Renaissance Medical Foundation, Petitioner, v. Rebecca Lugo, Individually and as Next Friend of I.B., Respondent (2025)

Under Texas common law, an employer is vicariously liable for the torts of its employees within the scope of their employment if it “has the right to control the progress, details, and methods of operations of the work.”¹ This permissive interlocutory appeal in a medical malpractice case concerns the alleged vicarious liability of a nonprofit health organization—a unique type of medical practice that may employ physicians but “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law.” TEX. OCC. CODE §§ 162.001(b), .0021, .0022(b)(2).

We must decide whether the statute has modified the extent to which such an organization may be held vicariously liable for the torts of its employee physicians. We conclude that it has: a nonprofit health organization may not be held vicariously liable if exercising its right of control regarding the alleged negligence would interfere with its employee physician's exercise of independent medical judgment. Because the defendant organization did not conclusively demonstrate such interference, we conclude the court of appeals correctly affirmed the denial of the organization's motion for summary judgment, and we remand for further proceedings.

BACKGROUND

Renaissance Medical Foundation (the Practice) is a nonprofit health organization (NPHO) certified by the Texas Medical Board under Section 162.001 of the Texas Occupations Code.² Organized to deliver health care to the public, the Practice entered into an employment contract with Dr. Michael Burke, a neurosurgeon. The contract provided that Dr. Burke was employed “to provide professional medical services” exclusively to the Practice's patients at specified locations—including Doctors Hospital at Renaissance—“as directed” by the Practice and “in accordance with [the Practice's] protocols, policies and procedures.”

Rebecca Lugo brought her minor daughter to the Hospital for brain surgery. Dr. Burke performed the surgery, which left Lugo's daughter with permanent neurological damage. In the following weeks, Dr. Burke expressed his belief that a retractor used during the procedure migrated into the child's brainstem, causing her injury.

Lugo filed suit individually and on behalf of her daughter,³ alleging that the retractor migrated because it was contacted either by Dr. Burke, the surgical technician employed by the Hospital who was assisting Dr. Burke, or a suction device or its tubing as the device was handed to Dr. Burke by the technician. Lugo alleged Dr. Burke was negligent in “[f]ailing [to] properly perform the surgery,” “[f]ailing to properly place the retractor,” “[f]ailing to secure the retractor,” “[f]ailing to monitor the location of the retractor during the surgery,” and “[a]llowing the retractor to migrate.” In addition to Dr. Burke, Lugo named the Hospital and the Practice as defendants, alleging that the Practice was vicariously liable for Dr. Burke's negligence and that the Hospital was vicariously liable for the technician's negligence.

The Practice filed a traditional motion for summary judgment, arguing it could not be held vicariously liable for Dr. Burke's negligence as a matter of law because the Practice is prohibited from practicing medicine, it did not control the manner in which Dr. Burke provided medical care, and Dr. Burke was an independent contractor for purposes of providing medical care. The trial court denied the motion in a reasoned order, concluding Dr. Burke's employment agreement granted the Practice sufficient control over Dr. Burke to trigger vicarious liability even though he retained the right to exercise independent medical judgment while providing patient care. The order went on to authorize a permissive interlocutory appeal of the ruling, concluding that resolution of the vicarious liability question in the Practice's favor “would preclude the need for the Practice to participate in additional discovery and a full trial on the merits.”

On appeal, the Practice argued it could not be vicariously liable for Dr. Burke's negligence because statutes governing NPHOs and the practice of medicine in Texas deprive it of any right to control Dr. Burke's work.⁴ The court of appeals affirmed, holding that Dr. Burke was an employee of the Practice under the traditional common-law factors and this Court's decisions, and that he was acting in the course and scope of his employment when the alleged negligence occurred. 672 S.W.3d 901, 906-915 (Tex. App.—Corpus Christi–Edinburg 2023). The Practice then filed a petition for review, which we granted.

ANALYSIS

The sole issue presented is whether an NPHO can be held vicariously liable for the torts of its physician employees under ordinary common-law rules, or whether statutes have altered the usual application of those rules in whole or part by providing that: (1) only individuals may be licensed to practice medicine, TEX. OCC. CODE§ 155.001; (2) employed physicians “retain independent medical judgment,” id. § 162.0023; and (3) NPHOs “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law, including board rules,” id. § 162.0021. As explained below, we have previously held that the first two statutory provisions do not modify common-law vicarious liability, and the Practice concedes that some vicarious liability is available. But we conclude that the third change affects the scope of such liability.

We begin by examining the statutes that enable the formation of NPHOs against the backdrop of our historical prohibition on the corporate practice of medicine. We then address the role of a physician's independent medical judgment in the vicarious liability analysis. Finally, we examine the statutory limits on NPHO control over its employee physicians.

I. Standard of review and applicable law

We review de novo the denial of a traditional motion for summary judgment. Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). A defendant is entitled to summary judgment when it conclusively negates at least one element of the plaintiff's theory of recovery. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Here, the parties have stipulated that the Practice's ground for summary judgment presents purely a question of law and does not require the resolution of any disputed questions of material fact.

The statutory backdrop for the Practice's motion begins with the Texas Medical Practice Act. The Act prohibits the practice of medicine without a license, which may only be issued to a “person.” TEX. OCC. CODE§§ 155.001-.002. To curb the unlicensed practice of medicine and “prevent possible abuses resulting from lay control” of medical care in Texas, corporations were historically prohibited from employing physicians and receiving a fee for their services. Gupta v. E. Idaho Tumor Inst., Inc., 140 S.W.3d 747, 752 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citations omitted); see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 539 (Tex. 2002) (plurality op.). Instead, physicians ordinarily provide medical care as independent contractors. Bodin v. Vagshenian, 462 F.3d 481, 495 (5th Cir. 2006) (Owen, J., concurring); see also Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 950 (Tex. 1998).

In 1999, the Texas Legislature altered this landscape, allowing certain types of health organizations to choose to employ physicians without engaging in the unlicensed practice of medicine. One such organization is the NPHO. TEX. OCC. CODE§ 162.001. To qualify as an NPHO, the entity must be a nonprofit corporation that is organized solely by persons licensed by the Texas Medical Board for a qualifying purpose—here, the delivery of health care—and is independently certified by the Board. Id. § 162.001(b). An NPHO's directors and trustees must also be licensed by the Board and actively engaged in the practice of medicine. Id.

Although an NPHO “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law, including board rules,” id. § 162.0021, an NPHO “shall adopt, maintain, and enforce policies to ensure that a physician employed by the health organization exercises independent medical judgment when providing care to patients,” id. § 162.0022(a), and “must include policies relating to ․ quality assurance,” id. § 162.0022(b)(2). The statute goes on to codify the familiar principle that an employee physician “retains independent medical judgment in providing care to patients,” explicitly instructing that NPHOs “may not discipline the physician for reasonably advocating for patient care.” Id. § 162.0023.

II. The licensing of individual physicians and their exercise of independent medical judgment do not preclude vicarious liability.

The Practice asks us to consider how this statutory scheme interacts with the common law, under which a defendant is vicariously liable for the torts of its employees committed within the course and scope of their employment but not for the torts of independent contractors. E.g., Baptist Mem'l Hosp., 969 S.W.2d at 947, 949. “The test to determine whether a worker is an employee rather than an independent contractor” is whether the entity “has the right to control the progress, details, and methods of operations of the work.” Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).

Right of control “may be shown by explicit contractual assignment or actual exercise of control,” Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004), and the parties agree that only the former is at issue here. We consider five factors to determine contractual right of control:

(1) the independent nature of the worker's business; (2) the worker's obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker's right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job.

McNamara, 71 S.W.3d at 312.

Applying these factors, the court of appeals concluded that Dr. Burke was an employee of the Practice, just as his contract says. The Practice agreed to furnish him with all tools, supplies, and materials necessary to perform his job, required him to provide medical services to the Practice's patients as directed and in accordance with the Practice's policies, required him to work at least forty hours each week, paid him a regular salary, and retained discretion to change his practice sites. 627 S.W.3d at 911.

The Practice argues that the above-described statutes authorizing only individuals to practice medicine alter this conclusion. But the practice of medicine is defined as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person,” TEX. OCC. CODE§ 151.002(a)(13) (emphasis added), which in this context generally “means an individual,” id. § 151.002(a)(11). Thus, it is far from clear that a corporation would itself be practicing medicine if it exercised a contractual right to control an individual physician employee.⁵

Moreover, we have already considered and rejected the contention that “because a corporation cannot be licensed to practice medicine in Texas, incorporated [entities] cannot ‘direct the details of work' of a physician engaged in the practice of medicine” and thus “cannot be vicariously liable as an employer for a physician's malpractice” under the common law. St. Joseph Hosp., 94 S.W.3d at 539. Adopting a relevant section of the Restatement (Second) of Agency,⁶ we explained:

A statute prohibiting an incorporated hospital from employing a physician does not prevent the parties from factually accomplishing that very act in violation of the law any more than a statute prohibiting a crime makes the crime factually impossible to commit. Regardless of whether it was proper for [the physician] to be [the corporation's] employee, if he in fact was so when he treated [the plaintiff], then as his employer [the corporation] is vicariously liable for his actions.

Id. at 539-540.⁷

The Practice also argues that the court of appeals overlooked an important term of Dr. Burke's contract with the Practice, which provides that Dr. Burke “shall retain the right to exercise [his] independent medical judgment in providing Medical Services to patients.” In the Practice's view, this language precludes the right of control necessary for vicarious liability.

We rejected a similar contention in Murk v. Scheele, holding that a government hospital could be vicariously liable under the Texas Tort Claims Act because the physician accused of malpractice was the hospital's employee under common-law rules. 120 S.W.3d 865, 867 (Tex. 2003). The hospital argued that the physician's “exercise of independent professional judgment as a treating physician was outside [the hospital's] right of control, thereby excluding him from the statutory definition of ‘employee.’ ” Id. We disagreed, concluding that “a physician whose practice is controlled by a governmental unit is not precluded from being an ‘employee’ within the meaning of the Act simply because he or she must exercise some independent medical judgment.” Id. “While the nature of his practice as a physician required him to make many medical decisions using his own professional judgment, the necessity for that judgment did not, by itself, vitiate [the hospital's] right to control the details of his practice.” Id. (citations omitted).

The Practice contends that Murk is unique to the Tort Claims Act context. Not so. As we recently reiterated, the analysis of whether someone is an “employee” under the Act's definition tracks the common law.⁸ Furthermore, we analyzed whether the physician was an employee in Murk because the Tort Claims Act prevents both a government employer and its employee from being held liable for the same act. See 120 S.W.3d at 866-67; TEX. CIV. PRAC. & REM. CODE§ 101.106. If an employer could not be held vicariously liable for its employee physician's negligence, as the Practice argues, then we should not have dismissed the claims against the employee in Murk. We adhere to Murk and St. Joseph Hospital, which foreclose these arguments made by the Practice.⁹

III. By limiting the control NPHOs can exercise over their employee physicians, the statute narrows the scope of their vicarious liability.

The Practice next argues that the Legislature partially stripped NPHOs of the right of control necessary for vicarious liability under the common law. In support of this argument, the Practice points out that NPHOs “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law.” TEX. OCC. CODE § 162.0021. Because the Legislature has prohibited NPHOs from exercising control over the full scope of a physician's employment, the Practice contends that a court asked to hold an NPHO vicariously liable must analyze whether the particular tasks that the physician employee negligently performed or failed to perform are ones that the statute prohibits an NPHO from controlling.

The Practice emphasizes that it is not contending NPHOs are immune from liability altogether. For example, it notes that NPHOs could still be liable for employees' negligent medical care that they actually take steps to control (even if such control violates the statute) or for negligence by their ostensible agents, as well as liable for their own negligence in hiring physicians or providing health care. But the Practice observes that none of these types of liability are alleged here.

By contrast, Lugo argues that the terms of Dr. Burke's employment agreement granted the Practice a right of control sufficient to impose vicarious liability and that, in any event, the Practice exercised control over Dr. Burke's employment because his medical care was subject to the Practice's protocols, policies, and procedures. Lugo also points out that we have rejected a task-by-task assessment of control as “an unworkable paradigm [for vicarious liability] that conceivably could result in an individual shifting between employee and independent contractor status countless times in a given work day.” Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 133 (Tex. 2018) (internal quotation marks omitted).

We agree with the Practice in part. The statute does not expressly preclude NPHO liability, as the Legislature did elsewhere in the same chapter.¹⁰ And the statute gives NPHOs the right to “employ” physicians—a concept with a settled common-law meaning that includes vicarious employer liability. See SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 566 (Tex. 2022) (“Absent a textual contradiction, we may conclude that the Legislature uses terms that have a developed meaning at common law for the purpose of conveying a meaning consistent with that which we historically afforded to it.” (internal quotation marks omitted)).

Moreover, the Practice points out that it relies on the existence of a “bona fide employment relationship” between itself and its physicians to comply with federal anti-kickback laws. Federal statutes make it a felony for organizations to pay any remuneration to induce a physician to refer a patient for goods or services that may be paid for by a federal healthcare program. See 42 U.S.C. § 1320a-7b(b)(2). But that felony does not extend to “any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services.” Id. § 1320a-7b(b)(3)(B). The Practice's position that it has this sort of traditional employer–employee relationship with its physicians is in tension with its broad request to be excused from vicarious liability for the torts those physicians commit while they are providing “medical care,” which would treat the physicians as independent contractors for liability purposes.

On the other hand, we have repeatedly held that “the right to control remains the supreme test for whether the master–servant relationship exists and thus whether the rule of vicarious liability applies.” St. Joseph Hosp., 94 S.W.3d at 542 (internal quotation marks omitted); see also Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 287 n.1 (Tex. 2021) (Boyd, J., concurring) (collecting cases). And even when it is settled that the requisite employer–employee relationship exists, we have excepted a general employer from vicarious liability for the torts committed by its employee who has become the borrowed employee of another because the general employer no longer retains the right to control the employee. St. Joseph Hosp., 94 S.W.3d at 537-38. Imposing vicarious liability upon an NPHO for employee conduct it is statutorily prohibited from controlling would be inconsistent with this basic principle underlying of our vicarious-liability precedents.

This Court has previously recognized that statutory provisions and considerations of industry structure can alter the usual right-of-control inquiry in a manner that affects vicarious liability. For example, although courts generally decide “whether a workers' compensation insurance policy covers a worker's injury by determining whether the subscribing company is the worker's employer under the right-of-control test,” we held that the Staff Leasing Services Act compels a different analysis with respect to leased workers. Tex. Workers' Comp. Ins. Fund v. DEL Indus., Inc., 35 S.W.3d 591, 595 (Tex. 2000). At the time, the Act provided that a staff leasing company retained the right of direction and control over the leased employees and granted it the exclusive right to elect or deny workers' compensation coverage for those employees. Id. at 594-95. Thus, we held the Act “statutorily supersede[d] the common law right-of-control test in determining employer status of leased employees for workers' compensation coverage purposes,” making the leasing company their employer. Id. at 595-96.

Likewise, we have modified the right-of-control inquiry for industries that have a unique structure. In Exxon Corp. v. Tidwell, we considered whether an oil company owed a duty to protect an employee of its service station tenant from criminal acts by third parties. 867 S.W.2d 19, 20 (Tex. 1993). We observed that although a company would traditionally owe a duty to a contractor's employees if it had the right to control the details of their work, “a hybrid body of law has developed governing oil companies and their service station lessees.” Id. at 21. Given this unique combination of agency and landlord–tenant law, we held that “in a case alleging negligence in maintaining a safe workplace, the court's inquiry must focus on who had specific control over the safety and security of the premises”—that is, over “the alleged security defects that led to [the employee's] injury”—rather than on the “traditional test of right of control over general operations.” Id. at 23.

Here, the Legislature created NPHOs to serve as a unique employment structure in the health care industry, and it statutorily narrowed an NPHO's right of control over its physician employees. Section 162.001 of the Occupations Code enables the formation of NPHOs organized and managed by licensed physicians, and it allows NPHOs to choose to either contract with or employ physicians. TEX. OCC. CODE§ 162.001(b), (c). Yet even if an NPHO chooses to employ physicians, as the Practice has here, it “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law,” id. § 162.0021, and this prohibition “may not be voided or waived by contract.” Id. § 162.0024(a).

As in DEL Industries and Tidwell, we conclude that the unique structure of NPHO employers and the statute's restrictions on their activities narrow the scope of their right of control and thus of their vicarious liability. To determine when an NPHO can be held vicariously liable for its physician employee's negligent acts or omissions, then, we must examine in detail the limits that the statute places on the NPHO's right of control.

The statute does not prevent NPHOs from controlling any provision of “medical care,” as the Practice argues. Instead, it prohibits NPHOs from “interfer[ing] with, control[ling], or otherwise direct[ing] a physician's professional judgment in violation of this subchapter or any other provision of law, including board rules.” TEX. OCC. CODE§ 162.0021 (emphasis added). Accordingly, we must look to other laws and rules to determine precisely what sort of interference, direction, or control is prohibited. See Pub. Util. Comm'n of Tex. v. Luminant Energy Co., 691 S.W.3d 448, 460 (Tex. 2024) (explaining that statutory “text must always be read ‘in context—not isolation’ ” (quoting State v. Hollins, 620 S.W.3d 400, 407 (Tex. 2020))). This “[c]ontextual reading yields the text's ‘fair meaning,’ our interpretive North Star.” Kelley v. Homminga, 706 S.W.3d 829, 832 (Tex. 2025) (quoting In re Dallas County, 697 S.W.3d 142, 158 (Tex. 2024)).

The very next section of the subchapter sheds some light on the scope of this prohibition, providing that an NPHO “shall adopt, maintain, and enforce policies to ensure that a physician employed by the health organization exercises independent medical judgment when providing care to patients” and “must include policies relating to” certain subjects, such as “quality assurance.” TEX. OCC. CODE§ 162.0022(a), (b)(2). So long as the policies “reserve[ ] the sole authority to engage in the practice of medicine to a physician,” the statute is not violated. Id. § 162.0022(d).

These provisions, when read together, do not bar NPHOs from directing or controlling their physician employees in all aspects of their medical practice. To the contrary, the statute mandates that NPHOs have policies for their physicians to follow, and it requires those policies to assure quality care and ensure that physicians exercise their independent medical judgment. Nothing in the statute prohibits an NPHO from having policies that facilitate rather than interfere with its physician employees' exercise of independent medical judgment in providing quality care to the NPHO's patients.¹¹

The parties devote considerable attention to these statutory provisions regarding policies.¹² Although the provisions do help to illustrate the scope of control that an NPHO may exercise, which is relevant to vicarious liability, we emphasize that a claim based on an NPHO's alleged negligence in providing or failing to provide particular policies allowed by statute would be one for direct rather than vicarious liability.¹³ As discussed above, the vicarious liability inquiry is whether the particular tasks that the physician employee negligently performed or failed to perform are ones that the statute prohibits an NPHO from controlling. As we have seen, the statute generally defines the uncontrollable sphere of tasks as the physician's “exercise[ ] [of] independent medical” or “professional judgment.” TEX. OCC. CODE§§ 162.0021, .0022(a). Therefore, when an NPHO is sued because of an employee physician's alleged negligence, its vicarious liability will depend on whether the plaintiff can prove that an exercise of control over the alleged negligence would not interfere with the physician's exercise of independent medical judgment.¹⁴

Lugo correctly observes that we have rejected as “unworkable” a general framework for vicarious liability that involves “isolating the task the worker was performing at the moment of the accident and conducting an independent evaluation of the employer's control with respect to that particular task.” Painter, 561 S.W.3d at 133. These concerns are well founded for traditional employer–employee relationships in which, as in Painter, the employer “was in a position to exert control” over its employee's duties and “simply chose not to do so.” Id. at 135.

Because the NPHO statute has modified this relationship, however, courts asked to impose vicarious liability must determine whether the NPHO could exercise control over the alleged negligence of its physician employee without interfering with his or her independent medical judgment. To aid courts in this inquiry, the parties can address, for example, (1) whether the NPHO has a right of control regarding the allegedly negligent acts or omissions of its physician employee that led to the alleged injury,¹⁵ and, if so, (2) whether an exercise of such control would interfere with the physician's exercise of independent medical judgment.¹⁶

As in other cases, the usual procedural vehicles for resolving this vicarious-liability question will apply. For example, at trial or in response to an NPHO defendant's motion for summary judgment,¹⁷ a plaintiff may seek to show that the NPHO had a right of control over the physician employee's allegedly negligent act or omission that caused the injury by offering evidence of the employee's contract with the NPHO and relevant NPHO policies. A defendant NPHO, in turn, may seek to negate such evidence affirmatively. Or it may seek to establish why, as a matter of law, the NPHO lacked any relevant right of control or that any control the NPHO could lawfully exercise had nothing to do with the alleged injury. The NPHO may likewise show that any such right of control would have intruded on the physician's medical judgment, so that even if vicarious liability may have been authorized absent the statute, it is now impermissible to impose. An NPHO that establishes as a matter of law that the injury's cause truly was an exercise of independent medical judgment, as may often be the case, would be entitled to summary judgment. And in cases where a right to control is both demonstrable and would not interfere with a physician's medical judgment, vicarious liability remains available.¹⁸ The bottom line is that although this Court has disclaimed a “task by task” approach to vicarious liability, the Legislature's modification of that principle for NPHOs can be readily accommodated within our existing pleading practice and should not impose an onerous burden on either party.

IV. The Practice has not established its entitlement to traditional summary judgment under the statutory standard.

Having explained the statutory limits on an NPHO's right of control and thus its vicarious liability, we turn to whether the Practice conclusively proved its entitlement to traditional summary judgment under this standard such that it cannot be held vicariously liable for Dr. Burke's alleged negligence.¹⁹ Lugo agrees with the court of appeals that the Employment Agreement between the Practice and Dr. Burke assigned the Practice a right of control sufficient to trigger vicarious liability for all of Dr. Burke's torts within the course and scope of his employment. The Practice disagrees, pointing to a provision of the agreement stating that Dr. Burke “shall retain the right to exercise [his] independent medical judgment in providing Medical Services to patients.” Further, the Practice contends that any right of control it could have was stripped by the agreement's provision that Texas law governs, as our law prohibits the corporate practice of medicine.

We agree in part with the court of appeals' view of the agreement, which provides that Dr. Burke will render medical services to the Practice's patients “as directed” and “in accordance with the [Practice's] protocols, policies and procedures.” But the agreement is not the end of the analysis, as the statute provides its “requirements ․ may not be voided or waived by contract.” TEX. OCC. CODE§ 162.0024(a). Thus, as explained above, we must also consider whether the Practice showed that it could not exercise control regarding Dr. Burke's alleged negligence without interfering with his exercise of independent medical judgment. See id. §§ 162.0021, .0022(a).²⁰

The Practice did not have the benefit of our explanation of the standard for vicarious liability under this statute when it filed its motion. Instead, it moved for summary judgment based solely on legal grounds, stipulating that its motion did not require resolving any genuine issues of material fact. The Practice's legal position is that the statute entirely prevents NPHOs from controlling physicians' provision of medical care, and thus the Practice cannot be held vicariously liable.

As explained above, however, the statute does not preclude an NPHO from exercising contractual rights to control its physician employees so long as that control does not interfere with the physicians' exercise of independent medical judgment. Given the purely legal focus of the Practice's motion, it is not surprising that the record does not address whether the Practice would necessarily have interfered with the exercise of Dr. Burke's independent medical judgment by exercising a right to control regarding the type of negligence alleged here.²¹ Thus, we conclude the trial court did not err in denying the Practice's motion for summary judgment that it is not subject to vicarious liability. On remand, the Practice is free to file a new motion for summary judgment with the benefit of our explanation of the legal standard for vicarious liability under this statutory scheme.

CONCLUSION

We hold the trial court properly denied the Practice's motion for summary judgment. Because that is also the result reached by the court of appeals, we affirm that court's judgment and remand the cause to the trial court for further proceedings.

Occupations Code Section 162.0021 forbids nonprofit health organizations from exercising control inconsistent with their employed physician's professional judgment. Vicarious liability claims against these nonprofits that allege a physician's medical judgment caused the patient's injury thus have no merit absent allegations of the nonprofit's unlawful interference.

While I agree with much of the Court's opinion and its disposition, I disagree on two points. First, the suggestion that nonprofit health organizations may be “directly liable” for injuries a negligent physician causes due to the nonprofit's inadequate policies is artful pleading insufficient to impose vicarious liability. Section 162.0021 forecloses such liability to the extent it rests on a physician's exercise of medical judgment as the cause of the injury.

Second, a qualifying nonprofit need only invoke the statute if the pleadings allege a physician's exercise of medical judgment caused the injury to establish a legal defense.¹ The burden then shifts to the nonmovant to raise a fact issue demonstrating that conduct outside the physician's medical judgment was a cause of the injury. To obtain summary judgment, a nonprofit is not required to rebut unpleaded allegations that (1) the nonprofit somehow controlled the physician's conduct without interfering with the physician's medical judgment; or (2) unlawfully interfered with that judgment.

Those disagreements aside, I agree that the trial court properly denied summary judgment. Sometimes the description of a case on appeal is unfamiliar to the trial court judge on the ground as the appellate process takes hold. While the nonprofit organization in this case preserved its argument that it had no right to control its employed physician's work, its motion for summary judgment did not invoke Occupations Code Section 162.0021. The motion instead focused on common law vicarious liability and the general principle that physicians must exercise independent medical judgment. The motion did not adequately notify the nonmovants of the nonprofit's reliance on statutes that govern it and the import those statutes have for claims of vicarious liability against it. Accordingly, I concur in the Court's judgment.

I

Rebecca Lugo alleges that Dr. Michael Burke placed a retractor during surgery that migrated when it should not have. Per the petition, the retractor migrated because (1) Dr. Burke contacted it, (2) a surgical technician handed a suction device to Dr. Burke, and the device or its tubing contacted it, or (3) the surgical technician independently contacted the retractor. Lugo sued Dr. Burke, Renaissance Medical Foundation—a certified nonprofit health organization—and the hospital that employed the surgical technician. Pertinent to this appeal, Lugo claims that Dr. Burke was negligent in performing the surgery, causing her daughter's injury, and that Renaissance is vicariously liable for Dr. Burke's negligence as his employer.

Applying the traditional factors of control, the court of appeals held that Dr. Burke was Renaissance's employee acting within the course and scope of his employment.² Given the common law indicia of control, the court of appeals largely held Section 162.0021 inapplicable as a defense to a vicarious liability claim.³ The statutory text, however, precludes the court of appeals' holding.

A

Occupations Code Section 162.0021 provides that nonprofit health organizations cannot control an employee physician's medical judgment in a manner inconsistent with that judgment, even when traditional indicia of an employer–employee relationship exist. A certified nonprofit health organization “may not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law, including board rules.”⁴ This language not only prohibits interference and control, but also uses the catch-all term “otherwise” to prohibit any other means of unlawfully directing a physician.⁵ The clearest prohibited interference, as the Court notes, is attempted control of a physician's “independent medical judgment,” which the statute's next section affirms an employed physician must retain.⁶

Ordinarily, vicarious liability claims hinge on “whether the principal has the right to control the agent with respect to the details of that conduct.”⁷ It is “the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss.”⁸ “[T]he right to control remains the ‘supreme test’ for whether ․ vicarious liability applies.”⁹

As the Court aptly observes, a claim for vicarious liability without control “would be inconsistent with this basic principle underlying of our vicarious liability precedents.”¹⁰ Further, permitting such claims against a nonprofit for a physician's negligent acts would “frustrate the clear intent of the Legislature” by looking past the prohibition on the exact action—control—recognized as the “supreme test” for imposing vicarious liability.¹¹ Accordingly, I agree with the Court that the statutory prohibition eliminates vicarious liability claims against nonprofit health organizations based on a physician's negligent exercise of medical judgment.

B

The Court incorrectly suggests, however, that a nonprofit health organization may nonetheless be held “directly” liable for providing or failing to provide particular safety policies. While the Court disavows any view as to the viability of such claims beyond its general suggestion that they exist, policy-based direct liability claims wholly reliant on a physician's independent medical judgment as the cause of the injury plainly are not viable given Section 162.0021.¹² Such a claim seeks to hold health organizations liable for the acts of a physician—a vicarious theory. But, as the Court holds today, no vicarious liability lies for these claims because the statute forbids control over medical judgment. And no separate causal line exists from a policy's inadequacy when a physician's independent medical judgment is the alleged cause of the injury. Absent conduct attributable to the lack of such a policy, separate from the physician's negligence in exercising medical judgment, there cannot be liability.

Nonprofit health organizations have an affirmative obligation to adopt policies that “ensure that a physician employed by the [nonprofit] health organization exercises independent medical judgment when providing care to patients.”¹³ Such policies must be drafted and interpreted to “reserve[ ] the sole authority to engage in the practice of medicine” to practicing physicians.¹⁴ These statutory obligations highlight the lack of control that nonprofit health organizations can exercise over a physician's medical judgment. The Court recognizes as much but theorizes that a nonprofit health organization might face liability for “providing or failing to provide particular policies allowed by statute,” even absent evidence that nonphysician conduct caused the patient's injury.¹⁵ Our Court has never recognized such a claim, which relies on a causal link through physician judgment that the statute prohibits.

A causal connection between the absence of an adequate, injury-preventing policy and a patient's injury can be made through the negligent conduct of hospital employees.¹⁶ In the case of physician negligence, however, the causal link between policy and injury is absent because Chapter 162 prohibits the control or direction of a physician's provision of medical care.¹⁷

We reached this conclusion in a similar context in Columbia Medical Center of Las Colinas, Inc. v. Hogue.¹⁸ We held the evidence legally insufficient to establish that a patient contributed to his own injury based on testimony of his physicians that they “perhaps” or “possibly” would have changed their treatment with an adequate patient history.¹⁹ Such “conjecture, speculation or mere possibility,” we held, does not demonstrate the requisite “conduct that to a reasonable degree of medical certainty would have occurred” to establish proximate cause.²⁰

Speculation that hospital personnel “perhaps” or “possibly” would have altered a physician's course of treatment similarly falls short of establishing causation. In Columbia Valley Healthcare System, L.P. v. Zamarripa, we held that an expert failed to show that hospital personnel “had either the right or the means” to stop or delay the physician's decision to transport the patient that led to her injury.²¹ The expert thus failed to establish a causal link between the hospital's alleged failure to comply with the standard of care and the injury.²²

In stating that nonprofits might face liability for providing or failing to provide policies, the Court cites to our decision in Certified EMS, Inc. v. Potts.²³ But we did not approve of such claims in Potts. Rather, we observed that some lower courts “have held that direct and vicarious liability theories involve different sets of operative facts because ‘the facts required to establish the defendant's vicarious liability ․ differ from the facts required to establish the ․ defendant's direct liability, i.e., [its] provision of particular policies and procedures.’ ”²⁴ A summary of lower court precedent is not support for imposing liability absent proximate cause. To speculate that a policy would have prevented an injury when it is divorced from negligent conduct is nothing more than hindsight.²⁵

C

The language of Section 162.0021 presents a statutory barrier to vicarious liability based on an employed physician's negligent exercise of medical judgment.²⁶ A nonprofit health organization seeking summary judgment on such claims need only invoke the statute and show that the pleadings allege an injury attributable to a physician's negligence. It then falls to the nonmovant plaintiff to plead and adduce evidence raising a fact issue that the nonprofit committed negligence that falls outside the statute.²⁷ A nonmovant physician co-defendant may also respond with evidence that a nonprofit employer violated some aspect of the law or improperly interfered with the physician's judgment. But nonprofit health organizations should not be required to negate unpleaded claims. In suggesting otherwise, the Court fails to properly appreciate the statute's operation and our summary judgment jurisprudence for statutory defenses.²⁸

Statutory mandates place a straightforward burden on the movant to invoke the statute at the summary judgment stage. Once invoked, the burden of raising a fact issue rests with the nonmovant. For example, the uninsured motorist statute requires physical contact for the insured to recover; thus, a movant need only demonstrate that the operative pleadings fail to allege such contact.²⁹ Similarly, when a statute contains an exclusive-remedy provision, a movant need demonstrate only that the statute precludes the claim based on the facts alleged.³⁰

Eschewing our precedent, the Court suggests that a nonprofit health organization movant must rebut not-yet-raised allegations. This elevated standard requires a movant to guess at unpleaded facts and negate them to obtain summary judgment.³¹ The Court's suggested summary judgment requirements are not raised in the pleadings in this case, which are limited against Renaissance to allegations that Dr. Burke's negligent surgical technique caused Lugo's daughter's injuries.³²

Renaissance, however, did not raise the unique defense it has based on Section 162.0021, which prohibits its control over its physician employee's medical judgment. Renaissance did not cite the applicable statute in its motion. Given the motion's focus on common law standards, it is not surprising that the trial court ruled that Dr. Burke's employment agreement alone provided sufficient indicia of control. Neither the trial court nor either party has yet to contend with Section 162.0021's prohibition of control of physician employees by an employing nonprofit.³³ On remand, the parties can engage with the appropriate legal standard applicable to nonprofit health organizations who employ physicians.

* * *

For these reasons, I concur in the Court's judgment.

FOOTNOTES

1.   Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).

2.   The record does not address whether the Practice is certified by the Board. But the parties have stated that it is, so we accept that fact as true for purposes of this appeal. See TEX. R. APP. P. 38.1(g).

3.   Although Lugo's daughter is no longer a minor, the petition alleges that she remains mentally incompetent and unable to pursue her individual claims independently.

4.   Although no party has raised the issue, our concurring colleagues contend that the Practice did not adequately notify Lugo of this argument in the trial court. Post at 2-3, 12-13 (Bland, J., concurring). To be sure, a motion for summary judgment must stand or fall on the grounds expressly presented in the motion itself. E.g., McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). But as just discussed, one of the grounds raised by the Practice was that it did not control the manner in which Dr. Burke provided medical care. We cannot say the court of appeals erred in treating the Practice's statutory argument as a subsidiary question fairly included within this ground. See, e.g., Lee v. Rogers Agency, 517 S.W.3d 137, 164 (Tex. App.—Texarkana 2016, pet. denied).

5.   Similarly, statutes governing penalties that may be imposed for the illegal practice of medicine provide that “[a] person commits an offense if the person practices medicine in this state in violation of [the Medical Practice Act].” TEX. OCC. CODE § 165.152 (emphases added); see also id. § 164.001 (authorizing the Board to pursue disciplinary action against any person who violates the Medical Practice Act); id. § 164.052 (listing instances when a person applying for Board licensure commits a prohibited practice); id. § 165.153 (clarifying that a person practicing medicine without a license is subject to additional criminal penalties when they cause another to suffer physical, psychological, or financial harm).

6.   “The fact that the state regulates the conduct of an employee through the operation of statutes requiring licenses or specific acts to be done or not to be done does not prevent the employer from having such control over the employee as to constitute him a servant.” St. Joseph Hosp., 94 S.W.3d at 540 (quoting RESTATEMENT (SECOND) OF AGENCY§ 220 cmt. i (AM. L. INST. 1958)).

7.   See also Marino v. Lenoir, 526 S.W.3d 403, 409-410 (Tex. 2017) (“[W]e construe statutory language against the backdrop of common law, assuming the Legislature is familiar with common-law traditions and principles. [St. Joseph Hosp. v.] Wolff explained that looking to control over the details of an employee's work is a longstanding common-law basis for establishing an employer-employee relationship, and distinguishing an employee from an independent contractor․ [St. Joseph Hosp. v.] Wolff, we think, looked to which entity actually controlled the [physician] under the relevant contract.” (footnote omitted)).

8.   Tex. Dep't of Transp. v. Self, 690 S.W.3d 12, 20 (Tex. 2024) (noting that the court of appeals “conducted the familiar employee-versus-independent-contractor analysis that Texas courts have long used in [the Tort Claims Act] and other legal contexts”); Marino, 526 S.W.3d at 409-410 (citing Court precedent clarifying that the Act codifies the common law with respect to employee status).

9.   We note that the holdings of Murk and St. Joseph Hospital are consistent with the Restatement (Third) of Torts: Medical Malpractice recently given final approval by the American Law Institute. Section 15 of the Restatement recognizes that “[a] medical ․ institution is vicariously liable for the tortious conduct of its employee acting within the scope of employment” and provides the familiar common-law definition of “employee” as “an agent whose manner and means of work the [medical] institution controls or has the right to control.” RESTATEMENT (THIRD) OF TORTS: MEDICAL MALPRACTICE § 15(a) (AM. L. INST. 2024). Regarding this right of control, comment d explains that the expectation employee physicians will “exercise independent medical judgment without being controlled by lay managers or entities ․ does not mean ․ that vicarious liability doctrines ․ do not apply.” Id. § 15 cmt. d. “Instead, respondeat superior applies to employed professionals, regardless of the degree of professional autonomy a medical employee retains, by virtue of the other elements of control that an employment relationship entails.” Id.

10.   For example, Section 162.157 provides that “[a] health care entity or its designated credentials verification organization is immune from liability arising from its reliance on data furnished by the board under this subchapter.” TEX. OCC. CODE§ 162.157.

11.   Indeed, such policies are commonly used to ensure that physicians have reliable knowledge readily at hand regarding the standard of care in various circumstances so they can make an informed exercise of their professional judgment. See, e.g., Bush v. Columbia Med. Ctr., No. 23-0460, ___ S.W.3d ___, slip op. at 18 (Tex. May 23, 2025) (“[P]olicies may guide or suggest treatment paths without mandating them or running afoul of the prohibition on the corporate practice of medicine.”); Marsillo v. Dunnick, 683 S.W.3d 387, 390 (Tex. 2024) (explaining that hospital's snakebite treatment guidelines facilitated comprehensive framework for treatment based on physician's assessment of patient's symptoms); Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383-84 (Tex. App.—Dallas 2013, no pet.) (holding expert report sufficiently opined that hospital breached standard of care by failing to have or enforce certain policies and procedures); El Paso Healthcare Sys., Ltd. v. Monsivais ex rel. Monsivais, No. 08-18-00043-CV, 2019 WL 5616973, at *6-7 (Tex. App.—El Paso Oct. 31, 2019, pet. denied) (noting hospital staff could be held liable for injury caused by failure to adhere to “standing orders” or “protocols”).

12.   Our discussion of policies in the remainder of this paragraph is responsive to these arguments by the parties. Cf. post at 6 n.15 (Bland, J., concurring).

13.   See, e.g., Bush, ___ S.W.3d at ___, slip op. at 23-28; Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013) (“[D]irect and vicarious liability theories involve different sets of operative facts because the facts required to establish the defendant's vicarious liability, i.e., the acts of the agent and his relationship to the principal, differ from the facts required to establish ․ the defendant's direct liability, i.e., its provision of particular policies and procedures.” (cleaned up)). Thus, we agree with our concurring colleagues that an NPHO may not be held vicariously liable for injuries caused by a negligent physician due to inadequate NPHO policies. Post at 1, 7-9 (Bland, J., concurring). And we agree that any claim for direct liability would require proof of causation. For example, a plaintiff could attempt to show that a reasonable NPHO complying with the standard of care should have had policies in place that, in reasonable medical probability, would have averted an alleged negligent act or omission while respecting medical judgment. We express no view regarding whether such a showing could be made in this case.

14.   We thus disagree with our concurring colleagues that “[v]icarious liability claims against [NPHOs] that allege a physician's medical judgment caused the patient's injury ․ have no merit absent allegations of unlawful interference.” Post at 1 (Bland, J., concurring).

15.   See Tidwell, 867 S.W.2d at 23. As discussed in Part II, the relevant inquiry is whether the NPHO had a right of control, which “may be shown by explicit contractual assignment or actual exercise of control.” Shell Oil Co., 138 S.W.3d at 292 (emphasis added).

16.   TEX. OCC. CODE§§ 162.0021, .0022(a). The concurrence argues that we are improperly expanding an NPHO's summary judgment burden by requiring it to prove that exercising control over the allegedly negligent acts or omissions of its physician employee would have interfered with his or her exercise of independent medical judgment. Post at 11-12 (Bland, J., concurring). To the contrary, this requirement tracks the statutory provisions just cited.

17.   We address the distinction between traditional and no-evidence motions below. See infra note 19.

18.   The record and briefs in this case tell us little to nothing about the administrative realities of NPHO practice, so we are not yet in a position to make broader statements about litigation in this context.

19.   Although a plaintiff would have the burden at trial to show the defendant's vicarious liability, the defendant Practice filed a traditional motion for summary judgment arguing that it was not vicariously liable as a matter of law. Thus, it was the Practice's burden to conclusively disprove an essential element of vicarious liability. See Draughon v. Johnson, 631 S.W.3d 81, 87-88 (Tex. 2021); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).

20.   Lugo alleged that the Practice employed Dr. Burke and is vicariously liable for his negligence. She thus put the Practice's right to control Dr. Burke's conduct in issue. To obtain traditional summary judgment, then, the Practice had the burden to prove conclusively that an exercise of control over the alleged negligence would interfere with his exercise of independent medical judgment. This burden does not require the Practice to negate unpleaded claims or allegations, as the concurrence asserts. See post at 14 (Bland, J., concurring).

21.   We disagree with the concurrence's suggestion that Lugo limited her petition by alleging that each instance of negligence leading to her daughter's injuries resulted from Dr. Burke's exercise of medical judgment. Cf. post at 12-13 (Bland, J., concurring). Instead, Lugo alleged several failures to act, including failures to secure and monitor the location of a retractor. Whether Dr. Burke failed in any of the alleged respects and whether any such failures were exercises of independent medical judgment are matters beyond the scope of the purely legal motion the Practice filed, and they remain to be considered on remand.

1.   As the Court recognizes, contractual assignment “is not the end of the analysis” because of the unique structure of the nonprofit health organization statute. Ante at 22. The statute prevents vicarious liability for uncontrollable conduct of physicians regardless of control assigned by contract. See Tex. Occ. Code. § 162.0021 (preventing control of a physician's professional judgment in violation of the statute or other law); id. § 162.0024(a) (stating that statutory requirements “may not be voided or waived by contract”).

2.   672 S.W.3d 901, 914 (Tex. App.—Corpus Christi–Edinburg 2023).

3.   See id. at 911 (“The fact that Burke retained the right to exercise his ‘independent medical judgment’ in treating patients does not ‘vitiate [Renaissance]'s right to control the details of his practice.’ ” (quoting Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003))); id. at 914 (“But the fact that [Renaissance] may not legally interfere with or control Burke's professional judgment has no bearing on the question of whether the alleged negligence took place within the course and scope of his employment.”).

4.   Tex. Occ. Code § 162.0021.

5.   See Otherwise, Black's Law Dictionary (11th ed. 2019) (“By other causes or means.”). The statutory prohibition on control departs from a recently approved section of the Restatement (Third) of Torts: Medical Malpractice. See Restatement (Third) of Torts: Medical Malpractice § 15(a), cmt. d (permitting vicarious liability for medical professionals employed by medical institutions even if the professionals retain independent medical judgment). We are bound to follow the Texas statute, not the Restatement. See Tex. Civ. Prac. & Rem. Code § 5.001(b) (“In any action governed by the laws of this state concerning rights and obligations under the law, the American Law Institute's Restatements of the Law are not controlling.”).

6.   Tex. Occ. Code § 162.0022(a), (d) (mandating that certified nonprofit health organizations shall “adopt, maintain, and enforce policies to ensure that a physician employed by the health organization exercises independent medical judgment when providing care to patients,” and interpret policies to “reserve[ ] the sole authority to engage in the practice of medicine” to employed physicians).

7.   State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 627 (Tex. 1998).

8.   Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018) (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002) (plurality op.)).

9.   Wolff, 94 S.W.3d at 542 (quoting Golden Spread Council, Inc. v. No. 562 of Boys Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996)).

10.   Ante at 15.

11.   PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners L.P., 146 S.W.3d 79, 85 (Tex. 2004); Wolff, 94 S.W.3d at 542 (quoting Akins, 926 S.W.2d at 290).

12.   Lugo's operative petition contains no allegation of direct liability against Renaissance nor mention of policy, raising the question whether the Court's suggestions regarding direct liability are necessary to resolve this case.

13.   Tex. Occ. Code § 162.0022(a).

14.   Id. § 162.0022(d).

15.   Ante at 18.

16.   See Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 634 (Tex. App.—Fort Worth 2011, pet. denied) (holding the evidence legally sufficient to show that, had a hospital management company implemented adequate policies governing care of patients following insertion of a stomach tube, a patient's overly tight bolster would have not occurred or would have been discovered by hospital staff—but the absence of policies resulted in the nursing staff providing inadequate care to the patient). This connection aligns with the requirement for other vicarious theories of liability like negligent hiring, training, or supervision. See Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012) (“[S]uch a claim requires that the plaintiff suffer some damages from the foreseeable misconduct of an employee hired pursuant to the defendant's negligent practices.”).

17.   See Tex. Occ. Code § 162.0021–.0022; id. § 151.002(13) (defining “practicing medicine” as the “diagnosis, treatment, or offer to treat” by a person holding themselves out as a physician or surgeon). The Court theorizes that a plaintiff could establish a causal link by showing that a nonprofit health organization “should have had policies in place that, in reasonable medical probability, would have averted an alleged negligent act or omission while respecting medical judgment.” Ante at 19 n.13. It is this very respect for medical judgment, however, that severs any causal link between policy and injury because it forbids the nonprofits from dictating a physician's medical actions.

18.   271 S.W.3d 238, 247 (Tex. 2008).

19.   Id.

20.   Id.

21.   526 S.W.3d 453, 461 (Tex. 2017).

22.   Id. The courts of appeals have followed Zamarripa when theoretical hospital policies are alleged to hypothetically generate information altering a physician's course of treatment but are untraceable to employee conduct causing injury. In Curnel v. Houston Methodist Hospital-Willowbrook, for example, a plaintiff alleged that a hospital's failure to have a policy requiring patient medications to be evaluated for hepatoxicity led to a patient receiving an improper antibiotic, which led to improper data, which led physicians to proceed with a liver biopsy wherein one physician nicked the plaintiff's artery. 562 S.W.3d 553, 566–67 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Because hospital personnel lacked “ ‘the right or the means to persuade’ the physicians to cancel the biopsy” and thus prevent the nicked artery, the connection between the failure to implement a policy and the plaintiff's injury was too attenuated to establish proximate cause against the hospital. Id. at 567–68 (quoting Zamarripa, 526 S.W.3d at 461).

23.   392 S.W.3d 625 (Tex. 2013).

24.   Id. (quoting Fung v. Fischer, 365 S.W.3d 507, 522 (Tex. App.—Austin 2012, no pet.)).

25.   Hogue, 271 S.W.3d at 247; see Moreno v. M.V., 169 S.W.3d 416, 422 (Tex. App.—El Paso 2005, no pet.) (characterizing testimony that had a surgery occurred earlier an infection would have been prevented as “precisely the type of 20/20 hindsight analysis which does not provide ․ any evidence of causation”). We have heretofore rejected such a notion that business organizations can be liable for the acts of those they lack authority over. See Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 691 (Tex. 2017) (“To establish the existence of an agency relationship, the evidence must demonstrate the purported agent's consent to act on the principal's behalf and subject to the principal's control, together with the purported principal's authorization for the agent to act on his behalf.” (emphasis added)).

26.   See Tex. Occ. Code § 162.0021 (mandating that nonprofit health organizations “not interfere with, control, or otherwise direct a physician's professional judgment in violation of this subchapter or any other provision of law, including board rules”).

27.   See Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d 430, 433 (Tex. 2008) (placing burden on the plaintiff to raise a fact issue that its claim meets the statutory requirements for recovery).

28.   See Ante at 23 (“[W]e must also consider whether the Practice showed that it could not exercise control regarding Dr. Burke's alleged negligence without interfering with his exercise of independent medical judgment.”).

29.   See Elchehimi, 249 S.W.3d at 432–33, 436 (reversing and rendering judgment for the defendant who established in its summary judgment motion that no physical contact with a motor vehicle occurred).

30.   See Southland Corp. v. Lewis, 940 S.W.2d 83, 84 (Tex. 1997) (rendering judgment for a defendant who established in its summary judgment motion that it was an alcohol provider who sold to a plaintiff over eighteen, thus triggering the exclusive-remedy provision of the Alcoholic Beverage Code); see also Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 474 (Tex. 2005) (affirming summary judgment for one employer after it established that the plaintiff was its employee and was covered by a worker's compensation policy, thus triggering the exclusive remedy provision of the Workers Compensation Act, but reversing it for a second employer who failed to establish that it was covered by a similar policy); Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119, 132 (Tex. 2020) (“We hold that [the nonmovant's] evidence does not raise a fact issue under the intentional-injury exception; thus, her claims are barred by the exclusive-remedy provision of the Act.”).

31.   Draughon v. Johnson, 631 S.W.3d 81 (Tex. 2021), is distinguishable, as the nonmovant had pleaded the exception to the limitations defense at issue in that case. See id. at 97 (“Johnson moved for traditional summary judgment on limitations and Draughon raised the unsound-mind tolling statute. Johnson therefore had the burden to ‘conclusively negate’ Draughon's assertion of mental incapacity.” (quoting Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019))).

32.   It is not part of Renaissance's initial burden to preemptively consider whether an allegation falls outside of the statute absent a pleading that it does. Instead, once the statute is invoked based on pleadings alleging an injury attributable to physician negligence, the nonmovant plaintiff must carry the burden to demonstrate which allegations, if any, are not within the statute's purview.

33.   See Tex. R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“Consistent with the precise language of Rule 166a(c), we hold that a motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion.”).

J. Brett Busby Justice