dissenting.
I respectfully dissent.
The sole issue on this appeal is whether appellants’ summary judgment evidence raised a material fact issue as to their malpractice claim that the hospital was liable for Dr. Devine’s negligence on the theory of ostensible agency. “Ostensible agency,” also known as agency by estoppel or apparent agency, does not depend upon an express appointment or actual authority but arises from the words, attitude, conduct, and knowledge of the principal, not the agent. McDuff v. Chambers, 895 S.W.2d 492, 498 (Tex. App.—Waco, writ denied). In fact, an ostensible agent is not really an agent at all, but estoppel prevents the “principal” from denying the agency. M Elements of ostensible agency are: (1) the third party (Elizabeth) must have a reasonable belief in the agent’s (Dr. Devine’s) authority; (2) the belief must be generated by some holding out by act or neglect of the principal (the hospital); and (3) the third party (Elizabeth) must justifiably rely on the representation of authority. Id.
Appellants had the burden of producing summary judgment evidence sufficient to raise an issue of fact as to each element of their ostensible agency claim in order to successfully oppose summary judgment. Brownlee, 665 S.W.2d at 112; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678-79; Smith v. Baptist Memorial Hosp. System, 720 S.W.2d 618, 622-23 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.)
In Smith v. Baptist Memorial Hosp. System, the court of appeals stated:
Restatement (Seoond) of Agency § 267 (1958) states the rule of “apparent” or “ostensible” agency:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care of skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
Smith, 720 S.W.2d at 624.
The Smith court further stated: “Comment (a) to the foregoing section makes it clear that a plaintiff must have more than a mere belief that the acts were performed by one whom the plaintiff believed to be the defendant’s servant.” Id. The Restatement (Second) of Torts § 267 cmt. a (1958) states:
There must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct. The rule normally applies where the plaintiff has submitted himself to the care or protection of an apparent servant in response to an invitation from the defendant to enter into such relations with such servant. A manifestation of authority constitutes an invitation to deal with such servant and to enter into relations with him which are consistent with the apparent authority.
Id. at 624.
The Smith court concluded:
Sound public policy demands that when an institution calls itself a “full service hospital” and includes an emergency room as part of its facilities, that institution makes a special statement to the public when it opens its emergency room to provide emergency care for people. Hannola v. City of Lakewood, 68 Ohio App.2d 61, 426 N.E.2d 1187, 1190 (1980). An agency by estoppel is established by creating the effect that the appearance that hospital’s agents, not independent contractors, will provide medical care to those who enter the hospital. Id. 426 N.E.2d at 1190. The appearance is what the patient observes and which he relies upon when entering a full-service hospital.
Id. at 625.
The Smith court reasoned: “[a] person who is ill or injured and needs treatment will turn to his local hospital to provide it regardless of prior notice that the physicians are independent contractors. After all, the injured or ill person chooses BMHS [the hospital] and not the EPA [the treating doctors] for treatment.” Id. at 625.
*50In Sampson v. Baptist Memorial Hosp. System, 940 S.W.2d 128, 183 (Tex.App.—San Antonio 1996, writ granted), the court of appeals noted that courts in other jurisdictions generally imply the “holding out” requirement from the circumstances where the hospital offers emergency services. Id. at 133 (citing Pamperin v. Trinity Memorial Hosp., 144 Wis.2d 188, 423 N.W.2d 848, 856-57 (1988); Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)). The Sampson court noted, however, “that a different result may follow where the hospital provides notice to the patient, thereby eliminating the implication that the physician is an employee.” Id. at 133. In Sampson, the hospital had signs in the emergency room regarding the independent status of emergency room physicians but Sampson, the patient-plaintiff, stated she did not see any signs. The court found no evidence was presented by the hospital regarding the number or conspicuousness of the signs and therefore a question of fact was raised as to whether the signs were sufficient notice. Id. at 134. In Sampson, the patient had also signed consent forms disclaiming any liability for treating physicians who were independent contractors and not the agent, servant or employee of the hospital. Id. at 133 n. 4. The Sampson court found “the nature of the circumstances under which Sampson sought emergency room services coupled with her statement that she did not recall signing the consent forms were sufficient to raise a question of fact as to whether Sampson was in a position to understand the terms of the forms.” Id. at 134 citing Paramount Nat. Life Ins. Co. v. Williams, 772 S.W.2d 255, 262 (Tex.App.—Houston [14th Dist.] 1989, writ denied).
In Beeck v. Tucson General Hospital, 18 Ariz.App. 165, 500 P.2d 1153, 1159 (1972), the court rejected the contention that a hospital should not be held liable for the alleged malpractice of a radiologist because the patient had signed a document which stated that the radiologist was an independent contractor and that the hospital was not liable for his acts or omissions. The Beech court explained that the patient had difficulty understanding English and that the clause reciting the radiologist to be an independent contractor could have no effect unless he was actually an independent contractor. Id. at 1159. See also John D. Hodson, Annotation, Liability of Hospital or Sanitarium for Negligence of Physician or Surgeon, 51 A.L.R.4th 235, 352-56 (1987).
The pertinent portion of the hospital consent form is set out above in the majority opinion. The hospital submitted their consent form purporting to give notice that any physician who furnished services was not an agent or employee of the hospital and the physicians were independent contractors. The form further notifies the patient that the physician may bill the patient separately. The form is a printed form bearing the heading of the hospital, to wit, “Southmore Medical Center.” The form was proven as a business record of the hospital by the affidavit of Myrna Anderson, Director of Medical Records at Southmore Medical Center. In her affidavit, Elizabeth stated: (1) she was in pain when she signed the papers and did not read any of the papers; (2) she was not told that the doctors were not employees; (3) her personal doctor was not available and she had no choice as to which doctor would treat her; (4) she was told Dr. Devine was the only doctor that delivered babies that day; and (5) she believed Dr. Devine worked for the hospital. The hospital did not controvert Elizabeth’s statement.
Elizabeth stated she was in labor and in pain and did not read the consent forms and was not told by the nurse that Dr. Devine was not an employee of the hospital. In Paramount Nat. Life Ins. Co. v. Williams,, 772 S.W.2d at 262, cited in this dissenting opinion, this court held a disclaimer in a document was insufficient to negate the apparent authority with which an insurance company had clothed its agent. This court noted that it was unreasonable to expect a sixty-four year old uneducated woman to understand the limitation on the agent’s authority in that instance. Id.
In Clark v. Southview Hospital & Family Health Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46 (1994), the court stated:
The plaintiff, who by definition is injured and under stress, is relying upon the hospital to provide the services that the hospi*51tal has held out that it can provide. The plaintiffs reliance upon the hospital’s competence has been demonstrated by her walking (or being wheeled) into the emergency room. Simply informing her that some doctors and staff have a different technical relationship with the hospital than the one she expected does not lessen the reasonableness of her reliance upon the hospital. Even if the patient understood the difference between an employee and an independent-contractor relationship, informing her of the nature of the relationship after she arrives is too late. The purpose of any notice requirement is to impart knowledge sufficient to enable the plaintiff to exercise an informed choice.
Id. at 54 n. 1 (cited in part in Sampson, 940 S.W.2d at 135).
Similarly, I would find that the nature of the circumstances under which Elizabeth sought emergency services coupled with her statement that she did not read the consent forms were sufficient to raise a question of fact as to whether Elizabeth was in a position to comprehend the terms of the hospital forms. See also Beeck v. Tucson Gen. Hosp., 500 P.2d at 1159; Capan v. Divine Providence Hosp., 287 Pa.Super. 364, 430 A.2d 647, 649 (1980) (stating “It would be absurd to require ... a patient to ... inquire of each person who treated [the patient] whether he is an employee of the hospital or an independent contractor”).
In order to defeat appellees’ motion for summary judgment, Elizabeth was required to produce sufficient summary judgment evidence to raise an issue of fact as to each element of her claim of ostensible agency. Elizabeth had to raise a fact issue that: (1) she had a reasonable belief in Dr. Devine’s authority; (2) her belief must have been generated by some holding out by act or neglect of the hospital; and (3) she must have justifiably relied on the representation of authority. Lopez v. Central Plains Regional Hosp., 859 S.W.2d 600, 605 (Tex. App.—Amarillo 1993, no writ). Elizabeth testified she was in pain, that her baby was coming, and she was told by the nurse that Dr. Devine was the only doctor who was delivering babies, and she thought he worked for the hospital. The hospital did not controvert this statement, therefore, the summary judgment evidence was sufficient to raise an issue of fact as to whether Elizabeth had a reasonable belief that Dr. Devine, as the agent of the hospital, had authority. The fact that the nurse told her Dr. Devine was the only doctor that could deliver her baby, which was not controverted by the hospital, raised a fact issue of some “holding out by act or neglect of the [ostensible] principal.” Elizabeth was in labor had no choice under the circumstances as to a doctor or another hospital to tend to her emergency situation. Elizabeth presented a fact issue that she “justifiably relied on the representation of authority” by the hospital. Elizabeth raised material issues of fact on all the elements of ostensible agency of Dr. Devine and the vicarious liability of the hospital. I would sustain appellants’ point of error, reverse the judgment of the trial court, and remand this case for trial.