Renaissance Medical Foundation v. Rebecca Lugo, Individually and as Next Friend of I.B.

Supreme Court of Texas
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No. 23-0607
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Renaissance Medical Foundation,
Petitioner,

v.

Rebecca Lugo, Individually and as Next Friend of I.B.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════

JUSTICE BLAND, joined by Chief Justice Blacklock and Justice
Devine, concurring.

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

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
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.

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.

3
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

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.”).

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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

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.

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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]

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.

6
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

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.”).

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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

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.

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“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

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.)).

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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

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).

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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

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

11
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

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.

12
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.

Jane N. Bland
Justice

OPINION FILED: May 23, 2025

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.”).

13