                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 2000-CA-00099-SCT



KIMBERLY KNIGHT, INDIVIDUALLY

AND ON BEHALF OF HER MINOR DAUGHTER, BRANDE SKINNER
v.
LISA GIBSON McKEE, M.D.

AND RICK MARTIN, M.D.



DATE OF JUDGMENT:                                       12/09/1999
TRIAL JUDGE:                                            HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                              HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                                 ISAAC K. BYRD, JR.
ATTORNEYS FOR APPELLEES:                                MILDRED M. MORRIS

                                                        GORDON U. SANFORD, III
                                                        STEPHEN P. KRUGER

                                                        JAN F. GADOW
NATURE OF THE CASE:                                     CIVIL - PERSONAL INJURY
DISPOSITION:                                            AFFIRMED -02/08/2001
MOTION FOR REHEARING FILED:                             2/21/2001; denied 4/12/2001
MANDATE ISSUED:                                         4/19/2001

      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

                                             INTRODUCTION

¶1. This Mississippi Tort Claims Act case primarily involves the issue of whether the purchase of
professional liability insurance subjects a physician who treats a patient in his capacity as an employee of the
University of Mississippi Medical Center to a medical negligence claim. Answering that question in the
negative, we affirm the judgment below.

                                FACTS AND PROCEEDINGS BELOW

¶2. Kimberly Knight filed this medical malpractice action both individually and on behalf of her minor
daughter, Brande Skinner, against Lisa Gibson McKee, M. D., and Rick Martin, M. D., in the Circuit
Court of the First Judicial District of Hinds County, Mississippi, based on Knight's treatment at the
University of Mississippi Medical Center while she was in labor and during the subsequent delivery of her
brain-damaged daughter. Dr. Gibson McKee and Dr. Martin filed motions for summary judgment, and the
circuit court, finding that the doctors were immune under the Mississippi Tort Claims Act, (MTCA), Miss.
Code Ann. §§ 11-46-1 to -23,(Supp. 2000), and that the case was barred by the applicable statute of
limitations, granted the motion. Knight appeals from the circuit court's judgment arguing that (1) the
immunity afforded to state employees by the MTCA should not apply to Dr. Gibson McKee and Dr.
Martin because they each had personal liability insurance; (2) the MTCA's one-year statute of limitations
should not apply to minors' claims; and (3) the holding in Womble v. Singing River Hosp., 618 So. 2d
1252 (Miss. 1993), should be extended to cover physicians employed by state hospitals.

                                                 ANALYSIS

¶3. Dr. Gibson McKee, a resident in the UMMC Department of Obstetrics and Gynecology, was on duty
in the labor and delivery ward while Knight was in labor. It is undisputed that all treatment rendered to
Knight by Dr. Gibson McKee was in the course and scope of her employment at UMMC. Resident
physicians at UMMC are, as a matter of law, state employees for purposes of the MTCA. Owens v.
Thomae, 759 So. 2d 1117, 1122 (Miss. 1999); Pickens v. Donaldson, 748 So. 2d 684, 689 (Miss.
1999).

¶4. Dr. Martin, an Associate Professor of Obstetrics and Gynecology, was the attending obstetrics staff
physician for UMMC during the first three hours of Knight's admission. It is undisputed that at all pertinent
times he was employed by UMMC and was acting pursuant to the terms and conditions of his employment
contract. It is also undisputed that Dr. Martin was not permitted to engage, and had never engaged, in the
practice of medicine outside the course and scope of his employment with UMMC.

¶5. Because both Dr. Gibson McKee and Dr. Martin were indisputably full-time employees of UMMC at
the time of Knight's labor and delivery, she as a full-time resident and he as a supervising teacher and trainer
of residents, and did not receive any compensation for the practice of medicine from any person or entity
but UMMC, they are immune, pursuant to the MTCA, from claims of negligence. It is unnecessary to
address the test the Court enunciated in Miller v. Meeks, 762 So. 2d 302 (Miss. 2000), because these
physicians were not independent contractors, i.e., they did not receive compensation for the practice of
medicine from sources other than UMMC. Id. at 305.

¶6. 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.

¶7. 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.
¶8. The Court finds that Dr. Gibson McKee and Dr. Martin are immune from Knight's negligence claims.
Therefore, there is no need to address Knight's argument that the MTCA one-year statute of limitations
should not apply to minors' claims.

                                               CONCLUSION

¶9. For these reasons, the Court affirms the grant of summary judgment in favor of Lisa Gibson McKee, M.
D., and Rick Martin, M. D., by the Circuit Court of the First Judicial District of Hinds County.

¶10. AFFIRMED.

      PITTMAN, C.J., BANKS, P.J., SMITH, MILLS AND COBB, JJ., CONCUR. McRAE,
      P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND
      EASLEY, JJ.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶11. I dissent as to the majority's erroneous statement that it is irrelevant whether the two physicians
acquired professional liability insurance to determine their immunity under the Mississippi Tort Claims Act
("the Act"). If Dr. Gibson McKee and Dr. Martin acquired professional liability insurance in this case over
and above the amounts for which they are allowed immunity under the Act, then the two physicians should
have been held liable up to the amount provided in their insurance. Further the question should be can the
insurance company and its attorney that it employed have standing to raise an immunity issue or should it be
left entirely with the public entity?

¶12. There is nothing in the record to explain the provisions of the liability insurance purchased by the
doctors. The record indicates that Knight made a "Notice of Service of Written Discovery," but no
discovery documents appear in the record. I would reverse and remand this case to the lower court for a
determination of the amounts the physicians are insured for under this professional insurance and hold that
the physicians have waived their immunity up to the amount for which they are insured. Accordingly, I
dissent.

¶13. The majority states that Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 206 (Miss. 1999),
refused to extend the rationale of Womble v. Singing River Hosp., 618 So. 2d 1252, 1263-65 (Miss.
1993) (which held that public official immunity does not apply to state employees who are making individual
medical decisions) to state hospitals. However, Barnes does not expressly overrule Womble as to one of
the main issues in this case, which is whether this qualified immunity applies to state employees who acquire
and maintain professional liability insurance.

¶14. In Barnes, the hospital being sued was protected and immune for certain damages under Miss. Code
Ann. § 11-46-15(a), a provision of the Act, that limited the liability of Barnes's claim to $50,000. In
addition, however, the hospital was also protected by a $250,000 liability insurance policy at the time of
Barnes's injuries, and we held that "should the Barneses succeed in their claim against Singing River, the
additional liability insurance coverage will be available to them as part of their potential recovery, regardless
of any other immunity afforded Singing River in this case." Barnes, 733 So. 2d at 206-07 (citing Hord v.
City of Yazoo City, 702 So. 2d 121, 124 (Miss. 1997) (Lee, Dan M., C.J., concurring, joined by
Pittman, Banks, McRae, & Roberts, JJ.)).
¶15. In addition, Miss. Code Ann. § 11-46-17(4) of the Act states,

      [a]ny governmental entity of the state may purchase liability insurance to cover claims in excess of the
      amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts
      provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however,
      that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only
      to the extent of such excess liability insurance carried.

¶16. Miss. Code Ann. § 11-46-15(1)(a) states,

      (1) In any claim or suit for damages against a governmental entity or its employee brought under the
      provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single
      occurrence for all damages permitted under this chapter:

      (a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993,
      but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00).

¶17. In the present case, if the physicians have additional liability insurance providing for coverage for
damages in excess of those allowed by the statute above, then the physicians do not enjoy the immunity
provided by the Act. Drs. Martin and Gibson McKee, respectively, argue in their briefs that the existence
of professional liability insurance does not waive their immunity under the Act because §§ 11-46-17(4), and
11-46-16(2) (waiver of immunity to extent of insurance coverage), both go to the waiver of immunity by the
governmental entity and not by the employees themselves. However, the majority attempts to extend the
holding of Barnes to hold that the immunity provided to state hospitals by the Act also applies to state
employees. These two arguments contradict one another, for the state employees cannot receive their
immunity vicariously from the immunity of the state hospitals and acquire their individual liability insurance,
while at the same instance denying any waiver of immunity this additional insurance creates, applying this
waiver only to the hospitals and not themselves. If state employees intend to receive the benefits afforded
state hospitals by the Act, then they should also be willing to accept the consequences, such as waiver of
their immunity, when they purchase additional insurance.

¶18. The majority relies on Maxwell v. Jackson County, 768 So. 2d 900 (Miss. 2000) as a comparable
case to the facts at hand, stating that in Maxwell, a county did not waive its immunity protections under the
MTCA when it purchased additional liability insurance. However, Maxwell concerned Miss. Code Ann. §
11-46-9(1)(l), which stated that a government entity or its employees would not be liable to any claimant
whose injury is covered by the Workers' Compensation Law by benefits provided by the government entity
by which he is employed. Therefore, Maxwell is distinguishable from the facts at hand because this case is
not concerned with the double recovery that may occur if a government entity or employee is liable for
damages above what workers' compensation will provide. This case dealt with a single recovery sought
from tortious injuries that occurred at the hands of government employees.

¶19. State employees and state hospitals originally provided with immunity under the Act lose this right
when they purchase additional insurance coverage over and above the amount of damages provided in the
Act. State employees cannot purchase additional immunity along with their purchase of additional insurance.
For the above reasons, I dissent.

      DIAZ AND EASLEY, JJ., JOIN THIS OPINION.
