Texas PJC Malpractice 2022

PJC 52.2

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

PJC 52.2

Borrowed Employee—Medical—Lending Employer’s Rebuttal Instruction

QUESTION ______ On the occasion in question, was Don Donaldson acting as an employee of Dixon Hospital ? An “employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished. An employee ceases to be an employee of his general employer if he becomes the “borrowed employee” of another. One who would otherwise be in the general employment of one employer is a borrowed employee of another employer if such other employer or his agents have the right to direct and con trol the details of the particular work inquired about. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 52.2 may be used if a general employer (such as the physician) claimed to be vicariously liable seeks to rebut the employment relationship with evi dence that the employee was the borrowed employee of another (such as the hospital) on the occasion in question. This contention is an inferential rebuttal and is to be sub mitted as an instruction rather than disjunctively. See Tex. R. Civ. P. 277; Select Insur ance Co. v. Boucher , 561 S.W.2d 474 (Tex. 1978). When not to use. PJC 52.2 is not appropriate to submit the concept of indepen dent contractor. Nor should it be used if the issue of joint control by the hospital and physician is raised by the facts. There may be situations in which a physician’s status as a borrowed employee is established as a matter of law. See St. Joseph Hospital v. Wolff , 94 S.W.3d 513 (Tex. 2002) (plurality opinion). Disjunctive submission. For a disjunctive submission, see PJC 52.3. If the doc trine of borrowed employee is the proper subject of a question seeking to impose lia bility on the borrowing employer only, see PJC 52.1.

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