Our potential and existing clients at Painter Law Firm commonly ask who is responsible for the conduct of doctors, nurses, techs, and other healthcare providers.
Physicians generally aren’t hospital employees
There is an old, bizarre principle in Texas law called the corporate practice of medicine act. It specifies that only doctors, not corporations or other entities, can practice medicine. Therefore, hospitals cannot employ physicians.
If you think about it, it’s really a sweetheart deal for hospitals. Hospitals can litter the landscape with billboards advertising how they have the best doctors in town yet can’t be held responsible in court when the same physicians commit medical malpractice.
While this is the general rule, there are some additional points to consider.
First, if the care at issue took place at a public hospital, then the doctor is likely a government employee.
For instance, The University of Texas MD Anderson Cancer Center is a public hospital that’s part of the UT System. The attending, resident, and fellow physicians on its medical staff are also state employees. This means that, as a whole, any care at the hospital, whether by a doctor or other type of healthcare provider, is subject to the stringent requirements of the dreaded Texas Tort Claims Act (TTCA). You can read about how the TTCA applies to medical malpractice claims here.
Second, just because the care was at a private hospital doesn’t guarantee that the doctors aren’t government employees. This is always something that we investigate closely, particularly when the potential claim involves care in a major academic medical center, like Houston’s Texas Medical Center.
For instance, for healthcare provided at Memorial Hermann Texas Medical Center or Children’s Memorial Hermann, the physicians will most likely be employees of the University of Texas Health Science Center at Houston (UT). That means that the TTCA applies to them.
But UT physicians don’t always work only in major medical center hospitals. We recently investigated a surgical malpractice case at St. Joseph’s Medical Center in downtown Houston. The physicians involved in that case were UT physicians, so the TTCA applied to that case as well.
Third, many hospital systems have made the business decision to create their own physician organizations. These organizations are technically independent of the hospital, so they arguably don’t violate the corporate practice of medicine doctrine, but hospitals maintain a great deal of control over the doctors, including providing risk management services and insurance. For instance, Houston Methodist Physician Organization employs many physicians who work at various hospitals in the Houston Methodist system. Ascension Health owns many hospitals, including Providence Medical Center, in Waco, Texas, and has a physician organization to employ many of the doctors on hospital medical staffs.
What about nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs), and physician assistants (PAs)?
In our experience, most of these mid-level providers are not hospital employees. They are usually employees of physician practice groups, but this is something that we always want to verify.
NPs and PAs are frequently employees of surgical practice groups and assist surgeons by performing rounds on post-operative patients.
CRNAs are typically employed by anesthesia practice groups. They often handle most of the anesthesia services in the operating room, as medically supervised or directed by anesthesiologist physicians.
Nurses, techs, and other providers are generally hospital employees
Most other healthcare providers, including nurses and techs, are hospital employees. This means that the hospital is legally responsible for their negligence under a legal doctrine known as vicarious liability.
A good way to understand vicarious liability is to distinguish it from direct liability.
When a hospital makes a decision or takes an action that is negligent and it causes a patient injury, it is considered direct liability. For example, it’s not uncommon for a medical malpractice lawsuit to include direct liability claims against hospitals for things such as:
• Hiring and retention of incompetent nurses.
• Failure to have adequate policies and procedures.
• Failure to train nursing or tech staff.
In contrast, a vicarious liability claim doesn’t concern an action by the hospital itself, but rather a mistake by an employee or agent of the hospital acting in the course and scope of employment. In my experience, most of the claims in medical malpractice lawsuits relate to various liability. They include things such as:
• The failure of the nurse to communicate a change in clinical findings to the doctor.
• A medication mistake by pharmacy staff.
• The laboratory staff doesn’t communicate a critical lab value to the doctor or nurse.
• The failure of the nurse to recognize signs and symptoms of a dangerous condition.
Why does it matter?
There are two principal reasons that the employment status of healthcare providers may matter in a Texas medical malpractice case.
First, physicians are likely to have less malpractice insurance coverage than hospitals. As a consequence of the 2003 round of tort reform, many doctors have chosen to only carry $200,000 in medical malpractice insurance.
Second, if a healthcare provider involved in the alleged negligence is not a hospital employee, then the plaintiff must name that person as an individual defendant. In other words, it won’t be enough to name the hospital alone.
If you’ve been seriously injured because of a medical error in Texas, then it’s important to hire an experienced and skilled Houston, Texas medical malpractice lawyer who understands this complex area of law.
