Kyle Anderson, M.D. v. Suzanne Stiniker, as Administrator of the Estate of Mikel Stone, and as Guardian of the Person and Estate of Whitley Taylor Stone, and Erek Mikel Stone

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00214-CV
________________________
KYLE ANDERSON, M.D., APPELLANT
V.
SUZANNE STINIKER, AS ADMINISTRATOR OF THE ESTATE OF MIKEL STONE
AND AS GUARDIAN OF THE PERSON AND ESTATE OF
WHITLEY TAYLOR STONE, AND EREK MIKEL STONE, APPELLEES
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2015-517,304; Honorable Ruben G. Reyes, Presiding
July 26, 2017
OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.1
By this permissive appeal,2 we are asked to determine, as a case of first
impression, whether a licensed physician who provides emergency or postemergency
1
Justice Mackey K. Hancock, retired, not participating.
2
TEX. R. APP. P. 28.3.
services in a hospital owned or operated by a local government unit, but who is not
employed by that hospital, is a “public servant” whose personal liability under certain
circumstances is capped at $100,000 pursuant to section 108.003 of the Texas Civil
Practice and Remedies Code.3 Following the filing of a wrongful death and health care
liability suit by Appellees, Suzanne Stiniker, as Administrator of the Estate of Mikel
Stone and as Guardian of the Person and Estate of Whitley Taylor Stone and Erek
Mikel Stone (collectively Stiniker), Appellant, Kyle Anderson, M.D., moved for partial
summary judgment on the ground that he is a “public servant” covered under section
108.002(a) of the Texas Civil Practice and Remedies Code which limited his personal
liability. Stiniker responded that Dr. Anderson’s liability is not capped because he is an
independent contractor and an employee of a privately-owned professional association
and is, therefore, excepted from the definition of a “public servant.” The trial court
denied Dr. Anderson’s motion and he filed for a permissive appeal which this court
granted. Finding that a physician under those circumstances is a public servant for
purposes of that section, we reverse the order of the trial court and remand this cause
to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Mikel Stone underwent surgery for rectal bleeding and hemorrhoid disease at
University Medical Center (UMC), a local government hospital on February 5, 2015.
According to the surgical physician, Mr. Stone “tolerated the procedure well” and was
discharged from UMC and taken home by private vehicle at approximately 2:30 p.m.
While convalescing at home, Mr. Stone began to experience pain and other symptoms
3
TEX. CIV. PRAC. & REM. CODE ANN. § 108.003 (West 2011). All future references are to the
Texas Civil Practice and Remedies Code unless otherwise designated.
2
and was transported back to UMC by ambulance around 7:41 p.m. At UMC, he was
evaluated by a triage nurse and Dr. Anderson, an emergency room physician who did
not perform the original surgery. Dr. Anderson ordered a CT scan with IV contrast, and
at approximately 10:11 p.m., Dr. Anderson reviewed the results of those tests with the
surgeon who performed the original surgery and then diagnosed Mr. Stone with urinary
retention followed by abdominal pain, renal impairment, nausea and vomiting, intra-
abdominal hemorrhage, and hyponatremia. Mr. Stone was re-admitted and the
following morning, while awaiting a nasogastric tube placement, experienced cardio-
pulmonary arrest and died. An autopsy revealed a transmural rectum defect,
hemoperitoneum, and pulmonary edema.
Stiniker filed a wrongful death and survival health care liability claim against Dr.
Anderson and others, seeking compensation for damages arising from Mr. Stone’s
death. Stiniker sought recovery of compensatory and exemplary damages based on
allegations of negligent medical care and treatment rendered to Mr. Stone by Dr.
Anderson during his time at the UMC emergency department.
Dr. Anderson subsequently filed his Motion for Partial Summary Judgment
seeking a legal declaration that his liability, if any, was capped at $100,000 under the
provisions of section 108.002. On May 19, 2016, the trial court signed an order denying
his motion. Dr. Anderson then sought to invoke the jurisdiction of this court, pursuant to
the permissive appeal provisions of section 51.014(d),4 contending the issue of his
status as a “public servant” for purposes of section 108.002 was a controlling question
of law as to which there was a substantial ground for a difference of opinion and an
4
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2016).
3
immediate resolution of that issue would materially advance the ultimate resolution of
the pending litigation. The trial court signed an order permitting an interlocutory appeal
and staying all further proceedings pending a resolution of that issue via an interlocutory
appeal, if granted. See TEX. R. CIV. P. 168. We subsequently granted Dr. Anderson the
right to file a permissive appeal of the trial court’s interlocutory order of May 19, 2016.
CONTROLLING ISSUE
By a single issue, Dr. Anderson contends the trial court erred by denying his
motion for partial summary judgment because his liability, if any, is capped under
section 108.002(a) since he is a “public servant” as defined by section 108.001(3).
Stiniker contends those liability limitations do not apply because Dr. Anderson is an
independent contractor, excepted from the definition of “public servant” by section
108.001(2). Through various shades and phases of that single issue, Dr. Anderson
contends the trial court incorrectly resolved the internal definitional conflict, as applied in
this case, between the exclusionary provisions of section 108.001(2) and the
inclusionary provisions of section 108.001(3).
APPLICABLE LAW
As applicable to the facts of this case, section 108.001 of the Texas Civil Practice
and Remedies Code provides the following definitions:
In this chapter:
(1) “Public servant” means a person who is:
(A) a public official elected or appointed to serve a governmental unit
and acting in that capacity when the act or omission on which the
damages were based occurred; or
(B) covered by Section 104.001 or Section 102.001.
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(2) “Public servant” does not include an independent contractor, an agent
or employee of an independent contractor, or another person who
performs a contract for a unit of government.
(3) “Public servant” includes a licensed physician who provides
emergency or postemergency stabilization services to patients in a
hospital owned or operated by a unit of local government.
Likewise, the limitation of liability provisions of Section 108.002 of the Texas Civil
Practice and Remedies Code provide as follows:
(a) Except in an action arising under the constitution or laws of the United
States, a public servant is not personally liable for damages in excess of
$100,000 arising from personal injury, death, or deprivation of a right,
privilege, or immunity if:
(1) the damages are the result of an act or omission by the public
servant in the course and scope of the public servant’s office,
employment, or contractual performance for or service on behalf of
a state agency, institution, department, or local government; and
(2) for the amount not in excess of $100,000, the public servant is
covered:
(A) by the state’s obligation to indemnify under Chapter 104;
(B) by a local government’s authorization to indemnify under
Chapter 102;
(C) by liability or errors and omissions insurance; or
(D) by liability or errors and omissions coverage under an interlocal
agreement.
(b) Except in an action arising under the constitution or laws of the United
States, a public servant is not liable for damages in excess of
$100,000 for property damage if:
(1) the damages are the result of an act or omission by the public
servant in the course and scope of the public servant’s office,
employment, or contractual performance for or service on behalf of
a state agency, institution, department, or local government; and
(2) for the amount not in excess of $100,000, the public servant is
covered:
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(A) by the state’s obligation to indemnify under Chapter 104;
(B) by a local government’s authorization to indemnify under
Chapter 102;
(C) by liability or errors and omissions insurance; or
(D) by liability or errors and omissions coverage under an interlocal
agreement.
TEX. CIV. PRAC. & REM. CODE ANN. §§ 108.001, 108.002 (West 2011).
STATUTORY CONSTRUCTION
This case implicates a review of the trial court’s construction of the above-
referenced statutory provisions, which appellate courts review de novo. City of
Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). The primary objective in
construing a statute is to give effect to the Legislature’s intent. TEX. GOV’T CODE ANN. §
311.021 (West 2013); Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000).
“The plain meaning of the text is the best expression of legislative intent unless a
different meaning is apparent from the context or the plain meaning leads to absurd or
nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). When the
Legislature’s intent is not apparent from the plain meaning of a statute’s language, we
may resort to other construction aids, including legislative history. TEX. GOV’T CODE
ANN. § 311.023(3) (West 2013). In determining legislative intent, courts must consider
the statute as a whole, reading all of its provisions in context rather than reading
individual provisions in isolation. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496,
501 (Tex. 2015). In doing so, we presume that the Legislature is aware of existing law
when it enacts legislation. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877-78 (Tex. 2001). A reviewing court should always seek to enforce the
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statute “as written” and “refrain from rewriting text that lawmakers chose.” Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)
ANALYSIS
Dr. Anderson asserts the trial court erred in interpreting the meaning of “public
servant” because the legislative history of section 108.001 demonstrates a clear intent
that the inclusionary provisions of section 108.001(3) apply to a licensed physician who
acts as an independent contractor; otherwise, paragraph (3) would be rendered
meaningless. We agree.
UMC is a public hospital owned and operated by the Lubbock County Hospital
District, a hospital district organized under the Texas Constitution and statutory
enactments pursuant thereto.5 As such, it is an institution, the status and authority of
which is derived from the Constitution of Texas or from laws passed by the Legislature
under the constitution, and it is, therefore, a “governmental unit” as defined by section
101.001(3)(D).6 Tex. Tech University v. Ward, 280 S.W.3d 345, 348 (Tex. App.—
Amarillo 2008, pet. denied).
UMC contracts with UMC Physician Network Services (“PNS”) to provide
physician staffing of the emergency department at UMC. To meet this staffing
obligation, PNS contracts directly with individual physicians or their professional
associations. At all times relevant to Stiniker’s claims, Dr. Anderson provided
professional medical services to patients in the emergency department at UMC
5
See TEX. CONST. art. IX, § 9; TEX. SPEC. DIST. CODE ANN. §§ 1053.001-1053.303 (West 2016).
6
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(D) (West Supp. 2016).
7
pursuant to a contract between PNS and Dr. Anderson’s employer, C&A Medical, P.A.
Therefore, it is undisputed that Dr. Anderson provided “emergency or postemergency
stabilization services to patients [including Mr. Stone] in a hospital owned or operated
by a unit of local government.” As such, Dr. Anderson falls squarely within the definition
of a “public servant” provided by section 108.001(3). The question is, how does a court
square the inclusive language of section 108.001(3) with the specifically exclusive
language of section 108.001(2)?
Stiniker contends the limitation provisions of 108.002 do not apply to independent
contractors, like Dr. Anderson, because they were adopted pursuant to a legislative
scheme (Chapter 108 of the Texas Civil Practice and Remedies Code) designed to limit
the liability of governmental employees acting within the course and scope of their
employment with a governmental unit. Stiniker contends the Tort Claims Act was never
intended to limit liability of independent contractors, physicians or otherwise, because
suits against them do not implicate public resources.
A brief review of the legislative history of Chapter 108 will shed light on our
inquiry. What is today Chapter 108 was originally adopted by the Texas Legislature in
1987 as Chapter 107, entitled Limitation of Liability for Public Servants. See Act of June
3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.12, 1987 Tex. Gen. Laws 37, 50, effective Sept.
2, 1987. Chapter 107 was adopted pursuant to S.B. 5, “relating to revising the Civil
Practice and Remedies Code to reform procedures and remedies in civil actions for
personal injury, property damage, or death and civil actions based on tortious conduct,
including revisions and additions to laws governing the determination of and limitations
on liability and damages.” Id. at 37.
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Relevant to this dispute, as originally adopted, the definitional provisions of
section 107.001 defined a “public servant” as “a person covered by Section 104.001.”
At that time, section 104.001 defined persons entitled to state indemnity as follows:7
(1) an employee, a member of a governing board, or any other officer of a
state agency, institution, or department . . . (3) a physician or psychiatrist
licensed by this state who was performing services under contract with
[four named state entities (not including a “local governmental unit”)] . . . .
See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.08, 1987 Tex. Gen. Laws 37, 49,
effective Sept. 2, 1987. Accordingly, at that time, the Texas Legislature recognized a
difference between employees of a state agency and contract medical professionals.
Furthermore, the Legislature clearly expressed intent to include contract medical
professionals only to the extent that they were performing services for the four specified
state entities.
Chapter 107, and its corresponding sections, was renumbered as Chapter 108
pursuant to an act of the 71st Legislature in 1989. See Act of Feb. 2, 1989, 71st Leg.,
R.S., ch. 2, § 16.01(3), 1989 Tex. Gen. Laws 123, 197, effective Aug. 28, 1987. At that
time, no substantive changes were made to what was now section 108.001.
In 1995, the Chapter 108 definition of “public servant” was amended by the 74th
Legislature to provide as follows:
Section 108.001 DEFINIITONS. In this chapter:
(1) “Public servant” means a person who is:
7
Any italicized words in the cited statutory provisions are as they appear in the Texas General
and Special Laws to reflect additions to the statutes.
9
(A) a public official elected or appointed to serve a governmental
unit and acting in that capacity when the act or omission on which
the damages were based occurred: or
(B) covered by Section 104.001 or Section 102.001.
(2) “Public servant” does not include an independent contractor, an agent or
employee of an independent contractor, or another person who performs a
contract for a unit of government.
See Act of May 9, 1995, 74th Leg., ch. 139, § 4, 1995 Tex. Gen. Laws 982, 983,
effective Sept. 1, 1995. At the time, section 102.001 defined “employee” as including
“an officer, volunteer, or employee, a former officer, volunteer, or employee, and the
estate of an officer, volunteer, or employee or former officer, volunteer, or employee of a
local government.” Accordingly, section 102.001, expanded the scope of the term
“employee” found in section 104.001, while section 108.001(2) clearly restricted the
scope by specifically excluding independent contractors, their agents, and employees.
In 2003, the Texas Legislature once again amended the section 108.001
definition of “public servant” by adding paragraph (3), which provided as follows:
(3) “Public servant” includes a licensed physician who provides
emergency or postemergency stabilization services to patients at a
hospital owned or operated by a unit of local government.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.06, 2003 Tex. Gen. Laws 847,
886, effective Sept. 1, 2003. By adding a provision not theretofore included in the
definition of “public servant,” the Legislature expressed a clear intent to include licensed
physicians who provide emergency or postemergency stabilization services to patients
at a hospital owned by a unit of local government in that category of individuals
protected by the limitations of liability provisions found in section 108.002.
10
Although the exclusive language of section 108.001(2) appears to conflict with
the inclusive provisions of section 108.001(3), the two sections can be reconciled by
simply recognizing that they are not mutually exclusive. In that context, the later
enacted, specific provisions of 108.001(3) trump the earlier enacted, general provisions
of 108.001(2). Dr. Anderson’s issue is sustained.
CONCLUSION
The order of the trial court denying Dr. Anderson’s motion for partial summary
judgment is reversed. As this was a permissive interlocutory appeal, we remand the
cause to the trial court for further proceedings consistent with this opinion.
Patrick A. Pirtle
Justice
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