SHARPE, District Judge.
[¶ 1] Campbell County Memorial Hospital ("the hospital") appeals from a district court order denying its motion for partial summary judgment in a medical malpractice action. The district court determined that a government hospital could be vicariously liable for acts of non-employees or independent contractors under the doctrine of ostensible agency. The district court based its ruling on this Court's decision in Sharsmith v. Hill, 764 P.2d 667 (Wyo.1988). On appeal, the hospital contends the district court erred in its interpretation of Sharsmith. The hospital asserts Sharsmith did not create an implied waiver of sovereign immunity under the Wyoming
[¶ 2] Appellant Campbell County Memorial Hospital presents the following issue for our consideration:
Appellee Jamie Pfeifle restates the issues as follows:
[¶ 3] Campbell County Memorial Hospital ("the hospital") is a governmental entity in Gillette, Wyoming. The hospital contracted with Northern Plains Anesthesia Associates, P.C. ("Anesthesia Associates") to provide anesthesia services for the hospital. Amanda Phillips ("Phillips" or "Nurse Phillips") was a certified registered nurse anesthetist for Anesthesia Associates when the conduct in dispute occurred.
[¶ 4] On September 24, 2008, Jamie Pfeifle ("Pfeifle") went to the hospital to have a baby. Although she anticipated that the baby would be delivered after labor was induced, the attending obstetrician ordered a cesarean section. In preparation for the cesarean section, Nurse Phillips attempted to administer spinal anesthesia to Pfeifle. After the first attempt failed, she tried to administer anesthesia two more times. Pfeifle claims she experienced severe pain and paresthesia during each procedure. Pfeifle maintains that Nurse Phillips' repeated attempts to administer the anesthesia caused permanent disability and other damages.
[¶ 5] After complying with the claim requirements of the Wyoming Governmental Claims Act ("WGCA" or "Act"), Jamie and her husband Josh filed this action on December 28, 2010.
[¶ 6] On March 22, 2012, the hospital filed a motion for partial judgment on the pleadings pursuant to W.R.C.P. 12(c). In support of its motion, the hospital relied on the answers filed by Phillips and Anesthesia Associates admitting that Phillips was an employee of Anesthesia Associates and not the hospital. The hospital argued that it could only be held liable for acts of "public employees" under the WGCA and that the Act specifically excludes "independent contractors" from the definition of public employees. Accordingly, the hospital argued it was entitled to judgment as a matter of law on the Pfeifles' claims asserting vicarious liability against the hospital for the alleged negligence of Phillips or Anesthesia Associates.
[¶ 8] After hearing oral arguments on the hospital's motion, the district court certified the following question to this Court: Does the doctrine of ostensible or apparent agency as announced in Sharsmith apply to all hospitals regardless of whether or not they are governmental entities that are protected by sovereign immunity and the requirements of the Wyoming Governmental Claims Act? This Court declined to answer the certified question on August 15, 2012, stating:
[¶ 9] On September 10, 2012, the district court issued its decision letter denying the hospital's motion for partial summary judgment. In so doing, the district court held that Sharsmith applies to cases involving government hospitals. The district court further found that the Sharsmith factors were satisfied in this case, and that the hospital could be vicariously liable for the actions of a non-employee under the doctrine of ostensible agency.
[¶ 10] W.R.C.P. 12(c) prescribes the standard for converting a motion for judgment on the pleadings to a motion for summary judgment.
W.R.C.P. 12(c). Because the Pfeifles attached discovery documents to their brief in opposition to the hospital's motion, the district court properly converted the hospital's motion to one for partial summary judgment. Accordingly, we apply a summary judgment standard of review.
[¶ 11] Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Comet Energy Servs., LLC v. Powder River Oil & Gas Ventures, LLC, 2008 WY 69, ¶ 5, 185 P.3d 1259, 1261 (Wyo.2008). When summary judgment involves a purely legal determination, we review de novo the trial court's summary judgment decision. Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo.2008).
[¶ 12] Before considering the merits of this appeal, we must first address a jurisdictional issue. The denial of a defendant's summary judgment motion is generally not a final appealable order. Gilstrap v. June Eisele Warren Trust, 2005 WY 21, ¶ 7, 106 P.3d 858, 861 (Wyo.2005). This Court has recognized an exception to that rule, however, in cases involving the denial of a defendant's claim of qualified immunity. Park County v. Cooney, 845 P.2d 346, 349 (Wyo.1992). In State Dep't of Corr. v. Watts, 2008 WY 19, ¶ 10, 177 P.3d 793, 796 (Wyo. 2008), we determined that the same rationale that favors an exception to the general rule in qualified immunity cases, also applies to summary judgment denials based on a claim of governmental immunity. We specifically
[¶ 13] In analyzing the district court's denial of the hospital's motion, we note that the district court accepted the factual premise that Nurse Phillips acted as an employee of Anesthesia Associates, and not the hospital, when she administered the spinal anesthesia. The district court nevertheless determined that a governmental entity can be vicariously liable for the acts of non-employees or independent contractors based on the doctrine of ostensible agency. The district court based this decision solely on its reading of Sharsmith.
[¶ 14] In Sharsmith, this Court considered whether a hospital in Teton County (St. John's Hospital) could be vicariously liable for the alleged negligence of two non-employee pathologists who failed to diagnose a malignant tumor in the plaintiff's leg. This Court initially noted in Sharsmith that a hospital is generally liable only for the negligence of its employees, and not for the negligence of physicians who are independent contractors. Id., 764 P.2d at 671. Relying on case law from other jurisdictions as well as the Restatements Second of Torts and Agency, however, this Court adopted the "apparent agency rule." That rule imposes vicarious liability against hospitals for the negligence of those practitioners who are the ostensible or apparent agents of the hospital "regardless of whether they are employees or independent contractors." Id. at 672. We summarized the apparent agency rule in Sharsmith as follows:
Sharsmith, 764 P.2d at 672 (quoting Hardy v. Brantley, 471 So.2d 358, 371 (Miss.1985)). Sharsmith did not discuss or address whether the hospital in that case was a governmental entity or a private hospital. Moreover, Sharsmith did not discuss the WGCA or the doctrine of sovereign immunity, and did not consider whether the Wyoming Legislature intended to waive sovereign immunity for acts of non-employees of a government hospital under the doctrine of apparent or ostensible agency.
[¶ 15] The district court in this case acknowledged that Sharsmith is silent on these salient issues but determined that Sharsmith nevertheless applies to this case. The district court explained its reasoning as follows:
[¶ 16] To resolve this appeal, we must first determine whether the legislature, by enacting the WGCA, intended to expressly waive sovereign immunity for acts of non-employees of a government hospital under the doctrine of ostensible agency. We must also analyze whether our decision in Sharsmith interpreted the Act to waive sovereign immunity with regard to claims of ostensible or apparent agency. Because the district court assumed that our decision in Sharsmith resulted in a waiver of governmental immunity, the starting point for our analysis requires a brief discussion of the doctrine of sovereign
[¶ 17] There is perhaps no common law doctrine more time honored than the doctrine of sovereign immunity. As this Court noted in Worthington v. State, 598 P.2d 796, 801 (Wyo.1979):
We acknowledged in Worthington that the doctrine of sovereign immunity has its "roots in the ancient common law of England which held `The King can do no wrong' and hence could not be sued in any court of law." Id. at 803 (quoting Perkins v. State, 252 Ind. 549, 251 N.E.2d 30, 32 (1969)).
[¶ 18] In reality, of course, the King does "do wrong," but the right to seek redress for such wrong is determined by the policy and will of the legislative body. The constitution of the State of Wyoming embodies this very concept. "Suits may be brought against the state in such manner and in such courts as the legislature may by law direct." Wyo. Const. art. 1, § 8. Until 1979, the Wyoming Legislature had not directly addressed those circumstances in which lawsuits could be maintained against the State of Wyoming, so issues involving sovereign immunity were largely the province of the courts. See, e.g., Oroz v. Board of County Comm'rs, 575 P.2d 1155 (Wyo.1978).
[¶ 19] In 1979, the Wyoming Legislature abrogated the common law of sovereign immunity in Wyoming, and established sovereign immunity as a legislative construct. See Wyo. Stat. Ann. §§ 1-39-101 to 1-39-121 (LexisNexis 2013). The Wyoming Legislature stated its purpose in enacting the WGCA as follows:
Wyo. Stat. Ann. § 1-39-102 (LexisNexis 2013). The Wyoming Legislature's purpose in enacting the WGCA is clear. The legislature sought to retain the common law principle that a governmental entity is generally immune from lawsuits, while acknowledging that fairness requires authorizing lawsuits against a governmental entity in certain statutorily defined situations. The legislature therefore created specific statutory exceptions to the general rule of sovereign immunity. The unambiguous language of § 1-39-104(a) supports this interpretation of the Act: "A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through W.S. 1-39-112 and limited by W.S. 1-39-121."
[¶ 21] In this case, Pfeifle argues that her tort claim falls within the waiver of immunity found in §§ 1-39-109 and 1-39-110 of the Act. Section 1-39-109 provides an express waiver for "public employees" in the operation of any public hospital or in providing public outpatient care. Section 1-39-109 states:
Wyo. Stat. Ann. § 1-39-109 (LexisNexis 2013) (emphasis added).
[¶ 22] Section 1-39-110 of the Act, in turn, grants an express waiver of immunity for certain health care providers, including contract physicians and nurses providing services for state institutions and county jails. Section 1-39-110(a) states:
Wyo. Stat. Ann. § 1-39-110(a) (LexisNexis 2013) (emphasis added).
[¶ 23] The term "public employee" as used in § 1-39-103 is defined within the Act as follows:
Wyo. Stat. Ann. § 1-39-103(a)(iv)(A-C) (LexisNexis 2013) (emphasis added).
[¶ 24] The term "employees of the governmental entity" as used in § 1-39-110 is not separately defined, but the term is included within the broader definition of "public employee" found in § 1-39-103(a)(iv)(A). When construing a statute, this Court must read the statute as a whole and give effect to every word, clause and sentence, and construe all parts of the statute in pari materia. Johnson v. City of Laramie, 2008 WY 73, ¶ 7, 187 P.3d 355, 357 (Wyo.2008). The term "employees of a governmental entity" is therefore subject to the subsequent modifying language found in both §§ 1-39-103(a)(iv)(B) and 1-39-103(a)(iv)(C) for "public employees."
[¶ 25] Reading all the provisions of the Act in pari materia, as we must, we find that the plain meaning of "public employee" is clear. "Public employee" begins with the broad definition under the first subparagraph ("any officer, employee or servant of a governmental entity"). § 1-39-103(a)(iv)(A). The definition is restricted by the second subparagraph ("[d]oes not include an independent contractor, except as provided in subparagraph[] (C)"). § 1-39-103(a)(iv)(B). The definition is slightly extended by the third subsection ("Includes contract physicians, physician assistants, nurses, optometrists and dentists in the course of providing
[¶ 26] Accordingly, for purposes of §§ 1-39-109 and 1-39-110, the only independent contractors that are considered "public employees" are the listed contractors providing health care services for state institutions and county jails. § 1-39-103(a)(iv)(C). The list of fourteen state institutions created by the legislature does not include any public hospital, except the Wyoming state hospital in Evanston. Wyo. Stat. Ann. § 25-1-201 (LexisNexis 2013). Campbell County Memorial Hospital is not listed and is clearly not a "state institution." Moreover, the hospital in this case is certainly not a county jail. If Phillips is indeed an employee of an independent contractor (as the district court assumed she was), then sovereign immunity has not been waived by either §§ 1-39-109 or 1-39-110.
[¶ 27] Our conclusion that the WGCA does not provide an express waiver of sovereign immunity for non-employees of a governmental hospital does not end our analysis. The district court assumed the doctrine of ostensible agency announced in Sharsmith applies to all hospitals, including governmental entities. The district court based its conclusion on the fact that the hospital in Sharsmith, like the hospital here, was a governmental entity.
[¶ 28] The district court correctly recognized that Sharsmith does not discuss either the Wyoming Governmental Claims Act or the doctrine of sovereign immunity. Sharsmith did not address whether the hospital in that case was a governmental entity, and did not discuss whether the legislature intended to waive sovereign immunity for claims against a governmental entity under the Act for acts of an ostensible agent. In the absence of any discussion or analysis of these important topics, it was error for the district court to rely on Sharsmith as waiving sovereign immunity in this case.
[¶ 29] The decision whether or not to waive immunity for a governmental entity belongs to the Wyoming Legislature, not this Court. Wyo. Const. art. 1, § 8. If the legislature had intended to include liability for apparent or ostensible agents within a waiver of governmental immunity, it could have expressly done so. It is not the province of this Court to extend statutory language to individuals not included within the plain language of the statute. As this Court recently emphasized, "[w]ith specific regard to the Wyoming Governmental Claims Act, we have said that we should not `enlarge, stretch, expand[,] or extend' the statutory language to include `matters not falling within its express provisions.'" Sinclair v. City of Gillette, 2012 WY 19, ¶ 9, 270 P.3d 644, 646
[¶ 30] Finally, Pfeifle proffers additional arguments supporting the district court's denial of the hospital's motion for partial summary judgment. Pfeifle argues that the hospital waived sovereign immunity by obtaining liability insurance that covered Phillips. Pfeifle further argues that she is an intended third-party beneficiary of the contract between the hospital and Anesthesia Associates, and that the Act does not provide governmental immunity for contract claims. Pfeifle made these same arguments below, but the district court did not address them in its decision letter.
[¶ 31] While this Court may ordinarily affirm the district court on any ground apparent in the record, we have declined to do so when the underlying issues involve complex factual and legal arguments that were never addressed by the district court. Horse Shoe Land & Livestock v. Federal Land Bank, 740 P.2d 936, 938 (Wyo.1987). We decline in this case to analyze Pfeifle's alternative legal arguments concerning insurance coverage and third-party beneficiary contract coverage in the absence of a district court determination of these issues.
[¶ 32] We reverse and remand for further proceedings consistent with this opinion.