IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 11, 2021 Session

BRAYLON W. ET AL. v. ARMIE WALKER M.D. ET AL.

Appeal from the Circuit Court for Madison County

No. C-15-277 Kyle C. Atkins, Judge

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No. W2020-00692-COA-R3-CV

___________________________________

This appeal stems from a dismissal pursuant to Tennessee’s Governmental Tort Liability 

Act. Suit was filed against Appellant’s treating physician, among other defendants, for 

health care liability involving Appellant’s birth. The trial court ultimately granted 

summary judgment in favor of the physician, finding that, because the physician was an 

employee of a governmental entity at the time of the incident, Appellant was required by 

statute to name the physician’s employing governmental entity as a party defendant. 

Because Appellant failed to do so, the lawsuit against the treating physician could not 

proceed. Appellant now appeals the trial court’s grant of summary judgment. Discerning 

no error, we affirm the trial court’s dismissal. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and 

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.

Joe Bednarz, Sr., and Joe Bednarz, Jr., Hendersonville, Tennessee, for the appellant, 

Beverly W.1

Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the appellee, Armie W. 

Walker, M.D.

OPINION

 

1 Although the claims of Braylon W. (the minor child at issue) were filed by and through his 

guardian and grandmother, Beverly W., we will refer to Braylon as the Appellant within the body of this 

Opinion.

07/15/2021
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BACKGROUND AND PROCEDURAL HISTORY

At issue in this case are facts concerning a treating physician’s employment status 

at the time of the labor and delivery of Braylon W. at Jackson-Madison County General 

Hospital. In June 2012, Dr. Armie Walker performed Joshlin W.’s cesarean section, 

delivering Braylon. According to a Physician Employment Agreement, Dr. Walker 

practiced medicine as an obstetrician/gynecologist and worked for West Tennessee 

Medical Group, Inc. (“WTMG”) at the time of the events giving rise to this case. WTMG 

is a “wholly owned subsidiary of Jackson-Madison County General Hospital District” and 

is also a governmental entity as defined by the Tennessee Governmental Tort Liability Act 

(“GTLA”). 

A complaint for health care liability was later filed on behalf of Ms. W. and Braylon 

against numerous parties, including Dr. Walker. Notably, WTMG was not named as a 

defendant in this complaint. As the present appeal concerns only Braylon’s (“Appellant”) 

claims against Dr. Walker, we restrict our discussion accordingly. 

Dr. Walker filed an answer to the complaint, contending, among other things, that 

she was an employee of WTMG at the time of the alleged medical negligence. Dr. 

Walker’s contention that she was an employee of WTMG is of particular significance to 

her defense in this case. As she argued in a subsequently-filed motion for summary 

judgment, because she was an employee of WTMG, the GTLA requires that WTMG also 

be named a party to the lawsuit. See Tenn. Code Ann. § 29-20-310(b) (providing that no 

claim may be brought against an employee of a governmental entity unless the 

“governmental entity is also made a party defendant to the action”). In response to Dr. 

Walker’s motion for summary judgment, Appellant argued that Dr. Walker did not meet 

the statutory definitional requirements of an “employee” because she exercised 

independent medical judgment and purportedly did not receive the same benefits as other 

WTMG employees. See Tenn. Code Ann. § 29-20-107(a)(3)–(4). 

On February 12, 2020, the trial court granted Dr. Walker’s motion for summary 

judgment in part, determining that she became an employee of WTMG on June 4, 2012. 

As such, the trial court determined that Dr. Walker was immune from any suit regarding 

purported medical negligence rendered on or after that date given Appellant’s failure to 

name WTMG as a defendant.2 

Appellant now appeals, arguing that the trial court erred in granting Dr. Walker’s 

motion for summary judgment. Specifically, Appellant contends that the trial court 

erroneously found Dr. Walker to be a governmental employee such that she may be 

 

2

In a separate order, dated April 9, 2020, the trial court granted Dr. Walker summary judgment as 

to the remaining claims against her. In so doing, it also ruled that both the April 9th order and the February 

12th order were final judgments pursuant to Tennessee Rule of Civil Procedure 54.02.
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afforded immunity under the GTLA. 

ISSUE PRESENTED

The primary issue in this appeal is whether the trial court erred in granting summary 

judgment in favor of Dr. Walker.3

STANDARD OF REVIEW

We review a trial court’s grant of summary judgment de novo, with no presumption 

of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 

(Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). 

DISCUSSION

Pursuant to the doctrine of sovereign immunity, “the State of Tennessee is immune 

from lawsuits ‘except as it consents to be sued.’” Smith v. Tenn. Nat’l Guard, 551 S.W.3d 

702, 708 (Tenn. 2018) (quoting Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000)). Passed 

by our General Assembly in 1973, the GTLA works to retain “the viability of sovereign 

immunity” but removes the tort liability exemption in limited circumstances for state and 

local governments. Hughes v. Metro. Gov’t of Nashville & Davidson Cty., 340 S.W.3d 352, 

360 (Tenn. 2011) (citing Kirby v. Macon Cty., 892 S.W.2d 403, 406 (Tenn. 1994)). As this 

limited waiver of immunity provided for in the GTLA is in derogation of the common law, 

it must be “strictly construed and confined to [its] express terms.” Doyle v. Frost, 49 

S.W.3d 853, 858 (Tenn. 2001) (quoting Ezell v. Cockrell, 902 S.W.3d 394, 399 (Tenn. 

 

3 Appellant raises two additional issues: 1) whether the trial court erred in granting a motion to 

quash notice of a deposition of the defendants involved in this case and 2) whether the trial court erred in 

granting a motion to dismiss Appellant’s claim for pre-majority medical expenses. In an order dated March 

22, 2021, this Court dismissed Appellant’s issues as they pertained to all other defendants not a party to 

this appeal, noting that, “[t]o the extent the Appellant attempts to appeal a non-final ruling on any claim 

against any of the moving [defendants], such claim on appeal is improper.” Again, as we noted earlier, this 

appeal addresses only issues concerning Dr. Walker. Therefore, our review of these two additional issues 

is limited to the extent that they pertain to Dr. Walker.

In relation to the issue regarding the motion to quash deposition, Appellant argues that additional 

information is required from Dr. Walker concerning Appellant’s injuries and their causation. However, we 

conclude that the information Appellant seeks through additional discovery has no bearing on Dr. Walker’s 

defense pursuant to section 29-20-310(b) concerning her status as an employee of WTMG. Because we 

find that Dr. Walker is an employee of WTMG, as we will discuss below, this disposition pretermits the 

matter of whether Appellant should have been permitted to seek additional discovery regarding Appellant’s 

injuries and their causation. Additionally, given our determination that the action against Dr. Walker cannot 

proceed because Appellant failed to name WTMG as a party defendant to the action, Appellant’s issue 

concerning the trial court’s dismissal of Appellant’s claim for pre-majority medical expenses against Dr. 

Walker is similarly pretermitted. 
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1995)). The GTLA specifically provides for this, stating that “[w]hen immunity is removed 

by this chapter any claim for damages must be brought in strict compliance with the terms 

of this chapter.” Tenn. Code Ann. § 29-20-201(c) (emphasis added). 

One of the enumerated exceptions to the GTLA’s immunity includes “[injuries] 

proximately caused by a negligent act or omission of any employee within the scope of his 

employment.”4 Tenn. Code Ann. § 29-20-205. A health care liability action against a 

governmental entity falls within this exception. Clary v. Miller, 546 S.W.3d 101, 107 

(Tenn. Ct. App. 2017) (citing Cunningham v. Williamson Cty. Hosp. Dist., 405 S.W.3d 41, 

42–43 (Tenn. 2013)). Typically, “even where governmental immunity is removed by 

statute, governmental employees are generally immune from liability.” Mooney v. Sneed, 

30 S.W.3d 304, 306 (Tenn. 2000). Although the GTLA eliminates individual liability 

immunity for governmental employees who are “health care practitioner[s],” there still 

exists a requirement that a “health care practitioner” cannot be named individually unless 

his or her governmental employer “is also made a party defendant to the action.” Tenn. 

Code Ann. § 29-20-310(b). In its entirety, Tennessee Code Annotated section 29-20-

310(b) provides that:

No claim may be brought against an employee or judgment entered against 

an employee for damages for which the immunity of the governmental entity 

is removed by this chapter unless the claim is one for health care liability 

brought against a health care practitioner. No claim for health care liability 

may be brought against a health care practitioner or judgment entered against 

a health care practitioner for damages for which the governmental entity is 

liable under this chapter, unless the amount of damages sought or judgment 

entered exceeds the minimum limits set out in § 29-20-403 or the amount of 

insurance coverage actually carried by the governmental entity, whichever is 

greater, and the governmental entity is also made a party defendant to 

the action. As used in this subsection (b), “health care practitioner” means 

physicians licensed under title 63, chapter 6, and nurses licensed under title 

63, chapter 7.

(emphasis added) 

Our Supreme Court affirmed this statutory requirement in Doyle v. Frost, noting 

that “[t]he Tennessee Governmental Tort Liability Act provides that in order to maintain a 

medical malpractice action against a health care practitioner who is employed by a 

governmental entity, that entity must be named as a defendant.” Doyle, 49 S.W.3d at 855 

n.3 (citing Tenn. Code Ann. § 29-20-310(b) (1999)). Thus, pursuant to the GTLA, in order 

for a plaintiff to properly sue a “health care practitioner” employed by a governmental 

 

4 There are exceptions to this as well, none of which are relevant to our discussion in this Opinion. 

See Tenn. Code Ann. § 29-20-205(1)–(9). 
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entity, he or she must also make the governmental entity a party defendant in the complaint. 

Tenn. Code Ann. § 29-20-310(b). 

In the proceedings below, the trial court granted summary judgment to Dr. Walker, 

finding that she was an “employee” for the purposes of the GTLA. In reviewing whether 

this determination was proper, we are to be guided by Tennessee Code Annotated section 

29-20-107, which defines government employees for tort liability purposes. In pertinent 

part, we note that section 29-20-107 states:

(a) Any person who is not an elected or appointed official or member of a board, 

agency or commission shall not be considered an employee of a 

governmental entity for purposes of this chapter unless the court specifically 

finds that all of the following elements exist: 

. . . .

(3) The person receives the same benefits as all other employees of 

the governmental entity in question including retirement benefits and 

the eligibility to participate in insurance programs; 

(4) The person acts under the control and direction of the 

governmental entity not only as to the result to be accomplished but 

as to the means and details by which the result is accomplished[.]

Tenn. Code Ann. § 29-20-107(a)(3)–(4). 

On appeal, Appellant contends that Dr. Walker was not an employee of WTMG 

under these particular criteria because 1) WTMG did not exert “control and direction” over 

Dr. Walker as required by the statute; and 2) Dr. Walker does not “receive the same benefits 

as all other employees.”5 See id. We will address each of these arguments separately.

Whether Dr. Walker Acted Under the “Control and Direction” of WTMG

First, Appellant contends that Dr. Walker was not an employee of WTMG for the 

purposes of the GTLA because WTMG did not “exercise complete control over Dr. 

Walker.” In support of this, Appellant relies on both the affidavit of Charleyn Reviere, the 

Director of Legal Operations for the Jackson-Madison County General Hospital District, 

and Dr. Walker’s employment contract with WTMG. According to Ms. Reviere’s 

affidavit: 

 

5 Although the trial court specifically stated that the “elements set forth in Section 29-20-107(a) 

are satisfied,” Appellant did not raise any arguments pertaining to the other employee requirements under 

the GTLA in section 29-20-107(a). 
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[WTMG] delegates the medical management, and administrative services to 

Dr. Walker that she performs as part of her employment. [WTMG] controls 

Dr. Walker’s schedule under which she sees patients at West Tennessee 

OB/GYN Clinic. [WTMG] also controls the times she provides call coverage 

for patients of Jackson-Madison County General Hospital. 

Based on this excerpt, Appellant argues that, because WTMG “delegate[d] medical 

management and administrative services to Dr. Walker,” it did not exert “complete control 

and direction” over Dr. Walker as contemplated by the GTLA. In further support of this 

argument, Appellant also cites Dr. Walker’s employment contract, which states, in 

pertinent part: 

1.3 Nothing in this Agreement shall be interpreted to dictate Physician’s 

practice of medicine, Physician’s delivery of direct patient care, or 

Physician’s independent judgment in the practice of medicine. Physician 

shall have complete control over the diagnosis and treatment of patients 

assigned to Physician and the performance of professional medical 

services. Neither the board of directors of Employer or Hospital nor any nonphysician employee of Employer or Hospital shall exercise any direct 

supervision or control over the individual treatment of patients by Physicians. 

(emphasis added) In essence, Appellant argues that because Dr. Walker had complete 

control over the diagnosis and treatment of her patients, she cannot be considered an 

employee of WTMG for the purposes of the GTLA. 

In addressing Appellant’s argument, we first note Tennessee Code Annotated 

section 68-11-205(f)(1), which states, in pertinent part: 

Notwithstanding this section or any other law, nothing shall prohibit an 

employing entity from employing a physician; provided, however, that the 

employment relationship between the physician and the employing entity is 

evidenced by a written contract, job description or documentation,

containing language which does not restrict the physician from 

exercising independent medical judgment in diagnosing, referring or 

treating patients.

Tenn. Code Ann. § 68-11-205(f)(1) (emphasis added). Based upon a plain reading of 

section 68-11-205(f)(1), it is clear that a physician-employee contract must contain 

language which reserves the practicing physician’s ability to exercise their independent 

medical judgment as part of their employment. As such, we do not find that the language 

contained in Dr. Walker’s contract is dispositive of Appellant’s contention. Moreover, we 

note that if we were to adopt Appellant’s requested interpretation, it would be difficult, if 

not impossible, for any physician to be considered to be employed by a governmental entity 
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due to section 68-11-205(f)(1)’s requirement. Such a result would clearly contravene the 

GTLA’s intent as it expressly states that “health care practitioners” may constitute 

employees of governmental entities. Tenn. Code Ann. § 29-20-310(b). Therefore, we 

decline to accept Appellant’s argument in this regard.

Furthermore, we also note that Appellant’s contention that “[WTMG] certainly does 

not exercise complete control over Dr. Walker if they ‘delegate medical management and 

administrative services to Dr. Walker’” misconstrues the plain language of section 29-20-

107(a)(4). Nowhere in the statute does there appear a requirement that WTMG, or any 

governmental entity, exert complete control over an employee. Instead, section 29-20-

107(a)(4) merely requires that “[t]he person acts under the control and direction of the 

governmental entity.” Tenn. Code Ann. § 29-20-107(a)(4) (emphasis added). Aside from 

the fact that Appellant’s argument inserts a standard that is not present in the requirements 

set forth by the GTLA, the purported standard of “complete control” presents practical 

difficulties. Indeed, this interpretation would likely render it near impossible for any health

care practitioner to be considered employed under the GTLA. Of course, as we have noted, 

the GTLA merely requires that an individual “act[] under the control and direction of the 

governmental entity not only as to the result to be accomplished but as to the means and 

details by which the result is accomplished.” Tenn. Code Ann. § 29-20-107(a)(4).6 

Appellant asserts that, in the underlying matter, there was no “control and direction of the 

‘means and details by which the result is accomplished.’” However, contrary to this 

argument, the record on appeal offers substantial support that Dr. Walker acted under the 

control and direction of WTMG for the purposes of achieving a result to be accomplished 

and the means and details by which it is to be accomplished. First, we note that WTMG 

does in fact dictate several facets of Dr. Walker’s employment. Specifically, Dr. Walker’s 

employment contract mandates her acquiescence to certain duties and covenants set forth 

by WTMG. Furthermore, WTMG also controls Dr. Walker’s schedule and what patients 

she sees as part of her practice. Thus, Appellant’s contention that WTMG exhibited “very 

little, if any” control over Dr. Walker is without merit. 

In light of the above, we reject Appellant’s contention that Dr. Walker is not an 

employee because WTMG does not dictate every facet of her employment. It matters not 

whether WTMG controls every facet of Dr. Walker’s employment. Rather, we find that, 

based on the evidence in the record, Dr. Walker was subject to the various duties and 

covenants imposed on her by WTMG and that WTMG exhibited sufficient control over 

Dr. Walker’s employment such that she may be considered an employee under section 29-

20-107(a)(4)

 

6

Indeed, typically when determining whether an individual is an employee, the question is centered 

on whether the right to control existed, rather than whether it was actually exercised. See Jones v. Crenshaw, 

645 S.W.2d 238, 240–41 (Tenn. 1983) (citing Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 860 

(Tenn. 1976)). Thus, we conclude that an individual may be considered an employee without the employing 

entity exhibiting complete control over the employee and their duties.
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Whether Dr. Walker Received the “Same Benefits” As All Other WTMG 

Employees 

Appellant also contends that Dr. Walker was not an employee of WTMG because, 

pursuant to a provision in her employment contract, “she does not receive the same benefits 

as all other employees.” In support of this argument, Appellant relies on Dr. Walker’s 

employment contract wherein it states: 

6. Benefits. Benefits are, as are all employment practices, administered in 

accordance with Employer’s policies and are subject to change from time to 

time at the sole discretion of Employer. 

a. General Benefits. Physician shall be entitled to benefits at the 

regular benefit level under the employee benefit plans of the 

Employer as in effect from time to time, with the following exception: 

Paid Earned Time (PET) and PET Sick time will be excluded from 

the benefit package and will not accrue. The plan documents for each 

such plan shall govern the eligibility of the Physician and the extent, 

if any, of the benefits that would be available to the Physician 

thereunder, and are subject to modification from time to time. Nothing 

in this agreement shall be deemed to modify any such plan document 

or to create any right in the Physician to any employee benefit other 

than in accordance with such plan documents as in effect from time to 

time. Certain components of this benefit package may be taxable, and, 

if so, Employer is required by law to withhold applicable taxes on 

such benefits. 

Relying on this provision, Appellant then cites to section 29-20-107(a)(3), stating that, for 

the purposes of the GTLA, an employee shall “receive[] the same benefits as all other 

employees of the governmental entity in question including retirement benefits and the 

eligibility to participate in insurance programs.” Tenn. Code Ann. § 29-20-107(a)(3). 

Appellant asserts that “[t]he statute does not say that the person receives essentially the 

same benefits as all other employees, it says that the person receives the same benefits as 

all other employees.” (emphasis in the original) Therefore, Appellant argues, because Dr. 

Walker does not accrue paid earned time, she cannot be considered an employee under the 

GTLA. However, we again find Appellant’s argument to be without merit. 

Although we understand that section 29-20-107(a)(3) denotes that the benefits must 

be “the same,” including “retirement benefits and eligibility to participate in insurance 

programs,” we interpret this requirement to denote that the benefits themselves must be the 

same, rather than the manner in which they accrue. Thus, pursuant to section 29-20-

107(a)(3), all employees must have access to the same benefits, meaning they must all be 
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afforded time off, retirement benefits, and insurance if any are. Based upon our review of 

the information available in the record on appeal, we find that Dr. Walker did indeed 

receive the same benefits as all other WTMG employees. In support of this, we note Ms. 

Reviere’s affidavit wherein she states that Dr. Walker “receives the same benefits as all 

other employees of [WTMG] that are at the same benefit level, including retirement 

benefits and the eligibility to participate in insurance programs.” Moreover, testimony 

from Darrell King, a WTMG executive, provided that “personal time or sick time” was 

“available in some form to all [WTMG] employees.” As such, we find Appellant’s 

contention that Dr. Walker does not receive the “same benefits” as other WTMG 

employees to be unsupported by the record. We are not concerned with the notion that Dr. 

Walker’s benefits may accrue or be available to her in a different manner than other 

employees, rather, the dispositive question is whether she is afforded the same benefits as 

the other employees. Moreover, we note that, based on the nature of Dr. Walker’s work as 

a physician, it would be essentially impossible for her to accrue her time off benefits in a 

similar manner as other employees who are non-physicians due to the fact of her irregular 

hours and requirement to be on call. As we understand it, Dr. Walker is entitled to receive 

leave time and sick time, the same as all other WTMG employees. We find that Dr. Walker 

does in fact receive the same benefits as other employees. Therefore, we conclude that Dr. 

Walker’s employment satisfies section 29-20-107(a)(3) of the GTLA. 

In light of the above, we find no error in the trial court’s conclusion that Dr. Walker 

is an employee of WTMG. Moreover, because Appellant failed to include WTMG as a 

party defendant to his lawsuit, the trial court’s dismissal of Appellant’s claims against Dr. 

Walker was not in error. See Tenn. Code Ann. § 29-20-310(b). 

CONCLUSION

Based on the foregoing, we affirm the trial court’s grant of summary judgment to 

Dr. Walker. 

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE