IN THE
TENTH COURT OF APPEALS
No. 10-99-086-CV
RAY AND REBECCA COBB,
Appellants
v.
DALLAS FORT WORTH
MEDICAL CENTER - GRAND PRAIRIE,
Appellee
From the 17th District Court
Tarrant County, Texas
Trial Court # 17-177355-99
D I S S E N T I N G O P I N I O N
Whatever can be said of the negligence of the hospital, if any, by not getting the entire transpedicular device to the operating room, it cannot be said that the hospital’s negligence was the cause of Mrs. Cobb’s problems. The only person who put the transpedicular device in her back was the doctor. The doctor was practicing medicine; the hospital was not. The sole responsibility for determining what medical device, including the component parts thereof, that should go into a patient, has to be the doctor.
In the normal scheme of surgery, it seems beyond dispute, that the doctor should be the sole person charged with the duty to determine that everything necessary to perform and complete the surgery is present before the patient is cut open. For an operation requiring the placement of a medical device inside a patient’s body, a device that is the very essence of the purpose of the operation, there could be no more fundamental duty than to determine that the proper device is in the operating room and ready to be placed in the patient’s body, before the first cut is made.
Cobb seeks to hold the hospital liable. In response to the hospital’s no evidence summary judgment motion, her only assertion regarding the hospital’s negligence is that the hospital “was independently and directly negligent (and in turn grossly negligent) for its employees’ failure to verify that the instrumentation and hardware products used on PLAINTIFF REBECCA COBB were the correct size, and appropriate for an adult female.” Such a characterization of the hospital’s duty would cause the hospital to practice medicine. A hospital cannot practice medicine, only a licensed physician can.
The practice of medicine was defined at the time of Ms. Cobb’s surgery as follows:
(12) "Practicing medicine." A person shall be considered to be practicing medicine within this Act:
(A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof; or
(B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.
Tex. Rev. Civ. Stat. Ann. art. 4495b, 1.03(a)(12) (Vernon Supp. 1993) (repealed). Current text defining “practicing medicine” is located at Tex. Occ. Code Ann. §151.002 (13) (pamp. 2001).
Only a person can “practice medicine”; a hospital cannot. The Texas Medical Act makes no provisions for the licensing of a hospital to practice medicine. See Clements v. Conrad, 21 S.W.3d 514, 522-23 (Tex. App.—Amarillo 2000, pet. denied). Cobb’s claim is for “medical care” as defined by the act. Accordingly, I would hold that because Cobb’s only assertion of the hospital’s negligence relates to duties that constitute the practice of medicine and thus are solely the physician’s duty rather than the hospital’s, Cobb has failed to raise a fact issue on whether the breach of the hospital’s duty caused her injury. Because the majority determines that Cobb presented some evidence on each of the elements of a negligence theory of recovery against the hospital, I respectfully dissent.
TOM GRAY
Justice
Dissent delivered and filed May 30, 2001