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TX: agency `temp' OR nurse injured in OR: workers' comp. no bar to suit v. hospital or Dr. (Legal Case Briefs for Nurses).



CASE FACTS: Diana Morris, a registered nurse, was working as a "traveling nurse traveling nurse A nurse who travels to find employment because of the relative lack of opportunity in his/her local area " doing temporary assignments for staffing agencies, including National Care Resources. In August 1994, the agency sent her to work at Providence Memorial Hospital as an operating room operating room
n. Abbr. OR
A room equipped for performing surgical operations.
 nurse for thirteen weeks. The agency paid her an hourly rate plus housing and other expenses. It did not withhold taxes from her. The agency deducted $23 per week from the nurse's paycheck for workers' compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work.  insurance. On September 19, 1994, the nurse was assigned to assist Dr. Jose Castillo, a surgeon, and Dr. Richard Dubose, an anesthesiologist Anesthesiologist
A medical specialist who administers an anesthetic to a patient before he is treated.

Mentioned in: Anesthesia, General, Appendectomy, Parathyroidectomy

anesthesiologist
, in a breast biopsy Breast Biopsy Definition

A breast biopsy is removal of breast tissue for examination by a pathologist. This can be accomplished surgically, or by withdrawing tissue through a needle.
. Dr. Dubose placed the patient under general anesthesia Anesthesia, General Definition

General anesthesia is the induction of a state of unconsciousness with the absence of pain sensation over the entire body, through the administration of anesthetic drugs.
 for the procedure. Immediately following the biopsy, Dr. Castillo left the operating room. Nurse Morris maintained that Dr. Dubose was upset, in a bad mood, and "already griping" because Dr. Castillo had been late for the surgery, putting Dr. Dubose behind schedule for another procedure. Because the patient weighed over 300 pounds, Nurse Morris called for orderlies to assist in moving the patient from the operating room to the recovery room. Although Nurse Morris had restrained the patient with ankle and wrist straps, a scrub technician had unstrapped her. Dr. Dubose "kept huffing and puffing and couldn't wait." Without waiting for the orderlies, he woke the patient from general anesthesia. The patient started thrashing around and fighting, struck Nurse Morris, and caused injuries to her neck, back, and whole body. Nurse Morris brought suit against Dr. Dubose and the hospital alleging negligence. The court granted the defendants' motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers . The nurse appealed.

COURT'S OPINION: The Court of Appeals of Texas reversed the judgment of the lower court and remanded the case for further proceedings. The court held, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that the defendants failed to conclusively establish their status as "special employers," or as agents thereof. The court concluded that summary judgment was improper. The court noted that the nurse's election to receive workers' compensation benefits from her employer was her exclusive remedy against her employer and precluded her from bringing a law suit against her employer. However, as to Nurse Morris' relationship to the anesthesiologist, and as to the anesthesiologist's relationship with the hospital, there was no such impediment to suit. Editor's Note Editor's Note (foaled in 1993 in Kentucky) is an American thoroughbred Stallion racehorse. He was sired by 1992 U.S. Champion 2 YO Colt Forty Niner, who in turn was a son of Champion sire Mr. Prospector and out of the mare, Beware Of The Cat.

Trained by D.
: It should be noted that in many, if not most, states employers are required to pay for their employees' workers' compensation insurance coverage. Morris v. Paso Del Norte Health Foundation, 2001 WL 828798 S.W.3d -TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001 Gale, Cengage Learning. All rights reserved.

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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Aug 1, 2001
Words:530
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