Michael Kimbrell v. Memorial Hermann Hospital System, Memorial Hermann Healthcare System, Memorial Hermann Medical Group
407 S.W.3d 871
Tex. App.2013Background
- Plaintiff Michael Kimbrell underwent laparoscopic surgery after viewing an infomercial produced in part by Memorial Hermann that featured the Hospital’s chief medical officer introducing Dr. James Field as “a surgeon at Memorial Hermann.”
- Kimbrell contacted Field, was referred to other physicians, signed hospital consent forms twice stating that physicians are independent contractors and not employees/agents of the hospital, and proceeded with surgery that allegedly worsened his GERD.
- Kimbrell sued physicians for medical negligence and sued the Hospital for vicarious liability under ostensible (apparent) agency, and for direct claims including negligent misrepresentation; he later amended to assert fraud, negligence per se, and joint enterprise theories.
- The Hospital moved for traditional and no-evidence summary judgment arguing (among other things) the consent forms and lack of holding-out precluded ostensible agency and that there was no evidence of causation for the direct negligence claims.
- The trial court granted summary judgment for the Hospital on negligent misrepresentation and medical negligence and struck fraud and negligence-per-se claims; Kimbrell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ostensible agency (vicarious liability for physician malpractice) | Kimbrell relied on the infomercial and representations that Field was "a surgeon at Memorial Hermann," which reasonably led him to believe Field was the Hospital’s agent | Hospital argued consent forms explicitly disclaiming an agency relationship and lack of affirmative holding-out defeat ostensible agency | Court held ostensible agency failed as a matter of law: hospital’s affirmative disclaimer (signed consent forms) and lack of hospital conduct holding out the physician defeated the claim (Sampson controlling) |
| Joint enterprise | Hospital and Field shared a pecuniary interest in promoting surgery via the infomercial | Hospital argued no evidence of shared, undifferentiated monetary benefit and consent forms show separate billing | Court held no evidence of the required community of pecuniary interest; joint enterprise fails as a matter of law |
| Causation for direct negligence/negligent misrepresentation (no-evidence MSJ) | Kimbrell contends the infomercial caused him to choose surgery and thus caused his injuries | Hospital argued Kimbrell did not specifically cite evidence in response and produced no expert proving causation | Court held no-evidence summary judgment proper: plaintiff failed to point to specific evidence creating a fact issue and offered no expert testimony explaining how hospital conduct caused his injuries |
| Adequacy of plaintiff’s summary-judgment response | Kimbrell relied generally on deposition testimony and a referenced video without pinpointing evidence | Hospital asserted Rule 166a(i) requires specific citations to evidence | Court held general citations to voluminous evidence insufficient; response failed to meet the specificity required to defeat a no-evidence MSJ |
Key Cases Cited
- Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) (ostensible-agency elements and holding that hospital’s disclaimers and lack of holding-out defeated apparent agency)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (standard of review for summary judgment)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (expert testimony generally required to prove medical causation)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for weighing summary-judgment evidence and when evidence is conclusive)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (no-evidence summary-judgment / scintilla standard)
- St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2003) (elements of joint enterprise and requirement of shared pecuniary interest)