Shaw v. Children's Med. Ctr. of Dallas,
No. 05-00-01973-CV (Tex. App. Jan. 17, 2002)
Parents
of a newborn sued a hospital, alleging the hospital was vicariously liable for
the negligence of an emergency room physician in failing to promptly diagnose
a virus in their newborn baby, resulting in permanent neurological damage to
the child. The parents alleged the hospital was liable under theories of ostensible
agency and joint enterprise. The Texas Court of Appeals ruled that the doctor
in question was working as an independent contractor and that the hospital had
no right to control the doctor's treatment of the child. The court also rejected
the parents' claim based on ostensible agency because the parents failed to
identify anything that was said or done by the hospital to cause them to believe
the doctor was the hospital's agent or employee. The parents had, in fact, signed
an admission agreement that clearly provided that physicians in the facility
were not employees or agents of the hospital.