Opinion
NUMBER 13-14-00418-CV
03-31-2016
BRET JOHNSTON, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF KAREN JOHNSTON, Appellant, v. CHRISTUS SPOHN HEALTH SYSTEM CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL BEEVILLE, Appellee.
On appeal from the 36th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Appellant Bret Johnston (Johnston), individually and as personal representative of the estate of Karen Johnston (Karen) appeals a no-evidence summary judgment granted in favor of Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Beeville (Christus). By two issues, Johnston argues: (1) the trial court abused its discretion in granting Christus's motion for no-evidence summary judgment; and (2) the trial court abused its discretion in granting Christus's objections to his summary judgment evidence. We affirm.
I. BACKGROUND
Karen arrived at Christus's emergency room where she was seen by Dr. Kenzer Dirkson, M.D. After an examination, Karen was prescribed medication and sent home. Three days later, Karen returned to Christus's emergency room where she was examined and treated by Dr. Jose Zamora, M.D. Karen was not admitted to the hospital, but sent home. Several days later, emergency responders transported Karen to Christus, where she subsequently died of bacterial pneumonia.
Johnston filed suit against Christus alleging that Christus was "negligent in the hiring, supervision, retention, and control of emergency room physicians [Dr.] Dirkson and [Dr.] Zamora (negligent credentialing)," and that they deviated widely from the standard of care to such a degree that Christus knew or should have known of their actions. Additionally, Johnston alleged that Dr. Dirkson and Dr. Zamora were agents, employees, or servants of Christus and that Christus was vicariously liable for their negligence under the doctrine of respondeat superior. Specifically, Johnston asserted that Christus's liability was based upon an actual agency relationship, or alternatively, upon agency by apparent authority or upon agency by estoppel.
Johnston additionally named Dr. Jose Zamora, Dr. Kenzer Dirkson, Dr. Scott Stein, Dr. Arthur Chin, and Beeville Angel Care Ambulance Service as defendants. The trial court entered an order of severance severing all claims and causes of action as against Christus. Therefore, these defendants are not part of this appeal.
Johnston collectively refers to the allegations as "negligent credentialing" in his brief.
Christus moved for a no-evidence summary judgment, contending there was no evidence to show: (1) Christus acted with malice in credentialing Dr. Dirkson or Dr. Zamora; (2) any alleged malicious credentialing proximately caused Karen's death or injuries; and (3) Dr. Dirkson or Dr. Zamora was Christus's employee, actual agent, or ostensible agent. With respect to employee and agency allegations, Christus further contended there is no evidence to show: (a) Johnston had a reasonable belief that Dr. Dirkson or Dr. Zamora was an employee or agent; (b) Johnston's belief was generated by Christus affirmatively holding out Dr. Dirkson or Dr. Zamora as its employee or agent or Christus knowingly permitting them to hold themselves out as its employee or agent; and (c) Johnston justifiably relied on the representation of that authority.
Johnston filed a response to Christus's motion for summary judgment. Regarding his negligent credentialing claim, Johnston argued that Christus acted with malice by ignoring Dr. Zamora's past disciplinary actions and malpractice lawsuits and that Christus should have known about the potential for Karen's alleged misdiagnosis. Johnston further argued that Christus's granting of emergency room privileges to Dr. Dirkson and Zamora proximately caused Karen's death. Regarding his respondeat superior claim, Johnston argued that his deposition provided a scintilla of evidence that the physicians were ostensible agents and that Dr. Zamora's testimony showed Christus controlled the physicians actions such that they were no longer independent contractors. In support of his response, Johnston offered the following: an interlocutory opinion from our court regarding Christus's earlier motion to dismiss (expert affidavit challenge); Dr. Lige Rushing's expert deposition; Dr. Rushing's supplemental expert report; Karen's medical records from September 15, 2009 and September 18, 2009; Dr. Zamora's deposition; Karen's death certificate; Dr. Zamora's Texas medical board history; Barbara Dake's deposition; and Johnston's deposition.
Christus Spohn Health Sys. Corp. v. Johnston, No. 13-12-00778-CV, 2013 WL 2298471, at *1 (Tex. App.—Corpus Christi May 23, 2013, no pet.) (mem. op.) (interlocutory appeal challenging Dr. Rushing's' expert affidavit; our court held that since Christus challenged only the negligence pertaining to Christus and not to the individual physician defendants, at least one viable liability theory existed).
At the time of her deposition, Ms. Dake was Director of Medical Staff Services at Christus Spohn Health System. She testified generally about Christus's credentialing process.
Christus objected to Dr. Rushing's deposition testimony, arguing that Johnston failed to demonstrate that Dr. Rushing was qualified to opine on hospital credentialing, and that Dr. Rushing's testimony was irrelevant and unreliable. Christus further objected to the supplemental expert report on hearsay and qualification grounds and to Dr. Zamora's medical board history on hearsay and relevance grounds. Lastly, Christus objected to the earlier opinion issued by our court on relevance grounds.
The trial court sustained Christus's objections to Johnston's evidence, and excluded Dr. Rushing's deposition testimony and his supplemental expert report, Dr. Zamora's medical board history, and our earlier interlocutory opinion. The trial court granted Christus's motion for no-evidence summary judgment. This appeal followed.
II. EVIDENTIARY CHALLENGE
By his second issue, which we address first, Johnston argues the trial court erred "in excluding the deposition of Lige B. Rushing, Jr." Johnston asserts that his expert's testimony is relevant and reliable because it specifically outlines the underlying poor health care provided by the doctors that Christus credentialed.
On appeal, Johnston does not challenge the trial court's sustaining of Christus objections regarding: (1) Dr. Rushing's supplemental report; (2) Texas medical board history of Dr. Zamora; (3) our interlocutory holding regarding the expert witness. Rather, Johnston has limited his appeal to challenging the exclusion of Dr. Rushing's deposition testimony.
A. Standard of Review
The trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence; thus, it has broad discretion to determine the admissibility of evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002); see Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex. 1999). Accordingly, we review the trial court's decision to reject Dr. Rushing's testimony for an abuse of discretion. Zwahr, 88 S.W.3d at 629. In determining whether the trial court abused its discretion, we review the entire record. See Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Knox v. Taylor, 992 S.W.2d 40, 63 (Tex. App.—Houston [14th Dist.] 1999, no pet.). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for doing so, even if that ground was not raised below. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989); Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 401 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
B. Applicable Law
For an expert's testimony to be admissible under Texas Rule of Evidence 702, the expert must be qualified, and the expert's opinion must be relevant to the issues in the case and based upon a reliable foundation. Zwahr, 88 S.W.3d at 629 (citing TEX. R. EVID. 702); see Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). In order to establish an expert's qualifications, an offering party is required to show that the expert has "knowledge, skill, experience, training, or education" regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). The relevance requirement, which incorporates traditional relevancy analysis under Texas Rules of Evidence 401 and 402, is met if the expert testimony is "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Robinson, 923 S.W.2d at 556 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Evidence that has no relationship to any issue in the case is inadmissible under rule 702, as well as rules 401 and 402. Zwahr, 88 S.W.3d at 629; see Robinson, 923 S.W.2d at 556.
C. Analysis
Johnston argues that Dr. Rushing's deposition testimony is relevant because it examines the allegedly low standard of care provided by Dr. Dirkson and Dr. Zamora. See Garland Community Hosp., v. Rose, 156 S.W.3d 541, 544 (Tex. 2004) (holding that credentialing activities are inseparable from medical services and are health care liability claims). Christus, on the other hand, contends that Dr. Rushing's testimony is irrelevant to the credentialing issue.
We note that in its objection to Dr. Rushing's deposition testimony, Christus specifically challenged Dr. Rushing's qualifications, as well as the relevance and reliability of the testimony.
Before we can reach the merits of Johnston's issue, we must first address whether Johnston sought to attack all grounds that support the trial court's ruling excluding Dr. Rushing's deposition testimony. See Kroger Co. v. Am. Alternative Ins. Co., 468 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Christus objected to Dr. Rushing's deposition testimony on the grounds of relevance, reliability, and qualifications. Johnston's arguments in the trial court and on appeal only address the relevance and reliability grounds.
Johnston does not challenge Christus's claim that Dr. Rushing is not qualified to opine on hospital credentialing. See Moreno v. Quintana, 324 S.W.3d 124, 128 (Tex. App.—El Paso 2010, pet. denied). An appellant's failure to challenge all grounds for an adverse ruling operates as a procedural default. See Navarro v. Grant Thornton, LLP, 316 S.W.3d 715, 719-20 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Though an appellate court will construe the issues presented liberally to include such a challenge if appellant presents argument addressing all such grounds, this rule does not magically transform a narrow challenge on one basis into a broad challenge that covers other bases. See id.; see also Perry v. Cohen, 272 S.W.3d 585, 587-88 (Tex. 2008) (per curiam); TEX. R. APP. P. 38.1(f). Construing Johnston's brief liberally, yet reasonably, we find no response to Christus's argument to the trial court that Dr. Rushing was not qualified to opine on physician credentialing. Therefore, we conclude that Johnston's second issue is waived.
However, even if we reached the merits of Johnston's issue, we cannot conclude the trial court abused its discretion by excluding Dr. Rushing's testimony. Dr. Rushing testified that he had no evidence to suggest that Christus credentialed either physician with malice. Further, Dr. Rushing stated that Dr. Dirkson and Dr. Zamora appeared qualified to practice emergency room medicine. Dr. Rushing also testified that he had not reviewed Christus's credentialing policy and procedure manual and that he was unaware of any facts to suggest that either physician had been improperly credentialed. Instead, Dr. Rushing attested that he did not have any opinion regarding Christus's credentialing of Dr. Zamora and Dr. Dirkson. Additionally, despite having reviewed over a thousand medical malpractice cases, Dr. Rushing explained that he has never testified by deposition or in trial that a hospital improperly credentialed a physician.
As we discuss later in this opinion, Texas prescribes a threshold standard of malice to state a cause of action against a hospital for its credentialing activities. See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 (Tex. 1997).
Our review of Dr. Rushing's deposition reveals no statements that support Johnston's assertion that Christus maliciously credentialed either Dr. Zamora or Dr. Dirkson. Although Dr. Rushing does opine on the alleged breach of the standard of care with respect to the physicians, his testimony does not reveal any alleged breach of a standard of care with respect to Christus's actions or inactions. Moreover, his express lack of opinion regarding the credentialing of the physicians does not satisfy rule 702's requirement that the testimony be of assistance to the factfinder. See Robinson, 923 S.W.2d at 556; see also TEX. R. EVID. 702. Consequently, we will not consider Dr. Rushing's deposition testimony in our analysis of the summary judgment. Johnston's second issue is overruled.
III. SUMMARY JUDGMENT
By his first issue, Johnston asserts the trial court abused its discretion in granting Christus's no-evidence motion for summary judgment. Within this issue, Johnston raises two sub-issues: (1) whether he presented a scintilla of evidence regarding Christus's alleged negligent credentialing; and (2) whether he presented a scintilla of evidence regarding Christus's responsibility under respondeat superior.
A. Standard of Review
A no-evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and we apply the same legal sufficiency standard of review. Moreno, 324 S.W.3d at 129. In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.—Houston [14th Dist.] 2007, no pet.). When an order granting summary judgment does not specify the grounds on which summary judgment was granted, we may uphold the summary judgment on any ground presented in the motion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
B. Causation
We first note that Christus raised three grounds in its no-evidence motion for summary judgment; the second ground being that Johnston presented no evidence that any alleged malicious credentialing proximately caused Karen's death. Johnston has not challenged this ground on appeal.
1. Waiver on Appeal
In a no-evidence motion for summary judgment under rule 166a (i), the movant asserts 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 re Estate of Bendsten, 230 S.W.3d 823, 827 (Tex. App.—Dallas 2007, pet. denied) (citing W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)). "Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion." W. Inv., Inc., 162 S.W.3d at 550. When the trial court's summary judgment does not specify the basis for the ruling, we must affirm the judgment if any of the summary judgment grounds are meritorious. Id. When appellant fails to brief one of the grounds for summary judgment, any error is waived as to the granting of that ground for summary judgment. Smith v. Tilton, 3 S.W.3d 77, 84 (Tex. App.—Dallas 1999, no pet.); see Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120-21 (Tex. 1970).
2. Analysis
Johnston's appellate brief does not address the issue of whether Christus's alleged negligent credentialing proximately caused Karen's death. As a result, any error as to that ground is waived. See Smith, 3 S.W.3d at 84.
However, even if we were to consider it, a negligent credentialing claim involves a specialized standard of care. Garland Community Hosp., 156 S.W.3d at 546 (citing Mills v. Angel, 995 S.W.2d 262, 275 (Tex. App.—Texarkana 1999, no pet.). Therefore, expert testimony is required to establish liability because procedures ordinarily used by a hospital to evaluate staff privileges are not within the realm of a juror's ordinary experience. See Mills, 995 S.W.2d at 275.
Our review of the record reveals no evidence regarding the causal relationship between the Christus's alleged failure to meet the specialized standard of care for credentialing and the injury, harm, or damages claimed. Because Johnston's evidence does not link the alleged negligent credentialing to Christus's alleged breach or to Johnston's damages, the trial court could have reasonably granted Christus's motion for no-evidence summary judgment on that ground alone. See Rose v. Garland Cmty. Hosp., 168 S.W.3d 352, 357 (Tex. App.—Dallas 2005, no pet.).
C. Negligent Credentialing
1. Applicable Law
The occupations code provides that:
(b) A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review.TEX. OCC. CODE ANN. § 160.010 (West, Westlaw through 2015 R.S.).
(c) A person, medical peer review committee, or health care entity that, without malice, participates in medical peer review or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from that act.
A hospital is not liable for improperly credentialing a physician through its peer review process unless the hospital acts with malice. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 214 (Tex. 2005). "Malice" means a specific intent by the defendant to cause substantial injury or harm to the claimant. TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(7) (West, Westlaw through 2015 R.S.). Evidence of simple negligence is not sufficient to prove malice. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
2. Analysis
By his first sub-issue, Johnston argues that he presented a scintilla of evidence of malice regarding Christus's alleged improper credentialing. According to Johnston, his evidence of malice consists of the physician's misdiagnosis of Karen's condition and Dr. Zamora's disciplinary history. Johnston's evidence pertaining to Dr. Zamora's breach of the standard of care allegedly comes from Dr. Rushing's deposition, Dr. Rushing's deposition supplemental report, and Dr. Zamora's disciplinary history.
As discussed above, we will not consider Dr. Rushing's deposition testimony with respect to the standard of care on negligent credentialing. Further, the trial court's exclusion of Dr. Rushing's supplemental report and Dr. Zamora's disciplinary history is not challenged on appeal.See Navarro, 316 S.W.3d at 719-20; TEX. R. APP. P. 38.1(f); see also Hixson v. Pride of Tex. Distrib. Co., 683 S.W.2d 173, 177 (Tex. App.—Fort Worth 1985, no writ) (unassigned error cannot be considered by this court). Where evidence has been held to be inadmissible and that holding has not been challenged on appeal, this court cannot consider the excluded evidence. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 265 (Tex. App.—Fort Worth 1986, no writ); see Talbott v. Hogg, 298 S.W.2d 883, 889 (Tex. Civ. App.—Amarillo 1957, writ dism'd). Where excluded evidence is not the subject of a point of error, "plaintiffs have waived any right to complain about the exclusion." See Rhodes, 719 S.W.3d at 265 (citing Talbott, 298 S.W.2d at 889). Therefore, we are left to consider Dr. Zamora's deposition.
Dr. Rushing's initial chapter 74 report is not part of the appellate record. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.).
In his deposition, Dr. Zamora testified that prior to his credentialing at Christus, he was involved in five lawsuits—none of which involved emergency care or the death of a patient. Of those lawsuits, three resulted in settlement and two were dismissed. The three lawsuits that resulted in settlement involved complications after surgery, the first being cardiovascular surgery, the second being surgery for dialysis access, and the third being gallbladder surgery.
We note that Dake explained that as part of the credentialing process, the credentials verification office would examine a physician's record on the National Practitioner Databank, which included information on malpractice settlements, actions against licensure, hospitals, and actions against a physician's membership or privileges. In this regard, there is no evidence that during the credentialing process, Christus did not learn about Dr. Zamora's earlier malpractice lawsuits or that it otherwise improperly failed to take them into consideration when credentialing Dr. Zamora.
However, the record contains no evidence or testimony showing that Dr. Zamora posed an extreme risk to patients due to professional incompetence. Instead, according to Dr. Zamora's testimony, his last lawsuit (excluding the current suit) was in 2003. Since then, Dr. Zamora has obtained admitting privileges at two hospitals and emergency room privileges at several other hospitals. Dr. Zamora's past lawsuits, none of which resulted in the death of a patient, do not shed light on his professional competence at the time he was credentialed by Christus. See KHP Consol., Inc. v. Romero, 102 S.W.3d 135, 149 (Tex. App.—Houston [14th Dist.] 2003), aff'd, 166 S.W.3d 212, 214 (Tex. 2005).
Moreover, evidence explaining the proper standard of care for a hospital in its credentialing activities and in its supervision of the doctors' performance of medical procedures is also missing from the record. Johnston presented no evidence on the standard of care required of a hospital in the formulation or enforcement of its policies or procedures, in requiring continuing medical education, in peer review, or in credentialing. Nor did Johnston present any evidence that Christus breached the standard of care, contrary to his contention, when it selected and reviewed medical staff competency. See Mills, 995 S.W.2d at 278 (upholding directed verdict where plaintiff failed to offer evidence of breach of standard of care in credentialing case against hospital).
We conclude that Johnston's evidence fails to show Christus acted maliciously in credentialing Dr. Zamora.See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 (Tex. 1997) (upholding summary judgment against plaintiffs who alleged that hospital was grossly negligent in renewing staff privileges of doctor who had been the subject of many medical malpractice cases, was not a Texas resident, and was not properly insured for medical malpractice). The trial court correctly granted Christus's no-evidence summary judgment motion regarding Johnston's credentialing claim.
Although not discussed in Johnston's brief, we have also reviewed his additional summary judgment evidence consisting of Karen's medical records, death certificate, and Ms. Dake's deposition testimony. None of this evidence shows that Dr. Zamora posed an extreme risk to patients or that Christus demonstrated a specific intent to cause substantial injury or harm to any patients. --------
D. Respondeat Superior
1. Applicable Law
Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002). Texas courts, however, have applied agency concepts to hospitals. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998) (citing Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex. 1977) (explaining that "[h]ospitals are subject to the principles of agency law which apply to others")).
A hospital is ordinarily not liable for the negligence of a physician who is an independent contractor. See, e.g., Berel v. HCA Health Servs., 881 S.W.2d 21, 23 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Jeffcoat v. Phillips, 534 S.W.2d 168, 172 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.). On the other hand, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency. See, e.g., Lopez v. Cent. Plains Reg'l Hosp., 859 S.W.2d 600, 605 (Tex. App.—Amarillo 1993, no writ), disapproved on other grounds by Agbor, 952 S.W.2d at 509 n. 1; Nicholson v. Mem'l Hosp. Sys., 722 S.W.2d 746, 750 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). To establish a hospital's liability for an independent contractor's medical malpractice based on ostensible agency, a plaintiff must show that (1) he or she had a reasonable belief that the physician 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 herself out as the hospital's agent or employee, and (3) he or she justifiably relied on the representation of authority. Sampson, 969 S.W.2d at 949.
A hospital may also be liable if a plaintiff presents evidence that a contract expressly providing that a physician is an independent contractor is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.—Fort Worth 2009, pet. denied) (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 588-90 (Tex. 1964)); see Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The evidence may be extrinsic, such as instances of actual control by the principal sufficient to show that the true agreement of the parties vested a right of control establishing an employment relationship. Farlow, 284 S.W.3d at 911 (citing Newspapers, Inc., 380 S.W.2d at 590-92). However, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Id. at 912 (citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998)).
2. Analysis
By his second sub-issue, Johnston argues that he presented a scintilla of evidence that Christus is responsible under respondeat superior. Johnston asserts that he was under the impression that the physicians were not independent contractors, that he did not read any statements that physicians were independent contractors, and that he reasonably assumed the physicians—who appeared to have the ability to order x-rays and admit patients to the hospital—were employees or agents of Christus. According to Johnston, Christus exercised control of the physicians by limiting treatment plans and requiring approval to admit patients, meaning that the physicians were employees rather than independent contractors.
In response, Christus argues that Johnston presented no evidence that his belief was generated by Christus affirmatively holding out Dr. Zamora as its agent or employee. Christus further argues that Johnston signed a consent form which explicitly states that the physicians practicing in the hospital are not employees, but rather independent contractors. Christus also counters that Dr. Zamora is an independent contractor because Christus does not control the details of his emergency medical practice such as history taking, physical examinations, lab ordering, medication prescription, and radiology tests.
We first turn to Johnston's belief that the physicians were employees and not independent contractors. The record is devoid of any evidence that his belief was reasonable, as well as any evidence that Johnston formed this belief in reliance on any statement or representation by Christus. Rather, Christus used a consent form that expressly disavowed any employer/employee relationship with its physicians, including Dr. Zamora. The form, titled "Consent for Treatment and Acknowledgments" states:
2. PHYSICIANS AS CONTRACTORS I understand that the physicians, including the emergency room, anesthesiologists, radiologists, pathologists, and other physicians practicing at this hospital are independent contractors and are not agents, servants, or employees of this hospital. I also understand that I will be billed separately for their services.
Johnston admitted that he signed the consent form, but asserts that he did not read the above paragraph. The inclusion of this language in admission paperwork negates any prior holding out by a hospital, even if the patient did not read the paperwork. Farlow, 284 S.W.3d at 926; see Garrett v. L.P. McCuistion Cmty. Hosp., 30 S.W.3d 653, 657 (Tex. App.—Texarkana 2000, no pet.) ("A hospital must clarify for its patients its relationship with a doctor only to the extent that the hospital or the doctor has affirmatively held out that the doctor is its agent or employee."); Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294, 296-97 (Tex. App.—Eastland 1999, no pet.) (holding that plaintiff did not raise any fact issue to defeat summary judgment when defendant showed that plaintiff signed, but did not read, consent form stating that doctors were independent contractors). We disagree with Johnston's assumption that Dr. Zamora was an employee merely because he "appeared to have the ability to order x-rays and admit patients." Johnston's assumption does not constitute evidence that Christus held out Dr. Zamora as its agent or employee. See Farlow, 284 S. W.3d at 926; Garret, 30 S.W.3d at 657.
We further conclude that Johnston failed to present any evidence that Christus controlled Dr. Zamora to the point of creating an employer-employee relationship. Though Johnston points out that Dr. Zamora was unable to admit patients without additional authorization from Christus, such authorization does not interfere with the independent nature of Dr. Zamora's work. Dr. Zamora testified that Christus did not control the details of his work such as physical examinations, lab work, and prescriptions. That a doctor has staff privileges with a particular hospital and agrees to abide by certain policies and procedures while utilizing a hospital's facilities does not translate into an employment agreement. Drennan v. Cmty. Health Inv. Corp., 905 S.W.2d 811, 819 (Tex. App.—Amarillo 1995, writ denied); see Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436, 439-40 (Tex. App.—Texarkana 1994, writ denied). Accordingly, Johnston has failed to show that Christus exercised a right of control sufficient to raise a fact issue on his actual or ostensible agency claims. See Farlow, 284 S.W.3d at 919.
The trial court correctly granted Christus's no-evidence summary judgment motion regarding Johnston's respondeat superior claims. Johnston's first issue is overruled.
IV. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice Delivered and filed the 31st day of March, 2015.