SW Legal studies in Business

State Employees Immune from Liability for Torts Committed During Employment
Description Mississippi high court held that under state statute, state employees are immune from personal liability for tort claims based on negligent acts committed in the course of their employment. A professor of medicine at a state medical school could not be sued for malpractice, but the state could be.
Topic Employment Law
Key Words State Employees; Independent Contractor; Torts; Malpractice
C A S E   S U M M A R Y
Facts Clayton suffered from back problems. At the recommendation of surgeons at the University of Mississippi Medical Center, UMMC, she had back surgery performed by Dr. Harkey, a member of the faculty at UMMC. He operated on the wrong disc in her back, which, she contends, caused damage to her spine. She sued UMMC and Harkey for negligence. The trial court dismissed the suit against Harkey, holding that he is an employee of UMMC and so not personally liable. Clayton appealed, contending that Harkey was an independent contractor who could be liable.

Affirmed. To determine whether a faculty physician at UMMC is an employee or an independent contractor for purposes of immunity under the Mississippi Tort Claims Act, which provides that no state employee shall be held personally liable for negligent acts done in the scope of employment, the court considers several factors. The factors are: "(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; and (5) whether the physician received compensation, either directly or indirectly, from the patient for professional services rendered." Harkey was clearly acting in his capacity as a professor of medicine, and was paid by the state, not the patient. Consequently, he is immune from tort liability.

Citation Clayton v. Harkey, --- So.2d --- (2002 WL 31124034, Sup. Ct., Miss., 2002)

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