                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                   NOTICE: Motions for reconsideration m us t be
                   physically re ceived in our clerk’s office within ten days
                   of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                      January 19, 2017




In the Court of Appeals of Georgia
 A16A2160. THOMAS v. TENET HEALTHSYSTEM GB, INC.
      d/b/a ATLANTA MEDICAL CENTER.

      MERCIER, Judge.

      Lorrine Thomas appeals the trial court’s partial grant of summary judgment to

Atlanta Medical Center (AMC). She argues that the trial court erred when it found that

two physicians were independent contractors, and when it concluded that AMC was

not a joint venturer with its co-defendants. We affirm in part and vacate in part, and

the case is remanded.

      In May 2012, Thomas was involved in a car accident. At the scene of the

accident, Thomas was placed on a backboard by paramedics, and taken by ambulance

to AMC. Dr. Robin Lowman was Thomas’s physician when she arrived at AMC’s

emergency room, and he ordered that a cervical CT scan and other tests be performed
on Thomas. When completed, the CT scan was sent to Dr. Clifford Grossman who

read it at his home. After reviewing the CT scan, Dr. Grossman concluded that there

were no fractures in Thomas’s cervical spine, and communicated this to Dr. Lowman.

Dr. Lowman instructed a nurse at AMC to remove a cervical spine collar that had been

placed on Thomas, and to discharge her from the hospital. The nurse then removed

the collar from Thomas’s neck.

      Thomas, who was heavily medicated at the time, was placed in a wheelchair and

taken to the curb to await her ride, but when her brother arrived to pick her up,

Thomas was slumped over and unresponsive in the wheelchair. Thomas was

readmitted to the hospital, and upon re-examination, it was discovered that Thomas

did in fact have a fracture in her cervical spine. When the cervical spine collar was

removed, the fracture in Thomas’s spine was displaced, which caused a compression

of Thomas’s spinal cord and neurological damage. As a result of the neurological

damage, Thomas was rendered a quadriplegic.

      In May 2014, Thomas filed a complaint alleging professional negligence against

Dr. Lowman and Dr. Grossman, as well as against AMC for imputed liability. Thomas

alleged inter alia, that both Dr. Lowman and Dr. Grossman were employees or agents



                                         2
of AMC, and that both doctors and their practice groups were joint venturers with

AMC.

       In November 2014, AMC filed a motion for summary judgment, and Thomas

filed a response in August 2015. The trial court entered an order granting AMC’s

motion for summary judgment in part in April 2016. This appeal followed.

       1. In her first enumeration of error, Thomas argues that the trial court erred

when it granted summary judgment to AMC, based on its finding that Dr. Grossman

and Dr. Lowman were independent contractors. “It is well established that on appeal

of a grant of summary judgment, the appellate court must determine whether the trial

court erred in concluding that no genuine issue of material fact remains and that the

party was entitled to judgment as a matter of law. This requires a de novo review of

the evidence.” Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998)

(citations omitted). Furthermore, “[s]ummary judgment is appropriate when the court,

viewing all the facts and evidence and reasonable inferences from those facts in a light

most favorable to the non-movant, concludes that the evidence does not create a

triable issue as to each essential element of the case.” Zeller v. Home Fed. Sav. &

Loan Ass’n of Atlanta, 220 Ga. App. 843 (471 SE2d 1) (1996) (citation omitted).



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      In addition to the traditional analysis conducted by this court on the appeal of

a grant of summary judgment, this case also implicates a specific statutory scheme.

OCGA § 51-2-5.1 (f) states:

      [w]hether a health care professional is an actual agent, an employee, or
      an independent contractor shall be determined by the language of the
      contract between the health care professional and the hospital. In the
      absence of such a contract, or if the contract is unclear or ambiguous, a
      health care professional shall only be considered the hospital’s employee
      or actual agent if it can be shown by a preponderance of the evidence
      that the hospital reserves the right to control the time, manner, or method
      in which the health care professional performs the services for which
      licensed, as distinguished from the right to merely require certain definite
      results.


“Health care professional” is pertinently defined by the statute as “a professional

licensed as a . . . medical doctor.” OCGA § 51-2-5.1 (a) (1). It is not disputed that

both Dr. Lowman and Dr. Grossman are medical doctors. Thus, we must first

determine whether a contract existed between either Dr. Lowman or Dr. Grossman,

and AMC.

      Dr. Grossman had a contract with his physician group, Diagnostic Imaging

Services, Inc. (DIS), pursuant to which he provided radiology services at AMC. That



                                           4
contract bound Dr. Grossman by all terms of the contract between DIS and AMC,

and was in effect during the time Thomas was a patient of AMC. Dr. Lowman had a

contract with her physician group, ACS Primary Care Physicians, P.C. (ACS). Similar

to Dr. Grossman, this contract required Dr. Lowman to be bound by terms of the

contract between ACS and AMC, and was in effect while Thomas was a patient at

AMC.

       In determining that both doctors were independent contractors, the trial court

relied on language in both contracts that stated “Independent Contractors. In

performing the services herein specified, Group and Providers [or Physicians, per the

contract between AMC and DIS] are acting as independent contractors, and shall not

be considered employees or agents of Hospital.” The trial court found that because

this language in the contracts (between the physician groups and AMC) was clear and

unambiguous, both doctors were independent contractors, and so AMC could not be

held vicariously liable for their actions. While the language of these contracts is

assuredly clear and unambiguous, the contracts fail to meet the standard for

determining whether an agency relationship existed between the physicians and the

hospital, as established by OCGA § 51-2-5.1 (f).



                                          5
      In analyzing the meaning of a statute, we as an appellate court must “presume

that the General Assembly meant what it said and said what it meant.” In the Interest

of L.T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014). See also Deal v. Coleman,

294 Ga. 170, 172 (1) (a), (751 SE2d 337) (2013) citing Arby’s Restaurant Group, Inc.

v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012). Where the language of a statute

is plain and susceptible to only one natural and reasonable construction appellate

courts must construe the statute accordingly. Deal, supra at 172-173 (1) (a).

      OCGA § 51-2-5.1 (f) states clearly that “[w]hether a health care professional is

an actual agent, an employee, or an independent contractor shall be determined by the

language of the contract between the health care professional and the hospital.”

(Emphasis supplied). “Health care professional” is defined as a professional who

possesses a license from an enumerated list of professions. OCGA § 51-2-5.1 (a) (1).

OCGA § 51-2-5.1 (f) makes no mention of physician groups or contracts that exist

between physician groups and physicians, but only mentions those that are between

health care professionals and hospitals. Accordingly, because Dr. Grossman and Dr.

Lowman had contracts with their physician groups who in turn had contracts with

AMC, these contractual relationships do not fall under OCGA § 51-2-5.1 (f). Thus,



                                           6
it was error for the trial court to grant summary judgment to AMC based on the

contractual language between AMC and both DIS and ACS.

       However, this does not mean that AMC is not entitled to summary judgment.

OCGA § 51-2-5.1 (g) states: “[i]f the court finds that there is no contract or that the

contract is unclear or ambiguous as to the relationship between the hospital and health

care professional, the court shall apply the following.” OCGA § 51-2-5.1 (1) - (2) then

lists a variety of factors that a court may and shall not consider when determining

whether an agency relationship exists. Because the lower court determined there was

no agency relationship based on the contractual language quoted above, it did not

conduct such an analysis. Therefore, we vacate the trial court’s finding that no agency

relationship existed between AMC and Dr. Grossman and/or Dr. Lowman, and

remand the case so that the trial court may make a proper analysis pursuant to OCGA

§ 51-2-5.1. (g).

       2. In her second enumeration of error, Thomas contends that the trial court

erred when it found that no joint venture existed between AMC and its co-defendants.

       A joint venture arises where two or more parties combine their property
       or labor, or both, in a joint undertaking for profit, with rights of mutual
       control. There must be not only a joint interest in the objects and
       purposes of the undertaking, but also a right, express or implied of each

                                           7
       member of the joint venture to direct and control the conduct of the
       other. Thus, it is the right of mutual control, rather than its actual
       exercise, which must be shown.


Kelleher v. Pain Care of Georgia, Inc., 246 Ga. App. 619, 620 (540 SE2d 705)

(2000) (punctuation and footnotes omitted).

       Thomas argues that because the contracts between AMC and both DIS and

ACS contained provisions calling for mutual operation, they were joint venturers.

Under the contract between AMC and DIS, the DIS physicians were to cooperate with

the AMC employee health plan, and perform duties requested by the hospital. DIS and

AMC were to agree on the number of physicians in the radiology department, and the

schedule of those physicians. The contract between ACS and AMC contained similar

provisions. However, while these contracts show some interdependency between the

parties, these provisions fail to establish that the parties to the contracts had the right

of mutual control. Stated succinctly “there is simply no evidence that [AMC] had a

right of mutual control of the manner in which [DIS or ACS] provided [medical]

services.” Kitchens v. Brusman, 280 Ga. App. 163, 167 (3) (633 SE2d 585) (2006).

Accordingly, it was not error for the trial court to grant summary judgment to AMC

on this issue.


                                            8
       Thomas also argues that because AMC did not move for summary judgment

regarding its relationship with the individual physicians, it was error for the trial court

to find that no joint venture existed. “Although a trial court may, sua sponte, grant

summary judgment on an issue not raised by the parties, in so doing the trial court

must ensure that the party against whom summary judgment is rendered is given full

and fair notice and opportunity to respond prior to entry of summary judgment.”

McClendon v. 1152 Spring Street Associates-Georgia, Ltd. III, 225 Ga. App. 333,

334 (484 SE2d 40) (1997) (punctuation and citation omitted). The record does not

reflect that any steps were taken by the trial court to give Thomas proper notice and

an opportunity to respond to the entry of summary judgment on the issue of whether

AMC had a right to control the manner in which Dr. Grossman and Dr. Lowman

provided medical services. See McClendon, supra. Accordingly, the trial court’s grant

of summary judgment to AMC on this issue is vacated.

       Judgment vacated in part, affirmed in part, and case remanded. Ellington,

P. J., and Branch, J., concur.




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