Texas PJC Malpractice 2022

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

PJC 52.3

PJC 52.3

Borrowed Employee—Medical—Disjunctive Submission of Lending or Borrowing Employer

QUESTION ______ On the occasion in question, was Don Donaldson acting as an employee of Dixon Hospital or of Dr. Davis ? 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. For purposes of this question, the term “employee” includes “borrowed employee.” On the occasion in question, Don Donaldson could not have been the employee of both Dixon Hospital and Dr. Davis . Answer “ Dixon Hospital ” or “ Dr. Davis .” Answer: _______________ COMMENT When to use. The disjunctive submission above properly submits “borrowed employee” only if the plaintiff alleges and it is apparent from the evidence that the alleged tortfeasor is necessarily the employee of either the hospital or the physician. See Tex. R. Civ. P. 277; Archuleta v. International Insurance Co. , 667 S.W.2d 120 (Tex. 1984) (proper to ask about total and partial incapacity as alternate theories; inquiry about partial incapacity is improper inferential rebuttal if only total incapacity is claimed); see also Burns v. Union Standard Insurance Co. , 593 S.W.2d 309 (Tex. 1980). When not to use. PJC 52.3 should not be used to submit “borrowed employee” as an inferential rebuttal. Select Insurance Co. v. Boucher , 561 S.W.2d 474 (Tex. 1978). In such a case, see PJC 52.2. Nor would the above charge be appropriate if the concept of joint control by the hospital and the physician or that of the independent contractor were raised by the evidence.

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