Independent Medical Judgment and Vicarious Liability: The Texas Supreme Court’s Framework for Nonprofit Health Organizations

Commentary on Renaissance Medical Foundation v. Lugo, No. 23-0607, Supreme Court of Texas, opinion by Justice Busby (May 23, 2025), on permissive interlocutory appeal from the Thirteenth Court of Appeals (Corpus Christi–Edinburg).

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I. Introduction

This decision addresses a question at the intersection of medical malpractice, corporate practice of medicine restrictions, and vicarious liability: to what extent can a nonprofit health organization (NPHO) be held vicariously liable for the negligence of its employed physicians, given that Texas law both (1) allows such entities to employ physicians and (2) forbids them from interfering with those physicians’ independent professional judgment?

The case arises from a catastrophic injury to a child, I.B., during brain surgery. Her mother, Rebecca Lugo, sued Dr. Michael Burke (the neurosurgeon), Doctors Hospital at Renaissance (the hospital), and Renaissance Medical Foundation (the NPHO that employed Dr. Burke, referred to as “the Practice” in the opinion).

The key legal dispute on interlocutory appeal was narrow but important: Can an NPHO, which is statutorily barred from interfering with or controlling a physician’s professional judgment, nonetheless be held vicariously liable under common-law respondeat superior for that physician’s malpractice? If so, what are the limits of that liability?

The Texas Supreme Court answers:

• Yes, NPHOs can be vicariously liable for physician-employee malpractice, notwithstanding statutory protections for independent medical judgment and the rule that only individuals may be licensed to practice medicine.
• But the scope of that vicarious liability is narrowed by statute: an NPHO may not be held vicariously liable for negligent acts or omissions where exercising its right of control over those acts would interfere with the physician’s independent medical judgment.

Because Renaissance Medical Foundation did not conclusively show that any control it might have exercised over the alleged negligence would necessarily have interfered with Dr. Burke’s independent medical judgment, the Court affirmed the denial of its traditional motion for summary judgment and remanded.

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II. Summary of the Opinion

A. Factual Background

• Renaissance Medical Foundation is a nonprofit health organization (NPHO) organized under Texas Occupations Code § 162.001, allowed to employ physicians to deliver health care.
• The Practice employed neurosurgeon Dr. Michael Burke under an employment agreement requiring him:
  • to provide professional medical services to the Practice’s patients,
  • at specified locations “as directed” by the Practice,
  • and “in accordance with [the Practice’s] protocols, policies and procedures.”
  • It also stated that Dr. Burke “shall retain the right to exercise [his] independent medical judgment” in providing care.
• Lugo brought her young daughter to Doctors Hospital at Renaissance for brain surgery performed by Dr. Burke. After the surgery, the child suffered permanent neurological damage.
• Dr. Burke later told Lugo he believed a retractor used in surgery migrated into the brainstem, causing injury. Lugo alleges the migration occurred when:
  • the retractor was contacted by Dr. Burke, or
  • by the surgical technician, or
  • by a suction device or tubing as it was handed to Dr. Burke.
• Lugo sued:
  • Dr. Burke for negligent surgical performance (improper placement, failure to secure, failure to monitor, allowing retractor to migrate, etc.);
  • the Hospital for vicarious liability for its surgical technician; and
  • the Practice for vicarious liability for Dr. Burke’s negligence, alleging he acted within the course and scope of his employment by the Practice.

B. Procedural History

• The Practice filed a traditional motion for summary judgment, arguing it could not be vicariously liable as a matter of law because:
  • it is prohibited from practicing medicine and from controlling physicians’ professional judgment;
  • it did not control Dr. Burke’s medical care; and
  • Dr. Burke was, for purposes of medical care, an independent contractor.
• The trial court denied the motion, holding the employment agreement gave the Practice sufficient right of control to support vicarious liability even though Dr. Burke retained independent medical judgment.
• Recognizing the legal significance of the issue, the trial court granted a permissive interlocutory appeal.
• The Thirteenth Court of Appeals affirmed, concluding that under traditional common-law factors, Dr. Burke was an employee of the Practice and was acting within the scope of that employment.
• The Supreme Court of Texas granted the Practice’s petition for review.

C. Holdings

The Supreme Court’s principal holdings are:

1. Licensing and independent judgment statutes do not abolish vicarious liability.
   The facts that:
   • only individuals can be licensed to practice medicine (Tex. Occ. Code § 155.001), and
   • employed physicians “retain independent medical judgment” (id. § 162.0023)
   do not by themselves eliminate common-law employer liability for physician employees. This is consistent with prior precedent (St. Joseph Hosp. v. Wolff; Murk v. Scheele).
2. However, § 162.0021 narrows an NPHO’s right of control, and thus narrows its vicarious liability.
   Under Texas Occupations Code § 162.0021, 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.”
   Because vicarious liability turns on the employer’s right of control, and the statute restricts that right, an NPHO cannot be vicariously liable when exercising control over the alleged negligent act would intrude on the physician’s independent medical judgment.
3. New framework: an NPHO’s vicarious liability depends on whether lawful control could be exercised over the alleged negligence.
   When a plaintiff sues an NPHO for physician malpractice:
   • The usual question—did the employer have the right to control the “progress, details, and methods” of the work—remains central; but
   • It must be applied with statutory overlay: can the NPHO for this type of act or omission lawfully exercise control without interfering with independent medical judgment?
   If the answer is no, vicarious liability is barred; if yes, vicarious liability remains available.
4. Policies and procedures support both direct and vicarious theories, but they play different roles.
   The statute requires NPHOs to adopt policies that ensure physician independent judgment and quality assurance (§ 162.0022). Failure to adopt or enforce reasonable policies may expose the NPHO to direct liability. But the existence and content of policies also inform whether the NPHO had a right of control over specific physician conduct for vicarious liability purposes. These are distinct legal theories.
5. The Practice did not carry its burden on traditional summary judgment.
   Because the Practice’s motion was purely legal and premised on a too-broad proposition (that NPHOs can never be vicariously liable for physician medical care), it did not:
   • negate that it held some right of control over Dr. Burke’s allegedly negligent acts, and
   • show that exercising any such control would have interfered with his independent medical judgment.
   It therefore failed to conclusively negate an essential element of Lugo’s vicarious liability claim, and the denial of summary judgment was affirmed.

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III. Detailed Analysis

A. Statutory and Common-Law Background

1. Corporate Practice of Medicine and the Advent of NPHOs

Under the Texas Medical Practice Act, practicing medicine without a license is prohibited, and only a “person” (defined to mean an individual) may receive a medical license (Tex. Occ. Code §§ 151.002(a)(11), 155.001). Historically, this gave rise to the corporate practice of medicine doctrine, under which corporations were barred from practicing medicine and from directly employing physicians for medical services, in order to prevent:

In 1999, the Legislature loosened that regime by authorizing certain entities to employ physicians without constituting unlicensed practice of medicine. One such entity is the nonprofit health organization under Texas Occupations Code § 162.001.

Key features of NPHOs:

• Must be a nonprofit corporation organized solely by physicians licensed by the Texas Medical Board;
• Directors and trustees must be licensed physicians actively practicing medicine;
• Must be certified by the Texas Medical Board under § 162.001(b);
• May choose either to contract with or to employ physicians.

But the statute imposes important constraints:

• § 162.0021: 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.”
• § 162.0022(a): NPHOs must “adopt, maintain, and enforce policies to ensure that a physician employed by the health organization exercises independent medical judgment when providing care to patients.”
• § 162.0022(b)(2): Policies must include “quality assurance” provisions.
• § 162.0022(d): Policies must “reserve[] the sole authority to engage in the practice of medicine to a physician.”
• § 162.0023: Employed physicians “retain independent medical judgment in providing care to patients,” and NPHOs may not discipline a physician for reasonably advocating for patient care.
• § 162.0024(a): These statutory requirements “may not be voided or waived by contract.”

Thus, the Legislature created a hybrid structure: NPHOs may employ physicians and run a practice as an enterprise, but they may not intrude on physicians’ professional judgment.

2. Common-Law Vicarious Liability and the Right-to-Control Test

Texas common law distinguishes between employees and independent contractors. An employer is generally vicariously liable for an employee’s torts committed within the course and scope of employment, but not for the negligence of independent contractors.

The “supreme test” of an employer–employee relationship is the right to control the details of the work:

Right of control may be shown either by:

• Express contract terms, or
• Actual exercise of control in practice (Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004)).

Texas courts commonly consider five nonexclusive factors (from McNamara) when control is based on contract:

1. The independent nature of the worker’s business;
2. Who furnishes tools, supplies, and materials;
3. Who controls the progress of the work (beyond just final results);
4. The length of employment; and
5. The method of payment (time-based vs. by the job).

In the hospital context, Texas cases have long recognized that physicians can be employees (with resulting vicarious liability) even though they exercise professional judgment. And in borrowed employee situations, a “general employer” can avoid vicarious liability if another entity has taken over control of the worker’s activities.

B. Precedents Cited and Their Role in the Decision

1. St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002)

In Wolff, the Court confronted an argument similar to one made by the Practice here: that because a corporation cannot itself be licensed to practice medicine, it cannot “direct the details of work” of a physician, and hence cannot be vicariously liable as an employer for malpractice.

The Court rejected that argument, relying in part on the Restatement (Second) of Agency § 220 comment i:

Thus, even if an employment relationship was technically “improper,” the hospital could still be vicariously liable if, in fact, it functioned as the physician’s employer and had the right of control. Wolff therefore undercuts the idea that corporate practice restrictions automatically negate employer status or vicarious liability.

2. Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003)

Murk involved a physician employed at a public hospital. Under the Texas Tort Claims Act, governmental units are liable for their “employees” but immune for acts of independent contractors, with special election-of-remedies rules (Civ. Prac. & Rem. Code § 101.106).

The hospital argued that the physician, by exercising “independent professional judgment,” operated outside its right of control and thus was not an “employee” for Act purposes. The Court squarely rejected this:

The Court reaffirmed that the necessity of independent medical judgment does not, by itself, vitiate the employer’s right of control. That logic carries over here: an NPHO-physician relationship can be an employment relationship despite the physician’s professional autonomy.

Later cases, such as Marino v. Lenoir, 526 S.W.3d 403 (Tex. 2017), and Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12 (Tex. 2024), confirm that the Tort Claims Act’s “employee” definition largely tracks common-law principles for employee/independent contractor status.

3. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018)

Painter is central to the debate over whether courts can engage in a task-specific control analysis. There, the Court rejected an approach that would “isolate[] the task the worker was performing at the moment of the accident and [conduct] an independent evaluation of the employer’s control with respect to that particular task,” calling it “unworkable” because an employee’s status could oscillate constantly over the course of a single day.

The majority in Renaissance Medical distinguishes Painter by emphasizing that NPHOs operate in a statutorily modified environment: their right of control is legally limited in a way not present in typical employment relationships. Thus, some degree of task-focused analysis—specifically directed at whether control would impinge on independent judgment—is unavoidable when applying § 162.0021.

4. Tex. Workers’ Comp. Ins. Fund v. DEL Industries, Inc., 35 S.W.3d 591 (Tex. 2000)

In DEL Industries, the Court construed the former Staff Leasing Services Act, which provided that staff leasing companies retained the right to direct and control leased employees and had the exclusive right to elect workers’ compensation coverage for them. The Court held that the statute:

Renaissance Medical relies on DEL Industries to illustrate that statutes can override or reshape common-law control analyses in specific industries. Just as the Staff Leasing Act reallocated “employer” status for workers’ comp purposes, Chapter 162 narrows the NPHO’s right of control for vicarious liability purposes.

5. Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex. 1993)

In Tidwell, the plaintiff was an employee of a service-station lessee injured by third-party criminal conduct. The question was whether Exxon, the oil company landlord, owed a duty to protect him. Because of the “hybrid” interplay of agency and landlord-tenant law, the Court held that the duty analysis must focus on:

rather than on general operational control.

The majority analogizes this to NPHOs: in this specialized regulatory context, courts must look at control over the particular aspect of the physician’s work that allegedly caused the patient’s injury—specifically, whether it is part of independent medical judgment or within a sphere that can be lawfully directed by the NPHO.

6. Restatement (Third) of Torts: Medical Malpractice § 15

The Court also notes the alignment of its approach with the newly approved Restatement (Third) of Torts: Medical Malpractice § 15. That Restatement:

• Recognizes vicarious liability of medical institutions for their employee physicians, using a familiar “right to control manner and means of work” test; and
• Clarifies that the expectation of professional autonomy does not eliminate respondeat superior liability; rather, liability reflects other elements of control inherent in employment.

This supports the Court’s insistence that independent medical judgment and vicarious liability can coexist.

7. Other Authorities

The opinion also references:

• Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b):
  • Criminalizes payment to induce referrals of services reimbursed by federal programs;
  • But exempts “any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment” in providing covered services.
  • The Practice relies on this “bona fide employment” safe harbor; if it asserted in federal proceedings that Dr. Burke is its employee for safe-harbor purposes, it cuts against denying an employment relationship for state tort liability.
• Recent Texas medical-malpractice decisions about policies and protocols, including:
  • Bush v. Columbia Med. Ctr. (Tex. May 23, 2025) (policies can guide care without unlawfully directing professional judgment);
  • Marsillo v. Dunnick, 683 S.W.3d 387 (Tex. 2024) (guidelines as frameworks facilitating clinical judgment);
  • Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (distinguishing direct from vicarious liability and the different operative facts each requires).

C. The Court’s Legal Reasoning

1. Rejecting the “No-Vicarious-Liability” Argument

The Practice argued that because:

• only individuals may practice medicine; and
• employed physicians must retain independent medical judgment;

it had no right to control Dr. Burke’s medical care, and thus could not be his “employer” for vicarious liability purposes.

The Court rejected this on two fronts:

• Licensing limitation is regulatory, not definitional.
  The fact that only natural persons can hold a medical license does not prevent a corporation from factually employing a physician and exerting control. This is settled by Wolff and the Restatement (Second) of Agency: statutory prohibitions don’t make the factual relationship impossible.
• Independent judgment does not negate employer status.
  As Murk established, a physician can be an employee even though she must exercise independent medical judgment; those professional decisions don’t exhaust the employer–employee relationship and don’t nullify the employer’s control over other aspects of the work.

The Court therefore reiterates that employing a physician and respecting her professional judgment are not mutually exclusive and that those attributes alone do not immunize an entity from common-law vicarious liability.

2. How § 162.0021 Narrows the Right of Control

The real pivot point is § 162.0021 (NPHOs “may not interfere with, control, or otherwise direct a physician’s professional judgment”).

This does not completely strip NPHOs of control, because:

• The statute simultaneously requires NPHOs to adopt and enforce quality-assurance and independence-protecting policies (§ 162.0022); and
• It contemplates that NPHOs operate as employers—using the term “employ”—which has a settled common-law meaning that carries an inherent element of control absent contrary text.

However, § 162.0021 does narrow the sphere of permissible control. The Court reads the statute as carving out a domain of physician activity—“professional judgment” and “independent medical judgment”—over which the NPHO may not exert control.

Because vicarious liability is anchored in the employer’s right to control “the progress, details, and methods” of the work, any statutory curtailment of that right correspondingly curtails vicarious liability. The Court thus reasons:

3. The New Two-Part Inquiry for NPHO Vicarious Liability

The majority distills the following framework for determining when an NPHO can be held vicariously liable for a physician-employee’s alleged negligence:

1. Right of control over the alleged negligent act or omission
   Did the NPHO, by contract or actual practice, have a right to control the particular type of act or omission that allegedly caused the injury?
   
   Evidence may include:
   • Employment agreements (e.g., requiring the physician to follow protocols, specifying practice locations, hours, and procedures);
   • Policies and procedures, including quality-assurance protocols; and
   • Evidence of how the organization actually operated (if at issue).
2. Compatibility with independent medical judgment
   Would exercising that right of control over the alleged negligent act interfere with the physician’s independent medical or professional judgment?
   
   If exercising control would necessarily impinge on independent judgment, then:
   • § 162.0021 forbids the NPHO from exercising such control; and
   • vicarious liability is unavailable for that alleged negligence.
   If the NPHO could exercise control without interfering with independent judgment (e.g., through administrative, safety, or quality processes that leave clinical decision-making intact), then vicarious liability remains available under common law.

Importantly, “professional judgment” is not coextensive with every act a physician performs. Some tasks in medical practice—such as compliance with checklists, equipment count protocols, basic safety measures—can plausibly be standardized without dictating clinical choices. The Court signals that NPHOs may maintain policies in these domains that both support independent judgment and provide a basis for employer control.

4. Policies and Procedures: Direct vs. Vicarious Liability

The Court draws a careful distinction:

• A claim that an NPHO failed to adopt or enforce adequate policies is a theory of direct negligence (the NPHO’s own wrongful conduct). It requires proof that different or better policies, in reasonable medical probability, would have averted the injury while respecting independent judgment.
• By contrast, a claim that the NPHO is liable for the physician’s negligent act or omission is vicarious—it turns on whether the physician was an employee and whether that act was within the scope of employment subject to a lawful right of control.

Policies matter in both contexts but for different reasons: they are the operative conduct in direct-liability claims and a source of evidence about control in vicarious-liability claims.

5. The Procedural Dimension: Summary Judgment Burdens

Because this case comes on a defendant’s traditional summary judgment motion, procedure matters. In Texas, a defendant moving for traditional summary judgment must conclusively negate at least one essential element of the plaintiff’s cause of action.

Lugo alleged:

• Dr. Burke was employed by the Practice;
• He was acting within the scope of that employment in performing the surgery; and
• The Practice was therefore vicariously liable for his negligence.

Under the Court’s statutory overlay, an element of that vicarious liability theory is that the Practice had a lawful right of control (consistent with § 162.0021) over the type of act or omission alleged (e.g., securing and monitoring the retractor).

The Practice, to win summary judgment, had to conclusively show either:

• it had no right of control whatsoever over the relevant conduct; or
• even if it otherwise might have had control under common law, any such control in this situation would necessarily interfere with independent medical judgment, making liability impermissible under § 162.0021.

Because the Practice’s motion was limited to broad legal assertions (no vicarious liability for medical care as a category) and stipulated that no fact issues were presented, it did not make the factual and legal showing the Court now deems necessary. Thus, it did not carry its summary judgment burden.

(As the Court notes, a different analysis might apply under a no-evidence summary judgment, where the defendant points to the absence of evidence on an element and the plaintiff must produce some evidence raising a genuine fact issue. This case involved only a traditional motion.)

D. Application to the Facts of Renaissance Medical Foundation v. Lugo

The Court first agrees with the court of appeals that, under traditional McNamara factors, Dr. Burke is the Practice’s employee:

• The Practice supplied the tools, supplies, and materials for his work;
• Required at least a 40-hour workweek;
• Paid him a regular salary;
• Controlled where he practiced and could change his practice sites; and
• Required him to practice “as directed” and in accordance with its “protocols, policies and procedures.”

The employment agreement’s provision that Dr. Burke “shall retain the right to exercise independent medical judgment” does not, under Murk, negate his status as an employee. Nor can the parties by contract override the statutory scheme: § 162.0024 expressly forbids waiver of the Act’s protections.

The Practice, however, did not structure its motion or summary judgment record around the now-articulated statutory test:

• It did not identify the specific alleged negligent acts (e.g., failure to secure or monitor the retractor) and argue that those acts were pure exercises of independent medical judgment.
• It did not show that any policy-based or administrative control over such acts would necessarily have intruded on professional judgment.
• It did not supply evidence (or even a developed record) about the actual content of its protocols, policies, and procedures governing neurosurgical equipment setup, securing retractors, or intraoperative monitoring.

Having staked everything on the general proposition that NPHOs are categorically immune from vicarious liability for physician medical care, the Practice could not prevail once the Court clarified that some vicarious liability remains possible in areas of lawful control.

Accordingly, the Court:

• Affirms the court of appeals’ judgment (which upheld the trial court’s denial of summary judgment); and
• Remands to the trial court for further proceedings, expressly noting that the Practice may file a new summary judgment motion under the clarified standard.

E. The Concurrence: Points of Disagreement

Justice Bland, joined by Chief Justice Blacklock and Justice Devine, concurs in the judgment but writes separately. Based on the majority’s characterization of the concurrence, we can identify several themes:

• Preservation and Fair Notice
  The concurrence contends that the Practice did not adequately apprise Lugo in the trial court of the argument on which the majority now relies. Under Texas summary judgment law, a motion must stand or fall on the grounds it explicitly raises. The majority responds that the statute-based argument was a “subsidiary question” fairly included in the Practice’s assertion that it had no right to control Dr. Burke’s medical work.
• Scope of Vicarious Liability
  The concurrence asserts that:
  “Vicarious liability claims against [NPHOs] that allege a physician's medical judgment caused the patient's injury ... have no merit absent allegations of unlawful interference.”
  The majority disagrees, explaining that vicarious liability remains possible where the alleged negligence involves tasks over which the NPHO can lawfully exercise control without interfering with medical judgment (e.g., certain safety or quality-assurance measures).
• Policies and Causation
  The concurrence emphasizes that NPHOs cannot be vicariously liable for physician negligence based on allegedly deficient policies; those are direct-liability claims and must meet usual causation requirements. The majority explicitly agrees with this distinction and notes that its analysis of policies responds to arguments the parties themselves raised.
• Summary Judgment Burdens
  The concurrence criticizes the majority for effectively requiring an NPHO moving for summary judgment to prove a negative—namely, that any control it could have exercised over the alleged negligence would have interfered with independent medical judgment. It views this as forcing the defendant to rebut potential, unpleaded theories of liability.
  The majority responds that, once the plaintiff has alleged an employment relationship and vicarious liability, the defendant must negate the element of lawful right of control, which under the statute necessarily includes the interference inquiry.

This divergence highlights the tension between:

• A narrower approach (concurrence): vicarious liability only where the NPHO unlawfully interferes with professional judgment (which itself would be a separate wrong); and
• The majority’s approach: vicarious liability wherever there is a lawful right of control over the negligent conduct, even if that conduct involves a physician, but subject to a statutory carve-out for independent judgment.

The majority opinion controls and provides the governing framework, but the concurrence may influence how lower courts structure and evaluate summary judgment practice in this area.

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IV. Complex Concepts Simplified

1. Vicarious Liability / Respondeat Superior

Vicarious liability (Latin: “let the superior answer”) holds an employer responsible for torts committed by an employee acting within the course and scope of employment, even though the employer did nothing wrong personally. The foundation is the employer’s right to direct and control the work.

2. Employee vs. Independent Contractor

An employee works under the employer’s right to control the details of the work. An independent contractor is hired to achieve a result but decides independently how to do the job.

Texas courts look at various factors (who supplies tools, method of payment, duration of work, etc.), but the core remains: who has the right to control the manner and means of the work?

3. Corporate Practice of Medicine

The corporate practice of medicine doctrine stems from laws that only individuals may be licensed to practice medicine. Historically, this meant non-physician-owned corporations could not hire doctors to provide medical care on their behalf, to prevent lay business interests from overriding professional judgment.

The Legislature has created exceptions—like NPHOs—that allow employment of physicians under strict conditions designed to preserve physicians’ independent clinical decision-making.

4. Nonprofit Health Organizations (NPHOs)

An NPHO is a special type of nonprofit corporation:

• Formed and controlled by licensed physicians;
• Certified by the Texas Medical Board;
• Authorized to employ physicians to deliver health care; but
• Barred from interfering with physicians’ professional judgment and required to adopt policies safeguarding independent judgment and quality care.

5. Independent Medical (or Professional) Judgment

This refers to the physician’s own professional decision-making about diagnosis, treatment options, and the specific care plan for a patient. It must be free from pressure by non-physicians to choose cheaper, faster, or more profitable (but clinically inferior) options.

The statute ensures that physicians employed by NPHOs remain, in this sense, professionally autonomous, even if they are economically dependent on the organization.

6. Summary Judgment (Traditional vs. No-Evidence)

• Traditional summary judgment (like in this case) requires the moving party to produce evidence that conclusively negates an essential element of the opponent’s claim or proves an affirmative defense as a matter of law.
• No-evidence summary judgment allows a party (typically the defendant) to assert there is no evidence on one or more essential elements of the opponent’s claim; the burden then shifts to the non-movant to produce at least a scintilla of evidence raising a fact issue.

7. Direct vs. Vicarious Liability

Direct liability is based on the defendant’s own misconduct (e.g., negligent hiring, negligent policy design). Vicarious liability is based solely on the misconduct of the defendant’s agent or employee (e.g., physician malpractice), attributable to the defendant because of the employment relationship.

The facts and elements necessary to prove each theory differ, and they must be analyzed separately.

8. Permissive Interlocutory Appeal

Normally, parties can appeal only from a final judgment. A permissive interlocutory appeal allows an appellate court to review a key legal ruling (like denial of summary judgment) mid-case if:

• The trial court certifies it involves a controlling question of law; and
• Immediate review may materially advance the ultimate termination of the litigation.

Here, the trial court certified that resolving whether the Practice could be vicariously liable would significantly narrow the trial and pretrial discovery, justifying an interlocutory appeal.

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V. Impact and Future Implications

A. For Medical Malpractice Litigation Involving NPHOs

This opinion reshapes how plaintiffs and defendants will approach suits involving NPHO-employed physicians.

• Pleading strategy for plaintiffs:
  • Simply alleging that the physician was an “employee” and committed malpractice within the scope of employment will no longer suffice.
  • Plaintiffs will be well advised to:
    • Identify specific acts or omissions (e.g., failure to follow a safety protocol, improper securing of equipment) as to which the NPHO could plausibly have a lawful right of control; and
    • Articulate why those acts fall outside the core of independent medical judgment or can be regulated through neutral protocols without dictating clinical choices.
• Discovery focus:
  • Contracts and policy manuals will assume heightened importance.
  • Parties will likely seek:
    • Employment agreements, job descriptions, and performance standards;
    • Clinical protocols, checklists, and quality-assurance policies (especially those applicable to the procedure in question);
    • Evidence of how these policies are implemented in practice.
• Expert testimony:
  • Experts may be needed not only on the medical standard of care but also on which aspects of a procedure involve independent judgment versus standardized, controllable processes.
  • In a case like this, experts might parse whether:
    • initial placement of a brain retractor is pure medical judgment;
    • the physical securing or periodic checking of that retractor can be governed by organizational protocols without undermining professional judgment.
• Summary judgment practice:
  • NPHOs will increasingly move for summary judgment arguing that the alleged negligence is inseparable from independent medical judgment and hence outside any lawful right of control.
  • To defeat such motions, plaintiffs will need evidence (or at least a well-grounded argument) that the alleged misconduct lies in a domain where structured, non-interfering control is feasible (e.g., safety protocols).

B. For NPHO Governance and Risk Management

The decision creates simultaneously:

• An incentive to clarify and document the boundaries between:
  • Physicians’ protected independent clinical judgment; and
  • Organizational policies on safety, quality, staffing, and equipment management.
• A risk that organizations might overcorrect—either:
  • By under-regulating, to avoid any appearance of controlling medical judgment (potentially compromising patient safety and creating direct negligence exposure); or
  • By over-regulating, risking accusations of interfering with professional judgment or expanding the zone of actionable control.

Because § 162.0022 affirmatively requires NPHOs to adopt quality-assurance policies, they cannot avoid risk by abstaining from policymaking. Instead, NPHOs should aim for:

• Well-drafted, clinically informed protocols that:
  • Promote patient safety,
  • Provide default procedures and checklists, but
  • Expressly defer to physician judgment when warranted.
• Clear contractual language that:
  • Recognizes the physician’s independent medical judgment; and
  • Explains the organization’s expectations about following policies, reporting safety issues, and participating in quality-assurance programs.

C. For the Corporate Practice of Medicine Doctrine

Renaissance Medical both reaffirms and refines the corporate practice of medicine doctrine:

• Reaffirms:
  • The fact that an entity cannot be licensed to practice medicine does not prevent it from factually employing physicians and being vicariously liable under common law.
  • Independent medical judgment is compatible with an employment relationship and vicarious liability (following Wolff and Murk).
• Refines, in the specific context of NPHOs:
  • The Legislature has drawn a statutory line around “professional judgment,” forbidding organizational control in that zone.
  • As a byproduct, vicarious liability is narrowed to areas where organizational control can be exercised without intruding on that zone.

This reasoning may influence future disputes involving other statutorily authorized physician-employing entities (for example, certain physician practice organizations and academic medical centers), especially where statutes similarly reference independent judgment or bar corporate control over clinical decisions.

D. For Tort Doctrine and Statutory Interpretation

The opinion illustrates several broader points about Texas tort law and statutory interpretation:

• Statutes are read against the common-law backdrop: the Court presumes the Legislature knows the common law and uses familiar terms like “employ” in the same sense unless the text indicates otherwise.
• Targeted statutory modifications are respected: the Court is willing to reshape tort doctrines (here, the right-of-control test) where statutes demand it, much as it did in DEL Industries and Tidwell.
• Restatement (Third) influence: the Court’s reliance on the new Restatement (Third) of Torts: Medical Malpractice suggests openness to ALI formulations as persuasive authority in refining Texas medical negligence law.
• Separation of direct and vicarious theories: the Court continues to stress that direct and vicarious liability rest on distinct operative facts and must be analyzed separately, consistent with cases like Certified EMS v. Potts.

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VI. Conclusion

Renaissance Medical Foundation v. Lugo establishes an important and nuanced precedent in Texas law:

• Nonprofit health organizations may be vicariously liable for the negligence of their employed physicians under common-law respondeat superior, despite statutory assurances of physician independence and licensing rules restricting the practice of medicine to individuals.
• However, the scope of that vicarious liability is narrowed by Texas Occupations Code § 162.0021: an NPHO cannot be held vicariously liable for physician conduct where its exercising a right of control would interfere with the physician’s independent medical judgment.

The Court thus articulates a two-part inquiry: (1) Does the NPHO have a right of control over the allegedly negligent act or omission? (2) Can such control be lawfully exercised without infringing independent professional judgment? Only if both questions are answered in the plaintiff’s favor does traditional vicarious liability attach.

By rejecting categorical immunity for NPHOs and reaffirming St. Joseph Hospital v. Wolff and Murk v. Scheele, the Court maintains the core of Texas respondeat superior doctrine while tailoring it to accommodate a modern, statutorily structured health care entity. At the same time, the Court underscores that direct liability for policies and systems remains a distinct avenue of recovery, subject to its own proof requirements.

Practically, this opinion will recalibrate malpractice litigation involving NPHOs, focusing attention on where professional judgment ends and organizational control begins. That line will now be litigated more explicitly, shaping how NPHOs draft contracts, design policies, and manage their employed physicians. As future cases apply this framework to specific medical scenarios, the contours of “independent medical judgment” versus “controllable” aspects of practice will become more defined, further clarifying the balance between physician autonomy, corporate responsibility, and patient protection in Texas health care law.