                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                   January 8, 2003 Session

     SHIRLEY A. SHELBURNE, ET AL. v. FRONTIER HEALTH, ET AL.

                       Appeal by Permission from the Court of Appeals
                              Circuit Court for Carter County
                         No. C7500     Thomas J. Seeley, Jr., Judge



                       No. E2000-02551-SC-R11-CV - Filed May 6, 2003


Plaintiff, both individually and as next friend of her minor son, brought suit against Carter County,
Frontier Health, and Woodridge Hospital for the wrongful death of her husband. The trial court
granted summary judgment to Frontier and Woodridge. The Court of Appeals affirmed, holding that
Frontier and Woodridge could not be held vicariously liable for the acts or omissions of their
employee because he was entitled to immunity as a state employee. We granted review to determine
whether summary judgment was properly granted in light of our decision in Johnson v. LeBonheur
Children’s Medical Center, 74 S.W.3d 338 (Tenn. 2002). We hold that Johnson governs the present
case and that Frontier and Woodridge are not immune from liability for the acts or omissions of their
immune employee. Accordingly, summary judgment was not appropriate.

 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed;
                                   Case Remanded

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

Robert Lewis King, Johnson City, Tennessee, for the Plaintiff-Appellant, Shirley A. Shelburne,
Individually and as Next Friend of Travis Lee Shelburne.

Thomas C. McKee, Johnson City, Tennessee, for the Defendants-Appellees, Frontier Health and
Woodridge Hospital.

                                            OPINION

                                       Factual Background

      Richard Lee Shelburne was an inmate at the Carter County Jail. On the morning of
November 12, 1997, Mr. Shelburne attempted to hang himself in his cell. Jail staff called
Woodridge Hospital (“Woodridge”), a private psychiatric hospital wholly owned and operated by
Frontier Health (“Frontier”). Frontier is a not-for-profit corporation organized under the laws of
Tennessee. Frontier provides crisis response services in East Tennessee under a grant from the
Tennessee Department of Mental Health and Mental Retardation (“the DMHMR”).1 The parties
have not distinguished between Woodridge and Frontier for purposes of this litigation.

       Richard Kirk is employed by Frontier as regional director of its Crisis Response Team
(“CRT”). Mr. Kirk is a licensed social worker who has received a master’s degree in social work.
He arrived at the jail on November 12, 1997, at approximately 11:30 a.m. and conducted a
psychiatric evaluation of Mr. Shelburne. Mr. Kirk learned that on the evening before the suicide
attempt, Mr. Shelburne became despondent when his wife threatened to leave him. In a subsequent
conversation, however, Mrs. Shelburne assured Mr. Shelburne that she would not initiate divorce
proceedings.

        After completing the evaluation, Mr. Kirk prepared two reports, a Mental Health Consult that
was left with jail staff and a Crisis Response Evaluation that Mr. Kirk kept for his files at
Woodridge. Both of these reports indicated that Mr. Shelburne was alert, oriented, coherent, and not
psychotic at the time of the evaluation. The reports also stated that Mr. Shelburne denied any
suicidal intent and that he “promised safety.” In Mr. Kirk’s opinion, Mr. Shelburne’s suicide attempt
was an impulsive situational gesture that was resolved when Mr. Shelburne was assured that Mrs.
Shelburne had no intent to initiate divorce proceedings. Mr. Kirk advised jail staff to maintain
increased supervision over Mr. Shelburne but stated that further suicide protocol was not necessary.
Mr. Kirk had no further contact with Mr. Shelburne.

        On the morning of November 19, 1997, Mr. Shelburne and the other inmates were preparing
to leave for work detail. As the supervising officer walked out of the jail lobby, Mr. Shelburne
grabbed the pistol from the officer’s holster and fatally shot himself.

        Mrs. Shelburne, both individually and as next friend of her son Travis Lee Shelburne,
brought suit against Carter County as well as Frontier and Woodridge for the wrongful death of her
husband. The trial court granted the motion for summary judgment filed by Frontier and Woodridge.
The Court of Appeals affirmed the trial court’s judgment, holding that Frontier and Woodridge could
not be held liable for Mr. Kirk’s acts or omissions under the theory of respondeat superior because
Mr. Kirk was entitled to immunity as a state employee. We granted review to determine whether
summary judgment was properly granted in light of our decision in Johnson v. LeBonheur Children’s
Medical Center, 74 S.W.3d 338 (Tenn. 2002).




        1
          In 2000, the General Assembly amended the Tennessee Code A nnotated so that all references made to the
DMHMR were deleted and substituted with “the Department of Mental Health and Developmental Disabilities.” 2000
Tenn. Pub. Acts 947, § 6.

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                                                Standard of Review

          Summary judgment is appropriate when “there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. A ruling
on a motion for summary judgment involves only questions of law and not disputed issues of fact.
Owner-Operator Indep. Drivers Ass’n v. Concord EFS, Inc., 59 S.W.3d 63, 68 (Tenn. 2001).
Accordingly, the standard for reviewing a grant of summary judgment is de novo with no
presumption of correctness as to the trial court’s findings. See Webber v. State Farm Mut. Auto. Ins.
Co., 49 S.W.3d 265, 269 (Tenn. 2001). The evidence must be viewed “in the light most favorable
to the nonmoving party,” and all reasonable inferences must be drawn in the nonmoving party’s
favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000).

                                                        Analysis

               I. Statutory Immunity: Mr. Kirk’s Status as an Immune State Employee

        State employees “are absolutely immune from liability for acts or omissions within the scope
of the . . . employee’s . . . employment . . . .” Tenn. Code Ann. § 9-8-307(h) (Supp. 1994).
Tennessee Code Annotated section 8-42-101(3)(D) provides,

                  “State employee” also includes persons who are both members of
                  community-based screening agencies that function under [Tennessee
                  Code Annotated sections 33-2-601 to -604]2 and who screen
                  individuals to make judgments required by [Tennessee Code
                  Annotated sections 33-2-601 to -604]. . . . The commissioner [of
                  mental health and mental retardation] shall register only the names of
                  properly qualified and designated persons with the board of claims.

Tenn. Code Ann. § 8-42-101(3)(D) (1993). Therefore, Mr. Kirk must satisfy two requirements to
be deemed a state employee: 1) he must be a member of a community-based screening agency that
functions under Tennessee Code Annotated sections 33-2-601 to -604; and 2) he must screen
individuals to determine if hospitalization is appropriate pursuant to these sections.3

                                   A. Community-Based Screening Agency

       We shall first determine whether Mr. Kirk is a member of a community-based screening
agency. To make this determination, we must first address whether Frontier and Woodridge are
community-based screening agencies that function under sections 33-2-601 to -604. In these
sections, the General Assembly directs the DMHMR to develop a system for “assuring the most


       2
           Tennessee Code Annotated section 33-2-603 was repealed in 1988. 1988 Tenn. Pub. Acts 586, § 2.

       3
           In 2000, the General Assembly moved the provisions of title 33, chapter 2, part 6 to title 33, chapter 6, part 1.

                                                            -3-
appropriate and effective care for individuals admitted to and discharged from state-supported mental
health institutes.” Tenn. Code Ann. § 33-2-601 (Supp. 1997); see also Tenn. Code Ann.
§§ 33-2-602, -604 (Supp. 1997). The legislature requires the DMHMR to design the system to
“minimize length of confinement, promote speedy return to the community, and maximize the
individual’s ability to remain in a community setting.” Tenn. Code Ann. § 33-2-601 (Supp. 1997).
In addition, the system must include a “community-based screening process.” Id. Therefore, an
organization is a community-based screening agency under these sections if it provides screening
services to individuals as part of the state system.

        The record indicates that Frontier provides crisis response services in East Tennessee under
a grant of the DMHMR. Frontier’s CRT, which is led by Mr. Kirk, performs emergency psychiatric
evaluations upon individuals who may be suicidal to determine the form of treatment that will be
most effective. Many Frontier employees, including Mr. Kirk, are registered with the Tennessee
Board of Claims as members of a community-based screening agency. Frontier and Woodridge are,
therefore, community-based screening agencies that function under sections 33-2-601 to -604.
Accordingly, Mr. Kirk’s status as an employee of Frontier and Woodridge satisfies the first
requirement of section 8-42-101(3)(D)Sthat he be a member of a community-based screening
agency.

                                                 B. Screening

       We next address whether Mr. Kirk screens individuals to make judgments under sections
33-2-601 to -604. A health care provider makes such judgments when evaluating an individual to
determine whether hospitalization is necessary for effective treatment. See Tenn. Code Ann.
§§ 33-2-601, -604 (Supp. 1997).

        As regional director of Frontier’s CRT, Mr. Kirk performs emergency psychiatric evaluations
of individuals who may be suicidal. These evaluations are based upon clinical interviews during
which he obtains a psychiatric history from the individual, assesses the individual’s mental status,
makes a diagnosis, and offers recommendations for treatment. In 1995, Mr. Kirk completed the
DMHMR’s training program and obtained his certification as a non-physician pre-screening
evaluator under Tennessee Code Annotated section 33-6-103(f)(2).4 In his affidavit, Mr. Kirk

       4
               If a person
               (i) has a master’s degree . . . in . . . social work . . .; and
               (ii) is licensed or certified to practice in Tennessee . . .; and
               (iii) is a member of a crisis service progra m wh ich is under contract with the
               department to implement chapter 2, part 6 of this title; and
               (iv) satisfactorily completes a training p rogra m ap proved and p rovid ed by the
               dep artment relative to emergency com mitment criteria and procedures;
               then the commissioner may designate the person to take all or any action authorized
               for a physician and perform all or any duty imposed on a physician by subdivisions
               (a)-(e), to the extent such duties are within the scope of practice of the profession
               in which the person is licensed or certified.
                                                                                                       (continued...)

                                                       -4-
testified that pre-screening evaluation is a regular part of his customary duties as a member of
Frontier’s CRT. He also testified that he was performing these duties when he evaluated Mr.
Shelburne on November 12, 1997.

       Mrs. Shelburne asserts, however, that a health care provider does not operate under sections
33-2-601 to -604 unless the individual being evaluated: 1) is admitted to or discharged from a
mental health institute that is owned and operated by the State; and 2) is a free member of the
community at large. We disagree.

        When construing statutes, we are required to ascertain and effectuate the legislative intent
and purpose of the statutes. See State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001). Legislative intent
must be derived from the plain and ordinary meaning of the statutory language if the statute is devoid
of ambiguity. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). The plain language of
section 8-42-101(3)(D) and section 33-2-601 indicates that the statutes were not enacted to apply to
health care providers only when they admit or discharge an individual from a state-owned psychiatric
hospital. While section 33-2-601 does address the development of a system for “assuring the most
appropriate and effective care for individuals admitted to and discharged from state-supported mental
health institutes,” the section also provides for a “community-based screening process.” “Screening”
involves examining an individual to determine whether hospitalization is appropriate. Screening
does not necessarily result in hospitalization. The very purpose of screening is to distinguish
between individuals who need to be confined in order to protect themselves or others and those who
can be treated in less restrictive ways. It would be contrary to the purposes of the state system
described in section 33-2-601 to require a health care provider to hospitalize an individual before
the health care provider is deemed a state employee. Section 33-2-601 requires that the system
promote the return of individuals to their communities and minimize the length of confinement in
mental health institutes. We therefore conclude that it is not necessary for an individual to be
admitted to or discharged from a state-owned mental health institute for a health care provider to
meet the requirements of section 8-42-101(3)(D).

        In addition, health care providers who screen incarcerated individuals are not precluded from
state employee status under section 8-42-101(3)(D). Section 33-2-601 states that the DMHMR must
design the state system to “promote speedy return to the community, and [to] maximize the
individual’s ability to remain in a community setting.” In the context of this section, “community”
refers to a setting outside of a hospital. The goal of the system is to ensure that individuals can
function outside the hospital setting without posing a threat to themselves or others. “Community”
as used in this section does not necessarily refer to society at large or require that the individual being
evaluated be free from restraint. Accordingly, Mr. Kirk is a health care provider who screens
individuals to make judgments under sections 33-2-601 to -604. Therefore, Mr. Kirk satisfies both
requirements under section 8-42-101(3)(D) and is an immune state employee.



        4
         (...continued)
Tenn. Cod e Ann. § 33-6-103(f)(2)(A) (Supp. 19 97).

                                                      -5-
                        II. The Immunity Claim of Frontier and Woodridge

         We must now determine whether Frontier and Woodridge are immune from liability. In
Johnson v. LeBonheur Children’s Medical Center, 74 S.W.3d 338, 341 (Tenn. 2002), this Court held
that a private hospital may be held vicariously liable under the doctrine of respondeat superior based
solely upon the acts or omissions of a state-employed physician resident if that resident is found to
be an agent or servant of the hospital. We conclude that Johnson governs this case.

        Johnson involved a medical malpractice claim filed against LeBonheur Children’s Medical
Center and the health care providers who participated in Amman Johnson’s heart surgery. 74
S.W.3d at 341. The plaintiff, Amman’s mother, claimed that two physician residents from the
University of Tennessee’s training program, who were on rotation at LeBonheur, were acting as
LeBonheur’s agents during the surgery and that LeBonheur was vicariously liable for their
negligence. Id. The residents were compensated by the University of Tennessee but were required
to follow LeBonheur’s protocols, rules, and regulations in providing treatment or services to
LeBonheur’s patients. Id.

         We agreed that the residents were immune from liability as state employees under Tennessee
Code Annotated section 9-8-307(h). Id. at 343. We concluded, however, that “[n]othing in the
statute . . . immunizes a private hospital from liability for the acts or omissions of physician residents
employed by the State who are also acting as agents or servants of the private hospital.” Id. We also
rejected LeBonheur’s argument that it could not be held liable under the doctrine of respondeat
superior based upon the acts of an agent who is immune from liability. Id. at 344. We determined
that case law indicated only three instances in which a principal may not be held vicariously liable
under this doctrine. Id. at 345. These instances include:

                (1) when the agent has been exonerated by an adjudication of non-
                liability, (2) when the right of action against the agent is extinguished
                by operation of law, or (3) when the injured party extinguishes the
                agent’s liability by conferring an affirmative, substantive right upon
                the agent that precludes assessment of liability against the agent.

Id. The first and third category did not apply to the facts of the case. Id. As to the second category,
we stated that section 9-8-307(h) does not extinguish a claimant’s right of action but merely
immunizes state employees from individual monetary liability. Id. at 345-46. Therefore, we held
that the personal immunity of the residents did not prohibit LeBonheur from being held vicariously
liable for the residents’ negligence. Id. at 346. We ultimately held that a genuine issue of material
fact existed as to whether the residents were acting as LeBonheur’s agents or servants and remanded
the case to the trial court. Id. at 347.

        The facts of Johnson are similar to the facts of the present case. Both cases involve
negligence claims brought against health care providers and their employers. Frontier is a private,
not-for-profit corporation that provides mental health services and owns and operates several private


                                                   -6-
psychiatric hospitals, including Woodridge. Like LeBonheur, Frontier and Woodridge provide a
service to the State and benefit in so doing. Mr. Kirk, like each of the residents in Johnson, is an
immune state employee. Frontier and Woodridge argue, as LeBonheur did, that they cannot be held
vicariously liable for the acts or omissions of an immune agent. We reject this argument as we did
in Johnson.

        First, as we pointed out in Johnson, section 9-8-307(h) does not extinguish a claimant’s right
of action but merely immunizes state employees from individual monetary liability. Id. at 345-46.
Since Mr. Kirk’s conduct remains available as a basis for the imposition of liability in the Tennessee
Claims Commission against the State, Mrs. Shelburne’s right of action survives. Accordingly, Mr.
Kirk’s personal immunity does not prevent Frontier and Woodridge from being held vicariously
liable for his negligence under the doctrine of respondeat superior.

        Furthermore, none of the statutes we have reviewed grant immunity to private hospitals.
Section 9-8-307(h) grants immunity to state employees. While section 8-42-101(3)(D) provides that
members of community-based screening agencies are state employees, nothing in that section
indicates that the agencies themselves are state employees. Under our decision in Johnson, section
9-8-307 does not immunize a private hospital from liability for the acts or omissions of state
employees who are also acting as agents of the private hospital. Id. at 343. Frontier and Woodridge,
therefore, are not immune from liability for the acts or omissions of Mr. Kirk.

                                            Conclusion

        In light of our decision in Johnson, we hold that Frontier Health and Woodridge Hospital are
not immune from liability for the acts or omissions of their immune agent. Therefore, we reverse
the judgments of the trial court and the Court of Appeals, and we remand the case to the trial court
for further proceedings consistent with this opinion. Costs of this appeal are taxed to the appellees,
Frontier Health and Woodridge Hospital, and their surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       JANICE M. HOLDER, JUSTICE




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