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Gary v. Askew

Court of Appeals of South Carolina

June 1, 2016

Charles Gary, Respondent
Hattie M. Askew, Will Outlaw, and Deboria Outlaw, individually and d/b/a Low Country Medical Transport; Low Country Medical Transport, Inc.; Eugene A. Kirkland; and American Medical Response, Inc. (d/b/a Access2Care), Defendants. Of whom American Medical Response, Inc. (d/b/a Access2Care) is the Appellant. Appellate Case No. 2013-002674

          Heard July 15, 2015

         Appeal From Beaufort County Marvin H. Dukes, III, Special Circuit Court Judge

          Robert H. Hood, Robert Holmes Hood, Jr., and H. Cooper Wilson, III, of Hood Law Firm, LLC, of Charleston; C. Mitchell Brown, Brian Patrick Crotty, and Michael J. Anzelmo, of Nelson Mullins Riley & Scarborough, LLP, of Columbia, all for Appellant.

          Joseph Dawson, III, of North Charleston, for Respondent.

          WILLIAMS, J.

         In this civil action, American Medical Response, Inc. (AMR) appeals the circuit court's grant of summary judgment in favor of Charles Gary as to his negligence and loss of consortium claims. AMR argues the court erred in (1) holding AMR could not escape liability for the negligent actions of a subcontractor because it owed Gary an absolute, nondelegable duty to provide safe transportation pursuant to its contract with the South Carolina Department of Health and Human Services (SCDHHS) and public policy; and (2) prematurely granting summary judgment in favor of Gary when AMR was not afforded a full and fair opportunity to conduct discovery. We reverse and remand.


         On September 9, 2010, SCDHHS issued a request for proposal (RFP) regarding the provision of brokerage services for the South Carolina nonemergency medical transportation (NEMT) program. The program was designed to provide nonemergency transportation services to Medicaid members who needed access to medical care or services. AMR responded to the RFP, and on May 25, 2011, SCDHHS awarded AMR a five-year contract (the Contract) to provide brokerage services in two of the three SCDHHS regions in South Carolina. The parties agree the RFP bid documents formed the basis of the Contract under which AMR served as a broker for the NEMT program.[1]

         The Contract distinguished the broker from the transportation providers, who were responsible for providing the actual transportation services. Under the Contract, AMR was required to recruit qualified transportation providers but could "not provide NEMT services or make a referral to or subcontract with a transportation provider" if it had "a financial relationship with the provider." Moreover, section 3.3.6 of the Contract provided the only time a broker could operate vehicles to provide transportation services was in the "very limited circumstances" set forth in 42 C.F.R. § 440.170(a)(4)(ii)(B) (2012).[2]

         As the broker, AMR's responsibilities within the NEMT program included "operating a call center and contracting with transportation providers to fulfill the services, " as well as establishing "a system that ensures high quality and appropriate medical transportation services are provided to South Carolina's Medicaid population." AMR was also "responsible for identifying, recruiting, and negotiating service agreements with transportation providers . . . to meet the needs of Medicaid members in the region." Further, AMR was required to "immediately take necessary and corrective steps when representatives of SCDHHS identif[ied] inappropriate, undesirable, or otherwise poor service."

         The Contract also required AMR to perform several core brokerage services "throughout the life of the [C]ontract." In particular, AMR was charged with processing transportation requests for members, verifying their eligibility for Medicaid, operating a call center, recruiting and maintaining an adequate transportation provider network, and providing administrative oversight for the NEMT program. Section 3.3 set forth AMR's various operational requirements:

         3.3.5 Fulfillment of All Trip Requests: The [b]roker is responsible for fulfilling all verified trip requests and ensuring that all trips are completed safely and on-time. SCDHHS expects the [b]roker to provide trip coverage twenty-four (24) hours a day, seven (7) days a week. Fulfillment of all verified trip requests and ensuring that all trips are completed safely and on-time must include verification of the delivery of transportation services through the use of tracking tools and cost effective methods to determine the real-time location of members, verification of member delivery to the medical service, vehicle location and disposition[, ] and to aid trip recovery processes. The functionality of tracking tools and methods must be explained operationally and approved by SCDHHS.

          . . . .

         3.3.7 Insurance:

         In addition to the strict quality assurance standards that the transportation providers must meet, the [b]roker must ensure transportation providers have insurance coverage. State law and regulations specify minimum insurance requirements for entities involved in the provision of Medicaid [t]ransportation [s]ervices. The [b]roker is responsible for ensuring required and adequate coverage is obtained and maintained during term of contract.

         3.3.8 Accidents, Injuries, and Incidents:

The [b]roker must promptly report to SCDHHS accidents, injuries, and incidents that have occurred in conjunction with a scheduled trip if a [m]ember was present in the vehicle.

         . . . .

         3.3.9 Trip Recovery:

The [b]roker must ensure that each provider is responsive to all vehicle breakdowns, problems[, ] or delays in delivering service. The [b]roker must ensure that the provider has adequate backup vehicles to recover the trips, and ensure that members are not late for their appointments and do not spend excessive time on the vehicles.

         3.3.10 Notification by Transportation Providers:

The [broker] must ensure that the transportation provider immediately informs [b]roker of any breakdown, accident[, ] or incident as well as any other problems that might cause a delay of more than ten (10) minutes in the trip. Immediately after the [b]roker is notified of a delay exceeding ten (10) minutes, the [b]roker must also notify the members or their representatives and the facilities or families at the destination point. If necessary, other transportation should be arranged to ensure appropriate transport.

         Additionally, section 3.3.15 required AMR to develop a detailed monitoring plan and monitor the transportation providers with whom it subcontracted to confirm they were providing quality and safe services. If information and reports indicated otherwise, then subsection required AMR to take corrective action:

The [b]roker must have written procedures in place for taking appropriate corrective action whenever inappropriate or substandard services are furnished or when services that should have been furnished were not. In addition, the [b]roker must have written procedures for taking appropriate action if a transportation provider is out of compliance with federal or [s]tate laws or regulations. The [b]roker must report, not less than monthly, to SCDHHS on monitoring activities, monitoring findings, corrective action taken, and improvements by the transportation provider.

Section 3.11.1 provided AMR was "responsible for receiving and responding to all complaints about NEMT services under this contract, whether oral or written, from members, transportation providers, health care providers, facilities, SCDHHS[, ] or other sources." Under subsection, the quality assurances provision, AMR was required to "provide assurance that transportation providers meet health and safety standards for vehicle maintenance, operation, and inspection; driver qualifications and training; member problem and complaint resolution; and the delivery of courteous, safe, and timely transportation services."

         On January 31, 2012, Gary and his wife were passengers in an ambulance returning home from Gary's medical appointment. Gary's wife had scheduled the trip by calling AMR, which processed her request for NEMT. Low Country Medical Transport, Inc. (Low Country), a subcontractor under AMR's contract with SCDHHS, provided the NEMT service for Gary and his wife that day. Eugene Kirkland, a Low Country employee, drove the ambulance used to transport the couple. Prior to reaching Gary's home, the ambulance left the roadway and struck a tree. As a result of the accident, Gary suffered injuries and his wife died.

         Gary filed the instant lawsuit against AMR and other defendants[3] (collectively "Defendants") on October 26, 2012, asserting claims for negligence, loss of consortium, and negligent infliction of emotional distress. Following limited discovery, Gary filed a motion for summary judgment on all claims against Defendants. The circuit court held a hearing at which the parties filed memoranda on the motion. After the court requested further briefing, AMR and Gary filed supplemental memoranda. Thereafter, AMR's counsel filed an affidavit pursuant to Rule 56(f), SCRCP, asserting summary judgment was premature at that stage because the parties had not conducted material discovery. In the affidavit, AMR's counsel argued AMR could not properly ...

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