The Texas Supreme Court recently granted petitions for review in two health care liability claims, Renaissance Medical Foundation v. Lugo, 672 S.W.3d 901 (Tex. App.—Corpus Christi 2023, pet. granted), and Columbia Medical Center of Arlington, L.P. v. Bush, No. 02-22-00319-CV, 2022 WL 3017657 (Tex. App.—Fort Worth Apr. 20, 2023, pet. granted).
Renaissance Medical Foundation v. Lugo,
672 S.W.3d 901 (Tex. App.—Corpus Christi 2023, pet. granted).
This case is set for oral argument on October 2, 2024.
Lugo addresses an employer’s vicarious liability for the alleged negligence of an employed physician. In Lugo, the Corpus Christi Court of Appeals affirmed a trial court’s finding that Renaissance Medical Foundation was not entitled to summary judgment on vicarious liability for the alleged negligence of an employed physician, even though its contract with the physician expressly provides that the physician retains the right to exercise his independent medical judgment in providing medical services to patients, and even though there was no evidence or suggestion that Renaissance exercised actual control over the physician during the surgery in question. This decision is problematic if it stands because it will be used to establish vicarious liability against other health care entities that are clearly not the employers of physicians; like hospitals and similar health care institutions.
Columbia Medical Center of Arlington, L.P. v. Bush,
No. 02-22-00319-CV, 2022 WL 3017657 (Tex. App.—Fort Worth Apr. 20, 2023, pet. granted) (mem.op.).
This case is set for oral argument on September 12, 2024.
In Bush, the Fort Worth Court of Appeals reversed a trial court’s denial of a section 74.351(a) motion to dismiss, and held a Chapter 74 expert report deficient. Even though the claimant’s Chapter 74 report stated the defendant hospital should have had “policies, procedures, or protocols that dictate medical treatment,” the Fort Worth Court of Appeals found the report deficient because it failed to describe how “the mere presence of standard procedures would have overridden the actual medical diagnoses or treatment order of the doctors who were present at the time of the incident.”
In particular, the report failed to “describe how the hospital could enact and enforce such rules on medical decision making.” By way of example, the court stated:
If a doctor evaluates a patient and does not implement the hospital’s protocol, what happens? Does a nurse or other hospital employee then have the authority to order the tests? If not, how does the protocol get implemented? Does it require invoking a chain of command within the hospital administration, medical staff, or otherwise? If so, who all is involved and how long does it take? While the decision-making is being reviewed, who handles the patient’s medical care? Although [the expert’s] opinion is simplistic on its face, it fails to adequately explain the connection between the alleged breach of the standard of care, i.e., lack of policies, procedures, and protocols and how those policies, procedures or protocols would have changed the patient’s outcome had they been in place.
