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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" 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 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 insurance. On September 19, 1994, the nurse was assigned to assist Dr. Jose Castillo, a surgeon, and Dr. Richard Dubose, an anesthesiologist, in a breast biopsy. Dr. Dubose placed the patient under general anesthesia 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. 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, 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: 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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Article Details
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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
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