*1 Beverly BEREL, Individually and as Natu Kelly
ral Mother and Next Friend Pilcik, Children,
Pilcik and Brian Minor Carroll, Individually Beverly and as
Natural Mother and Next Friend of
Kristy Berel, Berel and Jake Minor Appellants,
Children, TEXAS,
HCA HEALTH OF SERVICES
INC., Houston International d/b/a
Hospital, Appellee.
No. 01-93-00513-CV. Texas, Appeals
Court (1st Dist.).
Houston
March Overruling
Order Motion
Rehearing July *2 severing
court’s order their cause of action original against from the lawsuit. plaintiffs’ of action causes lawsuit, original plaintiffs In their brought against Estella suit Dr. Robinson hospital. According petition, to their and plaintiffs in her consulted Dr. Robinson professional capacity psychiаtrist, and as Kristy she that and Ber- recommended Jake el, Beverly Kelly and Berel and her children Brian, hospitalized and in Houston Inter- alleged Hospital national for treatment of They emotional disturbances.2 asserted Robinson, individually agent Dr. and in, hospital, negligent among was things: admitting them to the on the observation, testing, bаsis of “insufficient diagnosis”; recommending inpatient and/or treatment, which was not least restrictive available; setting failing to appropriate and they properly for and treat them while care alleged plaintiffs in her care. The also were negligent per violating for the doctor was se alternative, In the several statutes. Allen, TX, Angleton, appel- Marion D. for plaintiffs they hospitalized were asserted lant. misrepre- because the doctor’s fraudulent plaintiffs alleged hospi- sentations. The Bartlett, Campbell, Doreen Zeh R. Martha it knew should tal was because TX, Houston, appellees. malpractice committed have known of the Robinson, agent, OLIVER-PARROTT, C.J., Dr. and because it and Before regulate properly supervise not and Dr. Rob- O’CONNOR and JJ. alleged also inson. negligent per violating se various was OPINION provisions of the Texas Mental Health Code O’CONNOR, Justice. In the and the Administrative Code. Texas alternative, aсted asserted the Beverly mi- plaintiffs, Berel and her “a in concert Robinson and was children, Pilcik, Pileik Brian Kelly nor party hospitalize to the intent children, Beverly minor Carroll her by Dr. misrepresentations made” fraudulent Berel,1 appeal Kristy Berel and Jake sought recovery of Robinson. The judgment granted in favor of the expenses, wages, Texas, lost severe defendant, HCA Health Services trauma, Inc., anguish and loss Hospital and emotional Houston International d/b/a (the They appeal household services. hospital). also the trial consortium and ex-wife, Kristy Although and Jake does reflect the rela- Carroll Mark's record marriage. were hospi- Berel the children of tionship parties, appears from the brief that at the time of the events tal's lawsuit, Berel, prompted Beverly although mar- Berel was also treated Mark Kelly hospitalized. Apparently, man Berel. Berel ried to a named Mark Mark he sought previous children from a mar- treatment because Brian her Beverly family riage, stepfather. conflicts. and Mark was their intense judgment, evidence favorable the non- will movant be taken as true. 3.Every reasonable inference must be summary judgment, In its motion indulged favor of the nonmovant and *3 hospital asserted that Robinson was аny resolved in its favor. doubts contractor, independent and that it had no Co., Prop. Mgmt. Mr. 690 Nixon v. S.W.2d right to control the details of her medical 546, (Tex.1985); also 548-59 see Clark v. practice. It no con- also asserted there was Pruett, 903, (Tex.App.— S.W.2d 905-06 820 nection care and ren- between the treatment writ). 1991, Dist.] Houston no by hospital [1st any еmployee dered the and the injuries. plaintiffs’ alleged hospital When, here, the trial court’s order Carter, upon Larry lied the affidavit the summary judgment specify does not granting 1989, hospital’s administrator who stated grounds ground the or which it relied independent that Dr. was an con- ruling, summary judgment for its will be hospital depo- tractоr. The also relied on the appeal of the theories affirmed testimony plaintiffs’ expert sition the wit- Brasher, are meritorious. v. advanced Carr ness, Jameson, who Grace stated she 569 S.W.2d any opinion hospital’s not have about the brief, In the have not their compliance applicable with the standard of complaints in points framed their of error care. comply requirements with the of Tex. motion, In response hospital’s their RApp.P. 74(d). brief, It is clear from their asserted, among things, the other however, they court believe the trial erred in hospital that: the over maintained control granting summary the patiеnts the manner treated judgment because issues of material fact ex- by psychiatrists; ques- staff there is a fact concerning hospital ist whether the retained regarding hospital tion whether the the had prac- control over sufficient Dr. Robinson’s right by to control the treatment rendered hospital tice so as to be psychiatrists degree staff to a that would negligence, liable her and whether the hospital make the liable for psychia- the staff proper carrying exercised care acts; negligent trists’ there is statutory out its duties. question whether the exercised proper carrying care in out its liability Vicarious оbligations. duties and In response, general a hospital rule is that also stated that in addition is not for the acts or omis being hospital psychiatrist, staff Dr. Robin- independent physicians. sions of v. Jeffcoat employed son was the hospital as its Phillips, (Tex.App.— allegation Children’s Unit Director. The n.r.e.). refd Dist.] Houston [14th suppоrted by summary not or affidavit liability respondeat superior No attaches evidence. did not independent where is an con (other directly challenge allegation than employee tractor and not an or servant of the claiming employee). she was not an hospital. Id. A doctor has been whо select generally ed is considered to Standard of review independent regard be contractor at which the doctor has staff Supreme fol- Court has mandated the privileges. Id. at 173. If it shown that no is lowing reviewing standards for a motion employer-employee, principal-agent, partner summary judgment: rеlationship ship, joint venture exists be The movant for doctor, hospi tween the showing has the is no burden of that there of a doctor tal is not liable genuine issue of material fact and that chosen patient. who has been See id. law. entitled to as matter of If, however, deciding disput- In retains the whether there is a precluding right ed material the work to fact issue to control details of person As I can contracting a master- A. far as recall party, performed relationship will authorize that with the doctor also exists that would discuss servant respondeat application of the doctrine write those reсommenda- would—would Daniel, Hosp. Mun. v. superior. up particular Gladewater as —as best of tions in a form (Tex.App.—Texarkana par- my present that to the recall and we 198 control, writ). no It is the treating ticular doctor who’s control, gives to a to see actual rise possibly feeling also need- cоuld — performs his that the contractor information or clarification or ed further Litton, in a work safe manner. Owens director whatever —talk with the medical (Tex.App. [14th S.W.2d director of possibly and also — Houston denied). *4 employ an Where Dist.] hospital possibly the the —of the and also results, only the in the er is interested utilization committee. review contracting independently party determines Q. commit- Could the utilization review the by details of the method de the hospital medical director the tee the attained, independent are an sired results admitting physician’s orders ? override the relationship and the doc exists contrаctor applica Yes. respondeat superior has no A trine of Hosp., Mun. 694 S.W.2d at tion. Gladewater Q. Okay. Did the utilization review Unless the evidence is conclusive and the medical director have committee and inference, reasonably susceptible only to one patient they authority to employ person is an question the whether or thought been admitted was —had generally independent an contractor is ee or Interna- not need services Houston the Inc., Hosp., Sparger Worley fact. v. one of Hospital? tional (Tex.1977); Dougherty 547 S.W.2d The director the utilization A medical (Tex.App.— Gifford, recall, my аs as review committee writ). far no Texarkana they appropriate procedures there were if The relies on Carter’s affida admin- the felt Dr. Robinson evidence that vit conclusive appropriate treatment and need- istered af contractor. Carter’s was an pa- the to—which would еd—needed Dr. Robinson was a member fidavit stated: there, they could tient did not need to be hospital’s medical in staff admitting physician’s the have overruled pa private allowed admit and treat was order. hospital had hospital; in the no tients the Q. discharged? And have attempt con right and no to exercise made of Dr. medi over the details Robinson’s trol A was what was indicated that If Robinson was at all times practice; cal Dr. was needed. not em independent contractor and was added.) (Emphasis plain hospital; adult ployed independently requested Dr. Robinson’s tiffs agree plaintiffs that Rob- We services. question tеstimony inson’s own raises depo- rely Dr. Robinson’s maintained regarding whether testimony. that the hos- She testified sition to a Dr. Robinson’s treatment control over “quality pital’s staff included assurance degree make the that would to ... assure person” point who charts “reviewed negligent acts. We sustain for her plaintiffs’ tri- care.” The appropriate patient of error. additional al counsel asked quality assurance questions regarding Statutory liability
person: provisions assert that person felt quality If assurance Q. Code Texas Mental Health version had been an over utilization like that there utilization, imposed certain wоuld effect what or under hospital. See duties Tex.Rev.Civ. do? They argue art. 5547-1.3 ques- that “a A can statute create a that does Stat. tion of fact exists as to whether not exist at common Dutcher v. or law. See Owens, proper carry- exercised the care in ing obligations out their duties quoted provisions requirе [sic] of article 5547 quired by law.” following hospital: of a mental It must be by qualified physician; physician run assert that the charge provide adequate must treatment for “statutory under a mandate to control staff every patient according highest to “the stan psychiatrists, They such as Dr. Robinson.” accepted in practice”; phy dards rely provisions on various of the former stat- charge may delegate sician in powers and 4 provided: ute. Article 5547-89 however, qualified designees; duties Every private licensed duties, delegating physician charge charge shall be in of a who is does responsibility. not relieved of Psychi- cеrtified the American Board of atry Neurology the American responsible truly Courts are Osteopathic Board Psychiatry and Neu- fairly interpreting Glyn- written law. rology or who years has had at least three Inc., Bridgestone/Firestone, Jones v. *5 experience as a in psychiatry in a 640, 1993, S.W.2d (Tex.App. 642 - Dallas hospital. mental granted). begin analysis by We our review provided: Article 5547-825 ing Motors, Inc., the statute. Cail v. Service in-patient 814, head of an mental health 815 If the stat
facility provide adequate shall unambiguous, medical and ute is clear and extrinsic aids psychiatric every care and treatment and rules of construction are not patient in highest accordance with the necessary. parte Roloff, Ex accepted standards practice. (Tex.1974); medical Glyn-Jones, at S.W.2d in-patient The head of an mental health statute, 642. When we construe a pre we facility may give patient accepted psy- legislature sume the intеnded the entire stat chiatric therapy. treatment and ute to be effective. Tex.Gov’t Code Ann. 311.021(2). § We must follow the lan clear 5547-80(b)6 Article provided: guage of Glyn-Jones, the statute. patients All receiving mental health servic- S.W.2d at 642. pursuant es provisions of this code (1) following rights: have the to appropri- Here, the Mental spe Health Code ate treatment for their mental illness in cificallyimposes hospitals duties the least appropriate setting restrictive addition imposed upon hospi to duties available.... Hospital tals Licensing Texas Law.8 5547-9(b)7 provided: Article provides Mental Health Code that men pоwer granted duty [A] to or imposed hospitals a tal non-delegable duty have a to upon the facility may head of a be exer- patients provide adequate to performed authorized, cised or by an quali- psychiatric care. The claim the designee, delegation fied but the of a duty. breached that Because there does not facility reheve the head of a from are fact issues that must be submitted to the responsibility. his jury, proper. 20, 1957, R.S., May Leg., 3. Act of 58th ch. 5. Article 5547-82 is now located in Health & Safety April 1957 Tex.Gen.Laws § amended Act of 576.022. Code 21, 1983, R.S., Leg., 68th ch. 1983 Tex.Gen. 211, 261, 10, 1991, repealed by Laws May 5547-80(b) Act of 6. Article is now locаted in Health & R.S., Leg., Safety 576.021(1). 72nd ch. § Tex.Gen.Laws Code (current Safety version at TexHealth & Code 571.001). § Safety 7. Article 5547-9 is now located in Health & Code § 571.007. 4. Article 5547-89 is now located in Health & Safety Safety § 577.008. Code § 8. TexHealth 241.001. Code Ann. & majority), through point phasized We sustain this of error. committee, a view to of the court. We reverse trial judgment. I exercise to would hold able “override” WILSON, J., dissenting opinion. without physician’s admitting order “overrule” “controlling” the abstract is no evidence ON MOTION OPINION physician’s of a work in case.1 details FOR REHEARING today appellee’s mo- Court considered There is a fundamental difference between rehearing. motiоn is tion overruled. negli- suing a for its own acts of vicariously lia- gence, holding OLIVER-PARROTT, C.J., concurring. admitting and physicians ble for the acts of Likewise, treating patients hospital. in the J., dissenting. factual be- there is a fundamental difference OLIVER-PARROTT, Justice, Chief hospital controlling of a the details tween concurring. work, physician’s pеrmit would vicari- liability, and the maintenance of a ous majority’s finding I concur some ultimate make abstract potential liability issue as to whether there contrary regarding the to the wishes part psychiatric in this on may tend to physician. of the Evidence that light In particular case. dissent’s part of a show commеnts, however, important I it is believe that a directly in this ease is not evidence emphasize this ease does not involve may liable. vague right physician’s to control admis- patients general sion and treatment *6 hospital’s right If the make a allegations physician negligence. in its to the relative treatment injurеd being asserted fact issue over whether own facilities raises a unnecessarily in a health restrained physi- controls the details of facility. They they spoke directly asserted work, protect does the cian’s how requested staff and release. for from found itself psychiatrist The staff defendant doctor But аdmitting physicians? of its the actions specifically testified the utilization re- basically, if maintains more admitting view committee could overrule an it right physicians, how would of review of its any patient physician expenses litigation protect itself from inappropriate. admission or treatment was every defending against act of is, therefore, at as to There least issue facilities? physician committed within its hospital’s ability own admitting physician insofar control reasons, from I dissent For this timely discharge. motion majority’s opinion denial of rehearing. Justice, dissenting. rehearing grant I would appellee’s granting
affirm trial court’s motion. suggest majority
I errs respectfully disputed it fact issue
when finds a over
hospital’s “right control”
in a “utilization discussion majority’s Although the
review committee.” unstated, concluding so are
reasons hospital’s (em-
apparently rests meaningful actions judge trial doubt we control his mayWe the Honorable overrule summary judgment, but I sense. heard this motion