TX: Patient's Death from Alleged Negligence: Hospital Has Sovereign Immunity.
COURT'S OPINION: The Court of Appeals of Texas affirmed the judgment of the lower court granting the defendants' motion for summary judgment. The court held, inter alia, that the hospital was entitled to sovereign immunity as a hospital which was owned and operated by a governmental entity. The court noted that an affidavit filed on behalf of the hospital attests that the physicians involved in the case were not employees of the hospital, had no employment contract with the hospital and the hospital did not bill for their services. Further, the affidavit states that the hospital had no direct or in direct control of all of the physicians involved. According to the affidavit, the hospital has a policy that all physicians who practice at the hospital control the diagnosis and treatment of their patients, set their own fees, maintain their own records, and assume responsibility for their own malpractice insurance. Accordingly, the court found that the affidavit was sufficient to establish that the physicians were not employees of the hospital, but rather independent contractors. The court noted that an independent contractor is not an employee for purposes of waiver of sovereign immunity. A paragraph in the complaint alleged that the nursing staff failed to adhere to acceptable standards of nursing care by failing to: properly observe changes in the deceased's condition and alert a physician; properly assess the deceased's needs and evaluate his condition; implement a proper course of nursing care; document a significant change in the deceased's symptoms on the medical chart; recognize the adverse effects of medication administered by the staff; competently carry out orders given by the physicians treating the deceased. The court concluded that since none of the allegations concerning the nursing staff allegedly involved the use of tangible personal property, but rather involved alleged failures in conduct, the plaintiffs failed to show any circumstances to support any alleged waiver of the hospital's sovereign immunity. Clemons v. Citizens Medical Center, 2001 WL 909292 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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|Author:||Tammelleo, A. David|
|Publication:||Hospital Law's Regan Report|
|Article Type:||Brief Article|
|Date:||Aug 1, 2001|
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