed b y th e dep artme nt relative to em ergen cy com mitme nt criteria a nd p roce dure s; then the commis sioner

may designate the person t o take all or any act ion aut horized for a physician and perform all or any dut y imposed on a physician by subdivi sions (a)- (e), to the extent

such duties are wit

hin the scope of

pract ice of the prof

essi on in w hich the pers on is li cens ed or ce rti fi ed. (con tinued ...) -4- appropr iate and effec tive car

e for ind ividuals a dmitted to a

nd discha rged f rom sta te-supported menta

l health institutes.” Tenn. Code Ann. § 33- 2-601 (Su pp. 1997) ; see also

Tenn. Code Ann. §§ 33-2-602, -604 (Supp. 1997). The legislature require s the DMHMR to des ign the s yst em to “minimize

length of confinement, promote speed y re turn to the community, and maximize the individual’s ability to remain in a community setting.” Tenn. Code Ann. § 33-2-601 (Supp. 1997). In addition, the system must include a “community-based screening proce ss.” Id

. Ther efore, an organization is a community-based scr eening agency

under these sections if it prov ides scree ning services to individuals as part of the state sy stem.
The record indicates that Frontier provides crisis response services in East Tennessee under a grant of the DMHMR. Frontier’s CRT, which is led by M r. Kirk, p erformsemerg ency psy chiatric evaluations upon individuals who may be suicidal to determine the form of treatment that will be most effec tive. Man

y F rontier e mployees, inc ludin g Mr. Ki rk, are registered with the Te nnessee Board of Cl ai ms as me mb er s o f a co mm un it y-b as ed sc re en in g a ge nc y. Frontier and Woodridge are, th erefor e, community-based scr eening agencies that f

unction under sections 33-2-601 to -604. Ac co rd in gl y, Mr. Kirk’s status as an employ ee of Frontier and Woodridg e satisfi es the fir st requirement

of section 8-42-101(3)(D) 

### S that he be a member of a community -based screening agency
. B. Screening
We next address whether Mr. Kirk scre ens individuals to make judgments under sections 33-2-601 to -604. A

health care provider makes such judgments whe n evaluating an individual to determine whether hospitalization is necessary for e ffectiv e tr eatment. See Tenn. Code Ann. §§ 33-2-601, -604 (Supp. 1997).
As regional direct or of Fr

ontier’sCRT, Mr. Ki

rk perf orms emer

gency psy chiatric

evalu ation s of individuals who may be suicidal. These evaluations are based

upon clini c al interviews during which he obtains a psychiatric history from the individual, assesses the individ ual’s men tal status , makes a diagnosis, and offers recommenda tions for treatment. In 1 9 95, Mr. Kirk completed the DMHMR’s training program and obtained his ce rtification as a non-phy sician pre-screeni ng evaluator under Te

nness ee Cod e Annotated section 33-6-103(f)(2). 4 In his affidavit, Mr. Kirk4 (.. .cont inu ed) Tenn. Cod e Ann. § 33-6-103(f)(2)(A) (Supp. 19 97). -5- testified that pre-screening evalua tion is a r egular par

t of his customary duties as a me mber of Frontier’s CRT. He also testifi ed that he was performing these duties when he evaluated Mr. Shelburne on November 12, 1997.
Mrs. Shelburne

asserts, however , that a he alth car e provide r does not operate under sections 33-2-601 to -604 unless the individual being evaluated: 1) is admitted to or dischar ged fr om a mental health i nstitute that is owned and operated by the State; and 2) is a free member of the community at larg e. We disagree.
When construing statutes, we are required to a scertain and eff ectuate the legislative intent and purpose of the statutes. See State v. Walls , 62 S.W.3d 119, 121 (Tenn. 2001). Legislative intent must be derived from the plain and ordinary meaning of the sta

tutory langua ge if th e statute is devoid of ambiguity. See Mooney v. Sneed , 30 S.W.3d 304, 306 (Tenn. 2000). T he plain language of section 8-42-101(3)(D) and section 33-2-601 indicate s that the s tatutes w ere not e nacted t o apply to health care providers only

when they a

dmit or dis charg e an individual fro m a state- owned psy chiatric hospital. While section 33-2-601 does add ress the developm

ent of a s yst

em for “ assuring

the most appropr iateand eff

ective c are for

individua ls admi tted to and discharged from state-su pported mental health institutes,” the section also provides for a “community -based screening process
. ” “Scre ening” involves examining

an individ

ual to det ermine w hether hosp italizatio n is appropriate. Screening does not n ecessa rily resu lt in hospi tali zati on. Th e very purp ose of screen ing i s to distinguish betweenindividuals who need to be confined in order to protect themselves or others and those who can be treated in less restrictive way s. It wou ld be cont rary to the purposes of the state sy stem described in section 33-2-601 to requir e a health care provider to hospitalize an individual before the health care pr ovi der is deemed a state employ ee. Section 33-2-601 requires that the sy stem promote the return of individuals to their communities and minimize the length of confinement in mental health institutes. We therefore conclude that it is not necessary for a n individual to be admitted to or discharge d from a s tate-ow ned menta l health institute f

or a hea lth care provider to meet the requirements of section 8-42-101(3)(D)

. In addition, health care providers whoscreen incarcerated individuals ar e not precluded from state employee status under section 8-42-101(3)(D). Section 33-2-601 states that the DMHMR must design the state system to “promote speedy return to the commu nity, and [to] maximize the individual’s ability

to re ma in in a c om mu ni ty s et ti ng .” In t he co nt ex t o f t hi s s ec ti on , “ co mm un it y” ref ers to a setting outside of a hospital. The goal of the sy stem is to ensure that ind ividuals ca n function outside the ho sp it al se tt in g w it ho ut po si ng a t hr ea t t o t he ms el ve s o r o th er s. “C om mu ni ty” as used in this section does not necessarily

refer to society

at large or require

that the individual being evaluat e d be free from restraint. Accor dingly, Mr. Kirk is a

health care provider who scr een s individua ls to make judgments under sections33-2-601 to -604. T herefo re, Mr. K irk satisf ies both requirements under section 8-42-101(3)(D) a nd is an immune state employee.-6- II. The Immuni ty Claim of Fron tier a nd Wo odrid ge
We must now de

termine w

hether F ronti er and Woodr id ge a re i mm une fro m l iab il it y. In Johnson v. LeBonheur

Children’s Medical Center , 74 S.W.3d 338, 341 (Tenn. 2002), thi s Court hel d that a private hospital may be

held vicariously liable unde r the doctrine of

respondeat superior based solely upon the a

cts or omis sions of a

state-e mployed phy sician re sident if t hat resid ent is found to be an ag ent or se

rvant of the hospit

al. We conclude tha

t Johnson governs this case.
Johnson involved a medical malpractice claim filed against Le

Bonheur Children’s Medical Center and the he alth car

e provide rs who pa

rticipat ed in Amma

n Johnson’s h

eart su r gery . 74 S.W.3d at 341. The plaintiff, Amman’s mother, claimed that two phy sician resident s fro m the Universi ty of Tennessee’s training prog ram, who were on rotation at L eBonheur, were acti ng a s LeBonheur’ s agents during the surge ry an d that LeB onheur w as vicar iously liable fo

r their negligence. Id. The residents were compensated by the University of Te

nnessee but were required to follow LeBonheur’ s protocols, rules, and regulations in prov iding treat ment or se rvices to LeBonheur’ s patients. Id.
We agreed that the residents were immune from liability as state employ ees under Tennessee Code Annotated section 9-8-307(h). Id. at 343. We concluded, however, that “[n]othing in the statute

. . . immunizesa privat

e hospita l from lia bility for the a cts or omis sions of ph

ysi cian re sidents employed by the State who

are als o acting

as age nts or ser vants of t he priva te hospital.” Id. We also rejected LeBonheur’ s argument that it could not be held liable under the do ctrine of respondeat superior based upon the acts of an agent who is immune from liability. Id. at 344. We determined that case law indicated only

three instances in which

a principal may

not be hel d vicari ously

liable under this doctrine. Id. at 345. These instances include:

(1) whe n the agent has been exonerated byan adjudication of nonli ab il it y, (2) whe

n the rig ht of act ion aga inst the agent is extinguished by operation of law, or (3) when the injured party extinguishes the agent’s liability by

conferring an affirmative, substantive right upon the age nt that precludes a ssessmen t of liability a

gainst t he age nt.
Id. The firs t and third

categ ory did not app ly

to the facts of the case. Id. As to th e s ec on d c at eg or y, we stated tha

t section 9 -8-307(

h) does not extinguis h a claima nt’s rig ht of acti on but mer

ely immunizes state employees f rom individual monetary liability

. Id. at 345-46 . Therefore, w e held that the personal immunity of the resid ents did not prohibit L

eBonhe ur from b eing he

ld vicar iously liable for the residents’ negligence

. Id. at 346. We ultimately held that a g enuine issue of material fact existed as to whether the residents were acting a s LeBonheur’s a gents or servants and remanded the case to the trial court. Id. at 347.
The facts of Johnson are simil ar to the facts of the pres ent case . Both ca ses i nvolv e negligence

claims br ought a gainst h ealth care providers and their employ ers. Frontier is a private, not-for-profit

corporation that provides mental health services and owns and operatessevera l private-7-

psy chiatric

hospitals, including Woodridge. Like L eBonheur, Frontier and Woodridge p rovide a service to the St ate and benefit in so doing. Mr. Kirk, like each of the residents in Johnson , is a n immune state employee. F rontier and Woodridge argue, a s LeBonheur did, that they cannot be held vicariously

liable fo r the ac ts or omissi ons of an immune ag ent. We reject this argument as we did in Johnson

. First, as we pointed out in Johnson , section 9-8-307(h) does not extinguish a claimant’s right of action but merely immunizes state employ ees from individual monetary liability

. Id. at 345-46. Since Mr. Kirk’s conduct

remains a vailable as a basi s for the

imposition o f liability

in the Tennessee Claims Commission against the St at e, Mr s. Sh el bu rn e’ s r ig ht of ac ti on su rv iv es . A cc or di ng ly, Mr. Kirk’s personal immunity does not prevent F rontier and Woodridge from being held vicarious ly liable for his negligence under the doctrine of respondeat superior. Furthermore, none of the statutes we have re viewed grant immunity to private

hospitals. Section 9-8-307(

h) gra nts immunity

to state e mployees. While section 8-42-101(3)(D) provides that memb ers of

community-based scr

eening agencies a

re state employees, nothing in that section indicates that the agencies themselves are state employ ees. Under our decision in Johnson , section 9-8-307 do es not immunize a privat e hospita l from lia bility for the a

cts or omis sions of sta

te employeeswho are also acting as ag ents of the private hospital. Id. at 343. Frontier and Woodridge, therefore, are not immune from liability for the acts or omissions of Mr. Kirk.
Conclusion
In light of our decision in Johnson , we hold that Frontier Health and Woodridge Hospital are notimmune from liability for the acts or omissions of their immune agent. Therefore , we reve rse the judgments of the trial court and the Court of Appeals, and we remand the case to the tria l court for further procee dings co nsistent w ith this opin ion. Costs of

this appeal are taxed

to the app ellees, Frontier Health and Woodridge Hospital, and their surety , for which ex ec ut io n m ay issue if ne ce ss ar y.

___________________________________ JANICE M. HOL DER, JUSTI

CE