Appeal from Circuit Court of Macon County No. 96L3 Honorable John K. Greanias, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
A patient filed suit against St. Mary's Hospital (St. Mary's) for medical malpractice because a sponge was left in her abdomen after surgery. Summary judgment was entered against the hospital; the parties then reached a settlement. St. Mary's subsequently filed suit against Health Personnel Options Corporation (HPO), alleging breach of contract and implied indemnity because one of HPO's temporary nurses participated in the surgery from which the underlying suit arose. The trial court once again entered a summary judgment against St. Mary's, asserting that (1) St. Mary's failed to demonstrate that HPO breached its contract by providing St. Mary's with an unqualified nurse, and (2) St. Mary's could not maintain an implied indemnity action against HPO because the release St. Mary's entered into with the patient failed to extinguish HPO's liability. We affirm.
In August 1991, St. Mary's entered into a one-year contract with HPO to fill supplemental staffing needs at St. Mary's. Pursuant to the terms of the contract, HPO agreed to "put forth its most diligent efforts to provide qualified personnel." The specific terms of the contract required the following of HPO:
"5. Provide personnel to fill specific positions;
6. Provide St. Mary's with a completed application, resume if available, skills checklist and references for each employee prior to his first day of employment;
1. Verify that each employee has a minimum of one year [of] recent experience;
8. Verify valid state licensure;
9. [Rea]assign or dismiss any employee upon documentation from St. Mary's of unsat-isfactory performance or conduct; and,
10. Employ and compensate all personnel that have been accepted for a position by St. Mary's, and maintain responsibility for all necessary federal and state taxes, workers['] compensation insurance, professional liability insurance, and unemployment insurance for each employee."
In September 1991, HPO referred Seth Randle to St. Mary's to fill the position of surgical nurse. Consistent with the terms of the contract, HPO provided St. Mary's with (1) Randle's completed application for employment, a skills checklist, and references; (2) verification that Randle had one year of experience; and (3) verification that Randle's registered nurse license was valid. HPO also procured professional liability insurance for Randle. St. Mary's accepted Randle's assignment and instructed Randle on hospital policies and procedures, including sponge-, needle-, and instrument-counting procedures. Randle worked at St. Mary's from September 1991 until February 1992, for a total of 21 weeks.
In January 1992, a sponge was accidentally left in a patient during surgery while Randle was serving as a "circulating nurse." Although the sponge was eventually discovered and removed in June 1992, by that time Randle no longer worked at St. Mary's or for HPO. In addition, HPO's one-year contract with St. Mary's was due to expire in three months.
In January 1994, the patient filed a medical malpractice suit against St. Mary's, the surgeon who performed the procedure, and the radiologist who allegedly failed to discover the sponge. The complaint against St. Mary's specifically alleged that St. Mary's created an unreasonable and foreseeable risk of harm to the patient when it:
"A) Failed to adequately supervise [p]laintiff's treatment;
B) Failed to properly count surgical sponges before their use by physicians and/or ...