As a preliminary matter, we will determine what evidence we may consider in our analysis of whether the grant of summary judgment was proper. We make this determination because some of the Kirkwoods' responsive filings were filed within seven days of summary judgment hearing, and some evidence was filed after the hearing.         The parties filed the following documents on the following days:
        PrimaCare's first motion for summary judgment.     Not in record.

        Plaintiff's Response to Defendant PrimaCare,         January 6, 1997
        Inc.'s Motion for Summmary Judgment

        Defendant PrimaCare, Inc.'s Motion for             June 16, 1997
        Summary Judgment

        Plaintiffs' Fourth Amended Original Petition        June 24, 1997

        Plaintiffs' Response to Defendant             July 14, 1997
        PrimaCare, Inc.'s Motion for Summary
        Judgment

        Affidavit of Pamela Kirkwood                July 14, 1997
        Affidavit of Dorothy Mulcihy                July 14, 1997
        Order Granting Defendant PrimaCare Inc's            July 16, 1997
        Motion for Summary Judgment
        
        Objection to Defendant's Evidence            July 18, 1997

        Plaintiffs' Special Exceptions to Defendants'        July 25, 1997
        Motion for Summary Judgment

        Plaintiff's Motion to Reconsider Partial            August 25, 1997
        Summary Judgment of PrimaCare and/or
        Motion for New Trial

        Defendant PrimaCare, Inc.'s Response to         Sept. 18, 1997
        Plaintiffs' Motion to Reconsider Partial
        Summary Judgment of PrimaCare and/or
        Motion for New Trial
        
        Order Denying Plaintiffs' Motion to            Sept. 23, 1997
        Reconsider Partial Summary Judgment
        of PrimaCare and/or Motion for New Trial
        PrimaCare filed two motions for summary judgment. The first motion is not a part of the record. However, we infer from the Kirkwoods' January 6, 1997 response, the motion was based on an argument no negligence occurred. PrimaCare's second motion argued (1) Dr. Erikson is not an employee of PrimaCare, (2) Dr. Erikson is not an apparent agent of PrimaCare, and (3) PrimaCare is not an entity which can render medical treatment. The Kirkwoods' January 6, 1997 response includes Dr. Erikson's deposition and was on file prior to PrimaCare's second summary judgment motion. PrimaCare's June 16, 1997 motion for summary judgment recites, “[t]he basis of this Motion for Summary Judgment is the summary judgment evidence on file including the Affidavit of John Erikson, M.D., the Affidavit of Paul Solomon, M.D., who is the Medical Director of PrimaCare, the pleadings, depositions and discovery responses on file in this case. . . .” Because Dr. Erikson's deposition was on file more than seven days prior to the summary judgment hearing, we have considered it. See Tex. R. Civ. P. 166a(c).
        The record indicates the Kirkwoods' affidavits and response to PrimaCare's second motion were filed two days before the summary judgment order was entered. Because nothing appears of record to indicate the Kirkwoods had leave of court to late file, we must presume the trial court did not consider the responsive filings. See Benchmark Bank, 919 S.W.2d at 663 (citing INA of Texas, 686 S.W.2d at 615). Likewise, we presume the trial court did not consider the materials filed after the summary judgment hearing, including the affidavit attached to the August 25, 1997 motion to reconsider. See Rodriguez, 902 S.W.2d at 45 (We only consider the record as it existed prior to the grant of summary judgment.); Dominguez, 786 S.W.2d at 753. Having determined what evidence was properly before the trial court, we now determine the merits.
        The ultimate issue in this case is whether Dr. Erickson's testimony creates a fact issue on whether he was an employee or apparent agent of PrimaCare. His deposition testimony and later affidavit provide contradictory facts. In his affidavit, Dr. Erickson says:
            In October of 1996, I gave a deposition in this case as a fact witness. During that deposition, I answered or implied that I was an ex-employee of PrimaCare. At that time, I did not appreciate that my employment status was an issue in the lawsuit. After revisiting that question, I have now determined that I need to clarify that answer. It was not my intent to make a legal determination regarding my employment during my deposition of October 1996. My answer that I was an employee of PrimaCare as of October 10, 1993, was incorrect. I was not an employee of PrimaCare, Inc. Rather, my agreement on October 10, 1993, was with Affiliated Primary Care Physicians, P.A. This clarification is simply to eliminate any uncertainty regarding my previous answer and to clarify, as best I can, whom I worked for on October 10, 1993. I did work at PrimaCare-provided facilities, but not for PrimaCare.
By deposition, Dr. Erikson testified he “worked for PrimaCare Medical Centers,” had “periodic performance reviews at PrimaCare,” and reported to Dr. Paul Solomon, who “was the medical director at PrimaCare.” He testified about billing procedures at PrimaCare, saying:
            Charges at PrimaCare are done through the billing sheet that is part of this record. I simply circle the procedure or the office visit or whatever was performed, and the billing code is then entered in the computer. And that comes up as a charge, and I have no knowledge of those charges that are generated.

Dr. Erikson testified he just circled the procedure and the billing was left “to the ladies in the front.” Dr. Erikson also testified he was required to follow PrimaCare's policy on the administration of antibiotics. Because conflicting inferences about Dr. Erikson's employment can be drawn from his affidavit and deposition, we conclude a fact issue exists whether he was an employee of PrimaCare when Mrs. Kirkwood was treated. See Gaines, 358 S.W.2d at 562.
        The question remains whether PrimaCare proved as a matter of law Dr. Erikson was not an apparent agent of PrimaCare. In addition to Dr. Erikson's affidavit, PrimaCare relied on Dr. Paul Solomon's three page affidavit. Dr. Solomon averred he is the sole shareholder and president of Affiliated Primary Care Physicians, P.A. (Primary Care). He further averred Primary Care contracted with PrimaCare “to provide physicians who would, in turn, provide medical care at PrimaCare medical facilities.” The affidavit continues,
    Affiliated Primary Care Physicians, P.A. is simply a contractor providing a service to Defendant PrimaCare, Inc. Neither of these entities holds an ownership interest on the other. To fulfill [Primary Care's] contract with PrimaCare, Inc., an agreement was reached with Dr. John Erikson and other physicians to work through one of the facilities PrimaCare, Inc. controls. . . . On October 10, 1993, Dr. Erikson was working on behalf of [Primary Care] but was physically performing his duties at a PrimaCare, Inc. facility controlled by PrimaCare, Inc. . . .

Dr. Solomon also averred Dr. Erikson was paid by Primary Care, not PrimaCare. Dr. Erikson's deposition testimony indicates PrimaCare was his employer, contradicting Dr. Solomon's affidavit.
        Dr. Solomon also avers, in two sentences, PrimaCare had no right to control “the ways and means of Dr. Erikson's or any other physician's medical practice.” Dr. Solomon's affidavit is conclusory and, therefore, not credible on whether PrimaCare controlled Dr. Erikson's work. See Ryland Group, Inc., 924 S.W.2d at 122. Moreover, it is contradicted by deposition testimony that he was required to administer antibiotic treatment according to PrimaCare's policy.         Dr. Solomon's affidavit next addresses, in a single sentence, the issue of apparent agency. The affidavit says,
            Through my own interaction with Defendant PrimaCare, Inc., I am not aware of a single instance, including the circumstances surrounding this case, where PrimaCare, Inc. has affirmatively stated or implied that any Affiliated Primary Care Physicians, P.A. doctor was the employee, agent or servant of PrimaCare, Inc.
The issue in this case is Mrs. Kirkwood's interaction with PrimaCare, not Dr. Solomon's. The affidavit of Dr. Solomon provides insufficient factual explanation of Dr. Solomon's “interaction” with PrimaCare. For instance, the affidavit does not state whether Dr. Solomon ever visited the PrimaCare facility in question or what steps were or were not taken by PrimaCare to advise patients the doctors staffing its facilities were not its employees. Moreover, Dr. Solomon's affidavit states he is the president and owner of Primary Care, not PrimaCare. No one from PrimaCare has provided evidence on its interaction with patients. PrimaCare failed to negate any of the three elements for establishing liability for an independent contractor's medical malpractice based on apparent or ostensible agency. See Baptist Mem'l Hosp. Sys., 969 S.W.2d at 948. Accordingly, PrimaCare has not met its burden to obtain a summary judgment. See Gibbs, 450 S.W.2d at 828; Walker, 924 S.W.2d at 377.
        PrimaCare also contends the Kirkwoods ignored, at the trial level, PrimaCare's argument it is not the type of entity amenable to a medical malpractice claim. Specifically, PrimaCare contends it is not a “health care provider” under art. 4590i. Tex. Rev. Civ. Stat. Ann. article 4590i (Vernon Supp. 2000). The definition of “health care provider” includes:     any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment.

Id. at § 1.03(a)(3). Dr. Erikson testified he administered a local anesthetic and used a scalpel to incise and drain Mrs. Kirkwood's abscess.
        PrimaCare contends Williams v. Good Health Plus, Inc. supports its arguments. 743 S.W.2d 373 (Tex.App._San Antonio 1987, no writ). The Williams court concluded a health maintenance organization (HMO) proved as a matter of law it could not “practice medicine, so as to be subjected to liability” for an alleged failure to diagnose and properly treat a staph infection. Id. at 378. We find Williams distinguishable from the case at hand because PrimaCare is not an HMO, nor does it function like an HMO.
        PrimaCare also relies on Hunte v. Hinkley, 731 S.W.2d 570 (Tex.App._Houston [14th Dist.] 1987, writ ref'd n.r.e.). The Hunte court relied on Tex. Rev. Civ. Stat. Ann. art. 4495b (Vernon Supp. 1987) in holding a clinic was not liable for a failure to diagnose. Hunte, 731 S.W.2d at 572. However, the Hunte court also held, as a matter of law, the alleged acts or omissions were by independent contractors. Id. at 571. The case at hand is distinguishable because PrimaCare has not proved as a matter of law Dr. Erikson is not its employee or apparent agent. PrimaCare has not cited any case holding a clinic could not be held liable for medical malpractice if it were the employer of a physician committing malpractice or if the physician was the apparent agent of the clinic.
        Last, PrimaCare relies on Townsend v. Catalina Ambulance Co., 857 S.W.2d 791 (Tex.App._Corpus Christi 1993, no writ). The Townsend court held an ambulance service was not expressly listed in section 103(3) and, therefore, was excluded from the definition of “health care provider.” Id. at 796. PrimaCare, however, is not an ambulance service.
        We review summary judgments de novo to determine whether a party established its
right to prevail as a matter of law. American States Ins. Co. of Texas v. Arnold, 930 S.W.2d 196, 200 (Tex.App._Dallas 1996, writ denied); Capitan Enters., Inc. v. Jackson, 903 S.W.2d 772, 775 (Tex.App._El Paso 1994, writ denied). If we adopted PrimaCare's argument, the doctrines of respondeat superior and apparent agency would be eviscerated.
        Under the doctrine of respondeat superior, “an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.” Baptist Mem'l Hosp. Sys., 969 S.W.2d at 947. We do not read Medical Liability and Insurance Improvement Act to bar suit against an entity which employs physicians to treat patients. Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2000). Likewise, we do not read the act to bar suit against an entity which has a physician as its apparent agent. Id.
        We sustain the Kirkwoods sixth point of error because PrimaCare failed to meet the burden of proof necessary for a summary judgment. Because of our disposition of the Kirkwoods' sixth point of error, we need not address their remaining points of error. Tex. R. App. P. 47.1. We reverse the trial court's summary judgment and remand this cause for
further proceedings consistent with this opinion.


                                                                  ____________________________                                                                   TOM JAMES
                                                                  JUSTICE

Do Not Publish
Tex. R. App. P. 47
971934F.U05

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FN:1
1 We recognize PrimaCare is not a “hospital,” but nonetheless find this caselaw on point because PrimaCare, like a hospital, is a medical treatment facility.

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FN:2
2 As a practical matter, there is no distinction among the terms “ostensible agency,” “apparent agency,” “ apparent authority,” and “agency by estoppel.” Baptist Mem'l Hosp. Sys., 969 S.W.2d at 947 n.2.

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File Date[02/03/2000]
File Name[971934F]
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