Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —T HEORIES OF V ICARIOUS L IABILITY

PJC 52.1

PJC 52.1

Borrowed Employee—Medical—Liability of Borrowing Employer

QUESTION ______

On the occasion in question, was Don Donaldson acting as a borrowed employee of Dixon Hospital ? If Don Donaldson was generally employed by Dr. Davis , he was a “bor rowed employee” of Dixon Hospital if Dixon Hospital or its agents had the right to direct and control the details of the particular work inquired about. Answer “Yes” or “No.” Answer: _______________ When to use. PJC 52.1 submits the “borrowed employee” (sometimes called “borrowed servant,” “loaned employee,” or “special employee”) theory if vicarious liability is sought against the borrowing employer (such as the hospital) only. The right of control over the details of the work is the determinative test of whether responsibil ity for the injury rests with the general employer or the borrowing employer. See St. Joseph Hospital v. Wolff , 94 S.W.3d 513, 537 (Tex. 2002). An additional factor to be considered is any contract language between the two parties addressing the right of control. Exxon Corp. v. Tidwell , 867 S.W.2d 19, 22 (Tex. 1993); Exxon Corp. v. Perez , 842 S.W.2d 629, 630 (Tex. 1992). The “captain of the ship” doctrine has been disap proved in Texas. Sparger v. Worley Hospital, Inc. , 547 S.W.2d 582, 583–85 (Tex. 1977); Ramon v. Mani , 550 S.W.2d 270, 271 (Tex. 1977). When not to use. Imposing liability versus avoiding liability. PJC 52.1 should be used only to impose vicarious liability on the alleged borrowing employer (such as the hospital). If, instead, the general employer (such as the physician) asserts the “borrowed employee” doctrine to avoid liability, it should be submitted as in PJC 52.2. See Tex. R. Civ. P. 277; Select Insurance Co. v. Boucher , 561 S.W.2d 474 (Tex. 1978). Not appropriate for independent contractor or joint control. PJC 52.1 is not appropriate to submit the concept of independent contractor. Nor should it be used if the issue of joint control by the hospital and physician is raised by the facts. COMMENT

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