                     IN THE COURT OF APPEALS OF TENNESSEE

                                  EASTERN SECTION                FILED
                                                                     July 24, 1997

                                                                Cecil Crowson, Jr.
STEFONE McCLENDON, father of               )                     Appellate C ourt Clerk
DAMIEN O’SHAY MAURICE                      )      KNOX CIRCUIT
McCLENDON, the next of kin of              )
CYNTHIA VANESSA FRANCIS,                   )      NO. 03A01-9703-CV-00083
                                           )
       Plaintiff-Appellant                 )
                                           )
v.                                         )      HON. DALE C. WORKMAN,
                                           )      JUDGE
DR. BENNETT T. CROWDER, II, and            )
EMERGENCY COVERAGE                         )
CORPORATION,                               )
                                           )      REVERSED and
       Defendants-Appellees                )      REMANDED


H. Naill Falls, Jr. and James B. Johnson, Nashville, for Appellant

James H. London and Margaret G. Klein, Knoxville, for Appellee


                                      OPINION



                                                  INMAN, Senior Judge



                This is an action for damages for the death of Cynthia Francis allegedly

caused by the malpractice of Dr. Bennett Crowder, II, an emergency room physician

who was a contract physician with the defendant Emergency Coverage Corporation

which had contracted with the Sweetwater Hospital1 to operate its emergency room.

       According to the complaint, Ms. Francis, who was 19 years old, on January 29

and 22, 1996, being acutely ill, presented herself at the emergency room and was

twice mistakenly diagnosed as suffering from an upper respiratory disease by Dr.

Crowder, who prescribed treatment accordingly, when in fact she was suffering from

diabetes and was in extremis, shortly expiring at another hospital.

       The plaintiff alleged that the medical care rendered by Dr. Crowder was

reckless and constituted a gross deviation from accepted standards of professional

practice.


       1
           The Sweetwater Hospital was voluntarily dismissed.
       The only allegation as to the Emergency Coverage Corporation (ECC) is as

follows:


       “16.      As a patient at Sweetwater Hospital, Cynthia Francis was a
                 third-party beneficiary of the contract between Emergency
                 Coverage Corporation and Sweetwater Hospital. Plaintiff is
                 therefore entitled to recover compensatory damages from
                 Emergency Coverage Corporation in the amount of at least
                 $3,000,000.00.”


       The ECC filed a RULE 12.02(c) motion to dismiss for failure to state a claim,

asserting that the “complaint contains a mere conclusory allegation regarding the

decedent’s third-party beneficiary status; even if this were the case, there are no facts

indicating that EEC ever breached the underlying contract.”

       The sole purpose of a RULE 12.02(c) motion is to test the legal sufficiency of

the complaint. Sanders v. Vinson, 558 S.W.2d 838 (Tenn. 1977); Holloway v.

Putnam County, 534 S.W.2d 292 (Tenn. 1976), cited in Dobbs v. Guenther, 846

S.W.2d 270 (Tenn. App. 1992). This test requires this Court to take all the well-

pleaded, material factual allegations as true and to construe the complaint liberally in

favor of the plaintiff. Lewis v. Allen, 698 S.W.2d 58 (Tenn. 1985).

       The trial court found that the deceased was a third-party beneficiary of the

contract between EEC and Sweetwater Hospital,2 but that the contract was not

breached by ECC. The motion of ECC to dismiss was therefore granted for failure to

state a claim. Whether the dismissal of ECC was proper is the sole issue on appeal.




       2
           In response to a motion by the plaintiff for a partial summary judgment.

                                              2
        The contract between ECC and Sweetwater Hospital provides, as pertinent

here:

                                     AGREEMENT

               This Agreement made effective the 1st day of October, 1993, by
        and between SWEETWATER HOSPITAL ASSOCIATION, a hospital
        operating in Sweetwater, Tennessee, (“Hospital”), and EMERGENCY
        COVERAGE CORPORATION (“ECC”).

                                      RECITALS

                A. The Hospital operates an Emergency Department, which
        requires physicians who have the training, experience, and
        qualifications necessary to practice medicine as emergency physicians.

               B. The Hospital has determined that for proper and efficient
        operation of the Emergency Department several objectives must be
        met, including, 24-hour coverage, coordination of schedules and
        assignments, administrative ease and efficiency, consistency and
        uniformity in book and record-keeping, coordinated direction of non-
        physician personnel, and quality patient care.

                C. The Hospital has determined that the proper, orderly and
        efficient delivery of quality emergency services can be accomplished
        best by entering into an exclusive coverage arrangement with ECC.

               D. ECC provides independent contractor physicians to render
        emergency medical services at hospitals. ECC is willing to accept the
        responsibility of providing said physicians to render emergency medical
        services in the Emergency Department in accordance with recognized
        medical standards, the bylaws of the Medical Staff of the Hospital
        (“Medical Staff”), the policies and procedures of the Hospital, and the
        terms and conditions set forth in this agreement.

              E. ECC will, at its expense, contract with Emergency Physicians
        (“Physicians”) to render emergency medical services at Hospital. For
        purposes of this Agreement, the term “Physician” or “Physicians” shall
        mean physicians rendering emergency medical services at the Hospital
        by and through contractual agreements between such physicians and
        ECC.

               F. The Hospital and ECC desire to provide a full statement of
        their agreement in connection with the operation of the Department
        during the term of this Agreement.

              Accordingly, the parties agree as follows:

              I. OBLIGATIONS OF ECC. ECC agrees to the following:

              1. Medical Services. ECC shall provide Physicians to staff the
        Emergency Department and render emergency medical services
        twenty-four (24) hours per day, seven (7) days per week, fifty-two (52)
        weeks per year to all patients who present themselves in the
        Emergency Department, provided those patients desire treatment by
        said Physicians. Physicians are not responsible for any patient who
        presents to the Emergency Department and chooses any other

                                           3
       examination and treatment options offered by Hospital personnel.
       Hospital acknowledges that ECC will perform its obligations through
       contracts with Physicians who are independent contractors and not
       employees of ECC or Hospital, provided Physicians meet the
       requirements set forth herein with respect to qualifications.

                     .       .      .      .       .      .      .

              The thrust of the plaintiff’s argument on appeal is directed to the

Contract Recital that:

       “ . . . ECC is willing to accept the responsibility of providing said
       Physicians to render emergency medical services in the Emergency
       Department in accordance with recognized medical standards . . . “



The argument continues that the contract was breached since ECC agreed to accept

the responsibility to provide physicians to render medical services in accordance with

recognized medical standards, and that Dr. Crowder failed to do so. Since the

deceased was a third-party beneficiary of the contract, plaintiff argues that, ipso

facto, she is entitled to damages for such breach.

       The plaintiff does not allege that ECC is vicariously liable for the alleged

negligence of Dr. Crowder, and it is well-settled that ordinarily a party is not liable for

the negligence of an independent contractor, Carr v. Carr, 726 S.W.2d 932 (Tenn.

App. 1986). ECC is a “staffing” company, and initially fulfilled its contractual

obligations by furnishing a Medical Director and independent contractor physicians

acceptable to the Hospital. The plaintiff does not allege that Dr. Crowder was

incompetent or unlicensed or that ECC was negligent in presenting him to the

Hospital for approval; rather, the plaintiff argues that because of the language of the

Recital, ECC breached the contract when Dr. Crowder failed to render medical

services in accordance with recognized medical standards.

       The plaintiff also argues that the ruling by the trial court that ECC did not

breach its contract with the Hospital went impermissibly beyond the scope of the

RULE 12.02(c) motion, because ECC expressly agreed to be liable when its

contractual physicians “failed to perform up to recognized medical standards.”




                                               4
       The quoted Recital, to which we may look to ascertain the intent of the parties,

17 Am Jur Contracts, Sec. 268, recites that the physicians provided by it will render

medical services “in accordance with recognized medical standards.” Any act of

medical malpractice resulting in injury as a proximate cause arguably falls below the

recognized standard, and if the theory of the appellant is correct ECC thereby

becomes liable under the Recital to any ER patient who by virtue of seeking ER

treatment becomes a third-party beneficiary to the contract.3 Did the alleged

negligent acts of Dr. Crowder constitute a breach of the contract between ECC and

the Hospital? We think so, in light of the language of the Recital.

       The Recital4 is the only provision of the contract which identifies the specific

duties that ECC agreed to perform. It will be seen that ECC did not merely agree to

provide “qualified” physicians; it agreed to provide physicians to render services “in

accordance with recognized medical standards.”

       In the case at hand, we must “take it as true” that Dr. Crowder failed to “render

services in accordance with recognized medical standards.” We must also ‘take as

true’ that the deceased was a third-party beneficiary of the contract between ECC

and the Hospital, since there is no appeal from the holding of the trial court to that

effect. The conclusion thereupon logically follows that ECC was improvidently

dismissed from this case.

       Reversed and remanded, with costs assessed to ECC.



                                          _____________________________
                                          William H. Inman, Senior Judge

       3
        Willard v. Claborn, 419 S.W.2d 168 (Tenn. 1967) is explicative of the
doctrine. A beneficiary may maintain an action in his own name against the promisor
where the promise between the promisor and the promisee is made upon sufficient
consideration for the benefit of the third-party beneficiary, who will be one of three
types: a donee beneficiary, a creditor beneficiary, and an incidental beneficiary. The
latter had no standing to sue. Presumably, the trial judge who held that the decedent
was a third-party beneficiary, did so under the creditor theory. The appellee does
not question this holding. The trial court went further, as stated, and held no breach
was proved.
       4
        Recitals may have a material influence in construing the contract and
determining the intent of the parties, and in such respect they should, as far as
possible, be reconciled with the operative clauses and be given effect. Generally if
the recitals in a contract are clear and the operative part is ambiguous, the recitals
govern . . . 17 Am Jur Contracts sec. 268.

                                            5
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Don T. McMurray, Judge




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