C.Hutchinson - July 13, 2021 - Mississippi Anesthesia Advisory Panel - Tort Claims Act

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 July 13, 2021 Mr. Chris L. Hutchinson Executive Director Mississippi State Board of Dental Examiners 600 East Amite Street, Suite 100 Jackson, Mississippi 39201-2801 Re: Mississippi Anesthesia Advisory Panel - Tort Claims Act Dear Mr. Hutchinson: The Office of the Attorney General has received your request for an official opinion. Background Mississippi Code Annotated Section 73-9-13(q) grants authority to the Mississippi State Board of Dental Examiners (“Board”) to employ technical and professional personnel to conduct dental office sedation site visits to assist the Board in its determinations on whether to issue permits enabling applicants to administer anesthesia pursuant to Board regulations. You state that members of the Mississippi Anesthesia Advisory Panel have been appointed by the Board to assist in implementing Board regulations governing the administration of anesthesia by Mississippi licensed dentists. Members of the Advisory Panel are volunteers and do not receive compensation for their time. Question Presented Does the Mississippi Tort Claims Act (“MTCA”) extend protection to members of the Mississippi Anesthesia Advisory Panel (“Advisory Panel”) duly appointed by the Board? Brief Response Members of the Advisory Panel fit within the broad definition of “employees of the state of Mississippi” as set forth in Section 11-46-1(f) and, when acting within the course and scope of their duties, are entitled to the protection of the MTCA. Mr. Chris L. Hutchinson July 13, 2021 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Applicable Law and Discussion At the outset, we must note that whether the MTCA applies to a particular claim depends on questions of fact. MS AG Op., Sutton at *3 (Apr. 22, 2016) (“Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim.”). This office cannot address questions of fact by way of an official opinion. See Miss. Code Ann. § 7-5-25. Section 73-9-13 sets forth the powers and duties of the Board. It provides, in part: The board shall have the following powers and duties: . . . (q) To employ, in its discretion, technical and professional personnel to conduct dental office sedation site visits, administer and monitor state board examinations and carry out the powers and duties of the board. The MTCA “provides a limited waiver of sovereign immunity by the State and its political subdivisions for claims for money damages arising from certain torts of these governmental entities and torts of their employees while acting within the course and scope of their employment.” MS AG Op., Lucas at *2 (July 24, 2009). Section 11-46-1(f) defines the term “employee” applicable to the MTCA: (f) “Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; Miss. Code Ann. § 11-46-1(f) (emphasis added). This definition is “very broad.” MS AG Op., Howell at *3 (Mar. 8, 1996). As noted in your request, we have previously opined that a part-time investigator of the Board is deemed an “employee” as defined in Section 11-46-1(f), id. at *4, and that an unpaid volunteer faculty member at UMMC performing teaching duties is afforded coverage under the MTCA. MS AG Op., Conerly at *2 (Mar. 29, 2002); see also MS AG Op., Hyde-Smith at *1 (Dec. 21, 2012) (“Therefore, it is the opinion of this office that if a volunteer, acting with the authorization and knowledge of the agency and acting within the course and scope of their volunteer duties, injures a visitor, the agency and volunteer would be afforded coverage under the Mississippi Tort Claims Act for any claims made by the injured visitor.”). Mr. Chris L. Hutchinson July 13, 2021 Page 3 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 It is the opinion of this office that members of the Advisory Panel fit within the broad definition of “employees of the state of Mississippi” as set forth in Section 11-46-1(f) and, therefore, when acting in the course and scope of their duties, are entitled to the protection of the MTCA. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Phil Carter Phil Carter Special Assistant Attorney General