Opinion
No. 09-04-453 CV
Opinion Delivered November 23, 2004.
Original Proceeding.
Writ Denied.
J. Truscott Jones, Jeffrey F. Wood, Ty M. Sheaks, Jones, Rook, Austin, LLP, Dallas Texas, for Relator.
Robert L. Greening, Deana Tunnell, Penick Greening, PC, Dallas Texas. Mark Hayes, Law Office of Mark Hayes, PC, Bastrop Texas, for real parties in intrest.
Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
MEMORANDUM OPINION
This original mandamus proceeding arises out of a medical malpractice case filed by Traci Jackson and Mike Jackson, acting individually and as next friend of Ryen D'Anne Jackson ("the Jacksons"), against the relators, CHCA Conroe, L.P. d/b/a Conroe Regional Medical Center and Conroe Hospital Corporation (collectively, "the hospital"), and two doctors who provided medical services during the delivery and birth of the Jacksons' child. The Jacksons supplied an expert report on the standard of care for the doctors, but the report did not discuss the standard of care of the hospital. The relators argue the trial court must dismiss the claims asserted against them because the Jacksons failed to provide an Article 4590i, Section 13.01, expert report addressing the health care liability claims asserted against the relators. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (repealed 2003) (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2004)). The Jacksons argue that the claims asserted against the relators are limited to vicarious liability for the negligence of the doctors, so that the expert report on the doctors' standard of care satisfies Article 4590i.
In response to the motion to dismiss and in response to the petition for writ of mandamus, the Jacksons have disclaimed any assertion of negligence on the part of the hospital, or the violation of any standard of care by the hospital. Although the plaintiffs' petition could be read more broadly were it not for an express abandonment of all other theories of liability, the sole theory of liability applicable to the relators is a vicarious claim for the medical malpractice of the doctors on the doctrine of ostensible agency. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998). The facts necessary to prove ostensible agency are that the hospital, by affirmatively holding out the physician as its agent or employee, or knowingly permitting the physician to do so, caused the plaintiff to reasonably believe the physician was an agent of the hospital, and that the plaintiff justifiably relied on the appearance of agency. Id. Based upon estoppel, "the purpose of the doctrine is to prevent injustice and protect those who have been misled." Id. at 948 n. 2. The conduct by the hospital on which the agency relationship depends is not measured by a medical standard of care. These are principles of agency law on which no expert report is required. Because plaintiffs have abandoned all claims against the relators except an ostensible agency claim on which a separate report is not required, we deny the mandamus petition.