Physician Impairment and Hospital Accountability in Texas: Discipline, Malpractice, and the Evidence Problem
Alexis Kane and Bruce Stekler
ISSUE 19 | SPRING 2026 | HEALTHCARE |
Abstract
Texas responds to the intersection of a physician’s impairment1 with patient injury by two separate systems: (1) a confidential, treatment-oriented regulatory pathway and (2) a litigation pathway governed by the Texas
Medical Liability Act (“TMLA”), codified in Chapter 74 of the Texas Civil Practice and Remedies Code.2 This Article explains how those systems interact and, just as importantly, how they do not. On the regulatory side, the Texas Medical Board (“TMB”) and the Texas Physician Health Program (“TXPHP”) emphasize early reporting and rehabilitation, operating under confidentiality rules that encourage intervention before patient harm occurs.3 On the civil liability side, Texas law imposes demanding procedural requirements and evidentiary restrictions that bar discovery of hospital peer review and the credentialing process.4 The result is a system that emphasizes physician and hospital self-regulation while forcing victims of impaired physicians to prove foreseeability and notice—and, for certain hospital theories, malice—while being denied access to many of the records most likely to establish institutional knowledge and accountability.5 This Article examines: (I) the available causes of action against impaired physicians and hospitals; (II) the statutory and doctrinal barriers that shape those claims; and (III) the procedural and evidentiary limitations that often determine outcomes in physician impairment cases.6
Introduction
Physician impairment sits at the intersection of two major public concerns: (i) confidential intervention that encourages early reporting, peer review, and rehabilitation, and (ii) accountability and compensation when patients are harmed.7 Although Texas law recognizes multiple causes of action arising from physician impairment, limits on hospital liability, together with Chapter 74’s procedural rules and peer review privilege, make it difficult for injured patients to prove hospital liability.8
This difficulty is not practical; it is structural. Texas has developed an approach that encourages physicians, hospitals, and colleagues to address impairment through confidential mechanisms before it results in patient harm.9 This approach includes licensure oversight and discipline through the TMB, treatment-oriented monitoring through the TXPHP, and internal hospital review processes that rely on candid reporting and evaluation.10 When physician impairment culminates in patient injury, however, the civil justice system asks a different set of questions focused less on rehabilitation and more on fault, deterrence, and compensation. In physician impairment cases, those questions turn on what the hospital knew about a physician’s fitness, what steps were available to the hospital to intervene, and whether the hospital’s privileging, supervision, or safety systems were adequate to protect patients from harm.11
Texas law contributes to these difficulties in three ways. First, legal precedent restricts when a hospital can be held responsible for a physician’s conduct and imposes heightened requirements for credentialing-based theories.12 Second, Chapter 74 requires plaintiffs to serve expert reports early in the litigation process, often before plaintiffs obtain any meaningful discovery while at the same time demanding expert reports addressing malice.13 Third, peer review privilege limits plaintiffs’ access to internal records likely to show the hospital’s notice of impairment and the institutional response.14 The practical result is that physician impairment cases turn on whether a plaintiff can access and present admissible evidence of hospital knowledge and decision-making, rather than on proof of the physician’s impairment alone.15
This Article proceeds in three Parts. Part I identifies the principal claims that may arise when physician impairment culminates in patient injury, distinguishing claims against the impaired physician from theories asserted against hospitals, including vicarious liability and direct institutional negligence, such as credentialing-based claims.16 Part II examines the statutory and doctrinal limits that shape—and often narrow—those claims, with particular attention to Texas rules governing hospital responsibility for physician conduct and the heightened standards applicable to certain hospital-liability theories.17 Part III explains the constraints that frequently determine outcomes in physician impairment cases, focusing on Chapter 74’s expert report regime and the practical consequences of peer review privilege, showing how these limitations affect a plaintiff’s ability to prove hospital knowledge, notice, and institutional fault.18
Part I. Causes of Action When Physician Impairment Results in Patient Injury
As a threshold matter, “impairment” is not an independent cause of action by itself; it is a factual condition that can bear on breach, culpability, notice, and foreseeability. Where the alleged injury arises from medical care, the claim will often be treated as a health care liability claim (“HCLC”) governed by Chapter 74 of the Texas Civil Practice and Remedies Code—regardless of whether the plaintiff labels the theory as negligence, negligent supervision, or some other tort.19 Therefore, the operative question in physician impairment litigation is not whether counsel can draft a tort label, but whether the plaintiff can plead and ultimately prove (1) a theory of hospital responsibility and (2) a hospital-specific breach and causation supported by the expert support and admissible evidence that Chapter 74 demands.20
A. Claims Against the Impaired Physician
1. Professional Negligence Within the Chapter 74 Framework
The core claim against an impaired physician is professional negligence. In order to prove a negligence claim, the plaintiff must show duty, breach of the applicable standard of care, causation, and damages—but impairment shapes how breach and causation are litigated. A plaintiff must show not only that the physician was impaired but that the physician’s care fell below the standard of care and that deviation caused the injury.21 In practice, impairment matters most as to (i) why the care was substandard and (ii) how the substandard care occurred in that manner. Physician impairment can suggest a breach in at least three recurring ways. First, it can explain departures from basic clinical safety practices (e.g., failures in monitoring, medication administration, procedural technique, charting, or response to changing clinical conditions). Second, it can make otherwise isolated missteps appear as a pattern within a single episode of care—repeated missed steps, unusual conduct, or inexplicable deviations that are difficult to reconcile with ordinary competent practice. Third, physician impairment can affect causation disputes where the defense argues the outcome was inevitable or attributable to the underlying condition rather than to the care provided.22 Physician impairment may also support a distinct breach framing: that a physician acted unreasonably by continuing to practice despite known impairment-related risks. Whether a plaintiff pleads that theory separately or uses physician impairment as proof supporting breach and exemplary damages23 will depend on the case posture, and the practical consequences of framing physician impairment as a distinct allegation rather than as evidence bearing on standard-of-care compliance and causation.
2. Regulatory Violations and “Negligence Per Se” Framing as Evidentiary Support
Plaintiffs often rely on regulations governing controlled substances, professional fitness, or reporting obligations to strengthen their breach narrative. In Texas medical negligence cases, these arguments serve as evidence of the applicable standard of care or a breach thereof, rather than as freestanding causes of action bypassing Chapter 74.24 In physician impairment cases, the primary value of these arguments is often rhetorical and contextual: the physician’s conduct is a departure from basic professional safety norms. Even so, plaintiffs must still present expert support establishing the medical standard of care, and a causal link between the alleged deviation and the injury.25
3. Exemplary Damages Theories Tied to Physician Impairment
Physician impairment cases are also where plaintiffs most predictably seek exemplary damages. The theory is straightforward: practicing while intoxicated, diverting controlled substances, or continuing to provide patient care while impaired, is more than ordinary inadvertence—it is conduct in conscious disregard of a substantial risk to patient safety.26
Exemplary damages, however, do not flow automatically from an impairment allegation. They require a heightened showing of culpability and proof. A plaintiff must present evidence that the physician appreciated the risk of continuing to practice and proceeded with conscious indifference to patient safety.27 In practice, plaintiffs attempt to satisfy this burden through combinations of: (i) objective signs of impairment (e.g., confirmed intoxication, drug screens, documented diversion); (ii) prior warnings, restrictions, or treatment/monitoring history; and (iii) contemporaneous clinical conduct reflecting an extreme deviation from basic safety measures. Ultimately, whether exemplary damages remain in the case depends on the quality of the proof and the admissibility constraints that frequently arise in physician impairment litigation.28 Although physician impairment is often framed as conscious indifference to patient safety, this does not replace the need to prove awareness of an extreme risk and conscious indifference.29
4. Informed Consent and Related Theories Where Physician Impairment Affects Disclosure
Physician impairment may intersect with informed consent disputes, for example, when impaired judgment affects the disclosure of risks, the selection of procedures, or intraoperative decision-making. These cases still require careful pleading and expert support and typically remain within the framework of Chapter 74.30 Physician impairment does not substitute for the elements of an informed consent claim; the plaintiff must still identify the undisclosed risk, the disclosure duty, and the causal link between the nondisclosure and the injury.31
B. Claims Against the Hospital: Two Paths, Two Problems
When an impaired physician injures a patient, plaintiffs sue the hospital for three reasons: hospitals are gatekeepers of privileges and clinical practice environments; institutional systems may enable or fail to prevent unsafe practice; and hospitals may offer greater collectability and insurance coverage. Texas law, however, distinguishes between (1) vicarious hospital liability for physician conduct and (2) direct hospital liability for its own acts or omissions.32
1. Vicarious Liability for Physician Negligence (respondeat superior/agency)
The first route is to hold the hospital liable for the physician’s negligence under vicarious liability33 or agency principles. This theory allows the plaintiff to litigate the physician’s breach and causation while naming the hospital as the financial defendant. The obstacle is structural: many physicians practice under arrangements that hospitals characterize as independent contracting, and Texas law is reluctant to impose vicarious liability absent a relationship that gives the hospital a meaningful right to control the physician’s work.34
A plaintiff pursuing vicarious liability must litigate the relationship as thoroughly as the negligence. That inquiry turns on employment status, contract terms, control mechanisms, supervision, scheduling, billing and branding, representations to patients, and Texas law’s limits on hospital control over independent medical judgment.35 For entities that may employ physicians but are prohibited from interfering with a physician’s professional judgment, employment alone may not establish vicarious liability for negligence within the protected sphere of clinical decision-making; the right-of-control analysis must account for the statutory limit on control.36 However, given the advent of hospitals providing more direction and/or control over physicians, the relationship should be evaluated carefully. If the hospital’s involvement in monitoring, discipline, or restrictions is substantial, a plaintiff may argue that the hospital exercised sufficient control to support vicarious liability or, at a minimum, assumed duties that support a direct-liability theory.37
2. Direct Liability for the Hospital’s Own Negligence (systems, policies, supervision, and safety controls)
The second route is direct hospital negligence—claims that the hospital itself acted unreasonably, regardless of whether the physician is an employee. Direct-liability theories center on operational failures that increase the risk of harm from an impaired practitioner, including:
Policy and protocol failures: inadequate safeguards in high-risk settings (e.g., operating rooms, anesthesia services, emergency departments); inadequate escalation policies when impairment is suspected; unclear reporting pathways; or failure to enforce drug diversion controls.
Supervision and monitoring failures: failure to monitor compliance with restrictions; failure to address observed red flags; or failure to respond appropriately to contemporaneous signs of impairment in clinical settings.
Staffing and environment claims: inadequate staffing, training, or command structure that prevents nurses or staff from escalating impairment concerns or stopping unsafe practice.
These claims are conceptually distinct from vicarious liability because they focus on hospital conduct rather than physician conduct. However, they present two recurring challenges in physician impairment litigation. First, they require expert testimony on the hospital’s standard of care and causation, particularly when the alleged failure is systemic rather than aphysical act.38 Second, proof often overlaps with peer review and credentialing materials that may be difficult to obtain, creating the evidentiary constraints addressed in Part III.39
3. Credentialing and Privileging Claims (the physician impairment-specific institutional theory)
Credentialing and privileging lie at the core of the question readers most readily ask: if a physician was unfit to practice safely, why was that physician allowed to treat patients in the hospital’s facilities? Plaintiffs commonly frame these claims as failures in screening, initial privileging, re-privileging, or responding to known fitness concerns. These claims often turn on whether the hospital had notice of the impairment (or red flags suggesting impairment), whether it had tools to restrict practice or require monitoring, and whether it acted appropriately, given the risk.40
In Texas, however, credentialing-based claims are not litigated as ordinary negligence claims. Texas doctrine imposes heightened requirements for holding hospitals liable for credentialing decisions. Credentialing disputes inevitably collide with peer-review confidentiality because privileging decisions are often processed through internal committees and evaluative structures.41 For that reason, credentialing-based theories are frequently the most intuitive to the public—and among the most difficult for plaintiffs to prove.42
4. Hybrid Theories: Negligent Undertaking and Assumed Duties
Some physician impairment cases also involve “hybrid” theories grounded in assumed duties. The plaintiff alleges that the hospital voluntarily undertook to monitor physician fitness, enforce restrictions, administer a compliance program, and operate diversion controls, and then negligently performed those duties.43 These theories are useful when a plaintiff can identify specific hospital commitments—written policies, compliance protocols, contractual monitoring duties, or programmatic oversight—because they help define a hospital-specific standard of care without relying exclusively on peer-review deliberations.44 The viability of these claims still turns on Chapter 74 classification45 and expert support, but they can provide a more concrete route to establishing institutional breach than broad assertions of generalized “hospital responsibility.”46
C. Practical Pleading Map: What Part I Sets Up for Parts II and III
Part I shows that Texas plaintiffs have multiple conceptual avenues: professional negligence against the physician; vicarious liability against the hospital; direct hospital negligence based on systems and supervision; and credentialing/privileging theories focused on institutional gatekeeping. However, a recurring constraint is that many of the most compelling hospital-centered theories—especially those requiring proof of notice, institutional response, or culpable credentialing—are precisely the theories most affected by Texas’s doctrinal narrowing and evidentiary restrictions.47 Part II, turns to the statutory and doctrinal barriers that shape which of these theories remain viable in practice. Part III then addresses the procedural and evidentiary rules that often determine whether a plaintiff can support a hospital theory with admissible evidence.48
Part II. Statutory and Doctrinal Barriers That Shape Hospital Liability in Physician Impairment Cases
Part II explains why the hospital-centered theories identified in Part I narrow significantly when Texas statutory and common law apply. The key point is not that Texas eliminates hospital liability altogether; rather, it channels hospital liability into a smaller set of theories that are harder to plead and prove and—because they turn on notice and institutional decision-making—more vulnerable to the evidentiary constraints addressed in Part III. Three barriers are especially consequential: (A) limits on vicarious liability grounded in relationship and control principles; (B) doctrinal narrowing of direct hospital negligence theories that risk collapsing into physician “medical judgment” claims; and (C) heightened requirements for credentialing and privilege-based claims.49
A. Doctrinal Limits on Vicarious Liability: Relationship, Control, and Independent Medical Judgment
1. The Threshold Problem: Many Physicians Are not Treated as Hospital Employees
As a practical matter, many physicians practice in hospitals under arrangements that the hospitals characterize as independent contracting rather than employment. That structure matters because respondeat superior requires more than the hospital’s status as a facility where care occurred; it requires a relationship that makes the hospital legally responsible for the physician’s torts committed within the course and scope of that relationship.50 Even where a physician is closely integrated into the hospital environment, Texas doctrine resists vicarious liability absent a legally meaningful “right to control” the physician’s work.51
For certain authorized physician-employing entities, the control inquiry is shaped by statute and by Lugo52: the entity may employ physicians yet “may not interfere with, control, or otherwise direct” their professional judgment, which can narrow vicarious liability for acts within independent medical judgment.53
In physician impairment cases, this creates a predictable defense: the hospital argues that—even if the physician was negligent and hospital personnel had concerns—the physician’s diagnosis and treatment decisions remained the physician’s own professional judgment, outside the hospital’s right of control.54 By contrast, plaintiffs who seek to hold the hospital and the impaired physician accountable must identify hospital employee or agent conduct that caused the injury; not merely point to the physician’s negligent conduct. Thus, plaintiffs seeking to hold the hospital liable must begin by pointing directly to the hospital employees’ or agents’ negligent conduct and ensure that the Chapter 74 expert report addresses that conduct.55
2. Policy-Based Claims and the Control Barrier in Physician Impairment Cases
Hospitals can impose operational policies—staffing, employee safety protocols, diversion controls, escalation pathways, and documentation systems—but Texas law draws a sharp line between actionable institutional negligence and attempts to impose vicarious liability for a physician’s clinical choices by reframing them as “policy.”56 After Lugo, the line is thinner for nonprofit health organizations: the entity can only be vicariously liable to the extent the alleged negligence falls within a sphere the entity may lawfully control (e.g., administrative or operational requirements) and not where liability would depend on control over independent medical judgment.57
B. Doctrinal Limits on Direct Hospital Negligence: Avoiding “Medical Judgment by Another Name”
Direct-liability theories—policy failures, supervision failures, and system defects—are often the focus of physician impairment litigation when vicarious liability is unavailable. Texas recognizes that hospitals can be directly liable for their own negligence, but Texas courts police the boundary between (i) actionable institutional negligence and (ii) claims that, in substance, ask the hospital to answer for a physician’s medical judgment.58
That boundary is especially important in physician impairment cases because the most intuitive story—“the hospital let this doctor practice”—overlaps with credentialing and peer-review activities. In Texas, credentialing decisions are processed through peer-review structures and statutes providing confidentiality and immunity protections for peer-review activity, absent malice. As a result, plaintiffs must frame direct hospital negligence in a way that (1) targets non-privileged, institution-level conduct (systems, staffing, diversion controls, escalation policies), and (2) can be proven without converting the case into a privileged credentialing/peer-review dispute.59
1. The Boundary Problem: When Does a “Policy” Claim Become a Medical Judgment Claim?
Hospitals can be directly liable for their own negligence, but Texas doctrine is cautious about claims that, in substance, ask a jury to decide which diagnostic or treatment protocol should have governed a physician’s clinical decision.60 A plaintiff, therefore, often frames the institutional theory through employee-level negligence: whether staff observed evidence of impairment, failed to escalate through required channels, or failed to follow patient-safety protocols that operate independently of diagnostic decision-making.61
Physician impairment cases raise the stakes of this boundary dispute. Plaintiffs often argue that a hospital’s systems, including its staff, should have prevented an impaired physician’s error through interventions or procedures such as drug diversion controls, escalation policies, supervision, or restrictions. Hospitals respond that the claim either (i) depends on privileged internal decision-making or (ii) attempts to make the hospital responsible for the physician’s clinical choices.62 For that reason, it is cleaner to pursue a claim grounded in hospital staff negligence—failure to recognize, document, and escalate impairment signals through required channels—rather than a claim that hinges on retrospective disagreement with a physician’s clinical decision-making.63
2. “Systems” Claims Are Viable In Theory, but Narrowed In Practice
Texas does not foreclose systems-based negligence, but such claims are treated as part of the credentialing process or peer review.64 Hospitals may have duties related to safe staffing, safe environments, and operational controls.65 The doctrinal barrier is that plaintiffs must define these duties with specificity, show that the hospital’s alleged breach is institutional—distinct from the physician’s exercise of medical judgment—and that it caused the injury.66 That specificity requirement becomes more stringent under Chapter 74’s expert-report framework (Part III), but the doctrinal boundary is already present at the merits level: direct hospital negligence must concern the hospital’s conduct, not merely how a physician practiced medicine within the hospital’s walls.67
3. Why Physician Impairment-focused Direct Claims Often Hinge on Notice
Many direct hospital negligence theories in physician impairment cases are, at their core, notice-and-response claims: hospital staff observed red flags, the institution had tools to respond, and the institution failed to act in a way that would have prevented harm.68 Texas doctrine does not categorically bar such claims, but it requires plaintiffs to prove (i) who knew what, (ii) when they knew it, (iii) whether that person’s knowledge is attributable to the hospital, and (iv) what institutional response was required under the applicable standard of care.69 These questions are doctrinally significant because they determine whether the alleged wrong is institutional negligence or an impermissible attempt to impute physician negligence to the hospital.70
C. Credentialing and Privileging Claims: Heightened Requirements as a Core Barrier
Credentialing and privileging claims most directly implicate the hospital’s gatekeeping function. In physician impairment cases, they are also most likely to conflict with the doctrine that limits institutional exposure.71
1. Credentialing-based Liability is Not Treated like Ordinary Negligence
The characterization of credentialing disputes as negligence claims — i.e., that a hospital “should not have granted privileges”—does not reflect how Texas law actually categorizes them.72 Texas law recognizes credentialing and peer-review activities as specialized functions that are protected by statutory immunities, confidentiality provisions, and procedural safeguards.73 These protections substantially limit when credentialing and privileging decisions give rise to hospital liability.74
2. Notice Is the Doctrinal Fulcrum, Not Merely an Evidentiary Detail
Credentialing and privileging liability turns on what decision-makers knew or had reason to know about physician risk at the relevant time.75 In physician impairment cases, that means proving: (i) documented red flags; (ii) prior restrictions or conditional privileges; (iii) internal incident patterns; (iv) complaints and investigations; and (v) institutional choices regarding monitoring and restrictions.76 Texas’s heightened credentialing requirements, therefore, elevate the importance of notice and culpability—and, correspondingly, the importance of uncovering the hospital’s internal knowledge and deliberations.77
3. Privileging Decisions Are Structurally Intertwined with Peer Review Processes
Credentialing and privileging are typically administered through committee structures and candid, protected deliberations.78 As a result, credentialing-based theories face a dual constraint: heightened doctrinal requirements at the merits level and robust confidentiality and privilege protections at the evidentiary level.79 This combination makes credentialing claims a central illustration of this Article’s thesis: Texas law may permit the theory in principle, but the legal architecture makes proving it exceptionally difficult in practice.80
D. Synthesis: How Part II Narrows the Hospital Theories Identified in Part I
Part I identified multiple routes to hospital liability: direct institutional negligence and credentialing/privileging-based theories. Part II shows how Texas doctrine narrows each route. Direct negligence claims are constrained by boundaries that prevent plaintiffs from repackaging a physician’s judgment as hospital fault or recasting a credentialing claim.81 Credentialing claims are constrained by heightened malice requirements.82 These doctrinal constraints set the stage for Part III, which explains how Chapter 74’s early procedural gatekeeping and peer review privilege often restrict access to the evidence needed to satisfy these narrowed theories.83
Part III. Procedural and Evidentiary Constraints That Often Determine Outcomes
Parts I and II identify the substantive theories available in physician impairment cases, and the doctrinal limits that narrow hospital exposure. Part III explains that, even when a plaintiff pleads a viable theory in principle, physician impairment cases often hinge on procedural and evidentiary issues rather than the merits. Chapter 74 front-loads expert support at a point when plaintiffs frequently lack access to hospital-specific facts.84 Simultaneously, Texas peer review privilege restricts discovery of internal materials most relevant to hospital notice, institutional response, and credentialing/privileging decisions—while credentialing-based theories may also require proof of malice.85 Together, these constraints can determine whether a hospital remains in the case long before a jury reaches the question of impairment.86
A. Chapter 74 Gatekeeping: The Expert Report Regime as Early Case-Dispositive Procedure
1. Function and Timing: Why the Expert Report Matters More Than in Ordinary Tort Litigation
Chapter 74 requires plaintiffs to serve expert reports that address the standard of care, breach, and causation for each defendant early in the case.87 In ordinary negligence litigation, plaintiffs rely on discovery to refine institutional theories and then marshal expert support later. Chapter 74 reverses that sequence: the plaintiff must commit to a theory of hospital fault—and support it with expert analysis—before discovery has fully revealed how the hospital structured oversight, what policies were in place, who had authority to act, and what warning signs existed.88
In physician impairment cases, this sequencing is especially consequential because hospital-centered theories commonly depend on internal information: credentialing history, restriction conditions, compliance monitoring, diversion controls, incident patterns, and the escalation of impairment concerns.89 The expert report regime thus operates as a procedural pressure point: plaintiffs must plead and support hospital-specific breach and causation at a stage when many of the institution’s most relevant facts are not yet accessible.90
2. Defendant-specific Demands: a Hospital Report is Not a Physician Report
Chapter 74 does not treat “the hospital” as a derivative defendant. An adequate report on the physician does not automatically establish the hospital’s liability. To prevail, the plaintiff’s report must define a hospital-specific standard of care, specify how the hospital breached that standard, and establish a causal link—showing that the hospital’s failure directly contributed to the injury rather than merely reiterating the physician’s negligence.91
This requirement shapes physician impairment litigation in two ways. First, it forces plaintiffs to identify the precise institutional failure (policy defect, monitoring failure, inadequate restriction enforcement, negligent undertaking, or credentialing/privileging fault) rather than relying on generalized assertions that the hospital “should have prevented” the harm.92 Second, it requires a plausible causal mechanism: how would the hospital’s required action have altered the clinical course and prevented the injury?93
3. Physician Impairment-specific Pleading Traps: Notice and Institutional Response Must Be Supported Early
Hospital liability theories in physician impairment cases hinge on notice and response: the hospital had information suggesting impairment, tools to intervene, and failed to act. The expert report regime effectively imposes that burden at the outset. Plaintiffs must provide sufficient factual support for the expert’s assertion that the hospital deviated from an institutional standard of care—often before notice evidence is developed through discovery.94
This dynamic is especially acute for credential and privilege-based theories. As Part II explains, these theories are already narrowed by a doctrine that elevates the significance of institutional knowledge and culpability.95 Chapter 74 requires the plaintiff to articulate and support that theory early, often before the plaintiff can access a decision-making record showing what credentialing actors knew, what restrictions were considered, and why privileges were granted or continued.96
4. The Structural Consequence: Front-loading Cost and Narrowing Viable Cases
The practical effect of the expert report regime is to shift costs, investigation, and expert involvement to the earliest stage of litigation.97 This can screen out claims that lack merit. However, in physician impairment cases, it can also screen out claims where the core barrier is not medical plausibility, but access to information. Specifically, cases where hospital-centered theories may be viable if plaintiffs could obtain the institutional facts needed to support them.98 In that sense, Chapter 74 does not merely regulate the timing of litigation; it shapes which physician impairment cases can be brought at all.99
B. The Peer Review Privilege: The Central Evidentiary Constraint in Hospital Physician Impairment Litigation
1. Scope: What Peer Review Privilege Typically Shields
Peer review privilege is designed to protect candid evaluation within hospitals. In practice, it shields internal committee materials and communications that assess physician competence, fitness, conduct, and the appropriateness of privileges.100 In physician impairment cases, this can include committee minutes, deliberations, investigative evaluations prepared for committee use, and internal recommendations regarding restriction, monitoring, or discipline.101
Privilege matters because hospital-centered physician impairment theories require proof of precisely what peer review processes were recorded: who raised concerns, what those concerns were, what the institution concluded about the risk of impairment, and what steps were taken (or rejected).102 When these materials are privileged, the plaintiff’s ability to prove hospital notice and response is significantly constrained.103
2. Why Privilege Matters Most When the Claim Requires Institutional Knowledge
Peer review privilege does not affect all theories equally. It is most consequential where the plaintiff must show hospital knowledge, culpability, or institutional decision-making—particularly in credentialing and privileging disputes and in notice-and-response theories premised on internal escalation.104 The privilege therefore interacts directly with the barriers described in Part II: Texas narrows hospital liability in ways that elevate the importance of notice and culpability, while the privilege restricts access to internal materials most likely to demonstrate those facts.105
3. No Easy Workaround: Discovery Strategy Must Anticipate Privilege from the Start
Since privilege may prevent access to the most direct internal record, plaintiffs cannot assume that peer review discovery will fill the gaps in physician impairment cases. Instead, they must pursue alternative proof strategies from the outset: identify non-privileged sources, locate external witnesses, and develop objective indicators that demonstrate notice and response without relying on privileged committee records.106 This reality is central to why physician impairment cases often become an “evidence problem”: the case may be conceptually viable, but its success depends on whether the critical institutional facts are discoverable.107
C. The “Original Source” Concept: What Plaintiffs Can Still Obtain
Peer review privilege does not render all information about physician impairment undiscoverable. A recurring principle in Texas discovery disputes is that information does not become privileged merely because it was reviewed by a peer review committee.108 Plaintiffs therefore attempt to reconstruct notice, patterns, and institutional response from records that exist independently of peer review.109
1. Common Categories of Non-privileged, “Original Source” Evidence
In physician impairment cases, plaintiffs often seek:
Medical records and clinical documentation created as part of patient care (e.g., progress notes and orders).110
Operational and compliance records maintained in the ordinary course (e.g., /timekeeping records, staffing assignments, badge-access logs where relevant).111
Pharmacy and medication control records that reflect dispensing and discrepancy patterns (e.g., narcotics logs, automated dispensing records, waste documentation).112
Human resources or employment materials, to the extent they exist outside peer review and are not otherwise protected.113
External communications and complaints made outside committee structures (e.g., reports to regulators, third-party complaints, communications with law enforcement, or communications with outside facilities).114
Publicly available criminal filings, disciplinary orders, or court records, where relevant to repeat-offender patterns.115
These records are powerful in physician impairment cases because they provide objective anchors—dates, patterns, and conduct—that support both breach and notice without relying on privileged deliberations.116
2. The Practical Limitation: “Original Source” Evidence Often Proves Facts Indirectly
The original-source route is real, but it is not a complete substitute for peer review records. Operational documents may reveal anomalies (e.g., unusual narcotics dispensing), but they do not show what credentialing decision-makers concluded about impairment or why privileges were continued.117 Similarly, witness testimony may establish observed red flags but not how those observations were escalated and processed within the institution.118 Plaintiffs must prove institutional knowledge indirectly—by stitching together objective records, witness accounts, and evidence to support a reasonable inference of notice and inadequate response.119
D. Notice, Foreseeability, and Attribution: The Proof Questions that Dominate Physician Impairment Cases
Even when plaintiffs identify non-privileged evidence of impairment signals, hospital liability often turns on whether those signals constitute legally significant notice to the institution.120
1. Foreseeability Depends on Recognizable Warning Signs, not Hindsight
Physician impairment litigation produces hindsight bias: once a physician’s impairment is revealed, earlier conduct can appear obviously suspicious. Texas liability analysis requires a more disciplined inquiry into which warning signs were reasonably recognizable at the time and whether a reasonable institution should have anticipated patient risk.121
2. Attribution: Whose Knowledge Counts as “Hospital Knowledge”?
A recurring proof problem is attribution. A staff nurse’s observation of unusual behavior may be relevant, but hospital liability often turns on whether the observation was communicated to individuals with authority to act and whether those individuals’ knowledge can be imputed to the hospital for liability purposes.122
3. The Cumulative Effect: The case Becomes About Access to Institutional Decision-making
Taken together, Chapter 74’s gatekeeping and peer-review privilege reshape physician impairment litigation into a dispute over institutional decision-making and availability of evidence. A plaintiff may prove physician impairment and physician negligence yet still fail to establish hospital liability if the legally relevant notice-and-response evidence is in privileged channels or cannot be attributed to the institution through accessible or available sources.123
E. Synthesis: Why Procedure and Evidence Often Decide Hospital Accountability
Part III completes the Article’s central account of the “evidence problem.” Part II describes how Texas doctrine narrows hospital liability by emphasizing notice, response, and culpable decision-making.124 Part III explains why plaintiffs often struggle to prove those heightened elements: Chapter 74 requires early, expert-supported specificity before plaintiffs have meaningful access to hospital facts, while the peer review privilege restricts access to internal records most likely to demonstrate institutional knowledge and response.125 The result is that hospital accountability in physician impairment cases is often determined not by whether impairment occurred but by whether the plaintiff can access and present admissible, non-privileged evidence linking the hospital to the risk and the injury.126
Conclusion
Physician impairment cases highlight a structural feature of Texas health law: the state promotes confidential intervention systems to identify and address impairment early, while imposing substantive, procedural, and evidentiary constraints that can make it difficult to hold hospitals accountable after patient harm.127 This Article has shown that Texas law creates multiple challenges in pursuing causes of action arising from physician impairment.128 Texas doctrine restricts hospital liability for physician conduct and imposes heightened requirements for certain hospital theories that place institutional knowledge and culpability at the center of the case.129 Those doctrinal limits intersect with Chapter 74’s front-loaded expert-report regime and peer-review privilege, which place the most probative evidence of hospital notice and internal response beyond the reach of civil discovery.130
The consequence is not that hospital liability is impossible in physician impairment cases, but that it is proof-dependent in a distinctive way: success often hinges on whether the plaintiff can build a record of hospital notice and decision-making from non-privileged sources, early enough to satisfy Chapter 74 and precise enough to fit within Texas’s narrowed liability pathways.131 That reality has practical implications for all participants. For plaintiffs, physician impairment litigation demands early investigation focused on original-source evidence—operational records, medication control logs, patient-care documentation, and witnesses outside peer-review channels—rather than reliance on committee deliberations that may never be discovered.132 For hospitals, the protections that support candid review place a premium on durable front-end systems: clear escalation pathways, consistent diversion controls, enforceable monitoring mechanisms, and defensible responses to red flags that do not depend on privileged deliberations for explanation.133
For policymakers and courts, physician impairment cases pose a recurring question about balance: whether Texas’s current alignment of heightened hospital-liability standards with strong confidentiality and procedural gatekeeping advances patient safety, hospital accountability, and compensation when patient harm occurs.134 Ultimately, Texas has chosen a model that prioritizes confidential self-regulation over accountability, on the theory that early reporting and rehabilitation protect the public in the long run.135 Unfortunately, Texas has repeatedly seen high-profile incidents that underscore the stakes when unsafe practice intersects with institutional oversight and proof barriers. In the “Dr. Death” litigation, the Dallas Court of Appeals affirmed Christopher Duntsch’s conviction and life sentence arising from catastrophic surgical harm.136 Public reporting on the Tyler, Texas, ICU nurse case, reflects allegations that air embolisms were intentionally induced in multiple postoperative patients, illustrating how questions of institutional detection and response can arise even outside the traditional “impaired physician” frame.137 Lastly, public reporting on a Dallas anesthesia case highlights how documentation and record preservation can become outcome-determinative: the account describes allegations of serious intraoperative hypotension and disputes over what the record reflected and what electronic data was preserved.138
Physician impairment litigation tests the limits of that model because the core civil question—what the institution knew and what it did—is the very information the system is designed to protect.139 The “evidence problem” is therefore not incidental; it is the mechanism through which Texas’s policy choices regarding confidentiality, institutional autonomy, and litigation control are translated into outcomes in court.140
Suggested Citation: Kane and Stekler, Physician Impairment and Hospital Accountability in Texas: Discipline, Malpractice, and the Evidence Problem, ACCESSIBLE LAW, Spring 2026.
Sources:
[1]Impairment refers to a condition that may interfere with a physician’s ability to practice medicine safely and effectively.
[2] Tex. Civ. Prac. & Rem. Code §§ 74.001(a)(13), 74.351(a), (l), (r)(6), (s).
[3] Tex. Occ. Code §§ 164.001(a), 167.005(b)–(c), 167.010(a).
[4] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 257–58 (Tex. 2005) (orig. proceeding); Mem’l Hosp. v. McCown, 927 S.W.2d 1, 5 (Tex. 1996) (orig. proceeding); St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505–06 (Tex. 1997).
[5] Tex. Civ. Prac. & Rem. Code §§ 74.351(a)–(b)(l), (r)(6), (s); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010); Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018); Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018); Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[6] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code §§ 160.010(b)–(c), 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[7] Tex. Occ. Code §§ 164.001(a), 167.010(a), 167.005(b)–(c), 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[8] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698–700 (Tex. 2015) (orig. proceeding); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex. 1996) (orig. proceeding); Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947–49 (Tex. 1998); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540–42 (Tex. 2002) (plurality op.); Dow Chem. Co. v. Bright, 89 S.W.3d 602, 609 (Tex. 2002); Bush v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 714 S.W.3d 536, 540 (Tex. 2025).
[9] Tex. Occ. Code §§ 164.001(a),167.005(b)–(c), 167.010(a).
[10] Tex. Occ. Code §§ 160.007(a), (e), 164.001(a),167.005(b)–(c), 167.010(a); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[11] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18; Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 540.
[12] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 540; St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505–06 (Tex. 1997); Tex. Occ. Code § 160.010(b)–(c).
[13] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[14] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18.
[15] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18; Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[16] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 541.
[17] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 543; Agbor, 952 S.W.2d at 505–06; Renaissance Med. Found. v. Lugo, No. 23-0607, slip op. at 1–3, 18–20 (Tex. June 27, 2025); Tex. Occ. Code §§ 160.010(b)–(c), 162.0021, .0022, .0023.
[18] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18; Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[19] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847–48 (Tex. 2005).
[20] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[21] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s).
[22] Id. at § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[23] Id.
[24] Tex. Civ. Prac. & Rem. Code §§ 74.001(13),74.351(a), (l), (r)(6), (s); Diversicare Gen. Partner, Inc., 185 S.W.3d at 847–48.
[25] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d 689, 693–94 (Tex. 2018).
[26] Tex. Civ. Prac. & Rem. Code §§ 41.001(7), (11), 41.003(a).
[27] Id.
[28] Id.
[29] Id.
[30] Id. §§ 74.101, 74.104, 74.106(a).
[31] Id.
[32] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 714 S.W.3d 536, 540 (Tex. 2025); Newspapers, Inc., 380 S.W.2d at 590.
[33] Id.
[34] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 550; Newspapers, Inc., 380 S.W.2d at 590.
[35] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 541; Newspapers, Inc., 380 S.W.2d at 590.
[36] Renaissance Med. Found., No. 23-0607, slip op. at 1–3, 18–20 (Tex. June 27, 2025); Tex. Occ. Code §§ 162.0021, .0022, .0023.
[37] Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–42; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 550; Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000); Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 120 (Tex. 1976).
[38] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[39] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 257–58 (Tex. 2005) (orig. proceeding); McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[40] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[41] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[42] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[43] Torrington Co., 46 S.W.3d at 838; Colonial Sav. Ass’n., 544 S.W.2d 116, 120 (Tex. 1976).
[44] Torrington Co., 46 S.W.3d at 838; Colonial, 544 S.W.2d at 120.
[45] Id.
[46] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[47] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[48] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[49] Love, 380 S.W.2d at 590; Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 541; Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[50] Newspapers, Inc., 380 S.W.2d at 590; Wolff, 94 S.W.3d 513, 542–44.
[51] Newspapers, Inc., 380 S.W.2d at 590; Wolff, 94 S.W.3d 513, 542–44.
[52] Id.
[53] Renaissance Med. Found., No. 23-0607, slip op. at 1–3, 18–20; Tex. Occ. Code §§ 162.0021, .0022, .0023.
[54] Newspapers, 380 S.W.2d at 590; Wolff, 94 S.W.3d 513, 542–44.
[55] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[56]Sampson, 969 S.W.2d at 947–49; Bright, 89 S.W.3d at 609; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 550.
[57] Renaissance Med. Found., slip op. at 1–3, 18–20; Tex. Occ. Code §§ 162.0021, .0022, .0023.
[58] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[59] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[60] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[61] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[62] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[63] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[64] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[65] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[66] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[67] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 540.
[68] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 541.
[69] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 541; Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995).
[70] Sampson, 969 S.W.2d at 948–49; Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 541.
[71] Agbor, 952 S.W.2d 503, 505–06 (Tex. 1997); Tex. Occ. Code § 160.010(b)–(c).
[72] Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[73] Id.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 257–58 (Tex. 2005) (orig. proceeding); McCown, 927 S.W.2d at 5.
[79] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[80] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[81] Sampson, 969 S.W.2d 945, 948–49 (Tex. 1998); Wolff, 94 S.W.3d at 542–44; Bush, 714 S.W.3d at 541.
[82] Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[83] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[84] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[85] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[86] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[87] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[88] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[89] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[90] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[91] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[92] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[93] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[94] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[95] Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[96] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[97] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[98] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[99] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94.
[100] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[101] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[102] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[103] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[104] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[105] Tex. Occ. Code §§ 160.007(a), (e), 160.010(b)–(c); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; Agbor, 952 S.W.2d at 505–06.
[106] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698–700 (Tex. 2015) (orig. proceeding); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 18 (Tex. 1996) (orig. proceeding).
[107] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18.
[108] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[109] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[110] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[111] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[112] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[113] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[114] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[115] Duntsch v. State, 568 S.W.3d 193, 198 (Tex. App.—Dallas 2018, pet. ref’d); Robert Painter, Texas Registered Nurse Criminally Charged in Death of Four ICU Patients, Painter Law Firm (Sept. 29, 2021), https://painterfirm.com/medmal/texas-registered-nurse-criminally-charged-in-death-of-four-icu-patients; SWL Recovers $21 Million in Botched Anesthesia Case, Steckler Wayne & Love PLLC (Oct. 31, 2022), https://stecklerlaw.com/swcl-recovers-21-million-in-botched-anesthesia-case.
[116] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[117] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[118] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[119] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[120] Doe, 907 S.W.2d at 477.
[121] Id. at 477.
[122] Newspapers, Inc., 380 S.W.2d at 590; Wolff, 94 S.W.3d at 542–44
[123] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5, 10–11; In re Mem’l Hermann Hosp. Sys., 464 S.W.3d at 698–700; Irving Healthcare Sys., 927 S.W.2d at 18.
[124] Agbor, 952 S.W.2d at 505–06; Tex. Occ. Code § 160.010(b)–(c).
[125] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[126] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5, 10–11; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18.
[127] Tex. Occ. Code §§ 164.001(a), 167.005(b)–(c), 167.010(a), 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[128] Tex. Civ. Prac. & Rem. Code §§ 74.001(13), 74.351(a), (l), (r)(6), (s).
[129] Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–44; Dow Chem. Co., 89 S.W.3d 602, 609 (Tex. 2002); Bush, 714 S.W.3d at 550; Agbor, 952 S.W.2d at 505–06 (Tex. 1997); Tex. Occ. Code § 160.010(b)–(c).
[130] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 10–11; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18.
[131] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d at 878–79; Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 10–11; In re Mem’l Hermann, 464 S.W.3d at 698–700; Brooks, 927 S.W.2d at 18.
[132] Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; Sampson, 969 S.W.2d at 947–49; Wolff, 94 S.W.3d at 540–44; Bright, 89 S.W.3d at 609; Bush, 714 S.W.3d at 561; Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[133] Tex. Health & Safety Code § 161.032(f); In re Mem’l Hermann, 464 S.W.3d at 698–700; McCown, 927 S.W.2d at 10–11; Brooks, 927 S.W.2d at 18.
[134] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5.
[135] Tex. Occ. Code §§ 160.010(b)–(c), 164.001(a), 167.005(b)–(c), 167.010(a); Tex. Civ. Prac. & Rem. Code § 74.351(a), (l), (r)(6), (s); Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001); Jelinek, 328 S.W.3d at 536; Abshire, 563 S.W.3d at 223; Baty, 543 S.W.3d at 693–94; In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 5; In re Mem’l Hermann, 464 S.W.3d at 698–700; Agbor, 952 S.W.2d at 505–06.
[136] Tex. Occ. Code §§ 167.005(b)–(c), 167.010(a).
[137] Duntsch v. State, 568 S.W.3d 193 (Tex. App.—Dallas 2018, pet. ref’d).
[138] Robert Painter, Texas Registered Nurse Criminally Charged in Death of Four ICU Patients, Painter Law Firm (Sept. 29, 2021), https://painterfirm.com/medmal/texas-registered-nurse-criminally-charged-in-death-of-four-icu-patients.
[139] SWL Recovers $21 Million in Botched Anesthesia Case, Steckler Wayne & Love PLLC (Oct. 31, 2022), https://stecklerlaw.com/swcl-recovers-21-million-in-botched-anesthesia-case.
[140] Tex. Occ. Code § 160.007(a), (e); Tex. Health & Safety Code § 161.032(a), (f); In re Living Ctrs., 175 S.W.3d at 257–58; McCown, 927 S.W.2d at 10–11; In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698–700 (Tex. 2015) (orig. proceeding); Irving Healthcare Sys., 927 S.W.2d at 12.
![Physician Impairment and Hospital Accountability in Texas: Discipline, Malpractice, and the Evidence Problem [Infographic]](https://static.wixstatic.com/media/de01ec_4786273f31c64610810c42a40a5ab4a7~mv2.png/v1/fill/w_602,h_1500,al_c,q_90,enc_avif,quality_auto/de01ec_4786273f31c64610810c42a40a5ab4a7~mv2.png)
