Sampson v. Baptist Memorial Hosp. System

• Decision Date: 13 November 1996
• Docket Number: No. 04-95-00910-CV,04-95-00910-CV
• Citation: 940 S.W.2d 128
• Parties: Rhea SAMPSON, Appellant, v. BAPTIST MEMORIAL HOSPITAL SYSTEM, Appellee.
• Court: Texas Court of Appeals

Page 128

940 S.W.2d 128

Rhea SAMPSON, Appellant, v. BAPTIST MEMORIAL HOSPITAL SYSTEM, Appellee.

No. 04-95-00910-CV.

Court of Appeals of Texas San Antonio.

Nov. 13, 1996.

Rehearing Overruled March 14, 1997.

Oliver S. Heard, Jr., Heard, Goggan, Blair & Williams, Karl E. Hays, Law Offices of Karl E. Hays, San Antonio, for appellant.

Ruth Greenfield Malinas, Michele Barber Chimene, George F. Evans, Jr., Ball & Weed, P.C., San Antonio, for appellee.

Before RICKHOFF, HARDBERGER and DUNCAN, JJ.

RICKHOFF, Justice.

Appellant, Rhea Sampson ("Sampson"), appeals from a summary judgment granted in favor of appellee, Baptist Memorial Hospital System ("BMHS"), in a medical negligent treatment action. Although BMHS' evidence included both posted signage and an executed consent to treatment form stating "each physician is an independent contractor," Sampson contends the summary judgment was erroneously granted because a genuine issue of material fact was raised as to whether Dr. Mark Zakula, the emergency room attending physician ("Zakula"), was an employee or ostensible agent of BMHS. We reverse the judgment of the trial court and remand the cause for trial.

FACTS

Sampson was bitten on the arm by an unknown insect on March 23, 1990, and was taken to the emergency room at Southeast Baptist Hospital, an affiliate of BMHS. Sampson was treated by Dr. Susan Howle, who diagnosed Sampson as having a reaction to an insect, gave her a shot of Benadryl, a shot of pain medication and two prescriptions for pain and swelling and released her. Early in the morning on March 25, 1990, Sampson returned to the hospital by ambulance and was seen by Zakula, who confirmed Howle's diagnosis, gave Sampson some additional shots and released her at approximately 3:00 a.m. Approximately fourteen hours later, Sampson was taken to a different hospital and admitted to the intensive care ward in septic shock. The insect that had bitten Sampson was then identified as a brown recluse spider.

Sampson brought suit against Howle and Zakula claiming negligent treatment. Sampson also sued BMHS contending, among other claims, that BMHS was vicariously liable for the negligence of Zakula because he was an employee or ostensible agent of BMHS.

BMHS moved for summary judgment on Sampson's vicarious liability and negligent treatment claims. The trial court granted the summary judgment in favor of BMHS and severed these claims from the remaining action, thereby making the summary judgment final for purposes of appeal. ¹ Sampson appeals the trial court's judgment contending that a genuine issue of material fact was raised as to whether Zakula was an employee or ostensible agent of BMHS.

STANDARD OF REVIEW

In order to prevail on summary judgment, the movant must disprove at least one of the essential elements of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the non-movant is taken as true, and all reasonable inferences are indulged in favor of the non-movant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Any doubt is resolved in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

Where the non-movant opposes a summary judgment based upon an affirmative defense, the non-movant must produce sufficient summary judgment evidence to raise a question of fact as to each element of the affirmative defense in order to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). The movant is not required to negate every possible issue of law and fact that could have been raised by the non-movant, but rather the burden of raising and producing sufficient evidence with respect to affirmative defenses is on the non-movant. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678-79.

RESPONDEAT SUPERIOR

In general, an employer is not legally responsible for the negligent acts of an independent contractor. Crow v. TRW, Inc., 893 S.W.2d 72, 78 (Tex.App.--Corpus Christi 1994, no writ). Physicians are generally considered to be independent contractors with regard to hospitals at which they have staff privileges. Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481, 484 (Tex.App.--Beaumont 1995, no writ); Dumas v. Muenster Hosp. Dist., 859 S.W.2d 648, 651 (Tex.App.--Fort Worth 1993, no writ); Harris v. Galveston County, 799 S.W.2d 766, 768 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Thus, it would generally follow that a hospital is not liable for the negligent acts of independent physicians. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 818 (Tex.App.--Amarillo 1995, writ denied); Berel v. HCA Health Services of Texas, Inc., 881 S.W.2d 21, 23 (Tex.App.--Houston [1st Dist.] 1994, writ denied). Stated differently, under the general rule, no respondeat superior liability attaches where a physician is an independent contractor rather than an employee of the hospital. Berel v. HCA Health Services of Texas, Inc., 881 S.W.2d at 23.

The standard test for distinguishing between an independent contractor and employer/employee situation is whether the employer retains the right to control the performance of the individual. Id. It is the right to control, not actual control, which is determinative, and the right to control must extend to both the means and details of the work, as well as the end result. Id.; Dougherty v. Gifford, 826 S.W.2d 668, 678 (Tex.App.--Texarkana 1992, no writ). In addition to the right to control, courts are also required to examine: (1) the independent nature of the contractor's business; (2) the obligation to supply necessary tools, supplies and materials; (3) the time for which the person is employed; and (4) the method by which the person is paid. Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 786 (Tex.App.--El Paso 1996, writ requested); Dougherty v. Gifford, 826 S.W.2d at 678.

Where no dispute exists regarding the controlling facts, and only one reasonable conclusion can be inferred, the question of whether a physician is an employee or an independent contractor is a question of law. Duran v. Furr's Supermarkets, Inc., 921 S.W.2d at 786; Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 220 (Tex.App.--Houston [14th Dist.] 1994, writ denied); Wackenhut Corp. v. Perez, 865 S.W.2d 86, 89 (Tex.App.--Corpus Christi 1993, writ denied). Conversely, if the evidence is not conclusive but may be reasonably susceptible to more than one inference, the question is one of fact. Berel, 881 S.W.2d at 24; Dougherty, 826 S.W.2d at 678.

In support of its motion for summary judgment, BMHS presented the affidavit of James Potyka, a physician who had worked in BMHS emergency rooms for twenty-two years. Dr. Potyka stated in his affidavit that the physicians that work at BMHS are "independent, licensed physicians and not subject to the supervision, management, direction, and control of any Baptist Hospital." Dr Potyka also stated that the individual emergency room physicians do not have an individual contractual relationship with the hospital but only have privileges to practice at the hospital. Dr. Potyka further stated that "Baptist Hospital did not collect or retain fees for services rendered by the emergency room physicians;" rather, the physicians bill for the services they provide.

In response, Sampson presented her own affidavit in which she stated: "I believed then, and continue to do so, that the emergency room physicians' services were rendered by the Southeast Baptist Hospital and Baptist Memorial Hospital System, or by its servants." This response by Sampson, however, does not controvert the affidavit testimony of Dr. Potyka. Sampson presented no summary judgment evidence to show that BMHS controlled the details or the methods used in performing emergency services to counter Dr. Potyka's assertion that BMHS does not supervise, manage, direct or control such work. In addition, Dr. Potyka's statement that Dr. Zakula would independently bill for his services was not refuted. Therefore, we agree with the trial court that the summary judgment evidence showed that Zakula was not an employee of BMHS.

OSTENSIBLE AGENCY

In addition to contending that Zakula was an employee of BMHS, Sampson also asserted, in the alternative, that Zakula was BMHS' ostensible agent.

1. Vicarious Liability Theories and Burden in Summary Judgment Setting

Whether labeled "ostensible agency," "apparent authority," or "agency by estoppel," two distinct theories of vicarious liability have been recognized by this court and by various courts in other jurisdictions to impose liability on a hospital for the negligence of emergency room physicians. Baptist Memorial Hosp. System v. Smith, 822 S.W.2d 67, 72-73 (Tex.App.--San Antonio 1991, writ denied); see also Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46, 52-53 (Ohio 1994)(recognizing utilization of both theories and citing cases from numerous jurisdictions adopting theories); Pamperin v. Trinity Memorial Hosp., 144 Wis.2d 188, 423 N.W.2d 848, 854-55 (Wis.1988)(noting courts frequently look to two sections of the Restatements); Martell v. St. Charles Hosp., 137 Misc.2d 980, 523 N.Y.S.2d 342, 350 (N.Y.Sup.Ct.1987)(citing other jurisdictions for proposition that recognition of vicarious liability is near-unanimous rule); see generally Martin C. McWilliams, Jr. & Hamilton E. Russell, III, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L.Rev. 431, 447-452, 457-462 (1996)...