Opinion
No. 04-16-00012-CV
05-25-2016
John CALHOON, M.D., Appellant v. Lindsey WILKERSON, individually and as next friend of L.M., a minor, Appellees
MEMORANDUM OPINION
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-12113
Honorable Gloria Saldaña, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice REVERSED AND REMANDED
This is an interlocutory appeal in which John Calhoon, M.D., contends the trial court erred by denying his motion to dismiss him from the suit under the election of remedies provision of the Texas Tort Claims Act. The trial court's order is reversed.
BACKGROUND
Lindsey Wilkerson filed suit against Dr. Calhoon alleging he committed medical malpractice in the care and treatment of L.M., a minor, during her admission to Santa Rosa Children's Hospital of San Antonio ("Children's Hospital"). Wilkerson alleged that on June 3, 2013, Dr. Calhoon was negligent during his care and treatment of L.M. Wilkerson further alleged Dr. Calhoon's employer, University of Texas Health Science Center ("UTHSC"), is liable under the doctrine of respondeat superior. Children's Hospital is also a named defendant in the underlying suit.
Dr. Calhoon moved for dismissal of the suit against him pursuant to Texas Civil Practices and Remedies Code section 101.106(f). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). Dr. Calhoon asserted he was acting in the course and scope of his employment for UTHSC, a governmental unit, at the time he provided care to L.M., and the healthcare liability claim, a tort, could have been brought against his employer.
Following a hearing, the trial court denied Dr. Calhoon's motion to dismiss him from the suit. This interlocutory appeal followed.
ANALYSIS
In his sole issue on appeal, Dr. Calhoon argues the trial court erred by denying his motion to dismiss because his affirmative defense of official immunity bars Wilkerson's claims against him. In response, Wilkerson argues Dr. Calhoon did not meet his burden of establishing official immunity.
Standard of Review
The election of remedies provision within the Texas Tort Claims Act ("the Act") confers immunity from suit or recovery. Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011). If official immunity from suit applies, the trial court lacks subject-matter jurisdiction over the case against the employee. Maverick County Hosp. Dist. v. Martin, 376 S.W.3d 163, 166 (Tex. App.—San Antonio 2012, pet. denied). An appellate court reviews a trial court's ruling on a challenge to the trial court's jurisdiction de novo. Tex. Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Similarly, matters of statutory construction are reviewed under a de novo standard. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This court must "take as true all evidence favorable to the non-movant" and "indulge every reasonable inference and resolve any doubts in the non-movant's favor." Miranda, 133 S.W.3d at 227-28.
Applicable Law
Section 101.106 of the Act, entitled "Election of Remedies," contains six subsections dealing with grants of immunity and procedural requirements for suits seeking to recover from a governmental unit, its employee, or both. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a)-(f) (West 2011). Subsection (f) applies when an individual employee of a governmental entity is sued in his official capacity and seeks dismissal based on official immunity. Id. at § 101.106(f). Subsection (f) provides,
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.Id. As the moving party, it is the employee's burden to present evidence establishing (1) the suit is based on conduct within the general scope of the employee's employment; and (2) the suit could have been brought under the Act against the governmental unit. Franka, 332 S.W.3d at 381. The first prong of the above test encompasses two inquiries: whether the individual defendant was an employee of a governmental unit and whether he was acting in the scope of that employment at the relevant time. Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Section 101.001(2) of the Act defines an "employee" of a governmental unit as
a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an
agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (West Supp. 2015). The burden is on the employee to show he was in the paid service of a governmental unit and the governmental unit had the legal right to control the details of his work. Lenoir v. Marino, 469 S.W.3d 669, 675 (Tex. App.—Houston [1st Dist.] 2015, pet. filed).
Application
Dr. Calhoon was required to show the suit against him was based on conduct within the general scope of his employment, and the suit could have been brought under the Act against UTHSC. See Franka, 332 S.W.3d at 381. In this case, the parties do not dispute that the suit could have been brought under the Act against UTHSC. Therefore, to support his contention the suit against him was based on conduct within the general scope of his employment, Dr. Calhoon was required to present evidence he was an employee of a governmental unit, meaning he was in the paid service of a governmental unit and the governmental unit had the legal right to control his work. See Lenoir, 469 S.W.3d at 675. Dr. Calhoon was also required to present evidence the care he provided L.M. was within the scope of his employment. See Anderson, 365 S.W.3d at 124.
Employee of a Governmental Unit
Dr. Calhoon testified via affidavit he was employed by UTHSC as a cardiothoracic surgeon and a Professor and Chair of the Department of Cardiothoracic Surgery for the entirety of 2013, as well as the President's Council Chair for Excellence in Surgery. The affidavit testimony of Heather Kobbe, the Senior Director of Talent Management at UTHSC, confirmed Dr. Calhoon was employed by UTHSC at the time he cared for L.M. Further, both Dr. Calhoon's and Kobbe's affidavits stated Dr. Calhoon was compensated by UTHSC for his services. According to Dr. Calhoon, he was paid only by UTHSC in 2013, including during the time he provided care to L.M.
Dr. Calhoon's signed Memorandum of Appointment with UTHSC for fiscal year 2012-2013, shows his appointment to UTHSC between September 1, 2012, and August 31, 2013, and provides his appointment was "subject to the provisions of the Rules and Regulations of the Board of Regents of the University of Texas System, Regental, and UT System Policies, [and] the rules and regulations of" UTHSC.
Dr. Calhoon testified in his affidavit that his medical decisions during the treatment of patients were subject to the regimens prescribed by UTHSC. To support of his contention UTHSC, not Children's Hospital, had the right to control his work, Dr. Calhoon presented a copy of the Affiliation Agreement between Children's Hospital and UTHSC. The Agreement provides UTHSC's doctors are not employees of Children's Hospital, stating "[i]t is understood that full-time faculty are responsible to the appropriate Department Chair and are contractually obligated exclusively to [UTHSC]," while the "employees and staff of [Children's Hospital] are contractually obligated exclusively to [Children's Hospital]." The Agreement states "[UTHSC] will exercise jurisdiction over its employees" in Children's Hospital facilities.
Further, Children's Hospital does not have the right to direct UTHSC's doctors' medical practices. Appendix A, section B(v) of the Agreement, which addresses Children's Healthcare Services, states "[Children's Hospital] shall not have any right to control the practice of medicine by the clinical faculty or house staff of [UTHSC]." In a case addressing whether a governmental entity had the right to control a physician's work when the physician exercised independent medical judgment, the Texas Supreme Court found a medical faculty member at UTHSC who was subject to UTHSC's regimes and review was a government employee even though the health care he provided was through another health care facility. Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003).
The Act applies both to the State and to governmental units of the State. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001 - .109 (West Supp 2015). The term "governmental unit" is defined to include the State of Texas, all of its various agencies, political subdivisions, emergency service organizations, and "any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution." Id. at § 101.001(3). UTHSC is a "governmental unit" within the meaning of section 101.001(3) of the Act as it is a unit of the State as indicated within the Education Code. See TEX. EDUC. CODE ANN. § 65.02 (West Supp. 2015).
Based upon the evidence, this court concludes Dr. Calhoon met his burden of showing he was in the paid service of UTHSC, a governmental unit, which had the legal right to control details of his work.
Scope of Employment
"Scope of employment" is defined as the performance "of a task lawfully assigned to an employee." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp. 2015). An employee's "scope of authority extends to job duties to which the official has been assigned even if the official errs in completing the task." Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San Antonio 2013, no pet.).
The previously discussed evidence established that at the time he provided care to L.M., Dr. Calhoon was the Chair of the Department of Cardiothoracic Surgery and the Distinguished Chair of Pediatric Surgery at UTHSC. In his affidavit, Dr. Calhoon testified the responsibilities of his employment with UTHSC included providing medical care and treatment to pediatric patients, including L.M., at Children's Hospital. Dr. Calhoon additionally testified that when he provided care to L.M., he acted pursuant to the terms and conditions of his appointment as a Professor of Cardiothoracic Surgery and at the direction of UTHSC. This evidence is not controverted, and therefore, established Dr. Calhoon was performing acts assigned to him by his employer when he provided care to L.M.
Based upon the facts and uncontroverted evidence, this court concludes Dr. Calhoon satisfied his burden of showing he acted within the general scope of his employment at the time he provided treatment and care to L.M. Further, the suit against Dr. Calhoon could have been brought against UTHSC under the Act. Accordingly, Dr. Calhoon was entitled to dismissal under section 101.106(f) of the Act.
Dr. Calhoon's issue on appeal is sustained.
CONCLUSION
Based on the reasoning set forth above, this court reverses the trial court's order denying Dr. Calhoon's motion to dismiss, dismisses Dr. Calhoon as a named defendant in the suit, and remands the cause to the trial court for further proceedings.
Jason Pulliam, Justice