This section contains the nature of the case and procedural background.

P was bitten by a brown recluse spider. P went to Baptist (D) and was treated in the emergency room by Dr. Zakula. P claimed that because the Dr. was negligent in his treatment, she suffered permanent injuries. D offered the affidavit of Dr. Potyka, an emergency room physician that the doctors in the emergency room were not actual agents, servants, or employees of the Hospital and were not subject to the management, supervision or control of the Hospital when treating patients. The affidavit also established that the Hospital did not get any fees from the emergency room physicians as they were independent contractors who billed their patients directly. Also introduced were signed consent forms in which P acknowledged that the Drs. in the emergency room were independent contractors and that the Hospital and D were not liable for any negligence exercised in the Drs' exercise of independent judgment. To establish ostensible agency, P offered her own affidavits in that she did not read the papers she signed and that no one explained the contents to her and that she did not recall signing the documents. In addition, she did not see any signs manifesting a different impression that the Drs. were not employees of the hospital; that she did not choose the physician who treated her; and that at all times she thought she was being treated by the hospital. D moved for summary judgment, and it was granted. The court of appeals reversed. Both parties agreed that the Doctor was not D's, the hospital's parent corporation, employee or its agent. Once this was established the burden of proof shifted to P to raise an issue of fact on each and every element of her ostensible agency theory. This appeal resulted.

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