KELLY SCHRIVER v. NORTH FULTON EMERGENCY PHYSICIANS, LLC

• Court: Court of Appeals of Georgia
• Decided: October 21, 2025
• Docket: A25A0867
• Status: Published

Opinion

SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

October 21, 2025

In the Court of Appeals of Georgia A25A0867. SCHRIVER et al v. NORTH FULTON EMERGENCY PHYSICIANS, LLC.

RICKMAN, Presiding Judge.

Brian Schriver was treated by a doctor in a hospital emergency room and died

approximately 24 hours later. Schriver’s wife filed suit against, inter alia, North

Fulton Emergency Physicians (“NFEP”), which had supplied the emergency room

doctor.1 NFEP filed a motion for summary judgment on the ground that it cannot be

held vicariously liable for the actions of the doctor because she was an independent

contractor. The trial court granted NFEP’s motion for summary judgment and

Schriver’s wife appeals. On appeal, Schriver’s wife contends that the trial court erred

1 Schriver’s wife also filed suit against multiple other parties, including the doctor who treated her husband. NFEP is the only party subject to this appeal. by granting summary judgment when genuine issues of material fact exist, making

findings of fact and assigning weight to such facts at the summary judgment phase,

and finding that there was a presumption that the doctor was an independent

contractor based on the contract between the doctor and NFEP.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Pendley v. Southern Regional Health System, 307

Ga. App. 82, 82 (704 SE2d 198) (2010).

As background, the expert affidavit from Schriver’s wife indicated that on the

evening of June 3, 2018, 43-year-old Schriver drove to the Wellstar North Fulton

Hospital Emergency Department. Schriver complained of chest pain that began two

days prior while he was exercising. Schriver explained that the pain had continued

over the following two days and, at times, the pain was constant. While in the

emergency room, Schriver was given aspirin and a “GI cocktail.” The emergency

room doctor who saw Schriver ultimately discharged him approximately two hours

2 after his arrival with a prescription for an acid-reducing medication. The following

evening, Schriver collapsed while watching television at home with his family.

Schriver’s wife called 911, he was taken back to the same hospital, and, despite

resuscitative measures, was pronounced dead approximately 24 hours after leaving the

hospital the night before. The medical examiner conducted an autopsy and concluded

that Schriver’s cause of death was atherosclerotic coronary artery disease.

Schriver’s wife filed suit against, inter alia, NFEP claiming that it was

vicariously liable for the action of the doctor who treated and discharged Schriver the

night before he died. NFEP moved for summary judgment, arguing that it could not

be held liable for the doctor’s actions because she was an independent contractor and

not an employee. The trial court granted NFEP’s motion in a detailed order. This

appeal follows.

1. Schriver’s wife contends that the trial court erred by granting summary

judgment when genuine issues of material fact exist, and by making findings of fact

and assigning weight to such facts at the summary judgment phase.

In Georgia, when considering whether a staffing company, like NFEP, can be

vicariously liable for the actions of a physician, “[w]e determine whether a person is

3 an employee or an independent contractor by examining whether the employer has

assumed the right to control the time, manner, and method of executing the

work.”Williamson v. Coastal Physician Svcs. of the Southeast, 251 Ga. App. 667, 668

(554 SE2d 739) (2001). “The right to control the time means the employer has

assumed the right to control the person’s actual hours of work.” Id. “The right to

control the manner and method means the employer has assumed the right to tell the

person how to perform all details of the job, including the tools he should use and the

procedures he should follow.” Id.

The analysis is different when considering whether a physician is an employee

or an independent contractor of a hospital. That analysis is currently controlled by

statute. OCGA § 51-2-5.1 (f) and (g) provide that the language of the contract between

the hospital and physician controls and, where a contract is absent, unclear or

ambiguous, several factors are outlined to determine if a physician is an employee of

a hospital.2 By its plain language, OCGA § 51-2-5.1 only applies in the hospital-health

care professional context. See OCGA § 51-2-5.1 (b). Prior to the adoption of that

statute, this Court in Lee v. Satilla Health Svcs., 220 Ga. App. 885 (470 SE2d 461)

4 (1996), outlined a series of factors to help make that determination. In Cooper v.

Binion, 266 Ga. App. 709 (598 SE2d 6) (2004), this Court applied the factors set forth

in Lee, along with other factors, to again determine whether a physician was an

employee in the hospital-physician context.3

Lee and Cooper were superseded by OCGA § 51-2-5.1 (f) and (g). See Blackmon

v. Tenet Healthsystem Spalding, 288 Ga. App. 137, 139 (1) n. 7 (653 SE2d 333) (2007),

vacated in part on other grounds by Blackmon v. Tenet Healthsystem Spaulding, 294 Ga.

App. 423 (669 SE2d 237) (2008) (“We note that in 2005, the Georgia legislature

enacted OCGA § 51–2–5.1 (f) and (g), which effectively superseded Lee and Cooper

by allowing the language of the contract to control and, where a contract was absent,

unclear or ambiguous, by announcing new factors and by eliminating many of the old

11 factors in making this determination.”). Schriver’s wife, however, relied on the Lee

and Cooper factors in the trial court and this Court to claim that issues of material fact

3 The factors were: the right to direct the physician’s work step-by-step; contracts to perform a service rather than accomplish a task; the right of the hospital to inspect the physician’s work; the supplier of the equipment; the nature or skill of the physician’s work; the hospital’s right to control the physician’s time; the method of payment; right to choose which patients to treat; physician spends all working hours at the hospital; the method of billing the patients; and payments for medical malpractice insurance. Cooper, 266 Ga. App. at 710-713 (1). 5 exist as to whether NFEP was liable for the doctor’s actions. Prior to granting

summary judgment in favor of NFEP, the trial court throughly discussed each Lee and

Cooper factor as part of its determination that the doctor was an independent

contractor rather than an employee of NFEP. While we find that the Lee and Cooper

factors do not control the analysis as to whether NFEP was vicariously liable for the

doctor’s actions because those cases have been superceded by statute, we are

reminded that “if it is not apparent that the trial court relied on an erroneous legal

theory, its grant of summary judgment is to be affirmed if it is right for any reason.”

(Citation and punctuation omitted) City of Gainesville v. Dodd, 275 Ga. 834, 835 (573

SE2d 369) (2002).

The contract between the doctor and NFEP is titled “Physician Independent

Contractor Agreement.” That contract expressly provides that

this Agreement constitutes an independent contractor relationship between [NFEP] and [the doctor]. [NFEP does not control [the doctor’s] time, method, and/or manner of his/her treatment of patients. [The doctor] is an independent contractor with [NFEP]. [The doctor] is not an employee of [NFEP]

6 Because the contract clearly states that the doctor is an independent contractor, that

relationship is presumed to be true unless the evidence shows that NFEP has assumed

the right to control the time, manner, and method of executing the work. See Miller

v. Polk, 363 Ga. App. 771, 775-776 (1) (872 SE2d 754) (2022) (“Where, as here, “the

contract of employment clearly denominates the other party as an independent

contractor, that relationship is presumed to be true unless the evidence shows that the

employer assumed the right to control the time, manner and method of executing the

work.”) (citation and punctuation omitted.).

In regards to the right of NFEP to control the doctor’s time, manner, and

method of executing her work, the contract provides that,

[i]t is further understood that [NFEP] shall neither have, nor exercise any control or direction over, the methods by which the [doctor] agrees to perform the [doctor’s] said work and professional functions. [NFEP] shall neither have, nor set standards for the duration or time under which [the doctor] performs [the doctor]’s work and professional functions.

A corporate representative for NFEP deposed that NFEP does not “dictate in

any way how the doctors exercise the privileges of their medical license.” The

corporate representative further deposed that “under no circumstances does [NFEP]

7 claim the right or exercise a right to control the physician’s independent medical

judgment about how a particular patient is treated.” The doctor deposed that she

agreed to work six to eight shifts a month at the hospital. The contract provided that,

“if needed, [the doctor] may be requested to work as many as two shifts per month

more than the [doctor’s] requested number of shifts.” NFEP’s corporate

representative described the scheduling process as “the doctors could create the

schedule by submitting their available dates or their blackout dates when they’re not

available. . . . Some software fill[s] the schedule, and if they have unfilled shifts it’s

[the medical director]’s responsibility to try to encourage the physicians to work it out

. . . [or] he’s got to work it or else they have to hire . . . a locum tenens physician.”

This case is very similar to the facts of Williamson. In Williamson, a physician

entered into an “Independent Contractor (Physician) Agreement” with a staffing

company which provided the physician to a hospital’s emergency room. Willamson,

251 Ga. App. at 669. In Williamson, the contract at issue specifically provided that the

physician “shall notify” the staffing company “of the days and hours that he is

available to work in the emergency room,” and that the staffing company “will

schedule him to work based on his notification of availability.” Id. Additionally,

8 similarly to the contract in this case, the agreement provided that the doctor “shall act

as an independent contractor practicing his profession of medicine,” and that the

staffing company “shall have no control over the manner or method by which he

performs his professional medical practice.” Id. This Court held that the trial court

correctly concluded that the physician was an independent contractor because the

evidence “unquestionably” showed that the staffing company “did not control the

time, manner, or method” of the physician’s work. Id. at 670.

Here, like in Williamson, the evidence shows that NFEP had no control over the

time, manner, and method of how the doctor performed her work. See Williamson, 251

Ga. App. at 670. The doctor’s contract with NFEP states that NFEP has no control

over the methods by which the doctor performed her work. The NFEP corporate

representative deposed that it did not have the right to control the doctor’s exercise

of her professional judgment and that, under no circumstances, did NFEP have any

right to direct or control how a particular patient was treated. There is no evidence

that NFEP controlled the method or manner in which the doctor performed her job.

In regards to time, the doctor deposed that she agreed to work six to eight shifts

a month at the hospital. While, the contract provided that the doctor “may” be

9 “requested” to work extra shifts, that is not sufficient to prove that NFEP had

assumed the right to control the doctor’s hours of work. The evidence showed that

the doctor submitted her available dates and blackout dates to NFEP for scheduling

purposes. Additionally, the NFEP corporate representative deposed that if any shifts

went unfulfilled, the medical director encouraged the doctors to work it out amongst

themselves and, if an agreement was not reached, the medical director worked the

shift or hired a locum tenens physician. Accordingly, the contract and the deposition

testimony establish that NFEP did not retain a right to control the doctor’s time. See

Williamson, 251 Ga. App. at 670 (“[Staffing company]’s scheduling responsibility

does not contradict the affidavit of [the physician] or the independent contractor

agreement between him and [staffing company], both of which unequivocally prove

that he controls his time by telling [staffing company] when he can be scheduled for

emergency room work.”).

Because it is clear that NFEP did not control the time, manner, and method of

the doctor’s work, the trial court correctly concluded that the doctor was an

independent contractor and that NFEP cannot be held liable for her acts. See

Williamson, 251 Ga. App. at 670 (holding that a staffing company was not vicariously

10 liable for the actions of a physician when the evidence showed that the staffing

company did not assume the right to control the time, manner, or method of executing

the physician’s work); Epps v. Gwinnett County, 231 Ga. App. 664, 668 (4) (499 SE2d

657) (1998) (where this Court held that a prison health services company was not

vicariously liable for the actions of a physician because it did not control the time,

manner, or method in which the physician practiced medicine).

Schriver’s wife further argues that the trial court erred by making improper

factual findings at the summary judgment phase when it was analyzing the Lee and

Cooper factors. Because we are holding that the Lee and Cooper factors do not control

our analysis and we are holding that based on the contract and the evidence there is

no genuine issue of material fact regarding whether NFEP controlled the time,

manner, or method of the doctor’s work, this claim has no merit.

2. Schriver’s wife contends that the trial court erred by finding that there was

a presumption that the doctor was an independent contractor based on the contract

between the doctor and NFEP.

Specifically, Schriver’s wife argues that the trial court erred by relying on a

statement from Miller, 363 Ga. App. at 775-776 (1) that “[w]here, as here, the contract

11 of employment clearly denominates the other party as an independent contractor, that

relationship is presumed to be true unless the evidence shows that the employer

assumed the right to control the time, manner and method of executing the work.”

(citation and punctuation omitted). Schriver’s wife contends that the language cited

in Miller mirrors that of OCGA § 52-2-5.1 (f), which she argues is irrelevant to this

case because it pertains exclusively to hospital-physician relationships, as previously

discussed.

Georgia common law has long established a rebuttable presumption that if a

contract designates a party as an independent contractor, it is presumed to be true.

This presumption exists separately and independently of any statutory basis. See

McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982)

(“Where the contract of employment clearly denominates the other party as an

independent contractor, that relationship is presumed to be true unless the evidence

shows that the employer assumed such control.”) See also Grange Indem. Ins. Co. v.

Beavex, 342 Ga. App. 601, 602 (804 SE2d 173) (2017); Larmon v. CCR Enterprises, 285

Ga. App. 594, 595 (647 SE2d 306) (2007). Therefore, the common law rebuttable

presumption is applicable to the facts of this case regardless of whether that directive

12 is also codified in OCGA § 51-2-5.1 (f). Accordingly, we affirm the trial court’s grant

of summary judgment to NFEP. See Williamson, 251 Ga. App. at 670.

Judgment affirmed. Gobeil and Davis, JJ., concur.