                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                             NO. 2-07-423-CV

EMILY FARLOW, INDIVIDUALLY                                     APPELLANTS
AND AS NEXT FRIEND OF
ANDREW JOSEPH FARLOW AND
LAUREN CATHERINE FARLOW,
MINORS, AND AS GUARDIAN OF
THE PERSON AND THE ESTATE OF
LEE WILLIAM FARLOW, AND
LEE WILLIAM FARLOW

                                     V.

HARRIS METHODIST FORT                                            APPELLEES
WORTH HOSPITAL AND TEXAS
HEALTH RESOURCES, INC.

                                 ------------

          FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

                                 ------------

                                OPINION

                                 ------------

                              I. Introduction

     This is a medical malpractice case in which appellants are attempting to

impute liability for a doctor’s negligence to both the hospital where he
performed surgery and the hospital’s parent company. In six points, appellants

challenge (1) the partial summary judgment on their respondeat superior and

gross negligence allegations, (2) the directed verdict on their vicarious liability

claim based on ostensible agency, and (3) the exclusion of evidence that they

contend is material to their claims. We affirm.

                    II. Factual and Procedural Background

      Appellants Emily Farlow 1 and her husband Lee William Farlow filed a

medical malpractice suit on March 31, 2005 against John L. Fewins, M.D.;

John L. Fewins, M.D., P.A.; Harris Methodist Fort Worth Hospital (the Hospital);

and Texas Health Resources, Inc. (THR).2 They alleged that Lee went to the

emergency room at the Hospital on April 15, 2004 because of headaches, and

the next day Dr. Fewins, who was the on-call otolaryngology (ENT) specialist

at the hospital, recommended performing an endoscopic transnasal biopsy.

They further alleged that Dr. Fewins penetrated Lee’s skull during the

procedure, causing permanent damage to his central nervous system.




      1
       … Emily sued in the following capacities: individually, as next friend of
her son Andrew Joseph Farlow and her daughter Lauren Catherine Farlow, and
as guardian of the person and estate of her husband, Lee William Farlow.
      2
       … THR is the Hospital’s parent company; it is a nonprofit that also owns
several other hospitals. THR and the Hospital are referred to collectively in this
opinion as “Harris.”

                                        2
      The Farlows asserted that Dr. Fewins was both negligent and grossly

negligent in performing Lee’s surgery.      They also asserted that Harris was

vicariously liable for Dr. Fewins’s actions because he was an employee. In the

alternative, they claimed that Dr. Fewins was Harris’s ostensible agent because

Harris held out the physicians practicing at the Hospital as employees. The

Farlows also claimed that Harris breached a duty to provide Dr. Fewins with the

appropriate equipment necessary to safely perform the procedure.

      Harris filed a combined traditional and no-evidence motion for partial

summary judgment on the Farlows’ vicarious liability claims. Harris contended

that there was no evidence, or no genuine issue of material fact, that it

employed Dr. Fewins or that he was acting within the course and scope of such

employment in treating Lee. According to Harris, “[t]he evidence establishes

that Dr. Fewins was an independent contractor engaged in the private practice

of medicine, and . . . there is no factual or legal basis to support [the Farlows’]

allegation that [Harris] should be vicariously liable for any alleged negligence of

Dr. Fewins.” Harris also moved for summary judgment on the ground that Dr.

Fewins was not its ostensible agent. The trial court denied the motion in an

order dated August 1, 2007.

      Before the trial court ruled on the first motion for partial summary

judgment, the Farlows filed a First Amended Original Petition, alleging for the

                                        3
first time claims of fraud and negligent misrepresentation against Harris. Harris

moved for partial summary judgment on these newly pled claims as well as the

direct negligence and vicarious liability claims that it had previously moved for

summary judgment on.       However, before the trial court could rule on the

second motion, the Farlows filed a Second Amended Petition deleting the fraud

and negligent misrepresentation claims and adding allegations that Harris was

also grossly negligent because it had ratified Dr. Fewins’s actions and because

Dr. Fewins was acting in a managerial capacity when he performed Lee’s

surgery. Thus, Harris, with the agreement of the trial court and the Farlows,

again moved for summary judgment on traditional and no-evidence grounds,

based on the claims in the Farlows’ Second Amended Petition.

      Harris alleged the following grounds for summary judgment:

      •     The Farlows’ theory of vicarious liability based upon
            respondeat superior fails because Dr. Fewins was an
            independent contractor and not Harris’s agent or employee.

      •     Alternatively, the Farlows cannot produce any evidence that
            Harris had the right to control the details of Dr. Fewins’s
            work.

      •     The Farlows’ theory of vicarious liability based upon
            ostensible agency fails because Harris has not held out Dr.
            Fewins as its agent, nor knowingly permitted Dr. Fewins to
            hold himself out as its agent.




                                       4
      •     Alternatively, the Farlows cannot produce any evidence that
            Harris held out Dr. Fewins as its agent, or knowingly
            permitted Dr. Fewins to hold himself out as its agent.

      •     Because the Farlows cannot establish any type of agency or
            employee relationship between Harris and Dr. Fewins, Harris
            cannot be held liable for gross negligence.

      •     Alternatively, Harris did not authorize or ratify the actions of
            Dr. Fewins.

      •     In the further alternative, the Farlows cannot present any
            evidence that Harris authorized or ratified Dr. Fewins’s acts.

      •     Alternatively, Dr. Fewins is not a manager of Harris.

      •     In the further alternative, the Farlows can present no
            evidence that Dr. Fewins is a manager of Harris.

      •     The Farlows can present no evidence of either the objective
            or subjective components of gross negligence.

      While the third motion for partial summary judgment was pending, the

Farlows filed a Third Amended Petition, in which they deleted their direct

negligence claims against Harris. Instead, they added additional factual support

for their allegation that Harris had committed gross negligence through the

actions of its agent, Dr. Fewins.

      The trial court granted Harris’s motion for summary judgment on the

Farlows’ respondeat superior and gross negligence theories of liability, as set




                                        5
forth in the Third Amended Petition.3 But it denied Harris’s motion in all other

respects. Accordingly, only the ostensible agency theory of vicarious liability

against Harris proceeded to trial, along with the Farlows’ claims against Dr.

Fewins.

      After the Farlows rested, Harris moved for a directed verdict on the

ostensible agency claim, which the trial court initially denied.       But Harris

reurged its motion after the defense rested, and the trial court granted it. As

a result, the trial court entered a take-nothing judgment in Harris’s favor. 4 This

appeal followed.

            III. Partial Summary Judgment—Respondeat Superior

      In their first point, the Farlows challenge the trial court’s partial summary

judgment on their respondeat superior claims against Harris. Specifically, they

contend that there are genuine issues of material fact as to whether Dr. Fewins

was Harris’s employee or agent because (1) Harris controlled, or had the right

to control, his medical practice by contract, (2) Dr. Fewins’s status as an agent

or independent contractor is a fact question not appropriate for summary

judgment, (3) there was more than a scintilla of evidence that Dr. Fewins was


      3
        … The trial court did not specify whether it was granting the motion on
traditional or no-evidence grounds.
      4
      … The Farlows had entered into a high-low settlement agreement with
Dr. Fewins, which the trial court incorporated into its judgment.

                                        6
acting within the scope of his employment with Harris, and (4) there was more

than a scintilla of evidence that the procedure he performed on Lee was in

furtherance of Harris’s business.

A. Standard of Review

      A no-evidence summary judgment is proper if the nonmovant fails to bring

forward more than a scintilla of probative evidence that raises a genuine issue

of material fact as to an essential element of the plaintiff’s cause of action for

which the defendant contends no evidence exists. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied); see Tex. R. Civ.

P. 166a(i).    A traditional summary judgment is proper if a defendant

conclusively negates at least one of those essential elements.       IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004); see Tex. R. Civ. P. 166a(b), (c). When reviewing both a no-evidence

and traditional summary judgment, we examine the entire record in the light

most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291,

292 (Tex. 2006); IHS Cedars Treatment Ctr., 143 S.W.3d at 798.




                                        7
B. Applicable Law

      Under the doctrine of respondeat superior, an employer may be

vicariously liable for the negligence of its agent or employee who was acting

within the scope of employment even though the employer did not personally

commit a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42 (Tex.

2002); Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.

1998); Bell v. VPSI, Inc., 205 S.W.3d 706, 713 (Tex. App.—Fort Worth 2006,

no pet.).   But a person or entity that hires an independent contractor is

generally not vicariously liable for the tort or negligence of that person. Baptist

Mem’l Hosp. Sys., 969 S.W.2d at 947; Enserch Corp. v. Parker, 794 S.W.2d

2, 6 (Tex. 1990); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).

For example, a hospital is ordinarily not liable for the negligence of a physician

who is an independent contractor. Baptist Mem’l Hosp. Sys., 969 S.W.2d at

948; Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 684 (Tex.

App.—Dallas 2000, no pet.).

      The right of control is the “supreme test” for determining whether a

master-servant relationship exists. Golden Spread Council, Inc. No. 562 of Boy

Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996); Omega

Contracting, Inc. v. Torres, 191 S.W.3d 828, 847 (Tex. App.—Fort Worth

2006, no pet.).      In determining whether a worker is an employee or

                                        8
independent contractor, the focus is on who has the right to control the details

of the work. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); EPGT

Tex. Pipeline, L.P. v. Harris County Flood Control Dist., 176 S.W.3d 330, 336

(Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). An independent contractor

is one who, in pursuit of an independent business, undertakes specific work for

another using his or her own means and methods without submitting to the

control of the other person as to the details of the work. Indus. Indem. Exch.

v. Southard, 138 Tex. 531, 160 S.W.2d 905, 907 (1942); Schievink v.

Wendylou Ranch, Inc., 227 S.W.3d 862, 866 (Tex. App.—Eastland 2007, pet.

denied).

      A contract expressly providing that a person is an independent contractor

is determinative of the relationship absent evidence that the contract is a mere

sham or subterfuge designed to conceal the true legal status of the parties or

that the contract has been modified by a subsequent agreement between the

parties.   Newspapers, Inc. v. Love, 380 S.W.2d 582, 588–90, 592 (Tex.

1964); Bell, 205 S.W.3d at 713–14; Weidner v. Sanchez, 14 S.W.3d 353, 373

(Tex. App.—Houston [14th Dist.] 2000, no pet.). Evidence that the parties did

not intend for an independent contractor relationship can come from the

contract itself, i.e., whether, despite language describing the relationship as an

independent contractor relationship, other contract language evidences such a

                                        9
right of control that the relationship is actually that of employer/employee.

Newspapers, Inc., 380 S.W.2d at 591—92; Bell, 205 S.W.3d at 713–14. It

can also come from extrinsic evidence, such as instances of actual control by

the principal sufficient to show that the true agreement of the parties vested

a right of control establishing an employment relationship. Newspapers, Inc.,

380 S.W.2d at 590–92 (“[T]he ‘right to control’ remains the supreme test and

the ‘exercise of control’ necessarily presupposes a right to control which must

be related to some agreement expressed or implied.”); Bell, 205 S.W.3d at

713–14. In such cases, the exercise of control is evidentiary only and “must

be so persistent and the acquiescence therein so pronounced as to raise an

inference that at the time of the act or omission giving rise to liability, the

parties by implied consent and acquiescence had agreed that the principal might

have the right to control the details of the work.”      Newspapers, Inc., 380

S.W.2d at 592.

      We may consider several factors in determining the extent of the right of

control: (1) the independent nature of the person’s business; (2) the person’s

obligation to furnish necessary tools, supplies, and material to perform the job;

(3) the right to control progress of the work, except as to final results; (4) the

time for which the person is employed; and (5) the method of payment,

whether by time or by the job. Tex. A&M Univ. v. Bishop, 156 S.W.3d 580,

                                       10
584–85 (Tex. 2005); Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d

308, 312 (Tex. 2002). 5 To trigger vicarious liability, the right to control must

extend to the specific activity from which the injury arose. Read v. Scott Fetzer

Co., 990 S.W.2d 732, 736 (Tex. 1998); Exxon Corp., 867 S.W.2d at 23;

Omega Contracting, 191 S.W.3d at 847.




      5
        … The parties each point us to a different test to determine the
relationship between Harris and the Farlows. Harris contends that St. Joseph
Hospital sets forth a physician-specific independent contractor test that
displaces prior case law: whether there has been a “benefit to the defendant
and . . . right of control.” St. Joseph Hosp., 94 S.W.3d at 537. But this test
applies to only one of several vicarious liability theories the plaintiff in that case
pled as an alternative to respondeat superior. Id. at 537. The“nonemployee on
a mission” theory of liability is for “respondeat superior liability outside the
employment context.” Id. at 537 (emphasis added); Omega Contracting, 191
S.W.3d at 847; see Comm. on Pattern Jury Charges, State Bar of Tex., Tex.
Pattern Jury Charges: General Negligence and Intentional Personal Torts PJC
7.10 (2008). The Farlows did not plead this nonemployment-based theory of
vicarious liability; thus, this test is not applicable and does not displace the
Newspapers, Inc. contract-between-the-parties-controls-absent-evidence-
otherwise test.

      Conversely, the Farlows urge that we use the five-factor test set out in
Limestone Products Distribution, Inc., 71 S.W.3d at 312, to the exclusion of
the Newspapers, Inc. test. But the Limestone factors assist us only in
determining whether the evidence of right of control despite the explicit
contract language raises a fact question as to whether Dr. Fewins was an
employee. See Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex.
App.—Houston [1st Dist.] 1995, writ denied) (recognizing that Newspapers,
Inc. controls respondeat superior analysis when contract provides for
independent contractor status but then employing Limestone factors to analyze
whether evidence of control was sufficient to overcome contract language).

                                         11
      The right to control is ordinarily a question of fact; but whether a contract

gives a right to control is generally a question of law. Omega Contracting, 191

S.W.3d at 847; EPGT Tex. Pipeline, 176 S.W.3d at 336. In addition, if the

controlling facts are undisputed, whether the relationship that exists is that of

an employee or of an independent contractor is a question of law. Dow Chem.

Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); EPGT Tex. Pipeline, 176

S.W.3d at 336.

C. Analysis

      The Farlows point to both the rights of Harris as set forth in several

contracts between the Hospital and Dr. Fewins and actual instances of control

exercised by the Hospital as evidence that the true relationship between the

parties was that of an employer and employee rather than an independent

contractor relationship. Accordingly, we will examine the evidence of both.

      1.      Did the Hospital Retain Right of Control by Contract?

              a. The Contracts

      Dr. Fewins signed several agreements with Harris, which were in effect

when he operated on Lee: a Physician Recruitment Agreement with Sign-On

Bonus/Relocation Reimbursement Addendum             and Collections Guarantee

Addendum; a Secured Promissory Note; and a Security Agreement.              Phyllis

Norman, an administrator employed by THR, explained the purpose behind the

                                       12
Hospital’s entering into these agreements.        According to Norman, she is

responsible, in part, for making sure the Hospital has sufficient on-call coverage

for certain physician specialties. In 2003, one of the specialities for which she

was responsible was otolaryngology. At that time, the Hospital had only two

on-call ENT physicians and were about to lose at least one. So Norman began

to look for a new ENT to provide at least one-third of the on-call coverage for

the Hospital; she expected that the new on-call doctor would provide coverage

for at least one week every three weeks. The Hospital would provide the new

doctor with financial assistance in the form of a loan to set up his or her

practice in the Fort Worth area in exchange for the doctor’s agreeing to apply

for active staff privileges at the Hospital and to provide the Hospital with on-call

coverage in his or her specialty for a certain minimum time;6 in this way, the

Hospital could bring new physicians to its coverage area. Norman explained

that Harris did not get involved in setting up the doctor’s practice, however.

      Norman received Dr. Fewins’s resume and called him to see if he was

interested in interviewing with the Hospital. He was in the process of finishing

a four-year residency program with University of Texas Medical Branch at San

Antonio. After talking with him, she set up an interview with her and other



      6
      … Norman explained that new doctors typically needed help relocating
because they owed money on student loans.

                                        13
administrators; she also facilitated meetings with Dr. Fewins and the two other

ENTs who provided on-call coverage to the Hospital. The Hospital reimbursed

Dr. Fewins for his travel expenses.     After Dr. Fewins agreed to locate his

practice in Fort Worth with the Hospital’s assistance, he signed the above-listed

contracts.   The Hospital paid him a bonus and reimbursed his moving

expenses;7 it reported these amounts to the IRS on a form 1099.

      The Physicians Recruitment Agreement provides that “[t]he objective of

Hospital in the Agreement is to provide incentives to [the doctor] to practice

medicine and for [the doctor] to provide professional services to patients in the

Community [defined as the Hospital’s service area].” It expressly states that

      [a]t all times during the term . . . [the doctor] is and shall be an
      independent practitioner and not a servant, agent, or employee of
      Hospital. Hospital and [the doctor] shall further agree that nothing
      contained herein shall be deemed to create any type of
      employment, agency, servant, partner, or joint venture relationship
      between [the doctor] and Hospital.

The agreement further provides that the doctor “shall exercise his/her own

independent medical judg[]ment in his/her practice of medicine and in the

performance of all professional services for his/her patients.”




      7
       … All amounts paid by the hospital to Dr. Fewins are in separate sealed
parts of the clerk’s record and are redacted from documents in the unsealed
part of the clerk’s record.

                                       14
            b.    Contract Requirements That the Farlows Allege Show a Right
                  of Control Sufficient to Establish Employment Relationship

      Despite the language stating that Dr. Fewins was to be an independent

contractor of the Hospital, the Farlows contend that the following obligations

in the Physician Recruitment Agreement show that the Hospital had a right to

control Dr. Fewins’s activities to an extent that at least creates a fact issue as

to whether he was acting as the Hospital’s employee when he operated on Lee:

      •     Dr. Fewins was obligated to provide one third of the Hospital’s

      emergency room ENT coverage unless otherwise agreed, in accordance

      with the Hospital’s medical staff bylaws, rules, regulations, or policies.8

      •     The Agreement required Dr. Fewins to “engage in the full-time

      private practice of medicine in the Community . . . defined as . . .

      availability to see patients at least 35 hours per week for 48 weeks

      during any calendar year.” [Emphasis added.]

      •     Dr. Fewins agreed to maintain complete and accurate medical

      record documentation on each of the patients he saw at the Hospital.

      •     Dr. Fewins was required to obtain and maintain active staff

      privileges at the Hospital.




      8
       … Norman explained that Dr. Fewins was required to be on-call once
every three weeks.

                                       15
•     Dr. Fewins agreed not to enter into a private practice recruitment

or similar agreement with any other hospital or health care system, or to

accept money for such a recruitment.

•     Dr. Fewins agreed to “provide a reasonable amount of care for

indigent patients both in [his] office and to Hospital inpatients” and to

provide services without discrimination as to the “payor source, including

but not limited to Medicare and Medicaid.”

•     Dr. Fewins was required to, at the Hospital’s reasonable request,

participate in any health maintenance or preferred provider organization,

accountable health plan, or network in which the Hospital participates.

•     The agreement provided that Dr. Fewins would cooperate with the

Hospital’s compliance officer as needed to carry out the corporate

compliance program.

•     Dr. Fewins agreed to provide, during the term of the agreement and

for three years thereafter, any information reasonably requested by the

Hospital related to his professional services and collections for audits, tax

filings, or other financial or regulatory matters.

•     Dr. Fewins agreed to provide the Hospital upon request with all

authorizations necessary to provide the Hospital information regarding

expenses incurred by Dr. Fewins in setting up his practice.

                                 16
      The term of the Physician Recruitment Agreement was four years,

beginning on the date Dr. Fewins was granted staff privileges. Norman testified

that he probably obtained his initial temporary privileges around August 2003.

The agreement provided for early termination upon breach by Dr. Fewins, such

as his failure to maintain active staff privileges at the Hospital.

      The Sign-On Bonus/Relocation Reimbursement Addendum               to the

Agreement stated that if Dr. Fewins

      fails to obtain or maintain privileges as a member of the Medical
      Staff of Hospital, or to maintain the Full-time Practice of medicine
      in the Community as required by Paragraph 1 of the Physician
      Recruitment Agreement, [Dr. Fewins] shall immediately, upon
      demand, pay to Hospital the unamortized amount of the total sums
      paid or reimbursed to [him] pursuant to this Addendum.

      Additionally, the Collections Guarantee Addendum provided that during

the first year after the effective date of the Physician Recruitment Agreement,

the Hospital would advance to Dr. Fewins a certain monthly amount that the

Hospital had calculated was approximately what an ENT starting a private

practice in the Fort Worth area would earn (the Guarantee Amount). Beginning

with the second month, the Hospital would advance the same monthly amount,

less the amount of Dr. Fewins’s collections from that month; “collections” was

defined as

      all cash collected by or on behalf of [the doctor] from patients or
      other payors for [the doctor’s] medical services regardless of where

                                        17
      such services are provided or to whom, including emergency room
      coverage, and all amounts earned from [the doctor’s] practice of
      medicine or from any other source concerning medical or medical
      related matters.

      The guarantee was structured as a loan to Dr. Fewins, and the repayment

thereof was secured by a Secured Promissory Note and Security Agreement.

Dr. Fewins was required to provide the Hospital with a monthly report of all

collections from his medical practice to facilitate payment of the monthly

advances. At the end of the term, if the total of Dr. Fewins’s collections plus

advances from the Hospital during the term exceeded the Guarantee Amount,

he was required to repay the Hospital for any amounts it had advanced. On the

other hand, if the collections plus advances were less than the Guarantee

Amount, the Hospital would pay Dr. Fewins the difference. Here, Dr. Fewins’s

collections plus advances from the Hospital exceeded the Guarantee Amount;

thus, he had to repay the Hospital for those advances at the end of the term.

      The Collections Guarantee Addendum also provided that after the initial

one-year term, any amount the physician owed for advances would be forgiven

each month when due, provided that no event of default had occurred under

the Physician Recruitment Agreement. In other words, this provision allowed

the Hospital to forgo repayment of the monthly amount due for advances so




                                      18
long as the doctor continued to perform under the Physician Recruitment

Agreement. Here, however, Dr. Fewins repaid all of the advances.

            c. Conclusion

      Viewed in their entirety, the Physician Recruitment Agreement and its

ancillary contracts evidence an intent by the Hospital to assist Dr. Fewins in

setting up a private practice in the Hospital’s service area and to provide Dr.

Fewins financial assistance in setting up this private practice in the form of a

loan (if his collections met the parties’ expectations) or a guarantee (if his

collections did not meet the parties’ expectations). This arrangement provided

the Hospital with a guaranteed one-third of its need for ENT on-call coverage

for at least one year.9 The provisions that the Farlows contend show a right of

control over Dr. Fewins’s practice are in reality for the purpose of ensuring that

the recruited doctor could financially continue to practice in the Hospital’s

service area; otherwise, the Hospital would not be able to maintain this

certainty of on-call coverage in that speciality, thus frustrating the very purpose

of the agreement. Cf. St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995)




      9
       … As Norman explained, the Agreement “defines what the expectations
are both from the hospital standpoint and from the physician’s standpoint in the
community.” Harris was thus “interested in seeing this physician develop his
own practice within the community[,] . . . practice on a full-time basis, provide
us with assistance with the emergency department call.”

                                        19
(holding that on-call status of physician, without more, does not establish that

physician owes duty to patient); Baptist Mem’l Hosp. Sys., 969 S.W.2d at

948–49 (declining to impose nondelegable duty on hospitals for malpractice of

emergency room physicians).

      The majority of the provisions that the Farlows point to as establishing a

right of control over the details of Dr. Fewins’s work—such as the obligation to

provide financial records and to engage in his private practice at least 35 hours

per week for 48 weeks during any calendar year—function to safeguard the

money advanced by the Hospital, either by repayment of the money advanced

or by continued emergency room coverage by the physician. Other provisions

relate only to corporate compliance. 10     See Bell, 205 S.W.3d at 714, 721

(holding that requiring a worker to comply with applicable laws, regulations, and

safety requirements does not show a right of control over the details of how a

worker performs his or her job).

      As to the provision requiring Dr. Fewins to participate in any HMO, PPO,

or health care organization the Hospital participates in, Norman explained that

this is good for the patients, and Dr. Fewins was not required to sign up for the

over 100 plans the Hospital participated in at that time. She explained that he



      10
       … For example, Norman testified that the doctors are required by law
to comply with the Hospital’s documentation requirements.

                                       20
only needed to comply with any reasonable request by the Hospital to

participate in any such plan, but she was not aware that the Hospital had ever

made such a request of Dr. Fewins. Additionally, she stated that the new

doctors usually found out over the course of time and by word of mouth which

plans were the best ones and that the best plans might vary by hospital.

Accordingly, while this provision attempts to control a desired result—i.e., to

facilitate the treatment of patients, processing of claims, and payment to the

doctors and Hospital for services rendered—it does not show a right to control

the details of Dr. Fewins’s work to the extent that it shows the independent

contractor language is a mere sham.

      Additionally, although Dr. Fewins was required to maintain active staff

privileges at the Hospital, the agreement specifically states that he was not

prohibited from applying for or maintaining privileges at any other hospital or

utilizing or admitting patients to any other hospital. Moreover, the agreement

specifically provides that Dr. Fewins was not required to “admit patients to

Hospital or to utilize Hospital to provide inpatient, outpatient or any other

services to patients or otherwise generate business for Hospital.”       Norman

testified that simply having staff privileges did not mean a physician had to take

on-call coverage. For instance, physicians over the age of sixty could maintain

active staff privileges without participating in on-call coverage.

                                       21
      The Farlows point out that under the Hospital’s Medical Staff Bylaws, Dr.

Fewins was contractually obligated to respond when the emergency room

doctor who saw Lee referred the case to Dr. Fewins as the on-call ENT.

Specifically, he was required under the Bylaws to do the following:

      (b)   provide for continuous care of his patients by personally
            attending the patients or by arranging for coverage for his
            patients by another Member of the Medical Staff, who holds
            the same or substantially the same clinical privileges as
            determined by the Credentials Committee. Each Member
            shall arrange for such coverage at any time he is not
            available even if he currently has no patients who are in the
            Hospital;

            ....

      (f)   not delegate responsibility for diagnosis or care of Hospital
            patients to a practitioner who is not a member of the Medical
            Staff with requisite privileges; [and]

            ....

      (k)   cooperate with Members, nurses, Hospital Administration and
            others so as not to adversely affect patient care and/or the orderly
            administration of the Hospital.

      But these requirements are likewise results-oriented only, evidencing an

intent that no patients being seen at or admitted to the Hospital are left without

care by a responsible doctor having privileges at the Hospital. They do not

direct how or to whom the doctor must delegate such care; they simply ensure

that no patient will be medically unattended while at the Hospital. Moreover,



                                       22
the Bylaws are adopted by the governing Medical Board, made up of doctors

holding staff privileges at the Hospital:    the Chief of Staff, Vice Chief,

Communication and Performance Director, and Chiefs of each division.11 The

Bylaws apply equally to on-call physicians with staff privileges as well as

physicians with staff privileges who admit their patients to the Hospital after

seeing them in their own offices.

      Accordingly, even considering the undisputed evidence of the contract

provisions pointed to by the Farlows, there is no evidence raising a fact issue

as to whether the contract between the Hospital and Dr. Fewins was a mere

sham or subterfuge designed to conceal the true legal status of the parties.

      2.    Extrinsic Evidence

      According to the Farlows, evidence of actual instances of control by the

Hospital over Dr. Fewins’s practice also shows that the true relationship

between the parties was an employment relationship. They specifically point

to the following: evidence that (1) Dr. Fewins used the Hospital’s equipment

instead of his own to perform the surgery on Lee; (2) a Hospital employee, the

supervising nurse, assigned the room and scheduled the surgery; and (3) the

Hospital employed the nurses assigned to assist Dr. Fewins with the surgery,



      11
       … The Hospital President and Risk Manager also serve on the Medical
Board, but they do not have the power to vote.

                                      23
and Dr. Fewins did not schedule or request those nurses; instead, he simply had

to work with the nurses that the Hospital scheduled to work in the operating

room that day.12

      Additionally, the Farlows point to Norman’s deposition testimony that

when Dr. Fewins was on-call, he was required to respond, at least by

telephone, within thirty minutes after being called by the emergency

department. According to Norman,

      If you’re on call . . ., whether it’s a week or for a day, your
      responsibility is to, when called by the emergency department, to
      respond within 30 minutes, at least on the phone to talk with them
      within 30 minutes and then discuss the case, determine if there is
      a need to physically go to the hospital, see the patient. If it’s a
      surgical specialty, maybe to take a patient to surgery or perform a
      procedure within the emergency department. Or another option
      would be after talking with the emergency department physician,
      to determine that this is something, for instance a nose bleed that
      could be packed and the patient sent to the physician’s office
      either that day or the next day.




      12
        … Although the Farlows maintain that the Hospital scheduled the
surgery to meet its time and needs, the deposition testimony of Dr. Fewins,
which they cite, is clear that he wanted to start the procedure at 5:00 p.m., but
he could not start at that time because there was already a trauma procedure
in the operating room; however, he could have started Lee’s surgery that
evening if he had wanted to. Instead, not knowing how long the trauma would
take, he decided to do the surgery on Saturday morning, depending on
availability of the operating room. The Farlows presented no evidence
contradicting this testimony.

                                       24
The Farlows characterize this testimony as meaning that Dr. Fewins was

required by the Hospital to “consult with and treat the patients at [the Hospital]

whenever necessary.”

      Although we agree that this language shows that Dr. Fewins had an

obligation to respond when consulted by the emergency room, this obligation

applied to all doctors with staff privileges who participated in on-call coverage

at the Hospital, according to the Rules and Regulations promulgated by the

medical staff. Dr. Fewins testified that he had not actually been scheduled to

be on-call the week he performed Lee’s surgery; he was substituting for another

of the on-call ENTs. According to Dr. Fewins, although he had stated in the

past that the on-call schedule was set by the medical affairs department of the

Hospital, he meant that, ultimately, the schedule was “put out and published

by” the Hospital, but the doctors informally determined, on their own, when

they would each take on-call coverage. He testified, “[I]t’s a combination of us

as a team, as a community . . . . It’s an unwritten agreement.” Thus, the

doctors themselves would “ultimately alert the medical affairs office as to how

[they] propose it [the on-call schedule] be divided up,” and they would also

have the right to trade with any of the other doctors on the list. Thus, we do

not believe that these obligations by on-call physicians at the Hospital show

that the Hospital exercised actual control over the details of Dr. Fewins’s work

                                       25
that was “so persistent and the acquiescence therein so pronounced as to raise

an inference that at the time of” Lee’s surgery, “the parties by implied consent

and acquiescence had agreed that [the Hospital had] the right to control the

details of the work.” Newspapers, Inc., 380 S.W.2d at 592.

      Moreover, considering the Limestone factors, nothing here shows that the

facts the Farlows point to as evidencing actual instances of control interfered

with the independent nature of Dr. Fewins’s work. Dr. Fewins testified that

although he used the Hospital’s tools in performing the surgery, he and other

doctors were free to use their own tools.       The evidence also shows that

patients paid Dr. Fewins directly for his services and that the Hospital billed

separately for its services. Although there is evidence that the Farlows never

received a bill from Dr. Fewins for the surgery, but they did from the Hospital,

there is no indication that any of the Hospital’s bills purport to recover for Dr.

Fewins’s services. Additionally, Dr. Fewins was on-call only once every three

weeks for one week at a time, and he was not required to have any presence

at the Hospital during that time unless he was specifically contacted by the

emergency room about an ENT patient. Further, we have already explained that

the patient care requirements imposed by the contract and the Hospital’s

Bylaws are results-oriented and not related to the control of the details of Dr.

Fewins’s work.    Accordingly, even considering the Limestone factors, the

                                       26
Farlows have not shown that the Hospital exercised a right of control sufficient

to raise a fact issue on their respondeat superior claim.13

      Finally, the Farlows urge in their reply brief that only “some control” is

required to establish vicarious liability for the acts of an independent contractor,

in accordance with the Restatement (Second) of Torts and Redinger, 689

S.W.2d at 418. But the Farlows did not plead this theory of vicarious liability,

only respondeat superior and ostensible agency. Nor did they raise this theory

in the summary judgment proceedings. See Brookshire v. Longhorn Chevrolet

Co., 788 S.W.2d 209, 213 (Tex. App.—Fort Worth 1990, no writ) (holding that




      13
        … The Farlows rely on language in Dalehite v. Nauta, stating that the
argument that the hospital did not control “the details of the diagnosis or
treatment” by the doctor “proves too much. If [this] argument were correct,
then no physician could ever be an employee, not even via ostensible agency.“
79 S.W.3d 243, 245–46 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
But although that is the same argument urged by Harris here—one which we
need not address based on our disposition—that case is distinguishable on its
facts because Dr. Nauta

      was chairman of the UTMB department of neurosurgery; worked
      full-time as a professor of neurosurgery, treating patients and
      instructing medical students at UTMB; signed an employment
      contract, was paid a salary, and provided with employee benefits
      and insurance; and received an office, support staff, and equipment
      necessary to do his work from UTMB. Appellants themselves
      alleged in their petition that Nauta was an employee of UTMB, so
      that UTMB was liable for his actions.

Id. at 245.

                                        27
appellate court can only consider material on file with trial court as of time

summary judgment granted).

      Accordingly, we conclude and hold, based on the undisputed facts and

the appropriate standards of review, that the trial court did not err by granting

partial summary judgment as to the Farlows’ respondeat superior claims against

Harris.

                            IV. Ostensible Agency

      In their second issue, the Farlows challenge the trial court’s directed

verdict on their vicarious liability claim based on ostensible agency.

A. Standard of Review

      A directed verdict is proper only under limited circumstances: (1) when

the evidence conclusively establishes the right of the movant to judgment or

negates the right of the opponent or (2) when the evidence is insufficient to

raise a material fact issue. See Prudential Ins. Co. v. Fin. Review Servs., Inc.,

29 S.W.3d 74, 77 (Tex. 2000); Hogue v. Propath Lab., Inc., 192 S.W.3d 641,

646 (Tex. App.—Fort Worth 2006, pet. denied).          In reviewing a directed

verdict, we must credit favorable evidence if reasonable jurors could and

disregard contrary evidence unless reasonable jurors could not. See City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).




                                       28
      If the question to be decided is whether the party opposing the directed

verdict raised a material fact issue, we consider all the evidence in a light most

favorable to the party against whom the verdict was instructed and disregard

all contrary evidence and inferences; we give the opposing party the benefit of

all reasonable inferences created by the evidence.       Coastal Transp. Co. v.

Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004).               If we

determine that any conflicting evidence of probative value raises a material fact

issue on any theory of recovery, then the directed verdict is improper because

such an issue is for the jury to resolve. Szczepanik v. First S. Trust Co., 883

S.W.2d 648, 649 (Tex. 1994).

B. Applicable Law

      An individual or entity who engages an independent contractor, and thus

would not normally be vicariously liable for the independent contractor’s

negligence, may nevertheless act in a manner that makes the person or entity

liable for the independent contractor under the doctrine of ostensible agency.

See Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947. Liability may be imposed

under the doctrine of ostensible agency in circumstances in which the

principal’s conduct should equitably prevent it from denying the existence of an

agency. Id.; Coker v. Cramer Fin. Group, Inc., 992 S.W.2d 586, 595 (Tex.

App.—Texarkana 1999, no pet.). Ostensible agency in Texas is based on the

                                       29
notion of estoppel, that is, a representation by the principal causing justifiable

reliance and resulting harm. Baptist Mem’l Hosp. Sys., 969 S.W.2d at 948;

Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984).

      Texas courts have applied these basic agency concepts to many kinds of

principals, including hospitals. Baptist Mem’l Hosp. Sys., 969 S.W.2d at 948.

A hospital may be vicariously liable for the medical malpractice of independent

contractor physicians when plaintiffs can establish the elements of ostensible

agency. Id. The elements of ostensible agency are that (1) the principal, by its

conduct, (2) caused a third party to reasonably believe that the putative agent

was an employee or agent of the principal, and (3) that the third party justifiably

relied on the appearance of agency. Id. at 948; Garrett v. L.P. McQuistion

County Hosp., 30 S.W.3d 653, 655–56 (Tex. App.—Texarkana 2000, no pet.);

Restatement (Second) of Agency § 267 (1958).

C.    Evidence Presented at Trial

      1.    Emily Farlow

            a.     Events at Hospital

      Emily Farlow testified that she did not see Lee in the Hospital the night

he went to the emergency room because she had to stay home with their two

children. But when she helped load him into his parents’ car for them to take

him to the Hospital, he was “incapacitated” and could not sign any forms; “[h]is

                                        30
headache was so bad he couldn’t even talk. . . . [T]here’s no way he could

have concentrated and focused and actually read something.” She testified

that Lee’s mother said the Hospital had given him “tons of pain medication

stronger than morphine.”

      Emily joined Lee at the Hospital the next morning. She stayed with him

until around dinnertime. While Emily was at the Hospital, Lee was incoherent

most of the time and “pretty much out of it.” Lee was not able to participate

in giving one of the nurses his medical history. That afternoon a nurse told

them that “Lee’s surgery had been rescheduled until Saturday morning because

the operating room was so backed up.”

      Emily did not have personal knowledge of any discussions between Lee

and the nursing staff or any doctors when Lee went into the Hospital on April

15 because she was not there, nor was she there on the 16th when Dr. Fewins

saw Lee. When cross-examined about the Hospital’s records, Emily admitted

that none of the records said that Lee was incoherent.

      Emily was not aware exactly how Dr. Fewins got involved in Lee’s care.

A physician from Lee’s nephrologist’s practice actually admitted Lee to the

Hospital.   When asked if, at the time Lee was suffering the headache, the

doctors who would be treating him were employees or independent contractors,

she said, “yes.” Emily thought Dr. Fewins was an employee because “[w]e

                                     31
went to the emergency room not knowing what kind of doctor we needed. We

just needed care. And the emergency room, who I felt was the hospital, sent

Dr. Fewins to us, so I thought he was an employee of the hospital.” She said

there was no choice in who was to perform the operation and that the Hospital

selected Dr. Fewins to perform it. When asked if Dr. Fewins’s independent

contractor status would have kept her from allowing him to treat her husband,

Emily answered,

      I don’t know if it would have kept me, but I know that when they
      said that, you know, an ENT is going to come and do surgery that
      day, I didn’t question that ENT because I had full faith that the
      hospital had only the best, most-qualified doctors there to care for
      them so I put all of my trust in that.

      Emily testified that on the day of the surgery, she was all alone in the

surgical waiting area until Dr. Fewins came out to talk to her. He was wearing

scrubs but she does not recall him wearing a badge. At that time, Emily signed

a consent form for an angiogram for Lee; she did not notice whether it said the

doctors were not employees of the Hospital.

            b.    Consent Forms

      Harris introduced a “Universal Consent for Treatment” form that Lee

signed when he was admitted to the emergency room on April 15, 2004. A

paragraph in the middle of the page states as follows:




                                      32
      Independent physicians. I acknowledge that the doctors taking part
      in my care do not work for the Hospital. They are engaged in the
      private practice of medicine, and are not employees, servants or
      agents of the Hospital. In addition to my attending doctor, other
      doctors who may take part in my care may include radiologists,
      pathologists, anesthesiologists, neonatologists, cardiologists,
      emergency physicians and other specialists. I acknowledge that
      the Hospital is not responsible for the judgment or conduct of
      doctors who treat or provide a professional service to me. The
      exception to this is that some medical residents -- doctors taking
      part in a program of post-graduate medical education under the
      supervision of more experienced physicians -- are employees of the
      Hospital.[14 ]

      Harris questioned Emily as to whether it would be reasonable for a doctor

to rely on a signed consent form as a patient’s representation that he or she

had read it; she said no. Although Emily was not there when Lee signed the

document, she suspected that he did not read it. When asked if the signature

was Lee’s, she said, “It looks like an impaired version of his signature,

obviously in distress.” The letters were scrunched up, and it was not as “free-

flowing” as his normal signature.

      Harris also introduced a Hospital consent form that Lee had signed about

three weeks before the surgery. Lee’s nephrologist had biopsied his kidney at

the Hospital, and Lee signed the same consent form that included the language

quoted above.   Emily was not with Lee that day, so she did not know his



      14
        … Emily testified that no one represented that Dr. Fewins was or was
not in training; regardless, she did not think he was a doctor in training.

                                      33
condition when he signed the form. But she also testified that the language on

the form says only that the doctors participating in “your care” are not

employees; the only doctor she knew who was participating in Lee’s care for

that visit to the Hospital was his nephrologist, who had his own office and

practice, so she knew he was not an employee. According to Emily, “in my

mind, it was the belief that when you go see a doctor at their office, they’re not

affiliated with the hospital, they’re not employees of the hospital. But when

you go to the hospital to see a doctor, that they are employees of the . . .

hospital.” She also thought Lee’s nephrologist’s partner, who admitted Lee to

the Hospital, was not a Hospital employee because she knew him as the

outside doctor’s partner. Her understanding of how Dr. Fewins came to treat

Lee was that the doctor who saw Lee initially in the emergency room, Dr.

Chase, “looked on the wall of the emergency room for the ENT specialist and

[Dr. Fewins’s] name was there.” According to Emily, she and Lee had no input

into who would treat Lee; both Dr. Fewins and Dr. Ellis, the neurologist who

treated Lee after the surgery performed by Dr. Fewins, were selected by the

Hospital.

      Harris additionally introduced consent forms that Emily signed when she

went to the Hospital for a lactation consultation after her son was born and

when she was admitted to the Hospital to give birth to her daughter. These

                                       34
forms contain independent contractor language substantially similar to that

quoted above. But Emily said she did not read these documents, and she was

in labor when she signed the second one.

      The defense also questioned Emily about a consent form Lee signed on

the 17th, before his surgery. The form does not state that the physician is an

independent contractor, but it likewise does not hold out the physician as an

employee. It merely provides informed consent as to some of the risks of the

surgical procedure that was to be performed.

      Emily admitted that she did not know Lee’s condition when he signed this

form because she was not able to get to the Hospital until after Lee had been

taken into surgery. She likewise did not know Lee’s condition or how much

drugs he had been given at that point. When she had been there with him in

the emergency room on the 16th, the day before the surgery, he was “in and

out,” intermittently incoherent, not able to stand, and lying down when talking

to her. She thinks this had to do with the pain medication as it wore off and

took effect. However, when Emily talked to Lee by phone on the evening of

the 16th, his headache was gone or almost gone, he was not in pain, and he

was speaking normally.15



      15
        … Emily was not able to stay at the Hospital with Lee because she had
to return home to care for their children. As far as she knew, there was no one

                                      35
            c.    Why the Farlows Chose Harris

      According to Emily, she selected the Hospital because Lee was going to

see its doctors and she thought of the Hospital as the better hospital of those

available. She did not know what type of doctor Lee needed, which is why she

sent him to the emergency room. Emily testified that she understood that when

you see a doctor at his or her office, and the doctor then schedules a procedure

in the Hospital, that doctor is not an employee; however, she did not know

whether Dr. Fewins had his own practice when he treated Lee at the Hospital.

            d. “I Am Harris” Advertising Campaign

      Emily testified that she decided to have her daughter at the Hospital and

that she was influenced in that decision by the “I Am Harris” advertising

campaign. According to Emily, she thought the doctors who worked at Harris

hospitals were employees because “the pictures in the advertising portrayed

people in lab coats, they have stethoscopes. . . . [T]hey look like doctors.” She

admitted that not all of the pictures portray people who look like doctors but

that “some of these people are -- could be doctors.”

      She believed the Hospital was different from other hospitals
      because [t]hey were willing to put their employees out there. They
      were backing them up by putting them on the billboard saying what



else there other than Lee and Dr. Fewins when Lee signed the form the
morning of the surgery.

                                       36
      great quality they were, what great care you were going to get,
      and I really felt like they were putting their trust in their employees.
      And if they would do that, then I would too.

      Emily testified that the advertising campaign also influenced her decision

to have her parents take Lee to the Hospital emergency room for his headache.

She stated,

      I didn’t know what kind of doctor I needed. And I felt like the
      doctors were their employees of the hospital that they were putting
      out there saying trust us, we care, the doctors care, the nurses
      care, all the employees care, and they are of the utmost quality.
      They will take care of you. And I wanted to go where I was going
      to get a good doctor. . . . I needed a good doctor.

Emily thought the doctors in the Hospital’s emergency room were employees

because “the people in their advertising campaign look like doctors. . . . We

were going to see the doctor in the hospital.”

      According to Emily, the Harris advertisements were even more critical in

her decision to send Lee to the Hospital than they were when they decided to

have their daughter there. She explained,

      [M]y belief, driving through town over all the time and looking at
      those ads, is that they are putting their trust - - they are putting
      their people up there saying our employees are the hospital and we
      will stand behind our employees. And the people in the ads[,] I
      didn’t know that they were not doctors. They look like doctors,
      they look like nurses, they look like technicians. They’re all the
      employees of the hospital that you go see at that hospital. And I
      trusted them because when you put your employees out there
      saying come see me for my employees, you are - - as a hospital



                                        37
      you are going to recruit and hire and train the very best people that
      you think are going to do the very best job. That’s my belief.

She took a great deal of comfort from the advertisements.

      Emily testified about the advertisements showing people who she thought

looked like doctors.    A part of one advertisement in particular reads, “The

employees of Harris Methodist Hospitals are the hospital. They are the ones

who help couples become parents. And patients become survivors. They are

the nurses, lab technicians, admissions specialists, cafeteria servers and so

many others who carry out each task with skill and compassion.” Emily did not

remember reading this specific part of the advertisement before Lee’s surgery.

Another part of the same advertisement says that the physicians on the

hospital’s staff are “independent practitioners who are not employees or agents

of Harris Methodist Hospitals.” But Emily said she had not read that part of the

advertisement either.

      Emily identified exhibits of pictures of Harris billboards as showing people

who could be doctors. When asked whether the fact that a person on the

billboard had a stethoscope necessarily meant that the person was a doctor,

Emily answered, “I believed them to look like doctors.” Harris admitted exhibits

showing language on the billboards that specifically identifies the people on

them as a respiratory therapist, lab technician, and other nonphysician



                                       38
employees.    Emily agreed that nothing in the advertisements says that the

person being portrayed is a physician and that there was no advertisement that

said people should go to Harris hospitals because the doctors are employees.

But she was under that impression because of the appearance of the people in

the advertisements.

      Emily admitted that she and Lee never talked about the advertisements;

she does not know what he assumed or inferred from them. She also admitted

that she never saw Dr. Fewins’s image on any Harris media.

      Some of the advertisements introduced by the Farlows do not have

language indicating that the doctors are not employees. For example, one of

the images shows a woman who looks like a doctor because she is wearing a

white coat and has a stethoscope. Emily testified that she relied on that image.

      On cross-examination, Harris questioned Emily about one of the

advertisements, which clearly says in big print, “I am an individual on the

hospital’s nursing team.” Emily did not remember reading that billboard and

said that she had never seen people who are not doctors wearing lab coats.

      2.     John Farlow

      Lee’s father John Farlow also testified regarding his impression of

whether Dr. Fewins was a Hospital employee. According to John, he and his

wife took Lee to the Hospital that night because they had had good experiences

                                      39
there in the past and because of the “I Am Harris” advertising campaign. Lee

never said that he wanted to go to the Hospital; it was just understood. But

John agreed that he would have taken Lee to the Hospital regardless of the

advertising.

      John testified that when he and his wife took Lee to the Hospital, Lee

was lying in the backseat in the fetal position in a lot of pain; he was not able

to communicate other than to give yes and no answers. After John dropped

Lee and his wife Marty off at the emergency room and parked the car and came

back in, they had already been checked through the front desk. Lee was still

in “extreme pain” and was not able to stand up; he was bent over with his

knees on his elbows. He did not know about any paperwork Lee signed stating

the doctors are independent contractors.       He was never present for any

discussions between Lee and any of the doctors.

      On cross-examination, John testified that he had a long-standing

relationship with the Hospital and had always had good experiences there and

that he and his wife had even been patients there several times.

      According to John, Harris’s advertising played a part in the family’s

decision to take Lee to Harris even though John had just had surgery at Plaza

Medical. He related,




                                       40
      I had seen the ads that said, “I Am Harris” and showed pictures of
      the staff and employees and doctors and nurses there at Harris.
      They were just one big happy family, and they represented
      themselves as a caring medical professional operation, so I felt like
      Lee would get a -- good medical care there.

According to John,

      We knew that if . . . they were not going to stand behind
      their . . . staff, they would . . . not say “I Am Harris.” They would
      say I am an independent contractor working at Harris Hospital. But
      they didn’t say that. They . . . really implied and told us that . . .
      they were Harris Hospital. These employees, these doctors,
      nurses, they were Harris.

He thought the advertisements portrayed doctors because “when you see a

person with a lab coat and with a stethoscope around their neck with a hospital

badge you think they’re doctors.”

      John admitted on cross-examination that he and Emily did not discuss the

billboards and advertisements before April 15, 2004, the day he and Marty took

Lee to Harris. He could not recall anything about in the advertisements he saw

before April 15, 2004 other than the pictures and the “I Am Harris” slogan. In

looking at the advertisements with the Farlows’ attorney, he did not recognize

any of the people in them.

      3.    Marty Farlow

      Marty Farlow, Lee’s mother, also testified about Lee’s condition the night

they took him to the Hospital. According to Marty, Lee was curled in the fetal



                                       41
position in terrible pain; in the car, he was “all curled up, holding his head . . .

[and] kind of muttering.” At times, he was not making much sense. Once they

got him to a room, they gave him medicine, but “it didn’t do much,” so they

gave him morphine. He received another dose of pain medication after that.

D.    Analysis

      The Farlows contend that the directed verdict was improper because

sufficient evidence exists to show that the Farlows reasonably relied on Harris’s

affirmatively holding out its doctors as employees such that they were justified

in believing Dr. Fewins was Harris’s agent.        They specifically point to the

following as showing that Harris affirmatively held out its doctors as

employees: (1) the “I Am Harris” advertising campaign, (2) “that Lee Farlow

went to seek medical treatment from a hospital who, in turn, called in a doctor

to treat Lee,” (3) that Dr. Fewins wore scrubs that said, “Property of Harris

Methodist Fort Worth Hospital” on them, (4) that Dr. Fewins had a Hospital

badge that did not say he was an independent contractor, and (5) that a sign

in one of the waiting rooms read as follows:

                        THIS WAITING AREA IS GIVEN
                         TO HONOR OUR DEDICATED
                           PHYSICIANS, NURSES,
                            AND MEDICAL STAFF

                        PAUL AND VIRGINIA DORMAN



                                        42
      The trial court did not admit the writing on the scrubs and the waiting

room sign into evidence at trial. Thus, we do not consider that evidence in our

determination of whether the directed verdict based on the evidence at trial was

proper. See Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d

400, 411 (Tex. App.—Amarillo 2003, pet. denied) (holding that when directed

verdict is reurged after defense presents its evidence, trial court must consider

all evidence before jury, including evidence presented by defense). Additionally,

our supreme court has rejected the Farlows’ argument that ostensible agency

arises simply by virtue of a doctor’s on-call status. Baptist Mem’l Hosp. Sys.,

969 S.W.2d at 949; Garrett, 30 S.W.3d at 656. Thus, we are left with the

advertising campaign and Dr. Fewins’s Hospital badge as potential evidence

showing an affirmative holding out that Dr. Fewins was Harris’s agent.

      Emily testified that she did not recall seeing Dr. Fewins’s badge. When

shown a picture purporting to be a copy of Dr. Fewins’s badge, Emily again said

that she did not recall seeing it, noting that “[b]y the time I met him, I wasn’t

paying attention to the badge.” Additionally, there is no testimony that Lee

ever saw or formed an opinion based on the badge. Thus, even assuming that

the badge could be considered a holding out by the Hospital, there is no

evidence that either of the Farlows reasonably relied on it in forming a belief

about agency.    See Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294,

                                       43
296–97 (Tex. App.—Eastland 1999, no pet.) (noting, in holding that hospital

did affirmatively hold out emergency room doctor as employee through radio

advertisements, that patient testified he had never heard the advertisements).

      Likewise, even if the advertising could be construed as an affirmative

holding out by the Hospital to the Farlows that the doctors working there are

employees rather than independent contractors (as evidenced by Emily’s

testimony that the advertising was confusing because she thought the people

in lab coats were doctors), 16 the evidence shows that the Hospital took steps

to alleviate any such impression by including language in its admission

paperwork affirmatively stating that the doctors are independent practitioners

rather than employees. Lee and Emily had both signed this paperwork in the

past, and Lee signed such paperwork when he was admitted. The inclusion of

such language in admission paperwork negates any prior holding out by a

hospital, even if the patient did not read the paperwork. See Baptist Mem’l

Hosp. Sys., 969 S.W.2d at 950; Valdez v. Pasadena Healthcare Mgmt., Inc.,

975 S.W.2d 43, 45–46, 48 (Tex. App.—Houston [14th Dist.] 1998, pet.



      16
         … We note that at least some of the advertisements contain small print
indicating that the doctors who work at the Hospital are “independent
practitioners” and not employees; however, because not all of the
advertisements so state, we will assume, for the sake of analysis, that the
advertisements are confusing or misleading as to whether the individuals shown
are doctors.

                                      44
denied); see also Garrett, 30 S.W.3d at 657 (“A hospital must clarify for its

patients its relationship with a doctor only to the extent that the hospital or the

doctor has affirmatively held out that the doctor is its agent or employee.”);

Denton, 998 S.W.2d at 296–97 (holding that plaintiff did not raise fact issue

to defeat summary judgment when defendant showed that plaintiff signed, but

had not read, consent form stating that doctors were independent contractors).

Moreover, there is no evidence that Lee saw or relied on the advertisements.

See Denton, 998 S.W.2d at 297. Accordingly, we conclude and hold that the

evidence presented at trial is insufficient to raise a material fact issue on

ostensible agency; therefore, the trial court did not err by directing a verdict for

Harris on that claim. We overrule the Farlows’ second point.

                    V. Ratification and Managerial Capacity

      In their third point, the Farlows contend that the trial court erred by

granting summary judgment on their allegation that Harris is liable for Dr.

Fewins’s gross negligence because it ratified his unauthorized act of penetrating

Lee’s skull and brain during the surgery. Specifically, the Farlows contend that

Harris ratified Dr. Fewins’s actions by (1) billing them for its services in

connection with the surgery, (2) allowing Dr. Fewins to retain his staff

privileges at the Hospital, (3) refusing to distance itself from Dr. Fewins during

the trial, (4) failing to apologize for Lee’s injury until the eve of trial, even

                                        45
contending that Dr. Fewins had not violated the standard of care, and (5)

allowing Dr. Fewins to continue treating Lee, including allowing him to be in the

operating room when Dr. Ellis, a neurosurgeon, subsequently operated on Lee

and letting him talk to the Farlow family in the waiting room during that

surgery. In their fourth point, the Farlows contend that the trial court erred by

granting summary judgment on their claim that Harris is liable for Dr. Fewins’s

gross negligence because he was acting in a managerial capacity as to the

Hospital’s employees—the nurses—when he performed Lee’s surgery.

      Harris contends that, regardless of whether summary judgment was

proper as to the Farlows’ allegations that Harris is liable for Dr. Fewins’s gross

negligence, 17 the point is moot because the jury found that Dr. Fewins was not

grossly negligent and the parties have stipulated that even if this case is

reversed, the damages verdict against Dr. Fewins will stand and not be retried.

      Although the Farlows contended in their reply brief that the issue of

ratification is not moot because Harris “could be liable in negligence . . . if

ratification can be established,” they did not plead ratification as a theory of

vicarious liability for negligence; instead, they pled it solely as a basis for



      17
        … Because the Farlows did not go forward with their allegations of
direct negligence against Harris, their allegations related to gross negligence
could refer only to Harris’s alleged vicarious liability for Dr. Fewins’s gross
negligence.

                                       46
holding Harris liable for gross negligence upon the finding of an employee or

agency relationship between Dr. Fewins and Harris. [Emphasis added.] Harris

moved for summary judgment as to the pled allegations regarding ratification

and managerial capacity on the grounds that they were pled as theories of

gross negligence liability, and the Farlows acknowledged that their allegations

were limited to gross negligence in their responses to the motion for summary

judgment. Additionally, the trial court’s summary judgment order specifically

states that “any and all of [the Farlows’] claims for gross negligence

against . . . Harris . . . are DISMISSED WITH PREJUDICE.”           Accordingly,

because Harris could not be held liable for gross negligence even if we were to

remand this case on the vicarious liability claims, we agree that the Farlows’

points as to their allegations of gross negligence liability based on ratification

and managerial capacity are moot. See Williams v. Lara, 52 S.W.3d 171, 184

(Tex. 2001) (“[A]ny prospective relief we might grant cannot help them.”); In

re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.—Houston

[14th Dist.] 2008, orig. proceeding) (“[A]n issue may be moot if it becomes

impossible for the court to grant effectual relief for any reason.”). Accordingly,

we overrule their third and fourth points.




                                       47
                            VI. Evidentiary Rulings

      In their fifth point, the Farlows claim that the trial court abused its

discretion by excluding testimony from Marty Farlow that when she and Lee

were waiting for him to be taken into the emergency room, a woman whom she

believed to be a Hospital employee told her that “the doctors that worked there

were good doctors and they would take care of” Lee.

      Harris objected to this testimony on hearsay grounds, contending that

because Marty did not know the identity of the woman who made this

statement to her, it could not be imputed to the Hospital and, thus, was not

admissible as a statement against interest.      It also objected on relevancy

grounds.

A.    Standard of Review

      A trial court’s rulings in admitting or excluding evidence are reviewable

under an abuse of discretion standard. In re J.P.B., 180 S.W.3d 570, 575

(Tex. 2005). An appellate court must uphold the trial court’s evidentiary ruling

if there is any legitimate basis in the record for the ruling. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). To determine

whether a trial court abused its discretion, we must decide whether the trial

court acted without reference to any guiding rules or principles; in other words,

we must decide whether the act was arbitrary or unreasonable.            Cire v.

                                       48
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

B.    Analysis

      For a hearsay statement to be admissible under rule 801(e)(2)(D), the

proponent of its admission must show that the statement was made by an

employee or agent acting within the scope of authority. Stensrud v. Leading

Edge Aviation Servs. of Amarillo, Inc., 214 S.W.3d 98, 99 (Tex. App.—Amarillo

2006, no pet.); Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145, 151

(Tex. App.—Fort Worth 2003, pet. denied) (holding that agency must be proven

and may not be presumed).      Here, Marty did not know the identity of the

woman she talked to; she assumed the woman was an employee because she

“presume[d] that everybody at the hospital works at the hospital.” She did not

know if the woman was a nurse, clerk, member of the administrative staff, or

volunteer. She never saw whether the person was wearing a badge. Although

Marty testified that she thought the woman was in charge of getting people

back into the emergency room because people would talk to her and then go

back into the emergency room, she could not testify as to any indicia of control

or agency relationship necessary to impute any actions of this unidentified

                                      49
woman to the Hospital. Accordingly, we cannot say that the trial court’s ruling

was arbitrary or unreasonable.       See Stensrud, 214 S.W.3d at 100–01.

Moreover, even if the trial court had abused its discretion in refusing to admit

the evidence, the error would be harmless in light of the evidence that the

Hospital’s admissions forms disclaimed any agency relationship between Harris

and the doctors who perform services at the Hospital. See Tex. R. App. P.

44.1(a)(1). We overrule the Farlows’ fifth point.

                      VII. Cumulative Evidentiary Rulings

      The Farlows’ sixth and final point complains about multiple trial court

rulings excluding evidence that they contend, when evaluated cumulatively,

resulted in the rendition of an improper judgment. In particular, the Farlows

contend that the trial court reversibly erred by refusing to admit evidence of the

following: (1) Marty’s testimony regarding the woman who told her and Lee

that the Hospital’s doctors would care for him; (2) that the scrubs Dr. Fewins

wears have the words, “Property of Harris Methodist Fort Worth,” written on

them; and (3) that the plaque on the wall in the emergency room references

“our physicians, nurses, and medical staff.” [Emphasis added.]

      We have already determined that the trial court did not abuse its

discretion by refusing to admit Marty’s testimony and that even if it did, any

error was harmless.

                                       50
      As to Dr. Fewins’s scrubs, there is no evidence that Lee ever saw him

wearing the scrubs or that he relied on the language on the scrubs in forming

a belief that Dr. Fewins or Harris was holding Dr. Fewins out as Harris’s agent.

Although Emily testified that Dr. Fewins was wearing scrubs when he spoke to

her in the waiting room after the surgery, there is no evidence that she was

influenced by the language written on them. Thus, the trial court did not abuse

its discretion by refusing to admit this evidence. See Tex. R. Evid. 401, 402;

Denton, 998 S.W.2d at 296–97.

      There is likewise no evidence that any of the Farlows saw or relied on the

wall plaque in forming a belief as to whether Dr. Fewins was Harris’s agent.

Thus, we cannot say that the trial court abused its discretion in refusing to

admit this evidence.   See Tex. R. Evid. 401, 402; Denton, 998 S.W.2d at

296–97.    Moreover, as with Marty’s testimony, the scrubs and plaque

evidence, even if considered to show an affirmative holding out by Harris of its

doctors as employees, was negated by evidence that Harris included language

in its admissions paperwork specifically disclaiming any such relationship. See,

e.g., Baptist Mem’l Hosp. Sys., 969 S.W.2d at 950; Valdez, 975 S.W.2d at

45–46, 48. Thus, even if the trial court abused its discretion by refusing to

admit this evidence, we cannot say that any such error, cumulatively or

individually, resulted in the rendition of an improper judgment. See Tex. R.

                                      51
App. P. 44.1(a)(1); Warrantech Corp. v. Computer Adapters Servs., Inc., 134

S.W.3d 516, 529 (Tex. App.—Fort Worth 2004, pet. dism’d). We overrule the

Farlows’ sixth point.

                                Conclusion

      Having overruled the Farlows’ six points, we affirm the trial court’s

judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE


PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DELIVERED: May 7, 2008




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