969 S - 969 S.W.2d 945; BAPTIST MEMORIAL HOSPITAL SYSTEM,...

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969 S.W.2d 945; BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner, v. Rhea SAMPSON, Respondent. (Tex.); Page 945 BAPTIST MEMORIAL HOSPITAL SYSTEM, Petitioner, v. Rhea SAMPSON, Respondent. No. 97--0268. Supreme Court of Texas. Argued Dec. 2, 1997. Decided May 21, 1998. Rehearing Overruled July 3, 1998. Page 946 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. I 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
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prescribed. About fourteen hours later, with her condition rapidly deteriorating, Sampson went to another hospital and was admitted to the intensive care ward in septic shock. There, her bite was diagnosed as that of a brown recluse spider, and the proper treatment was administered to save her life. Sampson allegedly continues to have recurrent pain and sensitivity where she was Page 947 bitten, respiratory difficulties, and extensive scarring. Sampson sued Drs. Howle and Zakula for medical malpractice. She also sued Baptist Memorial Hospital System ("BMHS"), of which Southeast Baptist Hospital is a member, for negligence in failing to properly diagnose and treat her, failing to properly instruct medical personnel in the diagnosis and treatment of brown recluse spider bites, failing to maintain policies regarding review of diagnoses, and in credentialing Dr. Zakula. Sampson also alleged that the Hospital was vicariously liable for Dr. Zakula's alleged
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969 S - 969 S.W.2d 945; BAPTIST MEMORIAL HOSPITAL SYSTEM,...

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