Texas PJC Malpractice 2022

PJC 52.4

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

PJC 52.4

Ostensible Agency—Question and Instruction

QUESTION ______ Was there an ostensible agency relationship between Dr. Davis and Dixon Hospital with respect to Dr. Davis ’s treatment of Paul Payne at Dixon Hospi tal ? An ostensible agency relationship existed if (1) Paul Payne had a reasonable belief that Dr. Davis was the agent or employee of Dixon Hospital ; (2) such belief was generated by Dixon Hospital ’s affirmatively holding out Dr. Davis as its agent or employee, or by Dixon Hospital ’s knowingly permitting Dr. Davis to hold himself out as its agent or employee; and (3) Paul Payne justifi ably relied on the representation of authority. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 52.4 submits the “ostensible agency” theory for imposing vicarious liability on a hospital for the conduct of an independent contractor physician. There is no practical distinction among the theories of ostensible agency, apparent agency, apparent authority, and agency by estoppel, and this question should be used for all such theories. See Baptist Memorial Hospital System v. Sampson , 969 S.W.2d 945 (Tex. 1998). In cases in which the patient was at the time not capable of making, and therefore did not make, his or her own medical treatment decision and the decision of whether, where, and from whom treatment would be obtained was made by some one lawfully authorized to act on the patient’s behalf, the Committee recommends that the phrase “or someone lawfully acting on his behalf” be inserted after the patient’s name in the definition. Source of definition and elements. The doctrine was first adopted by the Supreme Court of Texas for use in medical malpractice cases in Sampson , 969 S.W.2d 945. Statutory prohibition of corporation’s practice of medicine. The supreme court has rejected the argument that vicarious liability may not be imposed on a corpo ration for the acts of its employees based on statutory prohibitions of a hospital or other entity from practicing medicine. St. Joseph Hospital v. Wolff , 94 S.W.3d 513, 539–40 (Tex. 2002) (citing Tex. Health & Safety Code ch. 241 (hospital-licensing law); Tex. Occ. Code §165.156 (prohibiting corporations and other business entities from indicating they are entitled to practice medicine if they are not licensed to do so);

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