dissenting.
I would grant the motion for rehearing and affirm the trial court’s granting of appellee’s summary judgment motion.
I respectfully suggest the majority errs when it finds a disputed fact issue over the hospital’s “right of control” of the physician in a discussion of the hospital’s “utilization review committee.” Although the majority’s reasons for so concluding are unstated, it apparently rests in the hospital’s right (emphasized by the majority), through the review committee, to discharge a patient by an exercise of its independent judgment. I would hold that being able to “override” or “overrule” an admitting physician’s order in the abstract is no evidence of “controlling” the details of a physician’s work in this case.1
There is a fundamental difference between suing a hospital for its own acts of negligence, and holding a hospital vicariously liable for the acts of physicians admitting and treating patients in the hospital. Likewise, there is a fundamental factual difference between a hospital controlling the details of a physician’s work, which would permit vicarious liability, and the maintenance of a right to make some abstract ultimate judgment regarding the patient contrary to the wishes of the physician. Evidence that may tend to show negligence on the part of a hospital directly in this ease is not evidence that a hospital may be vicariously liable.
If the hospital’s right to make a judgment relative to the treatment of a patient in its own facilities raises a fact issue over whether the hospital controls the details of the physician’s work, how does the hospital protect itself from being found vicariously liable for the actions of its admitting physicians? But more basically, if a hospital maintains this right of review of its physicians, how would it protect itself from the expenses of litigation in defending against every negligent act of a physician committed within its facilities?
For this and other reasons, I dissent from the majority’s opinion and denial of motion for rehearing.
. We may overrule the Honorable trial judge that heard this motion for summary judgment, but I doubt we control his actions in any meaningful sense.