Texas Tort Claims Act: Are Physicians Independent Contractors or Employees?

Introduction: Texas Tort Claims Act

In Texas, a hospital which is owned by a government and receives government funding is immune from lawsuits except under very limited circumstances described in the Texas Tort Claims Act (hereinafter “the Act”).  The Act permits lawsuits against governmental entities only to the extent liability is imposed on an individual by state law and only upon the occurrence of particular fact patterns.[1]  A plaintiff may sue both the hospital and its physicians.  However, if the physician is considered an employee of the hospital, they may be entitled to immunity under the Act.[2]

Waiver of Sovereign Immunity

Sovereign immunity is waived (1) where government owned vehicles are involved, (2) where there is a premises defect, or (3) where injury is caused by "condition or use of tangible personal or real property."[3]  For a plaintiff to establish liability against a governmental unit for medical malpractice, the plaintiff must show that personal injury or death was caused by a “condition or use of tangible personal” property.[4]  “Use,” in the context of section of Texas Tort Claims Act waiving governmental immunity when injury was caused by use of tangible personal property, means to put or bring into action or service; to employ for or apply to a given purpose.[5]  Allegations involving the misuse of information, negligent training, or medical judgment, without more, are insufficient to waive immunity.[6]

The Plaintiff must also show that the misuse was by the entity’s employee.[7]  An employee is defined as “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.”[8]

Physician as Employee or Independent Contractor

Generally, physicians are considered to be independent contractors with respect to hospitals at which they have staff privileges.[9]  The Act provides that an independent contractor is not an employee.[10]  However, a physician may be considered an employee of the hospital when they act within the scope of their employment.[11]  Scope of employment means the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.[12]

Texas courts have allowed a physician to show they are an employee of the hospital through the physician’s affidavit.[13]  In Lee v. Hunter, Hunter sued Dr. Lee after the death of Hunter’s son, James, while he was a patient at Parkland Hospital.[14]  Lee argued the medical care she provided to James was within the scope of her employment with a governmental unit, the University of Texas Southwestern Medical Center at Dallas.[15]  The Court found Lee provided sufficient evidence, in her affidavit, to establish that UT Southwestern controlled the schedule she worked, the facility where she worked, the type of patients she saw, the type of medical services she was authorized to render, and the billing for her services.[16]  Accordingly, if the physician is a hospital employee, it may be immune from liability under the Act.

Conclusion

In Texas, a hospital which is owned by a government and receives government funding is immune from lawsuits except under very limited circumstances described in the Texas Tort Claims Act.  The Act permits lawsuits against governmental entities only to the extent liability is imposed on an individual by state law and only upon the occurrence of particular fact patterns.  A plaintiff may sue both the hospital and its physicians but if the physician is considered an employee of the hospital, they will be entitled to immunity under the Act.  Generally, physicians are considered to be independent contractors with respect to hospitals at which they have staff privileges.  However, a physician may be considered an employee of the hospital when they act within the scope of their employment.


[1] State Department of Highways and Public Transportation v. Dopyera, 834 S.W.2d 50 (Tex. 1992).

[2] Lee v. Hunter, No. 05–16–00325–CV, 2016 WL 7448338 at *3 (Tex. App.—Dallas Oct. 27, 2016, no pet.)

[3] Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31 (Tex. 1983); Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011).

[4] Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); Id. at 31-33.

[5] Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).

[6] Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); University of Texas M.D. Anderson Cancer Center v. McKenzie, 529 S.W.3d 177, 186 (Tex. App.—Houston 14th Dist. 2017).

[7] See Dumas v. Muenster Hospital District, 859 S.W.2d 648 (Tex. App.—Fort Worth [2nd Dist.] (1993).

[8] See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2).

[9] See Harris v. Galveston County, 799 S.W.2d 766, 788 (Tex. App.—Houston [14th Dist.] 1990).

[10] See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2).

[11] Lee, 2016 WL 7448338 at *2; Poland v. Willerson, No. 01–07–00198–CV, 2008 WL 660334 at *7 (Tex. App.—Houston [1st Dist.] Mar. 13, 2008, pet. denied).

[12] Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5).

[13] Lee, 2016 WL 7448338 at *2.

[14] Id. at *1.

[15] Id.

[16] Id. at *2-*3.

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