Baptist Memorial Hosp. System v. Smith
| Decision Date | 21 August 1991 |
| Docket Number | No. 04-89-00582-CV,04-89-00582-CV |
| Citation | 822 S.W.2d 67 |
| Parties | BAPTIST MEMORIAL HOSPITAL SYSTEM, Appellant, v. Pleas R. SMITH, as Guardian of the Person and Estate of Evan W. Smith, Jr., Mentally Incompetent, Appellee. |
| Court | Texas Court of Appeals |
Ruth Greenfield Malinas, Ball and Weed, Thomas H. Crofts, Jr., Jo Reser, Groce, Locke & Hebdon, San Antonio, for appellant.
Andrew L. Todesco, Kevin DuBose, Jim M. Perdue, Mark D. Clore, Perdue & Todesco, Houston, for appellee.
Before CADENA, C.J., 1 and CHAPA and CARR, JJ.
ON APPELLANT'S MOTION FOR REHEARING
Appellant's motion for rehearing is denied; our opinion of March 28, 1991 is withdrawn and this opinion is substituted therefor.
This is a medical malpractice case, which arose from an incident which occurred on June 22, 1980, in the emergency room of the Northeast Baptist Hospital, one of several health care facilities comprising the Baptist Memorial Hospital System. Evan W. Smith, Jr., then a fifty-five-year-old telephone company lineman, presented himself in the hospital's emergency room where he sought treatment from a physician on duty for a sore throat and difficulty in swallowing. He experienced severe spasms and cardio-respiratory arrest after the administration of penicillin and bicillin for the treatment of acute inflammation or infection of the throat. As a result of the treatment he received in the hospital emergency room, Smith was without oxygen for approximately five minutes, causing permanent and irreversible brain damage.
Smith, through his guardian Pleas R. Smith [hereinafter Smith], brought suit against the emergency room physician, Dr. Harry Henderson; Emergency Physicians Affiliates [EPA], the professional association with which Dr. Henderson was affiliated; and Baptist Memorial Hospital System [BMHS], owner and operator of the hospital emergency room. In his lawsuit, Smith contended that Dr. Henderson should have diagnosed epiglottitis and intubated Evan Smith to prevent respiratory failure, and that a tracheostomy was not properly performed on the patient. At the conclusion of presenting Smith's case, his counsel dismissed EPA as a defendant in the lawsuit, and the case proceeded against the two remaining defendants. Dr. Henderson presented evidence in his defense, and BMHS rested without presenting any evidence. The case was then submitted to the jury, which found that Dr. Henderson was negligent and that he was the ostensible agent of BMHS, and that BMHS should be estopped from denying that Dr. Henderson was its agent. In so finding, the jury rendered a verdict in Smith's favor against both defendants on the following elements of damages:
Past pain and anguish $1,000,000
Future pain and anguish $1,000,000
Lost wages in the past $ 150,000
Loss of future earning capacity $ 200,000
Disfigurement in the past $ 500,000
Future disfigurement $1,000,000
Physical impairment in the past $2,000,000
Future physical impairment $2,000,000
Past medical and related expenses $ 300,000 2
Future medical and related expenses $3,000,000 3
Only BMHS appeals from this adverse judgment.
In eight points of error, BMHS urges trial court error in the following particulars:
(1) The evidence is legally insufficient to support the jury's answer concerning "agency relationship A," in that:
(a) there is no evidence that BMHS represented that Dr. Henderson was its employee;
(b) there is no evidence that it was BMHS's representation of employment that caused Evan Smith to rely on Dr. Henderson for medical care.
(2) The trial court's definition of "agency relationship A" is harmful error because:
(a) it does not include the required causal link between a representation of employment and reliance on Dr. Henderson's skill;
(b) it is not limited to representation of a relationship in which BMHS would have a right to control Dr. Henderson's work.
(3) The evidence is legally insufficient to support the jury's answer concerning "agency relationship B," in that there is no evidence:
(a) it was a reasonable belief in employment that caused Evan Smith to consent to Dr. Henderson's treatment;
(b) BMHS intentionally or carelessly caused Evan Smith to believe that Dr. Henderson was its employee;
(c) BMHS knew Evan Smith had such a belief or that BMHS failed to notify him to the contrary.
(4) The trial court erred in submitting "agency relationship B," and the submitted definition itself is harmful error, because:
(a) instead of defining a theory of vicarious liability for negligence, "agency relationship B" relates to the enforceability of a transaction that someone purported to make on the account of another, which is a question not material to the case;
(b) even if applicable, the definition does not require a finding that Dr. Henderson was the employee of BMHS, and it allows an affirmative answer on findings that do not establish a basis for vicarious liability.
(5) The trial court erred in overruling BMHS's motion for new trial, because there is insufficient evidence to support the jury's answers concerning "agency relationship."
(6) The trial court erred in rendering judgment against BMHS, because the theory in question should not be applied under the circumstances of this case to make BMHS vicariously liable for Dr. Henderson's negligence.
(7) There is insufficient evidence to support the jury's answers to the damage questions and because the awards are excessive.
(8) There is insufficient evidence to support negligence and proximate cause findings against Dr. Henderson.
At the outset, we consider appellant's sixth point of error in which BMHS contends that the doctrines of ostensible agency and agency by estoppel are not recognized in Texas under the factual circumstances such as those in this lawsuit and are not applicable to this case. We observe that BMHS has previously offered this argument when this case was appealed to this court following the granting of a summary judgment in favor of BMHS, on the premise that, as a matter of law, BMHS could not be vicariously liable for the negligent acts of Dr. Henderson on a theory of ostensible agency. See Smith v. Baptist Memorial Hosp. System, 720 S.W.2d 618, 625 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.). In overturning the summary judgment, we found that a material fact issue regarding Dr. Henderson's agency was properly raised. 4 In the former appeal this court did not find that there was ostensible or apparent agency between Dr. Henderson and BMHS, only that a fact issue was properly raised on the subject, and we reversed and remanded the case for further proceedings. In the instant appeal, we note that the issue of apparent or ostensible agency between a hospital and an emergency room physician has been submitted for consideration and addressed in the jurisprudence of this state in at least two separate instances. See Nicholson v. Memorial Hospital System, 722 S.W.2d 746 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) and Brownsville Medical Center v. Gracia, 704 S.W.2d 68 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). 5
The case was submitted to the jury on three questions. 6 The first inquired whether the negligence, if any, of Dr. Henderson, was a proximate cause, if any, of the injuries to Evan W. Smith, Jr. The second question, conditioned on an affirmative response to the first question, was not required to be answered in the absence of a finding of Dr. Henderson's negligence and proximate cause of Mr. Smith's injuries. The third question addressed ten separate components of damages.
It is significant that the submission of the second question regarding "agency relationship A" (the ostensible agency issue), while not identical to, fully comports with the suggested jury submission in Pattern Jury Charges. See 3 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 52.04 (1990). It is also noteworthy that the second question was submitted disjunctively, with an affirmative finding on the existence of either alleged agency relationship sufficient to predicate liability to BMHS.
In Brownsville Medical Center v. Gracia, 704 S.W.2d 68 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.), the court of appeals was confronted with a factual scenario similar in many respects to that confronting us in this case. In both cases, (1) the hospital had contracted with a group of physicians to staff its emergency room; (2) the emergency room physician who rendered the treatment at issue was hired by that group of physicians; (3) patients entering the emergency room typically did not ask for a physician by name, but would simply ask for a doctor to render treatment; (4) there was nothing to indicate to a patient entering the emergency room whether the treating physician was an independent contractor or an employee of the hospital; and (5) the hospital billed the patient for services of the emergency room doctor, as well as for other services rendered in the emergency room. The court in Gracia addressed the issue of apparent or ostensible agency, as follows:
An 'apparent' or 'ostensible' agent has been defined as 'one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, though he has not, either expressly or by implication, conferred authority on him.' Walter E. Heller & Co. v. Barnes, 412 S.W.2d 747 (Tex.Civ.App.--El Paso 1967, writ ref'd n.r.e.). Restatement (Second) of Agency § 267 (1958) sets forth the following rule of 'apparent' or 'ostensible' agency applicable to this case;
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject...
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