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.