Where Does Immunity for Government-Employed Physicians End?
By Joey Berlin

Perkins_caseThe Texas Medical Association is fighting to ensure the Texas Supreme Court does not disrupt liability protections for physicians who are employed by a state medical school or other government entity.

TMA, the Texas Alliance for Patient Access (TAPA), the Texas Hospital Association, and the Texas Osteopathic Medical Association filed a friend-of-the-court brief in a case that challenges whether a physician’s employer controls that physician’s work if he or she agrees to an outside hospital’s bylaws.

The case, Perkins v. Skapek et al., centers around a 16-year-old patient who died at Children’s Medical Center of Dallas in 2012. The teenager’s parents sued 10 physicians individually for negligence, alleging the child died from complications due to a nonstandard chemotherapy treatment. The physicians claimed they were employees of The University of Texas Southwestern Medical Center (UTSW) and therefore entitled to dismiss the suit.

A trial court denied the physicians’ bid, but the Fifth Court of Appeals in Dallas ruled in their favor, finding they were acting as physicians employed by UTSW when they treated the patient. The parents are appealing that decision to the Supreme Court, which hasn’t decided whether it will take up the case.

Texas’ landmark 2003 medical tort reforms gave employees of government entities personal immunity from lawsuits. 

“Immunity is critical, because without it, employees of governmental hospitals can have personal liability exposure beyond the legal limits that the governmental unit can pay,” TAPA said. As TAPA also noted, “Losing status as an employee may nullify a physician’s medical liability coverage. Also, it may negate the employer’s obligation to defend and indemnify the physician under Texas law.”

The parents argue that Children’s Medical Center is an independent hospital, and the doctors had accepted the bylaws of its medical staff. Their petition to the Supreme Court argues the doctors were “not considered UTSW ‘employees’ for immunity purposes because they were persons who performed tasks at Children’s Medical the details of which the governmental unit (UTSW) lacked the legal right to control.”

But in their friend-of-the-court brief, TAPA, TMA, and the other organizations argue the physicians were employed by UTSW because the university “controlled the details of their work.” The physicians “provided medical services to Petitioner’s son because of their employment relationship with UTSW” and “were in the paid employment of UTSW for ‘100%’ of their time. In exchange to the salaries paid to the [doctors], UTSW was entitled to all professional fees generated from those services,” the brief says.

“When you agree to abide by medical staff bylaws at a facility, it does not mean that the governmental entity you’re employed by — whether as a faculty member or medical resident — [is] losing control of you,” Brian Jackson, general counsel for TAPA, told Texas Medicine. “In fact, the reason … those physicians were over there treating patients is that was part of their employment contract with the university. … They were fulfilling their employment obligation with their employer by going over there and treating patients.” 


Last Updated On

May 03, 2018

Joey Berlin

Associate Editor

(512) 370-1393
JoeyBerlinSQ

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

More stories by Joey Berlin