969 S.W.2d 945; BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner, v.
Rhea SAMPSON, Respondent. (Tex.);
BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner, v. Rhea SAMPSON,
Supreme Court of Texas.
Argued Dec. 2, 1997.
Decided May 21, 1998.
Rehearing Overruled July 3, 1998.
Ruth G. Malinas, George F. Evans, Jr., San Antonio, for Petitioner.
Oliver S. Heard, Jr., Luis R. Vera, Jr., Clifton F. Douglass, III, Karl E. Hays, San
Antonio, for Respondent.
PHILLIPS, Chief Justice, delivered the opinion of the Court.
In this case, we decide whether the plaintiff raised a genuine issue of material fact
that defendant Hospital was vicariously liable under the theory of ostensible agency for
an emergency room physician's negligence. We granted Baptist Memorial Hospital
System's application for writ of error to resolve a conflict in the holdings of our courts of
appeals regarding the elements required to establish liability against a hospital for the acts
of an independent contractor emergency room physician. We hold that the plaintiff has
not met her burden to raise a fact issue on each element of this theory. Accordingly, we
reverse the judgment of the court of appeals, 940 S.W.2d 128, and render judgment that
the plaintiff take nothing.
On March 23, 1990, Rhea Sampson was bitten on the arm by an unidentified creature
that was later identified as a brown recluse spider. By that evening, her arm was swollen
and painful, and a friend took her to the Southeast Baptist Hospital emergency room. Dr.
Susan Howle, an emergency room physician, examined Sampson, diagnosed an allergic
reaction, administered Benadryl and a shot of painkiller, prescribed medication for pain
and swelling, and sent her home. Her condition grew worse, and she returned to the
Hospital's emergency room by ambulance a little over a day later. This time Dr. Mark
Zakula, another emergency room physician, treated her. He administered additional pain
medication and released her with instructions to continue the treatment Dr. Howle