IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CA-01316-SCT

BILL WATTS AND BOBBIE WATTS

v.

BRIAN TSANG, M. D.

DATE OF JUDGMENT: 08/04/1998

TRIAL JUDGE: HON. W. SWAN YERGER

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: ROBERT L. WELLS

ATTORNEYS FOR APPELLEE: C. ALLEEN McLAIN

GEORGE Q. EVANS

ROBERT G. JENKINS

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

DISPOSITION: AFFIRMED - 10/17/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COBB, JUSTICE, FOR THE COURT:

¶1. In May 1995, Bill Watts underwent a surgical procedure at the University of Mississippi Medical

Center (UMMC) that rendered him a paraplegic. Watts and his wife Bonnie filed a complaint alleging

negligence against Dr. Brian Tsang and others, in the Hinds County Circuit Court, First Judicial District. In

the complaint, Watts alleged that Dr. Tsang was an employee of UMMC and was acting on its behalf. The

circuit court later allowed Watts to amend his complaint, to no longer claim that Dr. Tsang was an

employee of UMMC, but instead, to claim that he was an employee of University Anesthesia Services,

PLLC, (UAS), and acting for his own personal pecuniary interest.

¶2. After approximately two years of discovery and other pre-trial proceedings, Dr. Tsang filed a motion

for summary judgment claiming immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann.

§§ 11-46-1 to -23 (2002). In August 1998, the circuit court granted summary judgment in favor of Dr.

Tsang and certified that judgment as final under M.R.C.P. 54(b), and aggrieved, Watts appealed.

¶3. Subsequent to the parties' filing their briefs on appeal, this Court decided Miller v. Meeks, 762 So. 2d

302 (Miss. 2000). Both Watts and Dr. Tsang supplemented their briefs, pursuant to M.R.A.P. 28(j).

Although both continued to rely on authority previously set out in their briefs, they also took the opportunity

to apply the new test articulated in Miller to the facts of this case. After doing so, both parties concluded

that their side should still win. Watts further took this opportunity to add an additional argument, in the

alternative, that, due to our decision in Miller, this case must be reversed and remanded to the circuit court

because there existed a genuine issue of material fact making summary judgment improper.
¶4. Watts's assignments of error, edited for brevity, are:

I. WAS DR. TSANG IMMUNE UNDER THE MTCA?

II. DID THE INSURANCE POLICY WAIVE IMMUNITY TO THE EXTENT OF

COVERAGE?

III. APPLYING THE MILLER TEST, WAS THERE AN ISSUE OF MATERIAL FACT?

¶5. Concluding that UAS is an instrumentality of the State and that Dr. Tsang was at all times acting as a

state employee, we affirm the circuit court's grant of summary judgment.

FACTS

¶6. Bill Watts visited the UMMC emergency room suffering from severe back pain and other maladies. He

was later admitted to the hospital for further medical treatment. Watts's primary physician contacted Dr.

Tsang, director of UMMC's Pain Clinic, because he was unable to arrest Watts's acute pain. In order to

relieve the suffering a "selective nerve root block" procedure was attempted. Dr. Brian Tsang supervised

Dr. Stephen Long, who actually performed the procedure. They had attempted to perform the procedure

on May 18, but even under high doses of narcotics, Watts was in such severe pain he could not hold still

long enough for them to do so. They tried again the next day. Due to the level of pain Watts was

experiencing, Dr. Tsang decided it would be best to put a local anesthetic around the affected nerve in

Watts's spine and to have Dr. Long perform the procedure while Watts was under general anesthesia. The

procedure did not go as planned, and Watts was left a paraplegic.

¶7. Dr. Long was a fellow in training in the pain management program at UMMC. He had completed his

residency in anesthesiology and was training for an additional year as a fellow in pain management. Prior to

performing the procedure, Dr. Tsang discussed the nerve block with Dr. Long, both from a book and

through a skeletal model in the anesthesia library. During the procedure, Dr. Tsang was there to teach,

observe and be sure the procedure was followed correctly. There is no indication in the record that Dr.

Long is still a party defendant, but neither is there anything to indicate he has been dismissed. (As will be

discussed further in Issue III, resident physicians have been held, as a matter of law, immune under the

MTCA.)

¶8. Dr. Tsang was employed as an assistant professor of anesthesiology in the School of Medicine at

UMMC. He had completed his education at Yale University, then a pain fellowship at Stanford University.

After that he became part of the pain clinic at the University of California at Davis. He was certified in pain

management by the American Board of Anesthesiologists. In 1995, Dr. Tsang was recruited from the West

Coast to become the director of the Pain Clinic at UMMC.

¶9. Under oath, Dr. Tsang avers that at no time during his employment with the Board of Trustees of State

Institutions of Higher Learning (the Board of Trustees) has he performed any private practice outside of

UMMC. His duties as a professor include instruction of medical students, residents, and fellows; treatment

of patients at UMMC and affiliated sites; and other duties as assigned by his superiors. He claims that all

treatment he provided to Watts was done at UMMC, and that at all times he was in the course and scope

of his employment with the Board of Trustees. Further, Donald Seagrove, the Director of Human

Resources for UMMC, testified under oath that all treatment provided by Dr. Tsang to Watts was within
the course and scope of Dr. Tsang's duties as a UMMC professor.

¶10. Medicare was billed for the treatment received by Watts. A portion of that money was paid to

University Anesthesia Services (UAS), a UMMC medical practice group. UAS bills and collects for

services performed by students, residents, interns and fellows who are supervised by the anesthesiology

faculty at UMMC while performing procedures at UMMC. All of UAS's revenues are generated through

treating patients at UMMC. All faculty members of the Department of Anesthesia must belong to UAS, and

the income generated by UAS, inter alia, supplements the base salaries of these faculty members. However,

the money generated in this fashion is not paid directly from UAS to the faculty member. Instead, UAS uses

an elaborate point system whereby the department's faculty-physicians receive points for performing tasks

such as teaching, making presentations, and conducting research. Dr. John Eichhorn, Chairman of the

Department of Anesthesia at UMMC, at his deposition, explained how this point system works:

There are two fundamental parts. The first part is a monthly base, if you like, or just - - it's a monthly

compensation paid on the 15th that was discussed before his arrival, and then the second part which

is more - - certainly more complex - - I was going to say interesting - - is what we call quarterly

distribution based on a rather complex point system which includes a small element as far as clinical

service is concerned, but especially in the case of Dr. Tsang. He gets a significant number of points in

that system for, for example, submitting an abstract to a national meeting, or he gets even more points

for submitting a journal article to a scientific journal. He gets points for a grant application which is

relevant since he just got a research grant. And it's through these acknowledgments of academic

activity, such as publications, abstracts, papers, research grants, research activity, and even lectures -

- I mean, for his lecture to the medical students, okay, he got a significant number - - not a huge

number, but he got an appreciable number of points for giving that lecture to the second-year medical

students that led to compensation - - dollars flowing from University Anesthesia Services to him

because of his academic activities. In his case it would be research that would be by far the largest

component and very significant. He is far and away number one in the department as far as getting

compensation for his research activities.

¶11. Thus, while UAS did bill and collect reimbursement from Watts's Medicare insurance for the medical

services provided by the anesthesiology department of UMMC, Dr. Tsang's compensation was not

affected by whether $0, $10 or $10,000 was collected from Watts. In fact, pursuant to the point system

employed by UAS, Dr. Tsang would be compensated for a procedure he supervised whether or not the

patient were a private patient, a government paid patient (Medicare/Medicaid), or a charity patient who

pays nothing at all. In a letter dated December 6, 1994, from Dr. John Eichhorn to Dr. Tsang confirming the

UMMC faculty position offered to him, it states the following:

Our current system of compensation from the UAS practice (while unlikely, always subject to

possible revision based on faculty input) is a monthly "guarantee" check (on the 15th) and a quarterly

"productivity compensation" check (about two weeks after the end of each calender quarter), the

details of which for both we discussed extensively.

(emphasis added). Dr. Tsang's employment contract with the Board of Trustees states the following:

UNIVERSITY OF MISSISSIPPI MEDICAL CENTER CODE: UMMC - 2

(ADDITIONAL INCOME/PRO RATA SHARE OF EXPENSES)
1. In accordance with policies approved by the Board, the Employee, in addition to his/her annual

contracted salary, will be permitted to earn additional income from medical practice subject to the

following limitations:

a) The Employee shall retain 100% of earnings from medical practice up to a total income of $

_______ , effective July 1, 1992.

b) Income in excess of $ ______ will be divided 50% to the employee and 50% to the University of

Mississippi Medical Center (UMMC). Of the amount allocated to the Medical Center, 60% shall be

for the use of the department of the employee.

Income shall be defined as gross calendar year earnings from UMMC and the Department of

Veterans Affairs Medical Center up to $ ______ plus medical practice earnings.

(emphasis added).

¶12. Although the actual base salary of Dr. Tsang is not revealed in the record, during the 1998-1999

academic year the base salary for an assistant professor at UMMC was $64,000. According to the a

report from the Association of American Medical Colleges, the nationwide average compensation for an

assistant professor of anesthesiology is $161,200. UMMC's medical practice plans are used to bridge this

salary gap, thus making it possible to hire and retain highly skilled physicians to teach. The record does not

reveal how much of Dr. Tsang's total compensation was supplemented by the medical practice fees

distributed by UAS.

¶13. Originally UAS was a partnership, whose membership consisted of the faculty of the UMMC

anesthesia department. This partnership was later converted into a professional limited liability corporation

with Dr. Eichhorn, the department chair, owning 95% of the shares and a Dr. Strong owning 5%. Dr.

Eichhorn admits that no State entity has any financial ownership in UAS. However, this is illusory because

he, as the department chair, serves at the pleasure of the chancellor of the medical school. Further, pursuant

to UAS's charter, if Dr. Eichhorn were removed from his position as department chair, UAS would cease

to exist, and the new department chair would be required to incorporate a new practice group.

¶14. Even though the original partnership agreement for UAS says: "WHEREAS, the Members desire to

form a partnership for the purpose of providing anesthesia services in the private practice of medicine at

the University Hospital" (emphasis added), Dr. Tsang and others similarly situated clearly were not

involved in the "private" practice of medicine. As Dr. Eichhorn's testimony indicates, UAS exists at the

direction of the Board of Trustees and is composed of only UMMC faculty members. Dr. Eichhorn further

testified that membership in UAS was provided for in the Board's contract with Dr. Tsang, and is clearly

part and parcel of the employment system at UMMC. Further, Dr. Tsang was prohibited from practicing

anywhere else except UMMC and affiliated institutions, and "the Board controlled the entire professional

life of Tsang as teacher, administrator, researcher, and practitioner as its employee and it also controlled

UAS's existence."

¶15. The circuit court's opinion and order granting summary judgment states:

The undisputed evidence establishes that Dr. Tsang was an employee of the State through the Board

of Trustees of the State Institutions of Higher Learning and subject to the protection of the Tort
Claims Act. As this Court has found in previous cases, in construing similar issues, staff physicians

under contract with the Board of Trustees of the State Institutions of Higher Learning are expected to

teach medical students, conduct research and provide patient care. In exercising these responsibilities,

as Dr. Tsang was during the treatment of Mr. Watts, he did so as a state employee in the course and

scope of his employment. Dr. Tsang's simultaneous employment with University Anesthesia Services,

PLLC provides a method for additional compensation as authorized and directed by his contract with

the Board of Trustees of the State Institutions of Higher Learning. Further, any compensation from

University Anesthesia Services, PLLC is subject to Dr. Tsang's contract with the Board of Trustees

of the State Institutions of Higher Learning, which requires that over a certain amount, Dr. Tsang must

return fifty percent of his compensation to the University of Mississippi Medical Center.

STANDARD OF REVIEW

¶16. "A grant of summary judgment is reviewed de novo. The evidence is viewed in the light most favorable

to the non-moving party. If any triable issues of fact exist, the trial court's grant of a summary judgment will

be reversed; otherwise the decision will be affirmed." Conley v. Warren, 797 So.2d 881, 882 (Miss.

2001)(citations omitted).

DISCUSSION

I. WAS DR. TSANG IMMUNE UNDER THE MTCA?

¶17. The MTCA "provides the exclusive civil remedy against a governmental entity or its employee for acts

or omissions which give rise to a suit." L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136,

1138 (Miss. 1999); see Miss. Code Ann. § 11-46-7(1)(2002). "Any tort claim filed against a government

entity or its employee shall be brought only under the MTCA." L.W., 754 So. 2d at 1138. "The MTCA

waives sovereign immunity from claims for money damages arising out of the torts of governmental entities

and their employees." Id. Moreover, "no employee shall be held personally liable for acts or omissions

occurring within the course and scope of the employee's duties." Miss. Code Ann. § 11-46-7(2).

¶18. The MTCA makes the State responsible for the negligence of its employees at a financial level the

Legislature has determined to be reasonable. Watts has been fully compensated by the State of Mississippi

according to this program. Watts claims he is entitled to more money from Dr. Tsang because Dr. Tsang

was not an employee of the State at the time of the alleged negligence, but was instead an independent

contractor employed by UAS. This employee/independent contractor distinction is critical because, as an

employee he would enjoy the immunity afforded by the MTCA in his individual capacity, but as an

independent contractor, he would not. Pursuant to the MTCA, in its definition section, an employee is

defined as follows:

(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political

subdivision of the state, including elected or appointed officials and persons acting on behalf of the

state or a political subdivision in any official capacity, temporarily or permanently, in the service of the

state or a political subdivision whether with or without compensation. The term "employee" shall

not mean a person or other legal entity while acting in the capacity of an independent

contractor under contract to the state or a political subdivision;

Miss. Code Ann. § 11-46-1(f). In interpreting this statute, this Court has found the mandate of this
subsection unambiguous, stating: "Immunity is extended to any state employee who is not acting as an

independent contractor." Miller v. Meeks, 762 So. 2d at 305.

A. The Correctness of the Trial Court's Decision

¶19. At the heart of Watts's argument is that UAS is a private, for-profit corporation, not an instrumentality

of the State, and thus while working for UAS, Dr. Tsang was an independent contractor and not a State

employee. In order to resolve this issue, the status of UAS must be determined. Watts's characterization of

UAS as simply a private corporation created for the personal profit of physicians is incorrect and totally

misleading.

¶20. This Court has not yet affirmatively decided whether receiving income from UMMC's medical practice

plans makes the faculty-physician an independent contractor. However, the Mississippi Attorney General's

Office and the United States District Court for the Southern District of Mississippi both have. They agree

that UAS is an instrumentality of the State and that its faculty-physicians under contract with UMMC are

employees of a governmental entity.

1. The Mississippi Attorney General's Opinion

¶21. Vice Chancellor Conerly of UMMC requested a formal opinion from the Attorney General to confirm

UMMC's conclusion (or instruct it otherwise in the matter) that the faculty-physicians who are participating

in UMMC's medical practice plans are employees of the State. The Attorney General responded as

follows:

staff physicians under contract with the University of Mississippi Medical Center are employees of a

governmental entity of the State of Mississippi, and the Medical Center is responsible for affording

them a defense and paying any judgment against them or settlement for any claim arising out of an act

or omission within the course and scope of their employment, and within the limits of the Mississippi

Tort Claims Act.

Conerly, September 4, 1998, Miss. A.G. Op. #98-0500 (1998 WL 703775).

2. The United States District Court for the Southern District of Mississippi

¶22. In Kight & Butler v. United States, No. 3:98CV644WS (S.D. Miss. Sept. 30, 1999), the district

court reached a similar conclusion, in a wrongful-death suit brought by the natural parents of two children

who died from Rocky Mountain spotted fever against Dr. Sandor Feldman and others. Dr. Feldman was a

faculty-physician with UMMC who belonged to its University Pediatric Associates medical practice plan.

The district court considered both the actual terms of Dr. Feldman's contract with UMMC and his conduct

in treating patients. The district court concluded that Dr. Feldman was a State employee under the MTCA,

immune from suit in his personal capacity, and granted summary judgment in favor of Dr. Feldman. The

district court went on to state:

Whether teaching or consulting on UMC [UMMC] patients, Dr. Feldman was performing services

which were part of UMC's regular business and he was subject to the right of control by UMC

and/or the Board. Dr. Feldman also received numerous employee benefits for which he would not

have been eligible had he been an independent contractor: health, life and disability insurance, tax

sheltered annuities, cafeteria plan, state employees' retirement plan, and accrual of vacation and sick
time as provided by law for state employees.

Id. at 2.

¶23. Given the sufficient information in the record before this Court concerning details of the UMMC

departmental practice plans in general, and the UAS plan specifically, from which to determine that

receiving income from a UMMC medical practice plan does not make a physician an independent

contractor, we today so hold.

¶24. It should be remembered that the MTCA is a legislative, not judicial creation. "[T]he function of

creating a public policy is primarily one to be exercised by the Legislature and not by the courts." Miss.

Baptist Hosp. v. Holmes, 214 Miss. 906, 931, 55 So.2d 142, 152 (1951). Moreover, because the

Legislature "controls the purse," it is the Legislature that must determine the salaries of the faculty of our

state medical school. The Legislature created the state teaching hospital in order to train physicians for this

state. The statute mandates that UMMC shall establish "clinical and out patient services and all types of

services deemed to be necessary or desirable as a part of the functioning of such a teaching hospital." Miss.

Code Ann. § 37-115-25 (2001). UMMC is mandated to take all patients, whether they are able to pay or

not. The Board of Trustees, which has authority over this state's teaching hospital, has mandated an

employment plan for its faculty which includes a base salary, supplemented by money received at the

teaching hospital for clinical and outpatient services. This supplemental income is administered by UMMC's

medical practice plans.

¶25. Under the contract Dr. Tsang signed with the State of Mississippi, he must belong to one of these

medical practice plans created and administered by the State, and can work only at UMMC. Further, only

faculty at UMMC can belong to these medical practice plans.

¶26. Watts's argument that providing medical services to patients at UMMC is a private, as opposed to

State, activity is unconvincing. The Mississippi Legislature has statutorily mandated that UMMC provide

patients with medical services, with at least half of these services required to go to indigent persons or

Medicaid recipients. UAS's existence as a private corporate entity does not negate its status as a political

subdivision. Miss. Code Ann. § 11-46-1(i) states, "A 'political subdivision' means any body politic or body

corporate . . . responsible for governmental activities." Thus, UAS falls squarely within the definition of a

political subdivision because it is responsible for governmental activities.

¶27. Further, UAS is properly considered an instrumentality of the State. "State" is defined as "the State of

Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital,

college, university, airport authority, or any other instrumentality thereof . . .." Miss. Code Ann. § 11-

46-1(j) (emphasis added). UAS meets the definition of "State" because it is an instrumentality of UMMC, a

state teaching hospital.

¶28. Therefore, UAS is an instrumentality of the State, even though it is a private, for- profit corporation

that pays state taxes like other private corporations.

B. The Background, Nature, and Purpose of the Medical Practice Groups

¶29. Watts's characterization of UAS as a private corporation solely for the benefit of the physicians, so

that they can hide behind State immunity in their private practice, is disingenuous. The State created UAS,

not primarily for the benefit of the faculty-physicians, but instead, for its own benefit. The State has a
compelling interest in training doctors in this state and caring for indigent patients. The State wants to attract

the best instructors for its teaching hospital. Without subsidizing the income of its faculty through these

medical practice plans, it can not do so. When the faculty-physician is hired, the compensation arrangement

is explained. He or she receives a base salary provided from the State coffers, which is then supplemented

by patient care revenues collected at the teaching hospital. The faculty-physicians did not devise this

creative salary system, and they have no choice whether or not they want to participate in it. Watts's

argument that they have a choice not to participate in one of plans is specious at best. It would be similar to

arguing that any employee has a choice whether or not to accept part of, instead of all of his or her salary.

Without the money channeled through UAS, Dr. Tsang would not be receiving the full salary and benefits he

bargained for as a State employee.

C. The Holding of This Court

¶30. We find as a matter of law that Dr. Tsang cannot lose his status as a State employee, and the immunity

that status affords, merely by receiving a portion of his compensation through UAS. UAS is nothing more

than the State's vehicle for providing and billing for patient care at its state hospital and supplementing the

income of its faculty-physicians. If Dr. Tsang lost his faculty appointment, he would automatically lose his

hospital privileges, and his employment with UAS would automatically terminate.

¶31. That said, we are not holding that all medical practice groups are per se instrumentalities of the State.

However, where as here the medical practice group was created by UMMC, and is overseen by UMMC,

and the purpose is to supplement the income of its faculty; when the day-to-day oversight is left to the

department chair, subject to limited oversight by the vice chancellor, and its membership is composed solely

of full-time UMMC faculty-physicians; where the faculty-physicians can only practice at UMMC approved

sites, and the money is distributed on a point system based on factors other than mere patient service, we

must conclude that the medical practice group is a State entity.

¶32. We are also not holding that receiving compensation from a medical practice plan makes one an

employee of the State. Physicians who engage in private practice, separate from UMMC, cannot acquire

State immunity for their private practice by merely doing work at UMMC or receiving payment from one of

its medical practice plans.

¶33. In sum, we are deeply saddened by the unfortunate injury suffered by Mr. Watts. However, the

waiver of sovereign immunity, and up to what amount, is determined by the Legislature. The MTCA makes

the State responsible for the negligence of its employees at a financial level the Legislature has determined to

be reasonable. Watts has been fully compensated by the State of Mississippi according to this program.

We find as a matter of law that UAS, as it is currently composed and administered, is an instrumentality of

the State, and thus its faculty-physician members are not rendered subcontractors merely for receiving part

of their contracted for salary from UAS.

II. DID THE INSURANCE POLICY WAIVE IMMUNITY TO THE EXTENT OF

COVERAGE?

¶34. Watts argues that Dr. Tsang was either the employee of a private entity, UAS, and thus had no

immunity, or he was an employee of an arm of the State through UAS and thus immunity was waived by the

purchase of the liability insurance policy. Since our holding in Issue I has addressed his first contention, we

will now address his alternative.
¶35. Dr. Tsang argues that his insurance policy was purchased because of the history of changing

developments in immunity afforded by the MTCA as this Court has wrestled with interpreting its provisions.

He claims he could not afford to teach medical students, supervise procedures and treat patients without

insurance until this Court definitively rules that UMMC faculty-physicians are employees covered by the

State's immunity. The case before us proves he was prudent in doing so.

¶36. The Mississippi Legislature created the MTCA and has determined under what circumstances the

State waives its sovereign immunity. Pursuant to § 11-46-16 and § 11-46-17, the Legislature has waived

the sovereign immunity of the State, up to the limits of liability insurance purchased by the State entity.

However, this particular waiver of immunity only concerns the State entity; it does not apply to a state

employee in his or her individual capacity. The trial court in its opinion and order held:

The Court is aware that Dr. Tsang has an insurance policy that was not purchased by the University

of Mississippi Medical Center or the Board of Trustees of State Institutions of Higher Learning.

However, the Court finds that this insurance does not provide for a waiver of immunity pursuant to

Miss. Code Ann. § 11-46-16 (1972, as amended). Section 11-46-16 only waives immunity to the

extent of insurance purchased by the governmental entity. Dr. Tsang is an employee as contemplated

by the Tort Claims Act. His insurance does not waive any immunity. Furthermore, Miss. Code Ann. §

11-46-7(2) bars suit against individual defendants in their personal capacities.

¶37. After the trial court issued its opinion, this Court decided Knight v. McKee, 781 So.2d 121 (Miss.

2001). In Knight, this Court addressed this very issue, and its holding indicates that the circuit court was

right: the purchase of personal medical malpractice insurance by an employee of the State does not waive

immunity. In Knight, we said:

The fact that the two physicians have personally acquired professional liability insurance is irrelevant to

the inquiry as to whether a state employee enjoys immunity under the MTCA. In a recent case,

Maxwell v. Jackson County, 768 So.2d 900 (Miss. 2000), we held that a county did not waive its

immunity protections under the MTCA when it purchased liability insurance in excess of the limits

imposed by the MTCA. We now extend this holding to apply to state employees also. Finally, the

MTCA contains no provision allowing for the waiver of a state employee's immunity because of the

existence of professional liability insurance.

Womble, does not provide authority to revoke the immunity granted to state employees by the

MTCA. In Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 206 (Miss. 1999), we refused to

extend Womble to medical malpractice cases against state hospitals. As a natural extension to

Barnes, the Court finds that Womble does not apply to medical malpractice cases against physicians

who are employed by state hospitals.

Knight, 781 So.2d at 123. Pursuant to the precedent of this Court, purchase of medical malpractice

insurance by a faculty-physician at the UMMC does not waive immunity to the extent of coverage. This

issue is without merit.

III. APPLYING THE MILLER TEST, WAS THERE AN ISSUE OF MATERIAL FACT?

A. The Miller Test.
¶38. In Miller v. Meeks, 762 So. 2d 302 (Miss. 2000), this Court attempted to resolve a dilemma that has

plagued the courts, namely, whether faculty-physicians at UMMC were employees or independent

contractors when treating patients at the UMMC. This Court concluded that the previous test this Court

employed, from Richardson v. APAC-Miss. Inc., 631 So.2d 143, 150 (Miss. 1994), proved to be quite

troublesome in evaluating the relationship between the University and its faculty-physicians. In Miller we

adopted the following five-part test to be applied in making that determination:

1. The nature of the function performed by the employee;

2. The extent of the state's interest and involvement in the function;

3. The degree of control and direction exercised by the State over the employee;

4. Whether the act complained of involved the use of judgment and discretion;

5. Whether the physician receives compensation either directly or indirectly, from the patient for

professional services rendered.

Miller, 762 So. 2d at 310. In Miller, we reversed the grant of summary judgment in favor of the facultyphysician and remanded because there were triable issues of fact. Id. at 311. We did not decide whether

the faculty-physician was a state employee at the time of the injury, but instead, left that determination for

the trial court on remand, applying the newly adopted test. Id. In that case, the faculty-physician was not

involved in any instruction while treating the patient, and there was no discussion whether or not the patient

was covered by Medicaid, or directly or indirectly paid the doctor. Subsequent cases applying the Miller

test have failed to resolve the faculty-physician issue and have left this Court deeply divided.

¶39. The first case applying the Miller test was Sullivan v. Washington, 768 So.2d 881 (Miss. 2000),

decided only two months later. In Sullivan, the plaintiffs were able to survive summary judgment and won

a jury verdict award against the physicians. Id. at 882. On appeal, we reversed and rendered, holding that

the physicians were employees of UMMC, and thus were personally immune from liability pursuant to the

MTCA. Id. at 886. In Sullivan, we noted that the patient was covered under Medicaid and did not

choose any particular doctor. Id. at 884. This fact was important in all but the fourth prong of the Miller

test. Id. at 884-86. Another important factor was that the faculty-physician had merely supervised the

resident-physician who actually assisted in the operation. Id. This fact was similarly important in all but the

fourth prong of the Miller test. Id. Other important factors were that UMMC exercised a certain degree of

control over the two physicians, there was no private-patient relationship established, and neither physician

received payment from the patient. Id.

¶40. The next case was Smith v. Braden, 765 So.2d 546 (Miss. 2000), decided on August 24, 2000,

one week after Sullivan. Just as this Court had done in Miller, we reversed a grant of summary judgment

in favor of the physician because there might remain a triable issue of material fact. Id. at 556-57. We

concluded that the record before us made it impossible to fully and meaningfully apply the Miller test, and

we remanded with instructions that the trial court do so. Id.

¶41. Four months after Braden, this Court decided Carter v. Harkey, 774 So.2d 392 (Miss. 2000). As

this Court had done in Miller and Braden, we reversed a grant of summary judgment in favor of the

physician because there might remain triable issues of material fact. Id. at 396. We further noted that the

trial court did not have the benefit of Miller when trying to determine whether the physician was an
employee, protected under the MTCA, so on remand we instructed the trial court to reconsider its findings,

based on the Miller factors. Id. We further noted that Miller and Braden were factually distinguishable

from Sullivan in two ways. Id. First, in Miller and Braden the faculty-physicians actually performed the

surgery themselves, while in Sullivan the faculty-physician only supervised. Id. Second, in Miller and

Braden the faculty-physicians were in some way compensated for the surgery, while in Sullivan the

faculty physician received no payment from the Medicaid patient. Id. Carter further presented a slightly

different wrinkle in that the faculty-physician actually performed the surgery at Mississippi Methodist

Rehabilitation Center, which had an "affiliation agreement" with UMMC whereby UMC faculty-physicians

"may be called upon to consult and operate upon patients admitted to MMRC for the purposes of

providing medical care, teaching, and service." Id. at 394. We did not say whether this fact was important.

¶42. Next this Court decided Knight v. McKee, 781 So.2d 121 (Miss. 2001). In Knight, we affirmed the

circuit court's granting of summary judgment in favor of the faculty-physician and the resident-physician. Id.

at 122. We held that resident-physicians at UMMC "are, as a matter of law, state employees for purposes

of the MTCA." Id. (citing Owens v. Thomae, 759 So.2d 1117, 1122 (Miss. 1999); Pickens v.

Donaldson, 748 So.2d 684, 889 (Miss. 1999)). The faculty-physician was deemed to be an employee as

well because at all pertinent times he was employed by UMMC and was acting according to the terms and

conditions of his contract. Id. Further, as a full-time employee of UMMC, he had never engaged in the

practice of medicine outside the course and scope of his employment. Id. He was a supervising teacher and

trainer of residents and did not receive any compensation from any person or entity other than UMMC. Id.

Because both physicians were indisputably employees and not independent contractors, we found it

unnecessary to apply the Miller test. Id. The real issue on appeal was whether the purchase of professional

liability insurance by the physicians in excess of the limits imposed by the MTCA, waived their immunity

protection. Id. As was discussed supra in Issue II, we said it did not. Id.

¶43. Finally, Conley v. Warren, 797 So.2d 881 (Miss. 2001), was handed down last year.(1) In Conley,

this Court reversed the circuit court's granting of summary judgment in favor of the UMMC facultyphysician, as we had done in Miller, Braden, and Carter, because there were genuine fact issues as to

whether the physician was acting as a State employee or private physician at the time of the surgery. Id. at

884. We noted that summary judgment was granted in that case prior to this Court's decision in Miller. Id.

at 882. We further noted that Miller and Braden presented the same issue, namely, "whether faculty

physicians of UMMC who engage in clinical outpatient practice under the general auspices of the

University, for which they are compensated, are State employees acting within the course and scope of their

employment for purpose of the MTCA." Id. at 883. In Conley, just as in the case sub judice, the facultyphysician was the chief surgeon attending the operation, but was simultaneously teaching the residentphysician who was present. Id. at 882. We once again determined that the record was not sufficiently

developed for a full and meaningful application of the Miller factors. Id. at 883. We held that: "The trial

court is in a better position to adequately examine the facts and issues of this case since it is not limited by

the underdeveloped record which is before this Court." Id.

¶44. Analyzing the short history of Miller and its progeny, this is where we are. First, in all of these cases,

the judgment of the court was entered prior to our decision in Miller. Second, the only time this Court has

actually applied the Miller test, factor by factor, is in Sullivan. In Knight, we did not apply the Miller

test because it was inapplicable, since the faculty-physician was paid solely by the State. In Miller,

Braden, Carter, and Conley, we reversed summary judgment in favor of the faculty-physicians, finding it

premature because there might remain triable issues of material fact. Third, in Sullivan, we applied the
Miller test and concluded that the faculty-physician was a State employee. Fourth, the last time we

addressed this issue, we stated that the faculty-physician is not protected by the MTCA if he "acted as an

independent contractor in the treatment of his patient." Conley, 797 So.2d at 883. Fifth and finally, while

we have only applied the Miller factors once in a case before us, we have yet to review a circuit court's

application of the factors.

¶45. In sum, this is the current state of the law. If the record is not sufficiently developed to determine the

employment status of the faculty-physician, this Court will reverse and remand so the trial court can apply

the Miller test, unrestricted by the limited record before us on appeal. However, as in Knight, if the

faculty-physician is paid solely by the State, is at all times acting in accordance with his contract, and never

acted outside the course and scope of his employment, the faculty-physician is an employee. Or if the same

facts exist, as existed in Sullivan, the faculty-physician is an employee. In the case sub judice, we can

affirmatively hold that Dr. Tsang was at all times an employee of the State, relying either on our decision in

Sullivan or in Knight.

¶46. In Sullivan, we applied the Miller test and determined the faculty-physician was a state employee

because of the following facts: (1) the faculty-physician was only supervising, not actually performing the

operation; (2) the patient was covered by Medicaid; (3) the patient did not choose any particular doctor;

(4) there was no private-patient relationship established; (5) UMMC exercised a certain degree of control

over the faculty-physician; and (6) the faculty-physician did not receive payment from the patient.

¶47. In the case before us, Dr. Tsang was teaching and supervising Dr. Long, a fellow in training, and not

actually performing the operation. Watts was covered by Medicaid. Watts did not choose Dr. Tsang to be

his physician. There was no private-patient relationship established between Watts and Dr. Tsang. At all

time Dr. Tsang was under the control of UMMC by contract and could work only at UMMC or affiliated

sites. Dr. Tsang did not receive payment from Watts. In fact, pursuant to the point system for compensation

used for distributing patient revenues from UMMC, Dr. Tsang received a certain amount of points for

supervising the procedure. He received those points regardless of whether Watts paid in full, Medicaid

paid, or no one paid. Thus, under Sullivan, Dr. Tsang is a state employee.

¶48. In Knight, the faculty-physician was deemed to be an employee as well because at all pertinent times

he was employed by UMMC and was acting according to the terms and conditions of his contract. Further,

as a full-time employee of UMMC, he had never engaged in the practice of medicine outside the course and

scope of his employment. He was a supervising teacher and trainer of residents and did not receive any

compensation from any person or entity other than UMMC.

¶49. In the case before us, Dr. Tsang was at all pertinent times employed by UMMC and acting according

to the terms and conditions of his contract. Dr. Tsang was a full-time faculty member at UMMC and had

never engaged in the practice of medicine outside the course and scope of his employment. Dr. Tsang was

a supervising teacher and trainer of residents (interns and fellows as well) and did not receive compensation

from any person or entity other than a State entity. In Knight, we determined that the faculty-physician was

indisputably an employee; thus, the application of the Miller test was unnecessary. We here likewise

determine that Dr. Tsang was a state employee.

CONCLUSION

¶50. UAS, as it existed at the time of Watts's injury, was an instrumentality of the State. Dr. Tsang did not
waive immunity by acquiring personal liability insurance. Dr. Tsang was a state employee at all times

relevant to this action. Thus, we affirm the judgment of the Hinds County Circuit Court, First Judicial

District, granting summary judgment in favor of Dr. Tsang.

¶51. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, CARLSON AND GRAVES, JJ., CONCUR.

McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ

AND EASLEY, JJ.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶52. Bill Watts walked into the hospital to be treated for pain in his back and abdomen, only to be pushed

out in a wheelchair as a complete paraplegic. His life is devastated, his family is devastated, and now he is

stripped of his right of recovery because the majority says that insurance does not waive immunity, and

more importantly, that an employee, who works for a private corporation that is an independent contractor

with insurance, and who is allowed to work in a hospital, gets total immunity. This is contrary to our

previous decisions, and accordingly, I respectfully dissent.

¶53. I disagree with the majority that UAS is a state entity. UAS is a private entity of which Dr. Tsang was

an employee. With our previous decisions of Sullivan v. Washington, 768 So.2d 881 (Miss. 2000);

Miller v. Meeks, 762 So.2d 302 (Miss. 2000); Pickens v. Donaldson; 748 So.2d 684 (Miss. 1999);

Owens v. Thomae, 759 So.2d 1117 (Miss. 1999), it still adds up that, just as in Womble v. Singing

River Hosp., 618 So.2d 1252 (Miss. 1993) (albeit a pre-Tort Claims Act case), the employer who is an

independent contractor and a private corporation, is responsible for the torts committed by its employee,

and therefore, there is no immunity. Id. Miss. Code Ann. § 11-46-1(f) states that "[t]he term 'employee'

shall not mean a person or other legal entity while acting in the capacity of an independent contractor under

contract to the state or a political subdivision. . ." Miss. Code Ann § 11-46-1(f) (2002). UAS is a private

corporation, in which neither the State of Mississippi nor UMMC have ownership interest. UAS is

employed by UMMC as an independent contractor. When Dr. Tsang treated Watts, he was the employee

of UAS primarily, and UMMC secondarily. Watts did not have to proceed under the MTCA; clearly, there

is no immunity.

¶54. In light of the four cases previously mentioned and the five-part test to determine employment status

under a summary judgment, this case still boils down to the fact that Dr. Tsang was an employee of UAS

and not UMMC at the time he treated Watts. There should not be total and absolute immunity from any and

all negligence in this case. Although he did share his duties and he did teach, Dr. Tsang can be excluded

under Miss. Code Ann. § 11-46-1(f) as an independent contractor. The facts of this case are the same as

Womble in which we stated that if one is an independent contractor then he does not have immunity.

Womble, 618 So.2d at 1262. While it is true that patients come through the hospital and UMMC may

have control over the doctors to some extent, such as which patients they will see, the hospital does not

control Dr. Tsang's decisions on how to treat a patient. Further, the hospital does not control the

corporation, UAS, or how it handles its employees. Even more indicative of its status as an independent

contractor is the fact that UAS provided insurance coverage for Dr. Tsang, seemingly under a general

provision for UAS employees as well as individually, and collected and paid to the state and federal

government taxes for its employees as well as itself. In light of these facts, it is clear that Dr. Tsang was an

employee of UAS, an independent contractor, when he treated Watts.
¶55. The majority attempts to discount the applicability of Womble to the case sub judice in its statement

that "the purchase of personal medical malpractice insurance by an employee of the State does not waive

immunity." Knight v. McKee, 781 So.2d 121 (Miss. 2001) (emphasis added). As this discussion indicates,

Dr. Tsang was acting as an employee of UAS, not the State, when treating Watts, and therefore Knight

does not apply. (For further discussion on the issue, see id. at 123 (McRae, P.J., dissenting)).

¶56. At the least, there was a joint venture between UAS and UMMC. The contract between UMMC and

UAS, or even the contract between UAS and Dr. Tsang himself, clearly indicate that this is a case that

should be outside the Tort Claims Act. When money is collected outside of an entity, whether they call it a

medical practice group or whatever, it is still an entity; it still pays taxes as if it is a private entity. Public

entities do not pay taxes. The majority overlooks the fact that UAS is a private entity and that Dr. Tsang

received W-2 forms from UAS on an annual basis, and UAS withheld FICA and state income tax, as well

as federal income taxes from Dr. Tsang's paychecks. With this in mind, is the State of Mississippi charging

state income tax to a "public entity" or "private entity"? The State can only charge state income tax to a

private entity.

¶57. The statute is clear as to immunity in this case. There is none. See Miss. Code Ann. § 11-46-1(f). As I

have opined in the past in cases of this nature, I would reverse the total immunity that the majority and the

trial court have now given Dr. Tsang in his treatment of patients, as well as the individual immunity since Dr.

Tsang had a personal liability insurance policy, even if immunity did apply. For the majority to say it is not

applicable is disingenuous. For these reasons, I dissent.

DIAZ AND EASLEY, JJ., JOIN THIS OPINION.

1. This Court recently handed down Bennett v. Madakasira, 821 So.2d 794 (Miss. 2002) on March 21,

2002. As in Miller, Braden, Carter, and Conley, we reversed the grant of summary judgment in favor of

the faculty-physicians because there remained a material issue as to the faculty-physician's employment

status and remanded for further proceedings. Although the Court of Appeals applied the Miller test in

Gilchrist v. Veach, 807 So.2d 485 (Miss. Ct. App. 2002), that case did not present the same issue that is

currently before us.