texas-tech-university-health-sciences-center-v-margarita-hernandez ( 2012 )

NO. 07-11-0257-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 22, 2012
______________________________
TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, APPELLANT
V.
MARGARITA HERNANDEZ VILLAGRAN, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF SALVADOR VILLAGRAN, SR., DECEASED,
SALVADOR VILLAGRAN, JR., ALEJANDRO VILLAGRAN AND JORGE VILLAGRAN,
ALL INDIVIDUALLY AND AS LEGAL HEIRS OF THE ESTATE OF SALVADOR
VILLAGRAN, SR., DECEASED, APPELLEES
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-548,209; HONORABLE RUBEN REYES, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Texas Tech University Health Sciences Center, brings this
interlocutory appeal to challenge the trial court's denial of its claim of sovereign
immunity filed pursuant to election of remedies provisions of the Texas Tort Claims Act.1
1
See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 - 101.109 (West 2011).
Finding that a governmental unit cannot use subsections 101.106(b), 101.106(e) and
101.106(f) seriatim to dismiss claims against both the governmental unit and its
employees, thereby effectively dismissing a claimant's entire suit, we find the trial court
did not err in denying Texas Tech University Health Sciences Center's motion to
dismiss.2 Accordingly, we affirm.
FACTUAL BACKGROUND
On April 29, 2007, Salvador Villagran, Sr. sought treatment and surgical
correction at University Medical Center in Lubbock for a fractured wrist he suffered from
a fall. University Medical Center is a medical treatment facility operated by Texas Tech
University Health Sciences Center. Texas Tech University Health Sciences Center and
University Medical Center are institutions, the status and authority of which are derived
from the Constitution of Texas or from laws passed by the Legislature under the
Constitution, and as such, they are "governmental units" as defined by the Tort Claims
Act. See § 101.001(3)(D); Texas Tech Univ. Health Sci. Ctr. v. Ward, 280 S.W.3d 345,
2
Subsections 101.106(b), 101.106(e) and 101.106(f) provide, in pertinent part, as follows:
(b) The filing of a suit against any employee of a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit or recovery
by the plaintiff against the governmental unit regarding the same subject matter unless
the governmental unit consents.
(e) If a suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion by the
governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within
the general scope of that employee's employment and if it could have been brought
under this chapter against the governmental unit, the suit is considered to be against the
employee in the employee's official capacity only. On the employee's motion, the suit
against the employee shall be dismissed unless the plaintiff files amended pleadings
dismissing the employee and naming the governmental unit as defendant on or before
the 30th day after the date the motion is filed.
2
348 (Tex.App.--Amarillo 2008, pet. denied). As governmental units, they are entitled to
sovereign immunity in accordance with the provisions of the Tort Claims Act. See §§
101.001 - 101.109.
At University Medical Center, Mr. Villagran was treated by Doctors Melvin Laski,
Elizabeth Cobb, and Corey Don Ball. He was discharged on May 2, 2007, with portable
oxygen despite having decreased oxygen saturations and complaints of pain to his left
ribs and shortness of breath. He was taken to University Medical Center again on May
4, 2007, and the following day, Dr. Wael Tello performed a bronchoscopy which did not
reveal any injury or bleeding. On May 11th, following a chest x-ray which revealed a
pneumothorax, Dr. Tello inserted a chest tube into Mr. Villagran's left chest wall. Within
a matter of hours, the nursing staff reported bright blood draining from the chest tube.
At that time Doctors Zachary Paul Mulkey, Shannon Yarbrough and Ronny William Ford
became involved. Dr. Ford requested a cardiothoracic consult and on May 12th, a
resuscitative thoracotomy was performed, revealing internal bleeding. Despite open
cardiac massage and intracardiac epinephrine, doctors were unable to resuscitate Mr.
Villagran and he was pronounced dead.
PROCEDURAL BACKGROUND
As a result of Mr. Villagran's death, Appellees filed suit on July 10, 2009, alleging
that deviations from the standards of care due Mr. Villagran proximately caused his
death. Their original petition named seven individual defendants and alleged the
following specific negligent acts and omissions:
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as to Doctors Laski, Cobb and Ball - failing to recognize and properly treat
Mr. Villagran's progressive atelectasis and hypoxia resulting from blunt
chest trauma; failing to observe and treat him in the hospital rather than
discharging him home with oxygen;
as to Doctor Tello - failing to use appropriate technique in placing the
chest tube on May 11, 2007, to avoid intrathoracic injury; failing to
recognize intrathoracic injury causing massive bleeding; failing to
appropriately administer fluid resuscitation; failing to timely consult a
Cardiothoracic Surgeon to promptly perform an emergent thoracotomy to
control the bleeding; and,
as to Doctors Mulkey, Ford and Yarbrough - failing to recognize
intrathoracic injury causing massive bleeding; failing to appropriately
administer fluid resuscitation; failing to timely consult a Cardiothoracic
Surgeon to promptly perform an emergent thoracotomy to control the
bleeding.
Appellees also alleged that each of the foregoing acts or omissions was a negligent act
on the part of the doctors which constituted a deviation from the applicable standards of
care and was a proximate cause of Mr. Villagran's injuries and death, as well as
Appellees' damages. Plaintiffs’ Original Petition did not name Texas Tech University
Health Sciences Center as a Defendant.
On September 2, 2009, Dr. Wael Tello filed a motion seeking his dismissal from
the lawsuit pursuant to section 101.106(f) of the Tort Claims Act. In that motion, Dr.
Tello alleged that the suit against him was prohibited by subsection (f) because, at all
relevant times, he was acting within the scope of his employment at Texas Tech
University Health Sciences Center and suit could have been brought against that
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governmental unit because he was accused of misusing tangible personal property, to-
wit: a chest tube. See § 101.021.3
In response to Dr. Tello's motion to dismiss, Appellees filed an amended petition
on September 30, 2009, dismissing Dr. Tello as a defendant and substituting Texas
Tech University Health Sciences Center as the defendant responsible for his acts. The
other six doctors named in the original petition remained as defendants in the amended
petition. As to Texas Tech University Health Sciences Center, Appellees alleged the
following specific negligent acts and omissions:
failing to use appropriate technique in placing the chest tube on May 11,
2007, to avoid intrathoracic injury;
failing to recognize intrathoracic injury causing massive bleeding;
failing to appropriately administer fluid resuscitation; and
failing to timely consult a Cardiothoracic Surgeon to promptly take the
patient for an emergent thoracotomy to control the bleeding.
Appellees further alleged that Texas Tech University Health Sciences Center's negligent
acts and omissions were a deviation from the applicable standards of care and were the
proximate cause of Mr. Villagran's injuries and death. The amended pleading continued
that Texas Tech University Health Sciences Center was responsible for the negligent
3
Section 101.021 provides in pertinent part:
A governmental unit in the state is liable for:
***
(2) personal injury and death so caused by a condition or use of tangible personal or real
property if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law.
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conduct of its attending physicians, residents, interns, medical students, employees,
agents, servants and representatives under the doctrine of respondeat superior.
On January 15, 2010, Texas Tech University Health Sciences Center filed a
motion to dismiss the six remaining individual defendants contending that because
Appellees had sued both a governmental unit and its employees, suit against the
employees should be dismissed pursuant to subsection 101.106(e) of the Tort Claims
Act. By a separate motion filed on February 25, 2011, Texas Tech University Health
Sciences Center filed a motion to dismiss all claims filed against it contending that
because Appellees had sued the employees, all claims against it were barred pursuant
to subsection 101.106(b). Construing the two motions together, Texas Tech University
Health Sciences Center is contending that because Appellees sued a governmental unit
and its employees, the entire lawsuit should be dismissed.
By order dated March 3, 2011, the trial court granted Texas Tech University
Health Sciences Center's motion to dismiss Appellees' claims against Doctors Laski,
Cobb, Ball, Mulkey, Ford and Yarbrough pursuant to subsection 101.106(e). Following
a subsequent hearing on Texas Tech University Health Sciences Center's subsection
101.106(b) motion to dismiss, the trial court took the matter under advisement and on
June 9, 2011, entered an order denying the motion. This accelerated appeal followed. 4
4
Appellees have not questioned this Court's jurisdiction over this interlocutory appeal. The statute which
authorizes appeal from an interlocutory order of a trial court denying a motion for summary judgment
based on an assertion of immunity by a governmental unit also confers jurisdiction upon a court of
appeals for purposes of consideration of an appeal based upon a trial court's denial of a motion to dismiss
filed pursuant to the election-of-remedies provisions of the Texas Tort Claims Act. Singleton v. Casteel,
267 S.W.3d 547, 549-50 (Tex.App.--Houston [14th Dist.] 2008, pet. denied).
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By a single issue, Texas Tech University Health Sciences Center maintains the
trial court's subject matter jurisdiction was defeated by the voluntary act of Appellees in
filing suit against both it and its employee doctors regarding the same subject matter.
According to Texas Tech University Health Sciences Center's theory, the trial court
erred when it denied their subsection 101.106(b) motion to dismiss based on sovereign
immunity.5
Appellees contend Texas Tech University Health Sciences Center is wrong for
any one of three reasons: (1) the claims asserted against Doctors Laski, Cobb, Ball,
Mulkey, Ford and Yarbrough are both legally and factually distinguishable from the
claims originally asserted against Dr. Tello and later asserted against Texas Tech
University Health Sciences Center and do not, therefore, involve the "same subject
matter" rendering subsection 101.106(b) inapplicable; (2) Texas Tech University Health
Sciences Center has consented to this suit via either subsection 101.021(2) or
subsection 101.106(f); and (3) the immunity provisions of subsection 101.106(b) are
superseded by the substitution provisions of subsection 101.106(f).
We believe that the dictates of statutory construction compel us to reconcile the
seemingly contradictory provisions of subsections 101.106(b), 101.106(e) and
101.106(f) in such a way as to find that, under the facts of this case, neither the original
petition alleging claims against Dr. Tello and the other doctors, nor the subsequently
filed amended petition alleging claims against both the governmental unit and its
5
The position being taken by the Office of the Attorney General in this case is diametrically opposed to the
position it took when it filed the Brief of Amicus Curiae the State of Texas on February 23, 2012, in City of
North Richland Hills v. Friend, No. 11-0367, Texas Supreme Court (submitted awaiting opinion), available
at http://www.supreme.courts.state.tx.us/ebriefs/11/11036708.pdf.
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employees, acts as an election of remedies bar to Appellees' claims against Texas Tech
University Health Sciences Center. Furthermore, we find that, for purposes of
subsection 101.106(b), the claims against Doctors Laski, Cobb, Ball, Mulkey, Ford and
Yarbrough do not involve the same subject matter as the claims against Texas Tech
University Health Sciences Center. Because the disposition of these two arguments
addresses every contention raised and necessary to a final disposition of this appeal,
we will not address Appellees' second argument regarding waiver of immunity by
consent. See Tex. R. App. R. 47.1.
ELECTION OF REMEDIES -- SECTION 101.106
The Tort Claims Act provides a limited waiver of immunity for certain suits
against governmental units, including suits alleging liability arising from the condition or
use of tangible personal property and it caps the amount of recoverable damages. See
§§ 101.021 and 101.023; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
655-56 (Tex. 2008). After enactment of the Tort Claims Act, some plaintiffs sought to
avoid its requirements and damages caps by suing individual employees of
governmental units instead of the governmental units themselves. Mission Consol., 253
S.W.3d at 656. Section 101.106, the election of remedies provision, was created to
protect governmental employees and to prevent that kind of circumvention of the Tort
Claims Act. Id.
The Legislature amended section 101.106 in 2003 to protect governmental
employees from a plaintiff pursuing alternative theories of liability against both the
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employee and the government unit.6 See id. By requiring a plaintiff to make an election
at the time suit is filed between suing the governmental unit under the Tort Claims Act
or proceeding against the employee alone, section 101.106 narrows the issues for trial
and reduces delay and the duplication of litigation costs. Id. This election of remedies
scheme is intended to protect governmental employees by favoring their early dismissal
when a claim involving the same subject matter is also made against the governmental
employer. See id.; § 101.106(e), (f).
Because a plaintiff's choices and procedural actions impact the immunity of either
the governmental unit or the employee of the governmental unit, section 101.106 is
considered to be a jurisdictional statute involving the waiver of immunity. See State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
STANDARD OF REVIEW
Generally, a trial court's ruling on a motion to dismiss is reviewed for abuse of
discretion. Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878
(Tex. 2001). However, when sovereign immunity is raised under the Tort Claims Act, it
raises the issue of a trial court's subject matter jurisdiction, which is a question of law we
review de novo. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010); City
of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Furthermore, issues of
statutory construction are always reviewed de novo. Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009).
6
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.05, 2003 Tex. Gen. Laws 847, 886.
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CLAIMS AGAINST DR. TELLO
Subsection 101.106(b) provides that "[t]he filing of a suit against any employee of
a governmental unit constitutes an irrevocable election by the plaintiff and immediately
and forever bars any suit or recovery by the plaintiff against the governmental unit
regarding the same subject matter unless the governmental unit consents." However,
subsection 101.106(f) provides that if a suit is filed against an employee of a
governmental unit based on conduct within the general scope of that employee's
employment and it could have been brought against the governmental unit under the
provisions of the Tort Claims Act, on that employee's motion, the suit against the
employee shall be dismissed unless the plaintiff files, within 30 days of the filing of that
motion, an amended pleading dismissing the employee and naming the governmental
unit. See § 101.106(f). How is it then that subsection (f) apparently provides for the
filing of a claim against a governmental unit that subsection (b) has already
"immediately and forever" barred?
STATUTORY CONSTRUCTION
When the wordings of statutes appear to be contradictory, we consult statutory
construction rules and related legislative history. Magnolia Petroleum Co. v. Walker,
125 Tex. 430, 83 S.W.2d 929, 934 (1935). In interpreting a statute, our primary goal is
to ascertain and give effect to the Legislature's intent in enacting that statute. See Tex.
Gov't Code Ann. § 312.005 (West 2005); In re Canales, 52 S.W.3d 698 (Tex. 2001).
Legislative intent is determined from the entire act, not just isolated portions, State v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002), and, unless otherwise indicated, words are
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given their ordinary meaning. See Tex. Gov't Code Ann. § 312.002 (West 2005). In
construing a statute, whether or not the statute is considered ambiguous on its face, a
court may consider the object sought to be attained, the circumstances under which the
statute was enacted, the statute=s legislative history, the common law or former
statutory provisions, the consequences of a particular construction, the administrative
construction of the statute, as well as the title, preamble or emergency provisions of the
enactment. See id. at § 312.023. In determining the Legislature's intent, we are to
consider at all times the "old law, the evil, and the remedy," § 312.005, and in
considering the remedy intended, a statute shall be liberally construed so as to achieve
its purpose and to promote justice. See id. at § 312.006.
ANALYSIS
In this case, Appellees originally sued the individual employees only. Dr. Tello,
believing that the suit against him was based on conduct within the general scope of his
employment by Texas Tech University Health Sciences Center, and further believing
that the suit could have been brought against the governmental unit based upon his
alleged negligent use or misuse of tangible personal property, moved for the dismissal
of all claims against him pursuant to subsection 101.106(f). In response thereto, and
within 30 days of the date Dr. Tello's motion was filed, Appellees filed an amended
pleading dismissing their claims against Dr. Tello and naming Texas Tech University
Health Sciences Center as defendant. To construe subsection 101.106(b) as absolutely
and forever barring any suit against Texas Tech University Health Sciences Center
based upon the original suit against Dr. Tello would render the substitution provisions of
subsection 101.106(f) meaningless. Here, on Dr. Tello's motion, the suit against the
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employee was dismissed and the governmental unit was substituted in his place on or
before the 30th day after the date the motion was filed. Such action clearly falls within
the plain meaning of subsection 101.106(f) and, to the extent that subsection
101.106(b) conflicts with subsection 101.106(f), we find that specific provisions of
101.106(f) control. Accordingly, we find the trial court did not err in denying the motion
to dismiss filed on behalf of Texas Tech University Health Sciences Center on the basis
of the original suit filed against Dr. Tello.
CLAIMS AGAINST DOCTORS LASKI,
COBB, BALL, MULKEY, FORD AND YARBROUGH
Texas Tech University Health Sciences Center further contends that, pursuant to
the provisions of subsection 101.106(b), when Appellees filed their amended petition
against the six individual doctors (other than Dr. Tello) and Texas Tech University
Health Sciences Center, they irrevocably elected to proceed solely against those six
individuals, forever barring any suit or recovery against Texas Tech University Health
Sciences Center "regarding the same subject matter unless the governmental unit
consents." Relying on Mission Consol. Ind. Sch. Dist. v. Garcia, supra, Texas Tech
University Health Sciences Center contends that subsection 101.106(b) operates to bar
Appellees' claims against it. Our review, however, reveals that, not only is Mission
Consol. factually distinguishable from this case, the decision in that case turned on the
question of whether the Legislature consented to suit, not whether the claim being
asserted against the individual defendant was the "same subject matter" as the claim
being asserted against the governmental unit.
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The Texas Supreme Court addressed the issue of "same subject matter" in the
case of Dallas County Mental Health & Retardation v. Bossley, 938 S.W.2d 339 (Tex.
1998), cert denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In Bossley,
the Court held that the phrase "same subject matter" means a cause of action "arising
out of the same actions, transactions, or occurrences." Id. at 344 (quoting Serra v.
Pichardo, 786 F.2d 237, 239 (6th Cir.), cert denied, 479 U.S. 826, 107 S. Ct. 103, 93
L. Ed. 2d 53 (1986)). While the Bossley Court did not further define an "occurrence," we
agree with our sister court that factors normally used to determine res judicata are
relevant. See McGowen v. Huang, 120 S.W.3d 452, 459 (Tex.App.--Texarkana 2003,
pet. denied). For purposes of res judicata, suits involve the same transaction based on
a consideration of "whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a trial unit
conforms to the parties expectations . . . ." Barr v. Resolution Trust Corp., 837 S.W.2d
627, 631 (Tex. 1992).
Based on these factors, we believe Texas Tech University Health Sciences
Center construes the "same subject matter" too narrowly by failing to analytically
differentiate the claims asserted against the six remaining doctors from the claims
originally asserted against Dr. Tello and subsequently asserted against Texas Tech
University Health Sciences Center pursuant to subsection 101.106(f). Not only are
those claims being asserted against different alleged tort-feasors, they arise from
independent and different alleged acts of negligence that occurred at different times, in
different places, involving different medical diagnosis and treatment. Appellees'
pleadings are very specific and the causes of action asserted against the remaining six
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doctors, arising from their individual acts of alleged negligence, are not so intertwined
with the cause of action arising from Dr. Tello's negligence as to be incapable of
distinction. Their only connection is the unfortunate death of Mr. Villagran and the
fortuitous circumstance that, but for the claim of sovereign immunity, the same employer
could be held to be vicariously liable for their individual but separate acts of negligence.
Under this analysis, we do not believe that the claims being asserted against
Texas Tech University Health Sciences Center involve "the same subject matter" as the
claims that were previously asserted against Doctors Laski, Cobb, Ball, Mulkey, Ford or
Yarbrough. Therefore, under these circumstances, subsection 101.106(b) is
inapplicable and does not operate to bar those claims.
Furthermore, even if subsection 101.106(b) were applicable to the claims being
asserted by Appellees, Mission Consol. does not support Texas Tech University Health
Sciences Center's attempt to use subsections 101.106(b) and 101.106(e) seriatim to
dismiss the entire suit. See Mission Consol., 253 S.W.3d at 657 (holding that "recovery
against an individual employee is barred and may be sought against the governmental
unit only . . . when suit is filed against both the governmental unit and its employee, id. §
101.106(e)"). When a claimant files suit against both a governmental unit and its
employee, that governmental unit cannot use both subsections 101.106(b) and
101.106(e) to require dismissal of all claims. City of Houston v. Esparza, No. 01-11-
00046-CV, 2011 Tex. App. LEXIS 8224, at *19-20 (Tex.App.--Houston [1st Dist.] Oct. 7,
2011, pet. filed). Instead, when a claimant sues both the governmental unit and its
employee together, the overall statutory scheme of section 101.106 requires that the
trial court dismiss the employee upon the governmental unit's motion, leaving the
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governmental unit to defend suits that otherwise comport with the Tort Claims Act's
jurisdictional constraints. Id. at *19. Therefore, when a claimant fails to elect between
defendants and instead sues both the governmental unit and its employee regarding the
same subject matter, subsection (b) forces an election upon the claimant: the
governmental unit is the proper defendant and the employee must be dismissed. Id.
In Esparza, the plaintiff filed suit against both the City of Houston and its
employee, claiming that the employee was negligent in causing a motor vehicle
accident. The City moved to dismiss the employee under subsection 101.106(e). Id. at
*2. It also filed a plea to the jurisdiction asserting that Esparza's claims against the City
were barred by subsection 101.106(b). Id. The trial court granted the motion to dismiss
the employee but denied the City's plea to the jurisdiction. Id. On rehearing, the First
Court of Appeals affirmed the judgment of the trial court. Id. at *36. The circumstances
of this case and the contentions being made by Texas Tech University Health Sciences
Center are analogous to the factual and procedural background in Esparza and the
contentions made by the City of Houston. We agree with our sister court and follow that
holding by concluding that Appellees' claims against Texas Tech University Health
Sciences Center are not barred by subsection 101.106(b).
Accordingly, we conclude the trial court did not err in denying the motion to
dismiss. Texas Tech University Health Sciences Center’
s sole issue is overruled and
the order of the trial court is affirmed.
Patrick A. Pirtle
Justice
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