                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                                                        July 28, 2014
                                    TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 BRIAN CROUCH; REBECCA
 CROUCH, individually
 and as parents of M.C., a minor,

              Plaintiffs – Appellants,
                                                         No. 13-6219
 v.
                                                  (D.C. No. 5:11-Cv-00824-F)
                                                         (W.D. Okla.)
 ROBERTA LLYN DALEY, P.A.,

              Defendant – Appellee,

 and

 HARPER COUNTY COMMUNITY
 HOSPITAL; NEAL KENT SUTHERS,
 M.D.; HUDSON-SUTHERS CLINIC;
 TONYA ANN MCCLARY, R.N.; JADE
 ERIN BRADY, R.N.; JEQUITA D.
 SNYDER, D.O.,

               Defendants.




                             ORDER AND JUDGMENT *


       *
          This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before BRISCOE, Chief Judge, BALDOCK and MATHESON, Circuit Judges.



       This is an appeal from a grant of summary judgment in a diversity suit. Plaintiffs

Brian and Rebecca Crouch’s daughter, M.C., was born with severe intellectual

disabilities.   Believing the delivery hospital and attending medical personnel were

responsible for M.C.’s condition at birth, Plaintiffs brought this medical-negligence

action against them. The only question presented to us in this appeal is whether the

district court correctly granted summary judgment to Defendant Roberta Llyn Daley, a

physician assistant who aided in delivering Plaintiffs’ daughter.     The district court

determined that Defendant was acting within the scope of her employment as an

employee of a political subdivision at the time of M.C.’s birth at Harper County

Community Hospital (HCCH or “the hospital”) in the rural community of Buffalo,

Oklahoma. Based on this finding, the district court held Defendant was entitled to

immunity from tort liability under the provisions of the Oklahoma Governmental Tort

Claims Act (OGTCA), Okla. Stat. tit. 51, §§ 151–200. Plaintiffs appealed, arguing that

Defendant did not fall within the reach of the OGTCA’s protection and, further, that any

governmental immunity she might otherwise enjoy was waived due to her liability-

insurance coverage. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                                 I.




                                           -2-
       Ms. Crouch began to go into labor with M.C. in the early morning hours of August

2, 2009 and was admitted to HCCH by her obstetrician and gynecologist, Dr. Neal

Suthers, M.D. Defendant, who worked as a physician assistant for Dr. Suthers, was

called to the hospital to assist with the delivery. During her pregnancy with M.C., Ms.

Crouch had received prenatal care from both Defendant and Dr. Suthers at the Hudson–

Suthers Clinic, a private medical clinic operated by Dr. Suthers in the town of Buffalo.

But, when the time came to deliver M.C., Ms. Crouch went to HCCH. In this case,

Plaintiffs do not suggest that Ms. Crouch’s prenatal care at the Hudson–Suthers Clinic

was substandard; all of the negligent acts alleged in this case took place while she was in

labor at HCCH on August 2, 2009.

       Defendant held two jobs as a healthcare provider in Buffalo. She worked as a

physician assistant at Dr. Suthers’s private clinic, but she also had duties at HCCH, the

local hospital serving the residents of Harper County, Oklahoma. Although Dr. Suthers

had staff privileges at HCCH, he was not a hospital employee. For her part, Defendant

was responsible not only for assisting Dr. Suthers as his employee in a private capacity.

She was also tasked with giving medical care to patients at HCCH, as needed. See

Appellants’ App. at 83 (deposition testimony of Defendant that “[t]here was a call

schedule for the emergency room. . . . And there was an expectation that . . . we round on

any patients that were there”).

       At some point while Ms. Crouch was in labor, Dr. Suthers left the hospital

building to attend to other obligations.    Defendant, along with other hospital staff,

continued to provide medical care to Ms. Crouch in the delivery room during Dr.

                                            -3-
Suthers’s absence. Eventually, Dr. Jequita Snyder, D.O., who was covering for Dr.

Suthers that day, arrived at HCCH and delivered M.C. that evening. It quickly became

apparent that M.C. was suffering from birth complications, and she was transferred to the

Children’s Hospital in Oklahoma City to receive intensive neonatal care. M.C. was

diagnosed with hypoxic ischemic encephalopathy, “a catastrophic neurological injury”

caused by oxygen deprivation during birth. Id. at 37.

      Plaintiffs, who are citizens of Kansas, brought this action in federal district court

in Oklahoma as a diversity suit arising under 28 U.S.C. § 1332. Complete diversity

exists among the parties. In their complaint, Plaintiffs alleged that Defendant—as well as

HCCH, Drs. Suthers and Snyder, and other medical staff at HCCH—had been negligent

in providing adequate medical care during M.C.’s delivery. Plaintiffs claimed that all of

the defendants should have recognized that serious complications were arising during Ms.

Crouch’s labor and, had they done so, they would have then taken the steps necessary to

prevent M.C.’s serious injuries. In addition, Plaintiffs sought damages for the mental and

emotional distress, loss of companionship, and damage to the family relationship

engendered by M.C.’s condition of permanent disability.

      Defendant moved for summary judgment.             She argued that because she was

working as an HCCH employee while attending to Ms. Crouch’s labor and delivery, she

was immune from tort liability under the OGTCA. The district court first determined that

HCCH—as a public hospital operating for the benefit of Harper County, Oklahoma—was




                                           -4-
a “political subdivision” of the State of Oklahoma within the meaning of the OGTCA.1

See Okla. Stat. tit. 51, § 152(11)(d)(1) (including within the definition of “[p]olitical

subdivision” a “county hospital . . . that is operated for the public benefit”). The district

court next looked to Defendant’s employment status at the time of the events in question

and found that Defendant was working within the scope of her employment as an HCCH

employee. That is, she was not providing medical care to Ms. Crouch in a private

capacity as an employee of Dr. Suthers or the Hudson–Suthers Clinic when she assisted

in delivering M.C.; rather, she was acting as an employee of HCCH. This, the district

court reasoned, entitled her to the protection of governmental immunity for her actions at

the hospital. As a final matter, the district court rejected Plaintiffs’ argument that, even

assuming Defendant had tort immunity under the OGTCA, that immunity was somehow

waived because she was also covered under two comprehensive insurance policies for

professional liability.

       Having concluded that Defendant was immune from suit under the OGTCA and

that her immunity had in no way been waived, the district court granted summary

judgment in her favor. Plaintiffs then filed a motion for reconsideration, which the

district court denied. Plaintiffs now bring this timely appeal.2

                                                   II.

1
  On appeal, Plaintiffs do not challenge the district court’s classification of HCCH as a
political subdivision. We likewise find no reason to quarrel with the district court’s
characterization.
2
  Because Plaintiffs’ claims against the other defendants in this case now stand resolved
either through settlement or by Plaintiffs’ decision not to appeal a separate order of
summary judgment in favor of one of the other defendants, this appeal involves only the
correctness of the district court’s grant of summary judgment to Defendant Daley.
                                             -5-
       We review de novo a grant of summary judgment, applying the same legal

standard used by the district court. See Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142

(10th Cir. 2009). We view the facts in the light most favorable to Plaintiffs as the

nonmoving party and “draw all reasonable inferences” in their favor. Tabor v. Hilti, Inc.,

703 F.3d 1206, 1215 (10th Cir. 2013) (quotation omitted). “[A]lthough the court should

review the record as a whole, it must disregard all evidence favorable to the moving party

that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 151 (2000).

       Summary judgment is appropriate only if Defendant shows “there is no genuine

dispute as to any material fact and [she] is entitled to judgment as a matter of law.”

Tabor, 703 F.3d at 1215 (quotation omitted); see also Fed. R. Civ. P. 56(a). “A fact is

‘material’ if, under the governing law, it could have an effect on the outcome of the

lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could find in favor

of the nonmoving party on the evidence presented.” EEOC v. Horizon/CMS Healthcare

Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citation omitted). As the party seeking

summary judgment, Defendant bears the initial burden of indicating the portions of the

record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). “If the movant meets this initial burden, the burden

then shifts to the nonmovant to ‘set forth specific facts’ from which a rational trier of fact

could find for the nonmovant.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303,

1309 (10th Cir. 2007) (quoting Fed. R. Civ. P. 56(e) (2007 version)).



                                             -6-
       On appeal, Plaintiffs argue the district court erred in granting summary judgment

because there remains a genuine issue of material fact about whether Defendant was

providing medical care to Ms. Crouch as a private physician assistant or as an HCCH

employee at the time of M.C.’s delivery on August 2, 2009. As they see it, Defendant

could not have been acting as a county-hospital employee within the meaning of the

OGTCA because, as a physician assistant, she could treat patients only under the

direction and authority of her supervising physician, Dr. Suthers.

       Plaintiffs contend that because Dr. Suthers was not himself an employee of the

hospital, it follows that Defendant was not clothed with any independent authority to act

on behalf of HCCH while providing healthcare services at that facility. Instead, Plaintiffs

say, Defendant was giving private medical treatment to Ms. Crouch solely in her capacity

as Dr. Suthers’s employee. In other words, Plaintiffs assert that even though all of the

medical care in question was indisputably furnished at HCCH, the fact that the labor and

delivery happened to occur at the hospital is immaterial. In short, Plaintiffs believe

Defendant is trying to dodge liability by claiming a statutory protection to which she is

not entitled.   We disagree.     Ultimately, Plaintiffs’ argument about the nature of

Defendant’s employment status accords with neither the letter nor the spirit of the

OGTCA.

       Oklahoma formally adopted the doctrine of sovereign immunity with the passage

of the OGTCA. See Anderson v. Eichner, 890 P.2d 1329, 1336 (Okla. 1994) (recounting

that the Oklahoma Supreme Court abrogated the common-law doctrine of sovereign

immunity and “[t]he legislature responded to [the court’s] invitation to codify

                                            -7-
Oklahoma’s sovereign immunity policies by enacting the 1984 Governmental Tort

Claims Act”); see also Okla. Stat. tit. 51, § 152.1(A) (“The State of Oklahoma does

hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions,

and all of their employees acting within the scope of their employment, whether

performing governmental or proprietary functions, shall be immune from liability for

torts.”). Although an employee of a political subdivision acting within the scope of her

employment is immune from tort liability under the OGTCA, the responsibility for any

loss incurred as a result of that employee’s torts shifts to the political subdivision. See

Okla. Stat. tit. 51, § 153(A) (“The state or a political subdivision shall be liable for loss

resulting from its torts or the torts of its employees acting within the scope of their

employment . . . .”). “The liability of the state or political subdivision under [the

OGTCA] shall be exclusive and shall constitute the extent of tort liability of the . . .

employee . . . .” Id. § 153(B). In sum, “[s]tate employees acting within the scope of their

employment are relieved . . . of private liability for tortious conduct.” Anderson, 890

P.2d at 1336. “This immunity grant allows public employees to perform their duties . . .

free from fear of suit.” Id.

       Plaintiffs argue the district court erred in finding Defendant was an employee of a

political subdivision entitled to invoke the protection of the OGTCA for her allegedly

tortious acts. To ascertain the soundness of their argument, we turn to the OGTCA’s text.

The statute broadly defines an “[e]mployee” as “any person who is authorized to act in

behalf of a political subdivision or the state whether that person is acting on a permanent

or temporary basis, with or without being compensated or on a full-time or part-time

                                            -8-
basis.”3 Okla. Stat. tit. 51, § 152(7). The terms of the OGTCA further define “[s]cope of

employment” as “performance by an employee acting in good faith within the duties of

the employee’s office or employment or of tasks lawfully assigned by a competent

authority.” Id. § 152(12). Plaintiffs’ argument hinges on their contention that Defendant

was not acting as an employee of HCCH when she assisted with M.C.’s delivery. As

they put it, Defendant “could only have acted under the direction of her supervisor, Dr.

Suthers, who is not an employee of [HCCH]. [Defendant] may only claim immunity

under the [OGTCA] if her authority to act was as an ‘employee’ of the hospital.”

Appellants’ Opening Br. at 9.

       Plaintiffs insist that Defendant was not acting as an employee of the hospital. But,

significantly, they do not dispute that Defendant had an employment agreement with

HCCH or that she also received separate wages, benefits, and a W-2 from the hospital.

Her salary, benefits, and W-2 were wholly distinct from those she obtained through her

additional employment with the Hudson–Suthers Clinic. Moreover, the record reflects

that it was HCCH—and not Dr. Suthers or the Hudson–Suthers Clinic—that billed

Plaintiffs for Defendant’s services during Ms. Crouch’s labor and delivery.              See

3
   The OGTCA contains a handful of specific provisions that carve out exceptions to the
general rule of nonliability for state employees, including some medical professionals.
See, e.g., Okla. Stat. tit. 51, § 152(7)(c) (stating that, subject to various exceptions, the
State would not be held liable for torts committed by “any physician, resident physician
or intern while practicing medicine or providing medical treatment to patients”). Neither
the OGTCA nor controlling Oklahoma caselaw, however, contains any statement that
deprives physician assistants of immunity while they are providing patient care. See also
id. § 163(C) (“In no instance shall an employee of the state or political subdivision acting
within the scope of his employment be named as defendant with the exception that suits
based on the conduct of resident physicians and interns shall be made against the
individual . . . .”) (emphasis added).
                                            -9-
Appellants’ App. at 110 (billing statement of HCCH, entitled “Patient Charge Sheet and

Summary,” showing charge to Ms. Crouch for services of “Physician Asst”). Plaintiffs

have offered nothing in the way of evidence that would refute the reasonable inference to

be drawn from these evidentiary materials: that Defendant was, in fact, an employee

providing medical services on behalf of HCCH.

       Notwithstanding this uncontroverted evidence, Plaintiffs still say that Defendant

was not truly authorized to act on HCCH’s behalf because she was not empowered to

treat patients absent express direction from her supervising physician, Dr. Suthers. Here,

Plaintiffs rely on the Oklahoma Physician Assistant Act, Okla. Stat. tit. 59, §§ 519.1–521.

This act provides in pertinent part that “[n]othing in the Physician Assistant Act shall be

construed to permit physician assistants to provide health care services independent of

physician supervision.” Id. § 519.2(3). Plaintiffs urge that the Physician Assistant Act

must be read as removing employees like Defendant, whose work is supervised by a

private physician employer, from the ambit of the OGTCA. We are not persuaded.

       The OGTCA defines an “[e]mployee” as “any person who is authorized to act in

behalf of a political subdivision.” Okla. Stat. tit. 51, § 152(7) (emphasis added). An

employee may be permanent or temporary, compensated or uncompensated, full-time or

part-time. Id. A plain reading of the statute makes it apparent that the Oklahoma

Legislature has seen fit to craft an expansive definition of employment under the

OGTCA. We think it is a definition that easily sweeps broadly enough to include

Defendant, with her county-hospital salary, benefits, W-2, and her responsibility for

giving care to patients in need of treatment at the hospital.

                                             -10-
       As the district court noted, the OGTCA does not confine its class of protected

employees merely to those acting within the scope of their authority. The statute goes a

good deal further than that, expanding to lend its protection to any employee of a political

subdivision acting within the scope of her employment. See id. § 153(A) (“[A] political

subdivision shall be liable for loss resulting from its torts or the torts of its employees

acting within the scope of their employment . . . .”) (emphasis added). At bottom,

Plaintiffs’ cramped characterization of Defendant’s work for HCCH does not reflect the

reality of employment in hierarchical institutions such as hospitals.          In order to

effectively function, a hospital requires that many employees perform roles for which

they typically possess no independent decisionmaking authority of their own. Such is the

case here.

       Put very simply, it was Defendant’s job at HCCH to treat hospital patients. But

she could not do this on her own authority. In order to do her job, she was required to

take orders from a supervising physician. Those directions, carried out by Defendant,

inured to the benefit of those served by the political subdivision—here, the residents of

the Harper County area who depended on HCCH for medical treatment. In return for her

work on its behalf, Defendant was paid by HCCH. For all relevant purposes under the

OGTCA, she was HCCH’s employee and was working in that capacity when she assisted

with Ms. Crouch’s labor and delivery at the hospital. We hold that the district court

correctly determined that Defendant was an “employee” within the meaning of the

OGTCA and thus entitled to tort immunity.

                                               III.

                                           -11-
       Having concluded that Defendant was shielded from tort liability under the

OGTCA, we turn to the second argument raised by Plaintiffs: that, even assuming

Defendant is protected as an employee under the OGTCA, her immunity has been waived

due to the fact of her professional-liability coverage under two separate insurance

policies. Plaintiffs have presented evidence that Defendant was covered under both an

insurance policy purchased by HCCH and an insurance policy provided through the

Hudson–Suthers Clinic.      They argue that this coverage resulted in a waiver of tort

immunity. We find this argument unavailing as well.

       The portion of the OGTCA dealing with liability insurance is found at Okla. Stat.

tit. 51, § 158. This section provides that “[t]he state or a political subdivision, after

conferring with authorized legal counsel, may settle or defend against a claim or suit

brought against it or its employee under [the OGTCA].” Id. § 158(A) (emphasis added).

It further states that

       [i]f a policy or contract of liability insurance covering the state or political
       subdivision or its employees is applicable, the terms of the policy govern
       the rights and obligations of the state or political subdivision and the insurer
       with respect to the investigation, settlement, payment and defense of claims
       or suits against the state or political subdivision or its employees covered
       by the policy. However, the insurer may not enter into a settlement for an
       amount which exceeds the insurance coverage without the approval of the
       governing body of the state or political subdivision or its designated
       representative if the state or political subdivision is insured.

Id. § 158(C) (emphasis added). By their plain language, the relevant subsections of

section 158 “govern the rights and obligations of the state or political subdivision.” Id.

They do not touch on any separate obligation of an employee who is covered by



                                            -12-
insurance. Section 158 cannot fairly be read as stripping an individual employee of her

tort immunity due to the purchase of an insurance policy covering that employee.

      To be sure, Oklahoma law recognizes that political subdivisions may “waive[]

immunity to the extent of insurance coverage.” Brewer ex rel. Brewer v. Indep. School

Dist. No. 1, 848 P.2d 566, 569 (Okla. 1993). But we are unable to locate any authority

under Oklahoma law—and Plaintiffs have pointed us to none—that puts individual

employees on par with the state or political subdivision in relinquishing immunity based

on insurance coverage.    Indeed, that outcome strikes us as contrary to one of the

OGTCA’s main purposes: removing the mantle of liability from individual employees

and placing it instead squarely on the shoulders of the political subdivision, so long as

those employees were working within the scope of their employment—as was Defendant.

      When confronted with essentially the same issue in an earlier case, the Oklahoma

Supreme Court found that “[t]he purchase of liability insurance by a professional

employed by the State is not necessarily inconsistent with the employee’s or officer’s

limited immunity from suit.” Neal v. Donahue, 611 P.2d 1125, 1131 (Okla. 1980). The

court went on to observe that government employees’ “insurance may have been

purchased for a number of reasons, none of which involving the relinquishment of their

limited immunity from suit.” Id. “[P]rofessional liability insurance could have been

purchased in order to be protected when providing professional services not connected

with employment by the State, or may have been purchased solely to absorb the cost of

litigation if suit should be brought, even though the employee is immune.” Id. The court



                                          -13-
concluded that “we cannot say that the acquiring of such insurance constitutes a waiver of

any immunity which the party may possess.” Id.

      Plaintiffs attempt to cast doubt on Neal’s ongoing viability. Granted, Neal was

decided on common-law principles of sovereign immunity several years before the

adoption of the OGTCA. See Nguyen v. State, 788 P.2d 962, 966 n.13 (Okla. 1990). But

the rationale employed by the Oklahoma Supreme Court in resolving the discrete waiver-

of-liability issue has not been supplanted by the later adoption of the OGTCA. This

conclusion is reinforced by the plain fact that the provisions of the OGTCA dealing with

liability-insurance coverage address themselves only to “the rights and obligations of the

state or political subdivision and the insurer,” not with any rights and obligations of an

individual employee.     Okla. Stat. tit. 51, § 158(C).     The district court correctly

determined that Defendant’s separate insurance coverage did not deprive her of tort

immunity.

      At the time of the events that gave rise to this litigation, Defendant was working

within the scope of her employment as an employee of HCCH, a political subdivision of

the State of Oklahoma.     Plaintiffs have failed to demonstrate any genuine issue of

material fact that would lead a rational jury to conclude otherwise.        Accordingly,

summary judgment was appropriate.

      AFFIRMED.



                                  Entered for the Court,



                                          -14-
Bobby R. Baldock
United States Circuit Judge




        -15-
