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rejecting argument that Garcia eliminated the requirement to show that the plaintiff's claims fell within a waiver of immunity
Summary of this case from Menefee v. MedlenOpinion
No. 05-08-01636-CV
Opinion issued November 3, 2009.
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 68321CC.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
Joseph Lieberman and John Lieberman, individually and on behalf of the Estate of Larry Lieberman (collectively "Lieberman"), appeal the trial court's order granting the motion to dismiss filed by Dr. Cesar Romero, Dr. Anthony Claxton, and Dr. David Korman. In three issues, Lieberman claims the trial court erred in dismissing this case because this lawsuit could not be brought "against the governmental unit" as provided in section 101.106(f) of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 101.106(f) (Vernon 2005). We vacate the trial court's order and remand this case for further proceedings.
Larry Lieberman died shortly after being transferred from the El Paso Psychiatric Center to Terrell State Hospital. Lieberman sued the doctors, alleging they had
negligently failed to make proper tests and examinations, negligently failed to administer proper medications, negligently failed to call in consultants, negligently failed to recognize and treat the obvious signs of a serious illness, and negligently failed to timely transfer Larry Lieberman to a facility that had the capabilities of treating his condition.
Lieberman alleged Larry relied on the doctors to provide him with proper and timely medical care and treatment and that the doctors' negligence was a proximate cause of Larry's death and of Lieberman's damages. The doctors filed an answer and a motion to dismiss pursuant to section 101.106(f) of the civil practices and remedies code. In the motion, the doctors claimed their dismissal from the suit was "mandatory" because they were acting "in the general course and scope of their employment with [Texas Department of State Health Services] at Terrell State Hospital" and Lieberman's lawsuit "is a case which could have been brought against the governmental unit, TDSHS." The trial court agreed with the doctors and dismissed Lieberman's case. This appeal ensued.
In three interrelated issues, Lieberman claims the trial court erred in granting the doctors' motion to dismiss because there were no pleadings or no evidence that Larry's death was caused by the use or misuse of any property and, therefore, Lieberman could not have brought suit against TDSHS under the Texas Tort Claims Act.
Section 101.106(f) of the civil practice and remedies section 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.
Tex. Civ. Prac. Rem. Code Ann. § 101.106(f). The tort claims act is a limited waiver of the State's sovereign immunity in three general areas: injury caused by (1) an employee's use of a motor-driven vehicle; (2) a condition or use of tangible personal or real property; and (3) a premise defect. Tex. Civ. Prac. Rem. Code Ann. §§ 101.021-.022(a) (Vernon 2005 Supp. 2009); County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002); Turner v. Zellers, 232 S.W.3d 414, 417 (Tex. App.-Dallas 2007, no pet.). We review de novo whether Lieberman's claims allege personal injury or death "caused by a condition or use of tangible personal . . . property" and thus could have been brought against TDSHS under the tort claims act. See Turner, 232 S.W.3d at 418.
In his petition, Lieberman alleged the doctors were negligent in their treatment of Larry by negligently failing to (1) make proper tests and examinations, (2) administer appropriate medications, (3) call in consultants, (4) recognize and treat the obvious signs of a serious illness, and (5) timely transfer Larry to an appropriate facility with the capabilities of treating his condition. Lieberman did not allege Larry death was caused by a "condition or use of tangible or real property." Lieberman's petition alleges medical malpractice claims. Furthermore, the doctors provided no evidence that a condition or use of tangible or real property caused Larry's death. Under these circumstances, we cannot conclude these claims could have been brought against a governmental unit or entity under the Texas Tort Claims Act. See Hall v. Provost, 232 S.W.3d 926, 929 (Tex. App.-Dallas 2007, no pet.); Turner, 232 S.W.3d at 418; Kanlic v. Meyer, 230 S.W.3d 889, 894 (Tex. App.-El Paso 2007, pet. denied); Williams v. Nealon, 199 S.W.3d 462, 465 (Tex. App.-Houston [1st] 2006, pet. filed).
In reaching this conclusion, we reject the doctors' argument that the supreme court's holding in Mission Consolidated Independent School District v. Garcia mandates a different result. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-657 (Tex. 2008). In that case, the Texas Supreme Court addressed the language of subsections 101.106(b) and 101.106(e) but not the language of subsection 101.106(f). In fact, the supreme court specifically noted section 101.106(f) contains a different phrase, the interpretation of section 101.106(f) was not before the court, and neither party in Mission argues that section 101.106(f) applied to the case. Id. at 660 n. 5. Because the supreme court has neither addressed subsection 101.106(f) nor overruled the prior cases out of this Court addressing that section, we conclude we are bound by our own Court's precedent.
We sustain Lieberman's issues.
We vacate the trial court's order granting the doctors' motion to dismiss under section 101.106(f) and remand this case to the trial court for further proceedings.