Case: 10-40371 Document: 00511331914 Page: 1 Date Filed: 12/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2010
No. 10-40371 Lyle W. Cayce
Clerk
SUSANNA HINOJOSA RODRIGUEZ,
Plaintiff-Appellee
v.
CHRISTUS SPOHN HEALTH SYSTEM CORPORATION:
CHRISTUS SPOHN HEALTH SYSTEM CORPORATION, doing business as
Christus Spohn Hospital Corpus Christi, -Memorial;
CHRISTUS HEALTH,
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
REAVLEY, Circuit Judge:
Appellants CHRISTUS Spohn Health System Corp., CHRISTUS Spohn
Health System Corp. d/b/a CHRISTUS Spohn Hospital Corpus
Christi–Memorial, and CHRISTUS Health (collectively “CHRISTUS”) appeal the
district court’s denial of their Rule 12(b)(1) motion to dismiss Appellee Susanna
Hinojosa Rodriguez’s state law claims based on government immunity. The
primary issue on appeal is whether Rodriguez’s claims fall under the Texas Tort
Claims Act. If so, defendant CHRISTUS is entitled to government immunity on
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No. 10-40371
her state law claims,1 and defendant John Hill must be dismissed pursuant to
the Tort Claims Act’s election of remedies provision. The district court denied
CHRISTUS’s motion to dismiss under Rule 12(b)(1), holding that Rodriguez’s
claims were statutory claims and therefore not covered by the Tort Claims Act.
We vacate that order but a limited claim is approved.
I. Background
Rodriguez brought suit alleging that while receiving voluntary inpatient
mental health treatment at Christus Spohn Hospital Corpus Christi–Memorial,
Behavioral Medicine Department she was sexually assaulted by a staff member,
John Hill (“Hill”). Along with allegations of violations of the Texas and United
States Constitutions, she pleaded causes of action against CHRISTUS for
violations of (1) Chapter 74 of the Texas Civil Practice and Remedies Code—the
Medical Liability Act; (2) Chapter 81 of the Texas Civil Practice and Remedies
Code—the Sexual Exploitation by Mental Health Services Provider Act; and (3)
Chapter 321 of the Texas Health and Safety Code—“Patient Bill of Rights.”
Additionally, she pleaded a cause of action against Hill for assault and battery.
CHRISTUS filed a Rule 12(b)(1) motion to dismiss based on immunity and
election of remedies, or alternatively a motion for partial summary judgment.
With one small exception, the district court denied CHRISTUS’s 12(b)(1) motion,
ruling that CHRISTUS did not have immunity from suit on Rodriguez’s claims.
The district court granted CHRISTUS’s motion to certify its order under 28
U.S.C. § 1292(b). We subsequently granted their motion for leave to appeal. We,
therefore, have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b).
II. Discussion
1
Rodriguez brought both state and federal claims. Only her state law claims are at
issue here.
2
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“We review a ruling on a F ED. R. C IV. P. 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction de novo,”2 “applying the same standards as the
district court.”3 A district court may determine its jurisdiction based on “(1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.”4 “[I]f the court’s decision rests on one of the
first two of these bases—in which case the court need not decide among
conflicting factual positions—our review is limited to determining whether the
district court’s application of the law is correct and, if the decision is based on
undisputed facts, whether those facts are indeed undisputed.”5 “But, if the court
has relied . . . on its own determination of disputed factual issues, we must then
review those findings as we would any other district court resolution of factual
disputes—we must accept the district court’s findings unless they are ‘clearly
erroneous.’” 6
A. Claims Against CHRISTUS
As a threshold matter, the parties do not contest the district court’s
determination that CHRISTUS is a “hospital district management contractor”
as defined by section 285.071 of the Texas Health and Safety Code. Since
CHRISTUS is a hospital district management contractor, it is entitled to
governmental immunity7 for the purposes of Chapters 101, 102, and 108 of the
2
Budget Prepay, Inc. v. AT&T Corp., 605 F.3d 273, 278 (5th Cir. 2010).
3
LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005).
4
Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001).
5
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
6
Id.
7
Both sovereign immunity and governmental immunity “afford the same degree of
protection and both levels of government are subject to the Tort Claims Act.” Mission Consol.
3
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Texas Civil Practice & Remedies Code.8 Chapter 101 is the Texas Tort Claims
Act, while chapters 102 and 108 cover tort claims payments by local
governments, and limitation of liability for public servants, respectively. And
Rodriguez does not claim that a Tort Claims Act tort would be entitled to the
limited waiver of immunity provided by the Act.9 Where the parties part ways
is on the question whether Rodriguez’s three state law claims are torts that fall
under the Act.
1. Torts Falling “Under the Tort Claims Act”
CHRISTUS contends that the district court erred when it held that
statutory claims may never fall under the Tort Claims Act, and argues that
Texas courts have long applied the Act to various statutory causes of action.
Rodriguez argues that the waiver granted to “hospital district management
contractors” should be extremely limited—applying to common law torts only;
to read it otherwise would essentially make these contractors a part of the
government. However, the statute itself and the case law do not support her
argument.
The Tort Claims Act itself contains no language limiting its scope to
common law torts. Instead, the Act’s limited waiver allows for certain actions
for which a person “would be personally liable to the claimant according to Texas
law,” not Texas common law.10 Also, the Texas Legislature placed it in Title 4
of the Civil Practice and Remedies Code, entitled “Liability in Tort,” which
codifies, or makes statutory, many traditional common law torts, such as
Libel—Chapter 73, Trespass—Chapter 80, and Products Liability—Chapter 82.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).
8
TEX . HEALTH & SAFETY CODE § 285.072.
9
See TEX . CIV . PRAC . & REM . CODE § 101.021.
10
§ 101.021 (emphasis added).
4
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And, the Legislature clearly contemplated the interplay of statutory torts with
the Tort Claims Act. For example, in Chapter 74—the Medical Liability Act, the
Legislature provided that “in the event of a conflict between this chapter and
Section 101.023, 102.003, or 108.002, those sections of this code control to the
extent of the conflict,”11 and specified that “[t]his chapter does not waive
sovereign immunity from suit or from liability.”12 Nor does the plain language
of § 285.072 of the Texas Health and Safety Code, conveying governmental
immunity to hospital district management contractors, limit immunity to
common law torts alone.13
The Texas Supreme Court has held that causes of action based on statutes
containing their own waiver of immunity do not fall under the Act.14 However,
the Texas Supreme Court has never barred all statutory claims from falling
under the Tort Claims Act. And, subsequent cases from the state courts of
appeals have followed the pattern of distinguishing claims based on statutes
containing independent waivers of immunity.15 Further, Texas courts treat
11
TEX . CIV . PRAC . & REM . CODE § 74.002(b),
12
§ 74.003.
13
“A hospital district management contractor in its management or operation of a
hospital under a contract with a hospital district is considered a governmental unit for
purposes of Chapters 101, 102, and 108, Civil Practice and Remedies Code[.]” TEX . HEALTH &
SAFETY CODE § 285.072.
14
Garcia, 253 S.W.3d at 659 (“Claims against the government brought pursuant to
waivers of sovereign immunity that exist apart from the Tort Claims Act are not brought ‘under
the [Tort Claims Act].’”) (emphasis added).
15
See, e.g., Castro v. McNabb, 319 S.W.3d 721, 731–32 (Tex. App.–El Paso 2009, no pet.)
(holding that plaintiff’s claim under the Declaratory Judgment Act was not “under the Tort
Claims Act,” because the Declaratory Judgment Act separately waived sovereign immunity);
see also Kelemen v. Elliott, 260 S.W.3d 518, 523 (Tex. App.–Houston [1st Dist.] 2008, no pet.)
(“Like the claim in Garcia, the statutory claim under the [Human Rights Act] and the claim
for the Whistleblower Act violation are claims brought against the government pursuant to
waivers of sovereign immunity that exist apart from the Tort Claims Act” and “are similarly
not claims under the Tort Claims Act.”).
5
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statutory torts like common law torts absent some conflicting statutory
provisions.16 We are, therefore, persuaded that statutory claims may fall under
the Tort Claims Act provided (1) they are tort claims, and (2) they do not contain
independent waivers of sovereign immunity, and we analyze Rodriguez’s claims
accordingly.
It should be understood that “the Tort Claims Act does not create a cause
of action; it merely waives sovereign immunity as a bar to a suit that would
otherwise exist.”17 Claims brought under the Tort Claims Act must first be
claims based on a viable theory of tort liability. So, the phrase “brought under
the Tort Claims Act” is merely shorthand for the fact that the government may
not be sued in tort unless a separate, viable tort fits within the limited waiver
provided by the Act.
Therefore, the question becomes whether Rodriguez’s statutory claims
sound in tort, and, if so, whether they contain an independent waiver of
immunity. The Tort Claims Act does not define tort, so we apply its commonly
accepted meaning. Tort liability depends on both the existence and violation of
a duty.18 Statutes may create duties on which tort liability is premised.19 Not
all statutory claims sound in tort, so the court must examine each claim to
16
See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 705 (Tex. 2008) (applying the Texas
proportionate responsibility statute, TEX . CIV . PRAC . & REM . CODE § 33.002, to UCC article 3
conversion claims); Garcia, 253 S.W.3d at 659 (“[A]s we have said, all tort theories of recovery
alleged against a governmental unit are presumed to be under the [Tort Claims Act].”)
(internal quotation marks omitted).
17
City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997).
18
Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).
19
See, e.g., City of Waco v. Kirwan, 298 S.W.3d 618, 623–24 (Tex. 2009) (examining the
duty imposed by statue governing recreational use of land, TEX . CIV . PRAC . & REM . CODE
§ 75.002); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683–85 (Tex. 2007) (“In
the Dram Shop Act, the Legislature created a duty, not recognized at common law, on alcohol
providers[.]”).
6
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determine its basis. “The precise nature of the claim is ordinarily identified by
examining the damages alleged: when the damages are purely economic, the
claim sounds in contract, but a . . . claim alleging damages for death or personal
injury sounds in tort.”20
2. Chapter 74 Claim
In her first claim against CHRISTUS, based on Chapter 74 of the Texas
Civil Practice and Remedies Code—the Medical Liability Act, Rodriguez alleges
inter alia that CHRISTUS owed her a duty to keep her safe by following proper
procedures for warning patients, hiring and training employees, and providing
a safe environment. Because of CHRISTUS’s alleged breach of its duty,
Rodriguez claims that she was sexually assaulted by an employee. She seeks
damages for her injury. Chapter 74 does not create a separate cause of action,
but rather governs all tort claims that are considered “health care liability
claims” as defined by the statute.21 But even if it did create a statutory cause of
action, it would sound in tort. The Texas Legislature classified Chapter 74 as
affecting tort claims when it placed it in Title 4 of the Texas Civil Practice and
Remedies Code, entitled Liability in Tort. Rodriguez’s Chapter 74 claim sounds
in tort. Additionally, Chapter 74 expressly does not waive sovereign immunity.22
Rodriguez’s Chapter 74 claim must be dismissed because it is a tort based on a
statute that contains no independent waiver of immunity.
3. Chapter 81
In the second claim, under Chapter 81 of the Texas Civil Practice and
Remedies Code—the Sexual Exploitation by Mental Health Provider Act,
20
JCW Elecs., 257 S.W.3d at 705.
21
TEX . CIV . PRAC . & REM . CODE § 74.001(a)(13); See Clark v. TIRR Rehab. Ctr., 227
S.W.3d 256, 260 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (evaluating plaintiff’s negligence
claim to determine if it was a “health care liability claim” under Chapter 74).
22
TEX . CIV . PRAC . & REM . CODE § 74.003.
7
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Rodriguez alleges that she was sexually assaulted by Hill—an employee of
CHRISTUS. Here, she claims personal injury for which she seeks monetary
damages and/or equitable relief. This claim also sounds in tort. However,
Chapter 81 contains a partial waiver of immunity.23 Section 81.010 allows a
cause of action as defined in § 81.002 24 against governmental units but only for
“(1) an order requiring the governmental unit to discharge the mental health
services provider who committed the conduct; (2) court costs; and (3) reasonable
attorney’s fees, as determined by the court.”25 Since CHRISTUS is “considered
a governmental unit for the purposes of [the Tort Claims Act],” it enjoys the
same level of partial immunity.26 Thus, it is immune to any claim under Chapter
81 except as allowed by § 81.010. Rodriguez’s Chapter 81 claim must be
dismissed, except to the extent that it falls under § 81.010.
4. Chapter 321 Claim
Rodriguez’s last claim is based on violations of Chapter 321 of the Texas
Health and Safety Code—“Patient Bill of Rights.” Section 321.002 imposes on
23
TEX . CIV . PRAC . & REM . CODE § 81.010.
24
Section 81.002 provides that:
A mental health services provider is liable to a patient or former patient of the
mental health services provider for damages for sexual exploitation if the
patient or former patient suffers, directly or indirectly, a physical, mental, or
emotional injury caused by, resulting from, or arising out of:
(1) sexual contact between the patient or former patient and the mental
health services provider;
(2) sexual exploitation of the patient or former patient by the mental
health services provider; or
(3) therapeutic deception of the patient or former patient by the mental
health services provider.
TEX . CIV . PRAC . & REM . CODE § 81.002.
25
§ 81.010(b), (d).
26
See TEX . HEALTH & SAFETY CODE § 285.072.
8
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all mental health facilities an affirmative duty to inform patients of their
rights.27 Section 321.003 provides a cause of action for breaches of this duty and
proscribes remedies.28 A plaintiff may sue for injunctive relief and/or damages,
including damages for mental anguish. Although Chapter 321 does not fall
within Title 4 of the Civil Practice and Remedies Code codifying tort liability, the
claim sounds in tort because of the remedy sought.29 And since the Texas
Supreme Court has determined that § 321.003 does not contain an independent
waiver of sovereign immunity,30 Rodriguez’s Chapter 321 claim also falls under
the Tort Claims Act and must be dismissed.
B. Claims Against Hill
CHRISTUS argues that the district court erred when it denied
CHRISTUS’s Rule 12(b)(1) motion to dismiss Rodriguez’s claims for assault and
battery against Hill. CHRISTUS contends that pursuant to the Tort Claims
Act’s election of remedies scheme laid out in § 101.106,31 Hill must be dismissed
as a party. Rodriguez counters that for the reasons she urged above, the Tort
Claims Act, and therefore its election of remedies provision, is inapplicable.
In their briefing, the parties do not dispute that Hill is an employee of
CHRISTUS32 or that CHRISTUS filed a motion under this section to have Hill
27
TEX . HEALTH & SAFETY CODE § 321.002(f).
28
§ 321.003.
29
See JCW Elecs., 257 S.W.3d at 705.
30
Beaumont State Ctr. v. Kozlowski ex rel. Allen, 108 S.W.3d 899, 900 (Tex. 2003) (per
curiam).
31
Section 101.106(e) provides that “[i]f 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.” TEX . CIV . PRAC . & REM . CODE § 101.106(e).
32
For the first time, at oral argument, Rodriguez argued that Hill was an employee of
the hospital district, not CHRISTUS. Since Rodriguez did not brief this issue, it is waived.
See Mullins v. TestAmerica, Inc., 564 F.3d 386, 417 (5th Cir. 2009) (“[W]e deem this issue
9
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dismissed. As discussed above, Rodriguez’s claims all fall within the scope of the
Tort Claims Act. And, her claims against Hill and CHRISTUS arise from the
same incident—the alleged sexual assault by Hill.33 The Texas Supreme Court
has held that all claims falling under the Tort Claims Act, not just those for
which the Tort Claims Act waived immunity, trigger the election of remedies
provision.34 Therefore, pursuant to the election of remedies provision of the Tort
Claims Act, Rodriguez’s claims against Hill must be dismissed.
III. Conclusion
For the foregoing reasons, the order being appealed is vacated but a
limited claim pursuant to Section 81.010 of the Texas Civil Practice and
Remedies Code is approved. The case is remanded for further proceedings not
inconsistent with this opinion.
VACATED and REMANDED.
waived due to inadequate briefing.”).
33
See Garcia, 253 S.W.3d at 657 (Section 101.106 “is intended to protect governmental
employees by favoring their early dismissal when a claim regarding the same subject matter
is also made against the governmental employer”).
34
Id. at 659.
10