Kimbley Harold v. Matthew M. Carrick Carolyn M. Berg, Doan Nguyen, David Chafey

Opinion issued September 10, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00175-CV
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KIMBERLY [KIMBLEY] HAROLD, Appellant
V.
MATTHEW M. CARRICK, CAROLYN M. BERG, DOAN NGUYEN, AND
DAVID CHAFEY, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2009-65980
MEMORANDUM OPINION
In this appeal, we consider whether section 101.106(f) of the Texas Tort
Claims Act1 violates the “open courts” provision of the Texas Constitution.2 We
1
That section provides:
also consider whether the Texas Supreme Court’s opinion in Franka v. Velasquez,
332 S.W.3d 367 (Tex. 2011) violates the “takings”3 and “due process”4 provisions
of the United States Constitution, and whether the plaintiff can maintain a claim
against the health care provider defendants under 42 U.S.C. § 1983. We affirm.
BACKGROUND
Appellant, Kimberly [Kimbley] Harold, brought a medical malpractice claim
against appellees, Matthew M. Carrick, Carolyn M. Berg, Doan Nguyen, and
David Chafey, health care providers at Ben Taub Hospital, alleging that they
negligently failed to timely diagnose and treat her for an intestinal infection. The
health care providers filed a motion to dismiss, pursuant to section 101.106(f) of
the Texas Civil Practice and Remedies Code, which the trial court granted.
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.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (Vernon 2011).
2
See TEX. CONST. art. I, § 13.
3
See U.S. CONST. amend. V.
4
See U.S. CONST. amend. XIV.
2
Harold amended her petition to “seek[] recovery under § 1983 against each
doctor (in their individual capacity only) for violating Plaintiff’s substantive and
procedural due process right through their neglect and for acting under color of
state law in doing so[.]” The health care providers moved for summary judgment
on Harold’s § 1983 claims, which the trial court granted.
In five issues on appeal, Harold contends the trial court erred in granting the
health care providers’ motions to dismiss and summary judgment.
OPEN COURTS
In her first issue, Harold claims that the trial court erred in granting the
medical providers’ motion to dismiss, alleging that section 101.106(f) violates the
“open courts” provision. Essentially, Harold contends that the statute abrogates
her right to bring a malpractice action against the doctors by legislatively
overruling Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994), in which the supreme
court decided that government-employed personnel do not have official immunity
regarding their alleged negligence in exercising medical discretion in the treatment
of their patients. We agree that section 101.106 statutorily extends immunity to
acts of government employees acting within their official capacity. LTTS Charter
Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89–90 (Tex. 2011) (citing Franka,
332 S.W.3d at 371 n.9). The issue we must decide is whether it does so
constitutionally.
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Standard of Review
The proper standard of review for a motion to dismiss is abuse of discretion.
Bowers v. Matula, 943 S.W.2d 536, 538 (Tex. App.—Houston [1st Dist.] 1997, no
writ). In determining whether a trial court abused its discretion, we must
determine whether the trial court acted with reference to guiding rules and
principles or whether the trial court’s actions were arbitrary and unreasonable. See
Miller v. Gann, 822 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1991), writ
denied, 842 S.W.2d 641 (Tex. 1992). In addition, if the ruling is contrary to the
case law, it is an abuse of discretion. See Baywood Country Club v. Estep, 929
S.W.2d 532, 535 (Tex. App.—Houston [1st Dist.] 1996, writ denied). The scope
of review is limited to those arguments raised in the motion to dismiss. Brown v.
Aetna Cas. & Sur. Co., 145 S.W.2d 171, 174 (1940).
Analysis
The “open courts” provision states that “[a]ll courts shall be open, and every
person for an injury done him, in his lands, goods, person or reputation, shall have
remedy by due course of law.” TEX. CONST. art. I, § 13. “This provision, among
other things, prohibits the Legislature from unreasonably restricting common law
causes of action.” Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995) (citing
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex. 1993)).
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Statutes are presumed to be constitutional. TEX. GOV’T CODE ANN. §
311.021(1) (Vernon 2011); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).
When challenging a statute as unconstitutional on the basis that it restricts a
common law cause of action, the litigant must demonstrate that (1) the statute
restricts a well-recognized common law cause of action; and (2) the restriction is
unreasonable when balanced against the statute’s purpose. Flores v. Law, 8 S.W.3d
785, 787 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (citing Thomas, 895
S.W.2d at 357).
In Williams v. Nealon, 394 S.W.3d 9, 14 (Tex. App.—Houston [1st. Dist.],
pet. denied), this Court held that section 101.106 does not violate the “open courts”
provision, noting the supreme court’s opinion in Franka, 332 S.W.3d 367.
While the Franka court was not presented with an “open courts” challenge
to section 101.106(f), it did opine on the outcome of such a challenge as follows:
We recognize that the Open Courts provision of the Texas
Constitution “prohibits the Legislature from unreasonably abrogating
well-established common-law claims,” but restrictions on government
employee liability have always been part of the tradeoff for the Act’s
waiver of immunity, expanding the government’s own liability for its
employees’ conduct, and thus “a reasonable exercise of the police
power in the interest of the general welfare.”
Franka, 332 S.W.3d at 385 (internal citations omitted). “Thus, the supreme court
has indicated that an open courts challenge to section 101.106(f) would fail
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because the restriction is reasonable when balanced against the statute’s purpose.”
Williams, 394 S.W.3d at 12.
We also relied on Hintz v. Lally, 305 S.W.3d 761, 772–73 (Tex. App.—
Houston [14th Dist.] 2009, pet. denied), a pre-Franka case, in which the court
stated,
The Texas Supreme Court has addressed an open courts challenge
to the pre–2003 version of section 101.106. See Thomas, 895 S.W.2d
at 357–58. The prior version of section 101.106 stated that “[a]
judgment in an action or a settlement of a claim under this chapter
bars any action involving the same subject matter by the claimant
against the employee of the governmental unit whose act or omission
gave rise to the claim.” See id. at 355. The supreme court concluded
that, under this provision, “a judgment in an action against a
governmental unit under the Tort Claims Act bars the simultaneous
rendition of a judgment against the employee whose actions gave rise
to the claim.” Id. at 357.
The plaintiff in Thomas argued that section 101.106’s bar on
simultaneous judgments against the governmental employee and the
governmental employer violated the open courts provision. Id. The
supreme court rejected this challenge because “[t]he Tort Claims Act
broadened, rather than restricted, an injured party’s remedies.” Id. The
statute did so by creating a limited waiver as to governmental units
that were immune from liability at common law. Id. “Although a
plaintiff who pursues the statutory remedy against the government
may lose his or her common law remedy against the employee, the
plaintiff is not required to follow this course.” Id. at 357–58. “He or
she may still opt to pursue the full common law remedy against the
responsible employee, foregoing or postponing any attempt to recover
from the government.” Id. at 358 (footnote omitted); see also Flores,
8 S.W.3d at 788 (“Law could have pursued a common-law remedy
against Flores, foregoing or postponing any attempt to recover from
UTHSC. As such, section 101.106 does not restrict a well-recognized
cause of action.”).
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Thomas’s rationale does not readily translate to the post–2003
version of section 101.106 because newly added subsection (f) “does
not give the plaintiff the option of continuing with a lawsuit against
the governmental employee.” Bailey v. Sanders, 261 S.W.3d 153, 159
(Tex. App.—San Antonio 2008, pet. granted). However, Thomas’s
bottom-line holding rejecting an open courts challenge nonetheless
applies here because section 101.106(f)’s restriction is reasonable
when balanced against the statute’s purpose.
Williams, 394 S.W.3d at 12–13 (quoting Hintz, 305 S.W.3d at 772–73).
This Court ultimately concluded that, even though, under Franka, a
defendant seeking dismissal under section 101.106(f) no longer must show that a
suit against his employer under the Tort Claim Act would not be subject to
dismissal, the Hintz’s holding—“that ‘section 101.106(f)’s restriction . . . is
reasonable when balanced against the statute’s purpose’—remains sound and in
line with the supreme court’s pronouncement in Franka.” Williams, 394 S.W.3d at
13 (quoting Hintz, 305 S.W.3d at 773). “In exchange for the Tort Claims Act’s
waiver of sovereign immunity in certain situations, the statute limits a litigant’s
cause of action against employees of the state acting in the course and scope of
their employment.” Williams, 394 S.W.3d at 13–14. The restriction serves to
“narrow the issues, reduce delay, and avoid duplicative litigation.” Id. at 14
(quoting Hintz, 305 S.W.3d at 773). Thus, we hold that such a restriction is “a
reasonable exercise of the police power in the interest of the general welfare.” Id.
(citing Franka, 332 S.W.3d at 385 (quoting Tex. Workers’ Comp. Comm’n v.
Garcia, 893 S.W.2d 504, 520 (Tex. 1995)); see also Kamel v. Univ. of Tex. Health
7
Sci. Ctr. at Houston, 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (holding current version of section 101.106(f) does not violate open
courts provision))
Following this Court’s opinion in Williams, we overrule issue one.
In a related issue, Harold argues that the supreme court’s opinion in Franka
violates the “takings” and “due process” clauses of the United States Constitution.
Specifically, Harold argues that she had a “vested interest in how her common law
rights would be eliminated by the legislature,” claiming that “there was no
constitutional amendment that authorized the Texas legislature to eliminate the
common law right to sue governmental medical providers in their individual
capacity.” Harold points out that after personal injury damage caps were held
unconstitutional in Lucas v. U.S., 757 S.W.2d 687, 692 (Tex. 1988), a
constitutional amendment was required permitting damage caps, but that such
constitutional amendment applies only to limiting damages, not eliminating causes
of action entirely. Harold contends that, absent a constitutional amendment,
Franka’s elimination of her common law cause of action not only violates the
“open courts,” provision, it also violates both the “takings” and “due process”
clauses.
And, therein lies the fallacy of Harold’s argument. After Lucas, a
constitutional amendment was required before passing statutes imposing damage
8
caps because the Lucas court had held that such a statute violated the “open
courts” provision. Here, the Franka court did not address the “open courts”
provision, and this Court has held that section 101.106(f) does not violate the
“open courts” provision. Williams, 394 S.W.3d at 13.
There being no “open courts” violation, no constitutional amendment was
required, and no “taking” or “due process” violation based on the absence of a
constitutional amendment will lie.
We overrule issue two.
42 U.S.C. § 1983
In three related issues, Harold contends the trial court erred in granting the
health care providers’ motion for summary judgment on her claims under 42
U.S.C. § 1983. The health care providers respond that the trial court properly
granted their motion for summary judgment because, even taking Harold’s petition
and summary judgment evidence as true, she has failed to state a claim under that
statute as a matter of law.
Standard of Review
The summary-judgment movant must conclusively establish its right to
judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986). Because summary judgment is a question of law, we review a trial court’s
9
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
To prevail on a “traditional” summary-judgment motion asserted under Rule
166a(c), a movant must prove that there is no genuine issue regarding any material
fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). A
matter is conclusively established if reasonable people could not differ as to the
conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005).
Analysis
To state a claim under § 1983, a plaintiff must (1) allege a violation of a
right secured by the Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting under color of state
law. Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).
In the context of medical care, or lack of care, the Eighth Amendment
prohibits the unnecessary and wanton infliction of pain or care repugnant to the
conscience of mankind. Estelle v. Gamble, 429 U.S. 97, 104–06, 97 S. Ct. 285
(1976). Not every claim of inadequate or improper medical treatment is a violation
of the Constitution. Id. at 105. A complaint “that a physician has been negligent
in diagnosing or treating a medical condition does not state a valid claim of
10
medical mistreatment under the Eighth Amendment.” Hall v. Thomas, 190 F.3d
693, 697 (5th Cir. 1999) (citing Estelle, 429 U.S. at 105). Neither “‘negligence,
neglect or medical malpractice’” gives rise to a § 1983 cause of action. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citing Fielder v. Bosshard, 590 F.2d
105, 107 (5th Cir. 1979). “[N]egligent or mistaken medical treatment or judgment
does not implicate the eighth amendment and does not provide the basis for a civil
rights action.” Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). A negligent or
“inadvertent failure to provide adequate medical care cannot be said to constitute
‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the
conscience of mankind.’” Estelle, 429 U.S. at 105–06. Unsuccessful medical
treatment does not give rise to a § 1983 cause of action.” Varnado, 920 F.2d at
321.
Here, Harold’s First Amended petition alleged that the health care providers
“negligently provided medical care to Kimberly Harold by, inter alia, failing to
diagnose and treat Plaintiff concerning intestinal infection all as more fully
described by Dr. Robert Jacobson in his report and first supplemental report as
Exhibit C.”
Dr. Jacobson’s report contained the following:
In summary, in review of the records, as well as my long experience
in colon and rectal surgery and general surgery, in my opinion, the
doctors at Ben Taub breached the standard of care owed to Kimbley
Harold by failing to re-act and properly evaluate the radiographic
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evidence of August 9th and August 11th and timely diagnose Kimbley
Harold with a crushing injury to the blood vessels that supply blood to
the colon. This failure to timely evaluate and diagnose the problem
with the bowel, lead to the death of the bowel, which lead to the
rupture of the bowel which lead to the massive infection that ensued.
This delay in diagnosis, lead to a delay in treatment and greatly
compromised the patient requiring her to undergo extensive surgeries
designed to address the massive infection problem in the abdomen
which could have been largely avoided had the Ben Taub doctors
properly addressed the problem which should have been discovered. I
discuss these opinions in more detail below. A trauma of this severity
can cause many injuries some immediate and others delayed.
In her first supplemental petition, Harold alleged:
Plaintiff seeks recovery under § 1983 against each doctor (in their
individual capacity only) for violating Plaintiff’s substantive and
procedural due process rights through their neglect and for acting
under color of state law in doing so (the TTCA/Franks legal fiction
scheme); to wit: invoking TTCA/Franks to take away all of Plaintiff’s
common law remedies and to arbitrarily and negligently fail to act
upon the x-ray evidence. Such violations constitutionally injured
Plaintiff in violation of her 14th Amendment rights; to wit: deprivation
of liberty without due process of law both procedurally and
substantively.
Finally, in her second supplemental petition, Harold asserted:
Defendants unnecessarily and wantonly inflicted harm on Plaintiff by
providing inadequate medical care. Defendant exhibited deliberate
indifference to Plaintiff’s serious medical needs. Defendants violated
Plaintiff’s so stated constitutional rights as follows:
First: Defendant displayed deliberate indifference to the free air
findings which were documents in the radiological films and reports .
. .;
Second: That the plaintiff’s illness or injury was serious because the
free air evidence demonstrated that the Plaintiff suffered from a
ruptured intestine . . .; and
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Third: That the plaintiff was severely injured as a result of
Defendants [sic] acts or omissions regarding Plaintiff’s serious illness
or injury was revealed by the radiographic evidence demonstrating
free air in the abdomen.
Despite Harold’s insistence that this cause is one of constitutional
proportions, she is attempting to turn a medical malpractice tort case into a section
1983 claim. Godinet v. Thomas, 824 S.W.2d 632, 633 (Tex. App.—Houston [14th
Dist.] 1991, writ denied). Her pleadings and summary judgment evidence are
clearly based on the assertion that the medical providers were negligent in failing
to timely diagnose the damage to her colon caused by her injury.
As such, Harold has failed to allege the deprivation of a right, privilege or
immunity secured by the Constitution or the laws of the United States, and her
petition and summary judgment evidence, even when taken as true, do not support
a cause of action under 42 U.S.C. § 1983 as a matter of law.
Accordingly, the trial court did not err in granting the medical providers’
motion for summary judgment on her § 1983 claims. We overrule Harold’s third
through fifth issues on appeal.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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