Garrett v. L.P. McCuistion Community Hospital

30 S.W.3d 653, 2000 Tex. App. LEXIS 6912, 2000 WL 1514352
CourtCourt of Appeals of Texas
DecidedOctober 13, 2000
Docket06-99-00131-CV
StatusPublished
Cited by27 cases

This text of 30 S.W.3d 653 (Garrett v. L.P. McCuistion Community Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. L.P. McCuistion Community Hospital, 30 S.W.3d 653, 2000 Tex. App. LEXIS 6912, 2000 WL 1514352 (Tex. Ct. App. 2000).

Opinions

OPINION

Opinion by

Chief Justice CORNELIUS.

Dorothy Garrett appeals a summary judgment granted in favor of L.P. McCuistion Community Hospital d/b/a McCuistion Regional Medical Center (“the Hospital”). Garrett sued the Hospital, three physicians, including Dr. Dennis Schmidt, and their professional associations for medical malpractice. The Hospital moved for summary judgment, which the trial court granted.1 Garrett later settled her claim with Dr. Schmidt, nonsuited the other physicians and their associations, and nonsuited the Hospital with respect to all other claims.

Garrett’s petition alleged that Dr. Schmidt misdiagnosed a spinal mass as a cancerous lesion instead of a spinal abscess. Dr. Schmidt, a radiologist, is a partner in Radiology Consultants, P.A., which contracted with the Hospital to provide radiologists for the Hospital’s radiology department. Garrett alleged that the [655]*655Hospital was vicariously liable for the negligence of Dr. Schmidt under the theory of apparent or ostensible agency.

The Hospital’s motion for summary judgment did not expressly state whether it was brought under Tex.R.Civ.P. 166a(a), (b), or (i). Neither these subsections nor subsection (c) prescribe a particular form, style, or outline for the motion and do not require that the motion state under which subsection it is brought. Though the better practice is to refer to the appropriate subsection in the title or the body of the motion, the requirement of specificity under Rule 166a(c) is satisfied if the grounds stated in the motion give fair notice to the nonmovant. Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194 (Tex.App.—Amarillo 1999, pet. denied); Dear v. City of Irving, 902 S.W.2d 781, 734 (Tex.App.—Austin 1995, writ denied); Pettitte v. SCI Corp., 893 S.W.2d 746, 747 (Tex.App.—Houston [1st Dist.] 1995, no writ).

Construing the Hospital’s motion, we find it is a no-evidence motion pursuant to Rule 166a(i). The basis for such a motion is that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). In its motion, the Hospital contended there was no evidence to support the second element of ostensible agency, i.e., that it affirmatively held out Dr. Schmidt as its agent or employee, or that it knowingly allowed Dr. Schmidt to hold himself out as its agent or employee.

When a no-evidence motion is presented under Rule 166a(i), the movant does not bear the burden of establishing each element of its own claim or defense as under subparagraph (a) or (b). Rather, the non-moving party must present some summary judgment evidence that raises a genuine fact issue on the specific challenged elements of the claims on which the nonmov-ant would have the burden of proof at trial. Tex.R.Civ.P. 166a notes and comments; McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d 256, 258 (Tex.App.—Texarkana 1999, pet. denied).

Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard as we apply in reviewing a directed verdict. McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d at 258-59; Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.—Austin 1998, no pet.). We thus determine whether Garrett produced any evidence of probative force to raise a fact issue on the question of whether the Hospital held out Dr. Schmidt as its agent or employee, or knowingly allowed Dr. Schmidt to hold himself out as such. McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d at 258; Jackson v. Fiesta Mart, Inc., 979 S.W.2d at 70. We consider all the evidence in the light most favorable to Garrett, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d at 258.

A no-evidence summary judgment is improper if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged element. McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d at 258; Jackson v. Fiesta Mart, Inc., 979 S.W.2d at 70-71. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d at 711; McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d at 258.

A hospital may be vicariously liable for the negligence of its physicians under a theory of ostensible agency if the physician is negligent and proximately causes the injury, and if the plaintiff proves the elements of ostensible agency. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947-48 (Tex.1998). The elements of ostensible agency are (1) the patient had a reasonable belief that the [656]*656physician was the agent or employee of the hospital, (2) such belief was generated by the hospital affirmatively holding out the physician as its agent or employee, or knowingly permitting the physician to hold himself out as the hospital’s agent or employee, and (3) the patient justifiably relied on the representation of authority. Id. at 949.

The Hospital’s motion challenged the second element of ostensible agency. In response, Garrett produced her affidavit, in which she stated that she knew the Hospital had a radiology department; she received a Magnetic Resonance Imaging (MRI) scan at the Hospital; she knew that MRIs were read on site at the Hospital; she believed a radiologist working for the Hospital would be reading her MRI; she did not choose the radiologist; no one at the Hospital represented that the radiologist was an independent contractor; the radiology department did not have signs indicating that the doctors were independent contractors; and she could not recall seeing any forms indicating that the radiologists were independent contractors.

Garrett relies primarily on Smith v. Baptist Mem’l Hosp. Sys., 720 S.W.2d 618, 623-26 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.), disapproved on other grounds, St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 (Tex.1997), and Brownsville Med. Ctr. v. Gracia, 704 S.W.2d 68, 75 (Tex.App.—Corpus Christi 1985, writ ref'd n.r.e.), as factually similar cases in which the appellate courts found that a doctor was the hospital’s ostensible agent.

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30 S.W.3d 653, 2000 Tex. App. LEXIS 6912, 2000 WL 1514352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-lp-mccuistion-community-hospital-texapp-2000.