Present: All the Justices
OLUDARE OGUNDE
v. Record No. 061121 OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2007
PRISON HEALTH SERVICES,
INC., ET AL.
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Samuel E. Campbell, Judge
Prison Health Services, Inc. (PHS) provides medical
services to persons incarcerated at certain state correctional
centers, including Greensville Correctional Center, pursuant
to a contract with the Virginia Department of Corrections
(VDOC). In 2005, Oludare Ogunde was an inmate at Greensville
Correctional Center. Acting pro se, Ogunde filed a motion for
judgment against PHS and its employees Katie M. Hamlin,
Benjamin Ellis, Joan Hill, RN, and Doctors Amjad Mughal and
Nagash Tesemma (the Employees or the PHS Employees).1 In his
complaint, Ogunde alleged that he suffered from a skin
condition diagnosed as "severe acne cysts and acne
keloidalis," and that this condition was aggravated by
shaving. According to the complaint, PHS and the Employees
denied Ogunde proper medical treatment for his skin condition
1
Ogunde also brought a claim against a "Dr. Stephens."
Dr. Stephens was never served and is not a party to this
appeal.
and failed to issue him an exemption from VDOC's inmate
grooming policy.2
Ogunde's complaint identified seven claims for relief
against PHS and the Employees: negligence or gross
negligence; intentional infliction of emotional distress;
medical malpractice; breach of contract; cruel and unusual
punishment in violation of Section 9, Article I of the
Constitution of Virginia; and a violation of his
constitutional rights under the Eighth Amendment of the United
States Constitution. Ogunde sought, inter alia, compensatory
damages and an injunction requiring PHS and the Employees to
provide him medical treatment and to issue him an exemption
from the inmate grooming policy.
The trial court dismissed Ogunde's negligence, gross
negligence and medical malpractice claims, finding that PHS
and the Employees were employees or agents of the
Commonwealth, not independent contractors, and as such were
entitled to sovereign immunity. The trial court also
dismissed the breach of contract claim finding that there was
2
VDOC's Operating Procedure prohibits male inmates from
wearing goatees or beards. It provides, however, that if an
inmate "has a medical condition that is aggravated by shaving
or complete removal of facial hair, the offender must receive
a 'no shave' medical order from the institutional medical
authority. Offenders who have a 'no shave' medical order must
continually trim all facial hair to not exceed 1/4" in
length."
2
no privity; sustained PHS's and the Employees' demurrer to the
intentional infliction of emotional distress cause of action;
and dismissed Ogunde's state and federal constitutional
claims. In addition, the trial court denied Ogunde's motions
to amend his motion for judgment and to add the Commonwealth
and another PHS physician as party defendants. We awarded
Ogunde an appeal and, for the reasons stated below, we will
affirm in part and reverse in part the judgment of the trial
court and remand the case for further proceedings.
I. DISMISSED CLAIMS
A. Medical Malpractice
We begin by reviewing the trial court's dismissal of
Ogunde's claims of medical malpractice based on its
determination that PHS and the Employees were entitled to
sovereign immunity because they were not independent
contractors.3
In Epperson v. DeJarnette, 164 Va. 482, 486, 180 S.E.
412, 413 (1935), we defined the term "independent contractor"
as
a person who is employed to do a piece of work without
restriction as to the means to be employed, and who
employs his own labor and undertakes to do the work
according to his own ideas, or in accordance with plans
3
The trial court concluded that Ogunde's claims of
negligence were in fact medical malpractice claims, and thus
limited Ogunde's negligence claim to "medical negligence."
Ogunde has not appealed this determination.
3
furnished by the person for whom the work is done, to
whom the owner looks only for results.
If a person meets this definition, an independent contractor
relationship exists and sovereign immunity is unavailable.
Atkinson v. Sachno, 261 Va. 278, 283-84, 541 S.E.2d 902, 904-
05 (2001).
We have previously recognized "that there are abundant
tests and criteria that can be used to determine whether the
relationship between the individual and the Commonwealth is
that of an independent contractor or an employee." Id. at
284, 541 S.E.2d at 905. In each case, however, "the
individual circumstances . . . play an important part in
answering the query." The Texas Co. v. Zeigler, 177 Va. 557,
566, 14 S.E.2d 704, 707 (1941). In determining whether
physicians are employees or independent contractors, we have
included the following four factors: (1) selection and
engagement; (2) payment of compensation; (3) power of
dismissal; and (4) power to control the individual's work.
See, e.g., Atkinson, 261 Va. at 284-85, 541 S.E.2d at 905;
Hadeed v. Medic-24, Ltd., 237 Va. 277, 288, 377 S.E.2d 589,
594-95 (1989); Naccash v. Burger, 223 Va. 406, 418-19, 290
S.E.2d 825, 832 (1982). Although all these factors are
relevant, the fourth factor, "the power of control" is
determinative. Atkinson, 261 Va. at 284-85, 541 S.E.2d at
4
905; Naccash, 223 Va. at 418-19, 290 S.E.2d at 832. We apply
this analysis to the facts of this case.4
PHS and the Employees provided medical services to Ogunde
and other Greensville inmates pursuant to a contract with
VDOC.5 The contract required PHS to "provide all medical,
dental, and mental health services" at several Virginia
correctional centers including Greensville. PHS was to render
these services in accordance with certain policies set forth
by VDOC, including the inmate grooming policy. PHS and the
Employees argue the trial court correctly held that they were
not independent contractors under Atkinson, because the
contract did not allow them to control the "means and methods
used . . . to exercise [their] required professional skill and
judgment." Atkinson, 261 Va. at 283, 541 S.E.2d at 904.
Specifically, PHS and the Employees rely on provisions of the
contract that they contend allow VDOC to pre-approve all
personnel employed or subcontracted by PHS to deliver care,
and require PHS to remove any of its employees with whom VDOC
is dissatisfied if attempts to reach a resolution are
4
The PHS and the Employees agree that they are not
employees of VDOC but maintain that they are VDOC's agents.
We make no distinction between employees and agents in the
application of this test to determine independent contractor
status.
5
At oral argument, Ogunde abandoned his argument that the
trial court inappropriately relied on the contract, and agreed
5
unsuccessful. They also argue that the contract specifies the
"circumstances and conditions under which PHS may authorize
overtime hours for its employees [and] dictates the number of
personnel that must be employed to prevent shortages," and
sets forth where inmates may be hospitalized for inpatient
care, the methods of delivering off-site medical care, and
where PHS must purchase medications and the medications to be
prescribed for certain illnesses.
Many of the contract provisions which PHS and the
Employees recite relate to issues of security attaching to
penal institutions, not to the provision of medical services.
The pre-approval of PHS's employees, for example, involves
clearance from VDOC based on a background investigation
including a criminal records check. Furthermore, in this
context, restrictions such as location for the provision of
medical treatment are not dispositive in resolving the
question whether PHS and the Employees are independent
contractors. The provisions cited for restricting the
medications that can be prescribed are in an amendment to the
contract, which sets forth a list of 25 medications for use in
the treatment of HIV/AIDS and Hepatitis C. This amendment,
the contract is dispositive of whether PHS and the Employees
are independent contractors.
6
however, is not applicable to treatment at Greensville
Correctional Center.
What is crucial to the independent contractor analysis is
that the contract specifically charges PHS with supervising
the work of its own employees and any subcontractors:
The Contractor [PHS] shall be responsible for
completely supervising and directing the work under
this contract and all subcontractors that he may
utilize, using his best skill and attention.
Subcontractors who perform work under this contract
shall be responsible to the prime Contractor. The
Contractor agrees that he is as fully responsible
for the acts and omissions of his subcontractors
and of persons employed by them as he is for the
acts and omissions of his own employees.
Thus, as set forth in this provision, the actual work to be
performed under the contract – the rendering of medical
services to inmates – remains under the control of PHS. The
contract provisions related to staffing cited by PHS and the
Employees do not undermine this control. For instance,
although the contract sets forth staffing requirements, PHS
has the responsibility to "manage its workforce so that there
is sufficient staffing on each and every shift at each
institution in order to assure the delivery of both routine
and emergency health care services to all inmates at all
times." In short, PHS supervises and directs its employees,
not VDOC.
7
The contract to provide medical services was executed in
response to VDOC's request for proposals under the Virginia
Public Procurement Act, and was the result of a competitive
bidding process. Based on that fact and on our review of the
contract, we hold that PHS and the Employees are independent
contractors. Therefore the trial court erred in concluding
that PHS and the Employees were entitled to sovereign
immunity. Accordingly, we will reverse that portion of the
trial court's judgment dismissing Ogunde's medical malpractice
claims on this basis.6
B. Breach of Contract
Ogunde also assigns error to the trial court's dismissal
of his breach of contract claim because he was not in privity
with PHS. Ogunde argues that he is an intended third party
beneficiary of the contract between PHS and VDOC and, as such,
entitled to sue for breach of the contract.
It is well established that "under certain circumstances,
a party may sue to enforce the terms of a contract even though
he is not a party to the contract." Levine v. Selective Ins.
6
Ogunde also assigns error to the trial court's dismissal
of his gross negligence claim, which was apparently dismissed
as a result of the trial court's determination that PHS and
the Employees were entitled to sovereign immunity. Reversal
of that holding and reinstatement of the medical malpractice
claim necessarily reinstates Ogunde's claim of gross
negligence and we therefore need not address Ogunde's
assignment of error on this issue.
8
Co. of Am., 250 Va. 282, 285, 462 S.E.2d 81, 83 (1995); Code
§ 55-22. "The essence of a third-party beneficiary's claim is
that others have agreed between themselves to bestow a benefit
upon the third party but one of the parties to the agreement
fails to uphold his portion of the bargain." Copenhaver v.
Rogers, 238 Va. 361, 367, 384 S.E.2d 593, 596 (1989). In
accordance with this principle, we have allowed third parties
to sue on contracts where "the third party . . . show[s] that
the parties to the contract clearly and definitely intended it
to confer a benefit upon him." Ward v. Ernst & Young, 246 Va.
317, 330, 435 S.E.2d 628, 634 (1993) (quoting Professional
Realty Corp. v. Bender, 216 Va. 737, 739, 222 S.E.2d 810, 812
(1976)).
The contract between PHS and VDOC states that its purpose
is to "provide cost effective, quality inmate health care
services for up to approximately 6,000 inmates (initially)
housed at four correctional center facilities," including
Greensville. The contract then sets forth the scope of health
care services to be provided to the inmates. Ogunde is one of
these inmates and PHS's performance under the contract renders
a direct benefit to Ogunde. The contract thus "clearly and
definitely" indicates that PHS and VDOC intended to provide a
benefit to, among others, Ogunde. Bender, 216 Va. at 739, 222
S.E.2d at 812.
9
PHS and the Employees argue that Ogunde is not an
intended beneficiary but merely an "incidental" beneficiary of
the contract because if he ceases to be an inmate at
Greensville, the contract, and the duties imposed on PHS, will
remain intact. As an incidental beneficiary, Ogunde does not
have standing to enforce the contract according to PHS and the
Employees.
We disagree with the proposition that Ogunde is an
incidental beneficiary. The status of an intended third party
beneficiary does not depend upon permanent membership in the
class of persons entitled to receive the benefit of the
contract. In Moorman v. Nationwide Mut. Ins. Co., 207 Va.
244, 148 S.E.2d 874 (1966), we held that a person injured
while riding as a passenger in a motor vehicle was entitled to
recover pursuant to an insurance policy held by the owner of
the vehicle, which obligated the insurer to pay for medical
expenses incurred by any person "while occupying" the insured
vehicle. We reasoned that the insurance policy had the effect
of placing the injured person "in the position of a third
party beneficiary, and as such, [the injured person] has in
Virginia a statutory right to maintain an action on the
contract in his own name." Id. at 248, 148 S.E.2d at 877. We
reached this conclusion despite the fact that once the injured
person was no longer a passenger in the vehicle, she ceased to
10
be a member of the class of persons who would benefit from the
contract, which would remain in force, subject to its other
provisions. Accord Owens v. Haas, 601 F.2d 1242, 1250-51 (2d
Cir.), cert. denied, 444 U.S. 980 (1979) (reversing dismissal
of inmate's breach of contract claim because contract between
prison and the county to provide transportation of prisoners
"indicates that Owens, as a federal prisoner, was intended to
benefit from the agreement").
Accordingly, we hold that Ogunde was a third party
beneficiary of the contract between PHS and VDOC and the trial
court erred by dismissing Ogunde's breach of contract claim.
C. State Constitutional Claim
Ogunde alleged that the failure to provide appropriate
medical treatment was cruel and unusual punishment in
violation of Art. I, § 9 of the Constitution of Virginia. In
response to this claim, PHS and the Employees originally
asserted that the claim was barred by the doctrines of res
judicata and collateral estoppel. PHS and the Employees
subsequently withdrew their objections on these grounds. The
dismissal order does not recite the basis for dismissal of the
constitutional claim.
On appeal, PHS and the Employees argue that the trial
court was justified in dismissing Ogunde's constitutional claim
because Ogunde failed to comply with the Virginia Prisoner
11
Litigation Reform Act (VPLRA), Code §§ 8.01-689, et seq. PHS
and the Employees assert that Code § 8.01-694 of the VPLRA
requires a prisoner to submit documentation or affidavits to
support his claim, and that failure to do so allows the trial
court to dismiss the pleading sua sponte.
Code § 8.01-694 does not require dismissal of a
prisoner's claim if the prisoner has not attached all
supporting documentation to the complaint. Rather, the
provision simply describes circumstances which "may" result in
the dismissal of the claim. Nothing in the VPLRA changes the
rules governing pleadings and motions in Virginia. The Act
does not require the filing of additional documentation or
affidavits with a pleading. Regardless whether a trial court
believes a claim brought by a pro se prisoner may ultimately
fail, at the pleading stage the trial court is bound by the
same procedures, rules and policies which apply to a party
represented by counsel. The VPLRA does not provide courts or
defendants with a mechanism to disregard these procedures in a
suit brought by a pro se prisoner, and we reject the
application of the Act suggested by PHS and the Employees. In
this case, there is nothing in the record to support the
dismissal of Ogunde's constitutional claim at the pleading
stage, and we accordingly reverse that portion of the trial
court's judgment.
12
D. Intentional Infliction of Emotional Distress
Ogunde challenges the trial court's action sustaining
PHS's and the Employees' demurrer to his claim of intentional
infliction of emotional distress. A demurrer tests the legal
sufficiency of the facts alleged in the plaintiff's complaint.
Sanchez v. Medicorp Health Sys., 270 Va. 299, 303, 618 S.E.2d
331, 333 (2005). In reviewing a demurrer, a trial court must
consider the pleadings in the light most favorable to the
plaintiff and sustain the demurrer if it is clear that the
plaintiff has not stated a valid cause of action. Id. To
survive a demurrer as to the instant claim, a plaintiff must
allege: "1) the wrongdoer's conduct was intentional or
reckless; 2) the conduct was outrageous or intolerable; 3)
there was a causal connection between the wrongdoer's conduct
and the resulting emotional distress; and 4) the resulting
emotional distress was severe." Almy v. Grisham, 273 Va. 68,
77, 639 S.E.2d 182, 186 (2007).
Ogunde alleged in his complaint that PHS and the
Employees denied him treatment and refused to recommend he be
exempted from the grooming policy because they believed the
importance of Ogunde's compliance with the grooming policy
outweighed any medical need for an exemption and because they
erroneously believed "they lack[ed] authority to make such a
recommendation." Assuming the truth of the allegations, the
13
conduct is not so intolerable or outrageous such that it
"offends against the generally accepted standards of decency
and morality." Jordan v. Shands, 255 Va. 492, 498, 500 S.E.2d
215, 219 (1998)(quoting Womack v. Eldridge, 215 Va. 338, 342,
210 S.E.2d 145, 148 (1974)). And, while Ogunde did allege
that their conduct was both intentional and reckless, we are
not bound to accept conclusory allegations in a review of a
demurrer to an intentional infliction of emotional distress
claim. Id. at 499, 500 S.E.2d at 219 (plaintiff failed to
plead cause of action for emotional distress where her
allegations were "merely conclusional" and did not set forth
any specific conduct by defendants); Russo v. White, 241 Va.
23, 28, 400 S.E.2d 160, 163 (1991)(the court is not "bound by
such conclusory allegations" in considering demurrer to
infliction of emotional distress claim). Accordingly, we find
no error by the trial court in sustaining the demurrer.
II. DENIAL OF MOTIONS TO AMEND AND TO ADD NEW PARTIES
Following the trial court's ruling sustaining the
demurrer to Ogunde's intentional infliction of emotional
distress claim, dismissing his breach of contract claim, and
consolidating his negligence claims with his medical
malpractice claim, discovery continued and PHS and the
Employees filed their pleas of sovereign immunity. In
response, Ogunde filed two motions, one to add the
14
Commonwealth as a party defendant and a second to amend his
motion for judgment to "cure the imperfections" in his prior
pleading and to add new counts and a claim for punitive
damages. Ogunde asserted the amendments resulted from matters
arising in discovery and that PHS and the Employees would not
be prejudiced by allowing the proposed amendments. A copy of
the amended motion for judgment was attached to the motions to
amend. PHS and the Employees did not file any written
opposition to the proposed amendments. Following a hearing,
the trial court denied Ogunde's motions, granted the sovereign
immunity plea, and dismissed Ogunde's motion for judgment.
Ogunde has assigned error to the trial court's denial of his
motions to amend.
Ogunde's stated reason for adding the Commonwealth as a
party and including a claim under the Virginia Tort Claims Act
was in response to PHS's and the Employees' claim of sovereign
immunity. In light of our holding that PHS and the Employees
are independent contractors and not entitled to sovereign
immunity, these amendments are no longer necessary and we need
not address Ogunde's arguments directed to that part of the
trial court's ruling.
PHS and the Employees raise a number of arguments in
support of the trial court's exercise of its discretion in
denying the remaining amendments. They again assert that
15
Ogunde did not satisfy the pleading requirements of the VPLRA
because he did not provide "written documentation to support
his claim." We have already rejected that construction of
Code § 8.01-694 and reject it again here as a basis for
refusing the amendments sought. PHS and the Employees also
claim that certain counts were barred by the statute of
limitations and that venue was improper. These arguments may
be defenses to the claims but were not resolved by the trial
court, and thus are not appropriate as a basis for denying the
amendments.
Whether to grant leave to amend pleadings is a matter
within the sound discretion of the trial court. Kole v. City
of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409 (1994).
"Leave to amend shall be liberally granted in furtherance of
the ends of justice." Rule 1:8. Ogunde had not previously
sought to amend his motion for judgment and filed this request
in a timely manner, following the relevant rulings of the
trial court and the conclusion of discovery. Nothing in the
amendments suggests that PHS and the Employees would have been
prejudiced by allowing the amendments. Under these
circumstances, Ogunde provided good cause to seek to amend his
complaint. See Ford Motor Co. v. Benitez, 273 Va. 242, 252,
639 S.E.2d 203, 208 (2007); Mortarino v. Consultant Eng'g
Servs., 251 Va. 289, 295-96, 467 S.E.2d 778, 782 (1996).
16
Accordingly, we find that the trial court abused its
discretion in failing to allow Ogunde to file his amended
motion for judgment.
CONCLUSION
In sum, we hold that the trial court erred in holding
that PHS and the Employees were entitled to sovereign immunity
and in dismissing Ogunde's medical malpractice and gross
negligence claims on that basis, and in dismissing Ogunde's
claims for breach of contract and violation of Article I, § 9
of the Constitution of Virginia. We further hold that the
trial court abused its discretion by denying Ogunde leave to
amend his complaint. We find no error by the trial court in
sustaining the demurrer to Ogunde's claim for intentional
infliction of emotional distress.
For these reasons, we will affirm in part and reverse in
part the circuit court's judgment and remand the case for
proceedings not inconsistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
17