Protections Preserved for University-Employed Physicians
By Joey Berlin Texas Medicine July 2018

The Texas Supreme Court blocked a challenge to liability protections for physicians employed by state medical schools, a legal victory for the Texas Medical Association and the Texas Alliance for Patient Access (TAPA).

July_18_TM_Law190x350Thanks to the court’s decision in Perkins v. Skapek, physicians employed by a government institution, like a publicly funded medical school, still can perform clinical duties at a non-government facility, like a private hospital, without giving up immunity from lawsuits.

“I can’t stress how important this decision was,” said Brian Jackson, TAPA’s general counsel. “You have to have stability, and you have to have the most talented, skilled doctors that can teach at medical schools. If the Supreme Court had not upheld the current law, I think it would have jeopardized us being able to hire the best and the brightest to teach our future doctors.” He emphasized the importance of the courts preserving immunity for faculty carrying out their job duties at facilities not owned by the medical school.

The Supreme Court in April declined to hear an appeal in the case, in which the parents of a deceased child individually sued 10 physicians employed by the school. The decision came after TMA, TAPA, the Texas Hospital Association, and the Texas Osteopathic Medical Association filed a friend-of-the-court brief in support of the physicians and the current legal protections.

After the 2012 death of their 16-year-old son at Children’s Medical Center of Dallas, the parents sued the physicians for negligence, alleging the child died from complications from a nonstandard chemotherapy treatment. The doctors argued that even though they treated the child at a private hospital, the suit should be dismissed because they were employees of The University of Texas Southwestern Medical Center. Under the state’s 2003 medical tort reforms, employees of governmental entities in Texas simply doing their jobs as such have personal immunity from lawsuits.

As TAPA noted following the Supreme Court’s decision, “Current Texas law requires patients to sue a governmental hospital or hospital district for complaints about the physician’s treatment instead of the physician personally if the hospital or hospital district controlled the details of the physician’s employment.” 

In the friend-of-the-court brief filed in February, TMA, TAPA and the other signatories argued the university, as the employer, “controlled the details” of the physicians’ work, and the doctors “were in the paid employment of [UT Southwestern] for [100 percent] of their time.”

The parents had argued that because the physicians provided the care at a non-government hospital and had accepted the bylaws of its medical staff, their actions were controlled by Children’s Medical Center. Therefore, they argued, the physicians legally couldn’t be considered employees of UT Southwestern and weren’t entitled to immunity.

 “There is no evidence that [UT Southwestern] controlled details such as chemotherapy selection or cessation. There is no evidence that [UT Southwestern] had the right to supervise or direct these doctors when they were working as members of the Children’s medical staff at Children’s hospital,” the parents’ Supreme Court petition states.

But the physicians argued that their employment with UT Southwestern was full-time; their W-2 tax forms show their payments at the time of care came from the school; UT Southwestern determined where the doctors could seek privileges; and they cared for patients at Children’s Medical Center at the school’s direction.

The Fifth Circuit Court of Appeals in Dallas agreed with the physicians. The Supreme Court decided not to reopen the case, leaving the lower court ruling intact. 

TMA Immediate Past President Carlos J. Cardenas, MD, said the decision affirms the standing of Texas’ landmark 2003 medical liability reform law. 

“It’s important if a facility like … UT Southwestern is able to bring in sub-specialists [to] do work for them, [and they’re] able to go out to affiliated hospitals where they agree to provide certain sub-specialty care, that they have those coverages available to them, rather than it be each hospital staff with bylaws that would supersede the coverage or the … benefits that had already been extended to them in other places,” Dr. Cardenas said. “It’s [about] being consistent.”

Following the Supreme Court decision, the plaintiffs had the option to ask for a rehearing. Attorneys for the Perkins family and for the physician defendants did not respond to calls from Texas Medicine

Tex Med. 2018;114(7):34-35
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Last Updated On

July 17, 2018

Joey Berlin

Associate Editor

(512) 370-1393
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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.

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