Opinion issued November 25, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01034-CV
———————————
SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR AND
CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND AS NEXT FRIEND
OF NAYLA MCKNIGHT, Appellants
V.
LEAH ANNE GONSKI MARINO F/K/A LEAH ANNE GONSKI AND
JAOU-CHEN HUANG, M.D., Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2012-35806A
OPINION
This is a healthcare liability case brought against two physicians, a nurse,
and a medical clinic, following the death of a patient of the UT Physicians clinic of
Houston, Shana Lenoir, and her two unborn children hours after she received
prenatal care at the UTP clinic. Suit was filed by Lenoir’s mother, Shirley Lenoir,
and the father of her only living child, Christopher McKnight, in their individual
and representative capacities (collectively referred to as “Lenoir”).
Dr. Gonski, who treated Shana, and Dr. Huang, who was the attending
physician at the UTP clinic where Shana was treated, both moved for dismissal of
the claims against them. They argued that they were employees of governmental
units, acting within the scope of that employment and, as a result, the election-of-
remedies provision of the Texas Tort Claims Act mandates their dismissal. The
trial court granted the motions and dismissed both physicians from the suit.
In three issues, Lenoir contends that neither physician was entitled to
dismissal and challenges the affidavits submitted on their behalf as conclusory. We
overrule the challenge to the affidavits, affirm the trial court’s judgment dismissing
Dr. Huang, reverse the portion of the judgment that dismisses Dr. Gonski, and
remand for further proceedings against Dr. Gonski.
Background
Shana Lenoir went to UTP clinic for prenatal care when she was
approximately 32–35 weeks pregnant with twins. Because the physician she was
scheduled to see was unavailable, she was seen by Dr. Gonski, who was a second-
year medical resident. Shana told Dr. Gonski that, during an earlier pregnancy, she
2
had a preterm delivery of twins only five and one-half months into her pregnancy.
One of the babies died; the other required extensive medical care and was in the
neonatal intensive care unit for over four months. Dr. Gonski prescribed weekly
injections of progesterone. A nurse gave Shana her initial progesterone injection
while she was still at the UTP clinic.
Several hours later, Shana began having difficulty breathing. McKnight
called for emergency medical assistance, but she collapsed before help arrived.
Shana was taken by EMS to Memorial Hermann Hospital; however, she and both
of her unborn children died before they arrived at the hospital.
Lenoir sued the treating physician (Dr. Gonski), the attending physician
overseeing Dr. Gonski’s provision of medical care (Dr. Huang), the nurse who
injected the medication under Dr. Gonski’s orders, and UTP clinic. Drs. Gonski
and Huang moved for dismissal under section 101.106(f) of the Texas Tort Claims
Act, arguing that dismissal of the healthcare liability claims asserted against them
was mandated by the election-of-remedies provision of the sovereign immunity
statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011).
Dr. Gonski asserted that she was an employee of the University of Texas System
Medical Foundation, a nonprofit corporation that appoints medical residents to the
University of Texas Health Science Center at Houston residency program.
Dr. Huang asserted that he was an employee of the UT Health Science Center at
3
Houston and was overseeing the work of the UT residents, including Dr. Gonski, at
the UTP clinic as part of that employment. All parties presented affidavits and
other evidence to the trial court. Following a hearing on the motions, both
physicians were dismissed from the suit.
A party against whom a dismissal order is entered based on sovereign
immunity may bring an interlocutory appeal of that order. TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014 (West Supp. 2014). In this interlocutory appeal, Lenoir
argues that fact issues exist to prevent dismissal of the physicians.
Standard of Review
Generally, we review a trial court’s order on a motion to dismiss under an
abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 878 (Tex. 2001); Kanlic v. Meyer, 230 S.W.3d 889, 892 (Tex.
App.—El Paso 2007, pet. denied). However, the proper standard of review is not
necessarily determined by the type of motion to which the order relates, rather it is
determined by the substance of the issue to be reviewed. Singleton v. Casteel, 267
S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing In re
Doe, 19 S.W.3d 249, 253 (Tex. 2000)).
Here, the motion to dismiss raised an issue of immunity. See id.; see also
Franka v. Valasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that section
101.106 confers immunity in some instances to employees of governmental units).
4
If immunity applies, the trial court lacks subject matter jurisdiction over the case.
See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004);
see also Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber–Eells, 327 S.W.3d
233, 240 (Tex. App.—San Antonio 2010, no pet.) (stating that section 101.106 is
jurisdictional statute involving waiver of immunity). Subject matter jurisdiction is
a question of law which we review de novo. Miranda, 133 S.W.3d at 226.
Likewise, matters of statutory construction are reviewed under a de novo standard.
City of San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003); see Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).
Sovereign Immunity and Section 101.106 Dismissals
By common law, the State is immune from suit unless it consents by
waiving immunity. Texas Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350,
353 (Tex. 2013). The State may waive immunity to the degree it sees fit taking into
account public policy and financial considerations. See Tex. Nat. Res. Conserv.
Comm’n v. IT–Davy, 74 S.W.3d 849, 854 (Tex. 2002). Waivers of sovereign
immunity are construed narrowly given the policy considerations. TEX. GOV’T
CODE ANN. § 311.034 (West 2013); Ngakoue, 408 S.W.3d at 353. Through the
Tort Claims Act, Texas has chosen to establish a limited waiver of immunity in
suits against the State for deaths proximately caused by the negligence of a
governmental employee acting within her scope of employment if the death was
5
caused by a condition or use of tangible personal property and the governmental
unit would, were it a private person, be liable to the claimant according to Texas
law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011). The immunity
applies to the State and to governmental units of the State. See id. The term
“governmental unit” is defined by statute to include the State of Texas, all of its
various agencies, political subdivisions, emergency service organizations, “and
other institution, agency or organ of government the status and authority of which
are derived from the constitution of Texas or from the laws passed by the
legislature under the constitution.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(3) (West Supp. 2013).
The State’s sovereign immunity also impacts the suit against a government
employee. Section 101.106 of the Texas Tort Claims Act, titled Election of
Remedies, provides:
(a) The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and immediately
and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same
subject matter.
(b) The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately
and forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the
governmental unit consents.
. . .
(f) If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee’s employment
6
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 (West 2011) (emphasis added).
This law forces plaintiffs to decide “at the outset” whether an employee
acted independently (which could lead to individual liability) or acted within the
general scope of her employment (such that the governmental unit would face
potential vicarious liability). Mission Consol. Indep. School Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008). Because it is an irrevocable decision, “a plaintiff
must proceed cautiously before filing suit and carefully consider whether to seek
relief from the governmental unit or from the employee individually.” Id. This law
“strongly favors dismissal of governmental employees.” Anderson v. Bessman, 365
S.W.3d 119, 124 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
It is not a prerequisite to dismissal of a government employee under section
101.106(f) that the plaintiff be able to successfully pursue a tort action against the
governmental-unit employer. See Franka, 332 S.W.3d at 381. Any tort action
brought against a government employee acting in the general scope of her
employment is one that “could have been brought under this chapter against the
governmental unit,” even if the particular tort alleged is one for which sovereign
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immunity has not been waived. See id. at 378, 381 & n.66 (“Recovery for the
negligence of a government physician acting in the course of employment would
be limited to that afforded under the Act.”); see also Williams v. Nealon, 394
S.W.3d 9, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (noting that
Franka removed from defendant-employee burden to show that suit could have
been successfully maintained against government).
Thus, to obtain summary dismissal under section 101.106(f) of the Tort
Claims Act, the defendant employee has the burden to establish—as a matter of
law—that she is (1) an employee of a governmental unit (2) working in the general
scope of her employment. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f);
Franka, 332 S.W.3d at 375; Kelemen v. Elliott, 260 S.W.3d 518, 524 (Tex. App.—
Houston [1st Dist.] 2008, no pet.); Williams, 394 S.W.3d at 13. Evidence that is
disputed or insufficient cannot support a dismissal. Franka, 332 S.W.3d at 375; see
also Dallas Area Rapid Transit v. Thomas, 168 S.W.3d 322, 327 (Tex. App.—
Dallas 2005, pet. denied). This standard protects the interests of the State by
allowing dismissal when immunity exists while also protecting the injured
claimants from dismissal on disputed facts. See Miranda, 133 S.W.3d at 228.
Section 101.001(2) defines an “employee” of a governmental unit as
follows:
“Employee” means a person, including an officer or agent, who is in
the paid service of a governmental unit by competent authority, but
8
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. 2014) (emphasis
added). The burden is on the employee to show that she meets the statutory
definition. See Miranda, 133 S.W.3d at 227–28 (“If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the plea
to the jurisdiction, and the fact issue will be resolved by the fact finder. . . .”). The
court must “take as true all evidence favorable to the nonmovant” and “indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.
“[T]his standard generally mirrors that of a summary judgment under Texas Rule
of Civil Procedure 166a(c).” Id.; Watkins v. Isa, No. 04-11-00622-CV, 2012 WL
2021929, at *3 (Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.).
Dr. Gonski
In her motion to dismiss, Dr. Gonski maintained that she was an employee
of the UT Foundation, which she alleged qualified as a governmental unit.1 Her
evidentiary support included her own affidavit, the affidavit of the director of her
residency program, and documents prepared by the Foundation and the Health
Science Center. Her affidavit states that she was appointed to the Health Science
1
Although the Health Science Center is indisputably a governmental unit,
Dr. Gonski maintains that she was the employee of the Foundation, not the Health
Science Center.
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Center’s residency program by the Foundation and was employed by the
Foundation when she treated Lenoir. She further avers that she was compensated
by the Foundation and obligated to abide by the policies and procedures in its
resident handbook, as well as the policies and procedures of the Health Science
Center and the UT System generally. She attached a paystub, which indicates that
she received her salary from the Foundation.
To demonstrate an employment relationship with the Foundation,
Dr. Gonski was required to establish as a matter of law that, among other things,
the Foundation had the legal right to control her work. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.106(f); 101.001(2); Murk v. Scheele, 120 S.W.3d 865, 867 (Tex.
2003) (holding that UT Health Science Center faculty-physician was properly
dismissed because Health Science Center had right to control his work). The nature
of the medical residency program here raises fact issues because residents, like
Dr. Gonski, are hired by one institution (UT Foundation) to work at a second
location (UTP clinic) under the supervision of faculty physicians employed by a
third entity (Health Science Center). See, e.g., Murk, 120 S.W.3d at 867 (holding
that Health Science Center resident was not employee of Health Science Center
because resident was paid by another entity, Bexar County Health District, which
operated hospital where resident and faculty-physician were both working).
10
The complex relationships that exist to afford medical residents hands-on
training by more experienced physicians was discussed in the Texas Supreme
Court case, St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002). There,
St. Joseph Hospital in Houston operated a residency program that it “integrated”
with another residency program operated by the Central Texas Medical
Foundation. CTMF residents and medical staff provided medical care at
Brackenridge Hospital, which was owned by another entity, the City of Austin.
The service contract between St. Joseph and CTMF provided that
St. Joseph’s Academic Chief would be responsible for appointing residents to the
St. Joseph program, training them while assigned to work at St. Joseph Hospital,
but also could assign them to CTMF in Austin, subject to CTMF’s approval, for
additional training. It further provided that residents assigned to work with CTMF
would “provide direct patient care under the supervision of the teaching staff of
CTMF” and that “St. Joseph Hospital will not control the details of the medical
tasks performed by the resident when they are assigned to CTMF . . . .” Id. at 522–
23, 543.
A patient treated by a resident at Brackenridge Hospital sued St. Joseph for
the resident’s negligence. St. Joseph argued that the resident was a borrowed
employee of CTMF when he negligently treated the patient and therefore St.
Joseph could not, as a matter of law, be vicariously liable as his employer for his
11
actions. The Texas Supreme Court agreed, holding that “the evidence is undisputed
that [CTMF] had the right to direct and control the details of [the resident]’s
medical treatment of [the Brackenridge patient]. Thus, regardless of any evidence
that [the resident] was the general or regular employee of St. Joseph, he was acting
as the borrowed employee of [CTMF] as a matter of law when he treated” the
Brackenridge patient. Id. at 542–44. Therefore, St. Joseph could not be found
vicariously liable for his negligent treatment of the patient as a matter of law. Id.;
see also Franka v. Velasquez, 332 S.W.3d 367, 373 (Tex. 2011) (noting that, under
three-party residency arrangement, resident was paid by one entity but under the
legal right of control of another entity); cf. Arvizu v. Estate of Puckett, 364 S.W.3d
273, 276–77 (Tex. 2012) (holding that, in different context, employer had right to
control work of its employee but another entity had right to control work of the
employer-entity, such that both entities were liable for acts of employee).
The Wolff Court’s analysis turned on the right to control the resident’s work
while he treated patients. That same issue is determinative of our analysis of
Dr. Gonski’s motion to dismiss. She argued that she was an employee of the
Foundation. To determine whether the Foundation had the right to control her
work, we consider the evidence regarding the relationship among the Foundation,
the Health Science Center and UTP clinic, as it relates to a resident’s treatment of
patients at the UTP clinic.
12
A. Evidence regarding which entity had right to control Dr. Gonski’s work
Dr. Gonski is a degreed medical doctor who was in her second year of the
Health Science Center residency training program when she treated Shana. She
was appointed to the residency program by the Foundation. Though appointed and
paid by the Foundation, the medical treatment she provided at UTP clinic was
supervised by the Health Science Center physicians who ran the UTP clinic. We
consider the evidence regarding each entity’s role in the residency program and
their control over the residents’ work.
1. UT Health Science Center
The Health Science Center sponsors a residency training program that
allows physicians who have received their medical degree to continue their
education and training through supervised care of patients at Health Science Center
hospitals, internal clinics, and other sites operated by entities that have
coordination agreements with the Health Science Center. The residency program is
accredited by the Accreditation Council of Graduate Medical Education. Under
that accreditation, the Health Science Center, as the sponsoring entity, “must
provide its residents with a variety of effective educational experiences leading to
their development as competent physicians.” Residents interact with patients
“under the guidance and supervision of faculty members . . . .”
13
The Health Science Center’s residency program director holds the “authority
and accountability for the operation of the program.” The director is required to be
a member of the staff of the sponsoring institution (here, the Health Science
Center) and that director (Dr. Promecene), “together with the faculty, is
responsible for recruitment, selection, instruction, supervision, counseling,
evaluation, and advancement of residents” in the program.
The accreditation guidelines require that there be sufficient faculty available
“to instruct and supervise all residents” at the participating sites. It is the
responsibility of the sponsoring residency program to “demonstrate that the
appropriate level of supervision is in place for all residents who care for patients.”
As such, the accreditation guidelines require that the Center’s faculty “instruct and
supervise all residents,” maintain a “24-hour presence” in the hospital to supervise
residents, and provide “on-site supervision” at all clinical locations. The Health
Science Center “must assume ultimate responsibility for the program” including
responsibility for “resident assignments at all participating sites.”
2. UT Physicians clinic
The UT System Board of Regents has authorized the Health Science Center
to establish a certified nonprofit health corporation to allow Health Science Center
physicians to provide medical care to the public, continue their own training, and
further educate and train medical students and residents under their supervision, for
14
the ultimate benefit of the community. UTP clinic is one of these “internal” clinics
and is staffed exclusively by physicians who are full-time employees of the Health
Science Center.2 It is undisputed that the Foundation neither owns the UTP clinic
nor has the right to control the provision of medical care provided to the UTP
clinic’s patients by the Health Science Center faculty physicians.
3. The Foundation
The Foundation is a nonprofit corporation. The University of Texas Board of
Regents approved its creation in 1973. According to the Foundation’s articles of
incorporation, which have not been revised since that time, the Foundation has the
authority to “employ qualified persons to serve as residents or interns on the staff
of any hospital or hospitals either owned or operated by The University of Texas
System, or any hospital or hospitals which may have an affiliation agreement with
a medical component of The University of Texas System.”
Under her appointment by the Foundation, Dr. Gonski was required to abide
by the UT Graduate Medical Education Resident Handbook during her
participation in the Health Science Center residency program. The handbook
explains that the residents are appointed by the Foundation to the Health Science
2
The Health Science Center is required to have a program letter of agreement with
each participating site, and the letter must identify the faculty who will supervise
residents and specify the policies and procedures that will govern the resident’s
education during her assignment. Because UTP clinic is considered an internal
site, there is not a program letter of agreement between the Health Science Center
and UTP clinic.
15
Center’s integrated resident training program. The Foundation’s role is described
as administrative: “The Foundation performs administrative and educational
functions for the benefit of both the Resident Physicians and the Program . . .
includ[ing] . . . issuance of paychecks and other personnel services, maintenance of
records, procurement and administration of benefits provided by the Foundation,
and provision of mechanisms for effective coordination of the Programs among the
hospitals.”
The handbook requires the residents to serve at the affiliated hospitals;
accept the duties, responsibilities, and rotations assigned by the residency program
director; and participate in the quality assurance activities of the clinical services to
which he or she is assigned. The handbook states that the residents’ provision of
medical care must be supervised by residency program faculty: “All patient care
must be supervised by qualified faculty.” The requirement that faculty supervise
residents is repeatedly emphasized: “It is essential that the program provide a
closely supervised experience . . . .” This level of resident supervision “must” be
provided because the attending physician “is ultimately responsible for that
patient’s care.” The handbook further states, “Faculty members functioning as
supervising physicians should delegate portions of care to residents, based on the
needs of the patient and the skills of the resident.” Relatedly, “[e]ach resident must
know the limits of his/her scope of authority, and the circumstances under which
16
he/she is permitted to act with conditional independence” from the “supervision
faculty members.”
Paragraph Four of the Foundation’s bylaws provides that “[a]ll physicians
employed by the [Foundation] for the purpose of serving as a member of the staff
of any hospital or hospitals that are neither owned nor operated by the corporation
shall, in the performance of their duties as members of the staff of such hospital or
hospitals, be subject to the direction and control of the hospital or hospitals upon
whose staff he serves.” Further, “[n]o physician employed by the [Foundation]
shall serve upon the staff of a hospital not owned or operated by the [Foundation]
unless and until the governing body of such hospital shall agree in writing to
assume full responsibility for the direction and control of the acts of such physician
while serving upon the staff of the hospital and shall further agree in writing to
hold the [Foundation] harmless from all liability which may arise out of acts
performed by such physician while engaged in the scope and course of his duties
as a member of the staff of such hospital.” The bylaws also provide that “[n]o
director, officer, or employee of the [Foundation] shall be authorized to act on
behalf of the [Foundation] to direct or control the acts of any physician employed
by the [Foundation] while said physician is serving as a member of the staff of any
hospital or hospitals not owned or operated by the [Foundation].”
17
Paragraph Five continues, “Physicians employed by the [Foundation] shall
have no authority to engage in the practice of medicine for or on behalf of the
[Foundation] except at a clinic, hospital, or other facility owned or operated by the
[Foundation]. . . .”
Thus, medical residents, such as Dr. Gonski, who are employed by the
Foundation but not working at a Foundation-owned hospital, are subject to the
“direction and control” of the hospitals where they work. Consistent with that
division of control and potential for subsequent liability, the hospital where the
resident will work has to agree, in writing, to control the resident’s work and
indemnify the Foundation from any resulting liability. The Foundation’s bylaws
also provide that it will not indemnify residents with regard to the negligent
practice of medicine: “The [Foundation] shall not reimburse or indemnify any . . .
employee for any expenses or liability which may be incurred by such . . .
employee while engaged in the practice of medicine.”
By the terms of its bylaws, the Foundation has disavowed any right to
control the work of the residents it appoints to the Health Science Center residency
program and any liability for medical malpractice that might result from that work.
B. Dr. Gonski did not meet her burden
The evidence here fails to establish, as a matter of law, that the Foundation
had the legal right to control Dr. Gonski’s work at the time she treated Shana
18
Lenoir. The accreditation guidelines for her residency program specifically and
repeatedly state that the scope of Dr. Gonski’s authority to treat patients shall be
determined by the Health Science Center faculty physicians and that those faculty
physicians are responsible for supervising her work. The handbook mandates that
residents be supervised by faculty physicians and accept the assignments given to
them by the Health Science Center residency director. Furthermore, the
Foundation’s bylaws disavow any right to control Dr. Gonski’s practice of
medicine, except when she is working in a Foundation hospital, which she was
not. 3
The Wolff case involved a similar disavowment of the right to control a
resident’s work. The contract between St. Joseph and CTMF stated that St. Joseph
did not have the right to control the work of its residents while assigned to CTMF
for training. 4 The Texas Supreme Court held that that provision “makes it clear that
St. Joseph in Houston had no direct control over ‘the details of the medical tasks
3
It is undisputed that the Foundation does not own or operate any hospitals.
4
Paragraph G stated:
The resident assigned to the Integrated Program will provide direct patient care
under the supervision of the teaching staff of CTMF. CTMF’s teaching staff
will be under the supervision and direction of CTMF’s Director of Surgical
Education. . . . St. Joseph Hospital will not control the details of the medical
tasks performed by the resident when they are assigned to CTMF . . . .
St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 522–23, 543 (Tex. 2002).
19
performed by residents’” assigned to CTMF and treating patients at Brackenridge
Hospital. Wolff, 94 S.W.3d at 543.
Gonski does not attempt to distinguish Wolff. Instead, she contends that the
provision in the bylaws disavowing any right to control simply does not apply
because “the care at issue did not occur in any hospital, but at a Clinic.” The
distinction is unconvincing because Dr. Promecene—who is the program director
for the Health Science Center residency program to which Dr. Gonski was
appointed—explains that UTP clinic is an “internal site” of the Health Science
Center, such that it is considered a part of the Health Science Center just like
Memorial Hermann Hospital and given the same exceptions under the residency
program regulations that would be afforded other “internal” locations, like
Memorial Hermann Hospital.
We have concluded that Dr. Gonski failed to establish, as a matter of law,
that the Foundation had the right to control her work. Without establishing that a
governmental unit has the right to control her work, a movant cannot establish that
she is the employee of that entity to obtain dismissal under the election-of-
remedies provision. See TEX. CIV. PRAC. & REM. CODE § 101.001(2) (defining
“employee” eligible to take advantage of Tort Claims Act to exclude any person
“who performs tasks the details of which the [employer] governmental unit does
not have the legal right to control”); Franka, 332 S.W.3d at 372–73 (noting that
20
medical resident who was paid by one entity but under legal right of control of
another entity did not meet the statutory definition of employee under the Tort
Claims Act). We, therefore, also conclude that Dr. Gonski failed to establish that
she was the employee of the Foundation. See Adkins v. Furey, 2 S.W.3d 346, 348
(Tex. App.—San Antonio 1999, no pet.) (holding that medical resident failed to
conclusively establish that he was employee of Health Science Center that ran his
residency program instead of hospital where he was working, and stating that
employment was issue for jury); see also Harris Cnty. v. Dillard, 883 S.W.2d 166,
168 n.3 (Tex. 1994) (concluding that overly expansive reading of definition of
“employee” would “reflect a view of governmental immunity not shared by the
Legislature.”). The trial court erred in granting Dr. Gonski’s motion to dismiss.
We affirm Lenoir’s first issue.
Dr. Huang
Dr. Huang is a licensed physician who worked at the Health Science Center
for nearly 20 years as an Associate Professor in the Department of Obstetrics,
Gynecology, and Reproductive Sciences. The Health Science Center employs
physicians to provide two forms of professional medical services: (1) to educate
and train medical students and residents and (2) to provide inpatient and outpatient
medical care to patients. Thus, Dr. Huang was required to provide medical care to
patients in assigned hospitals and out-patient clinics, including UTP clinic, and to
21
supervise and train the Health Science Center’s residents in those locations. On the
day Shana Lenoir was treated at UTP clinic by Dr. Gonski, Dr. Huang was the
attending physician, charged with supervising the medical residents there that day.
Lenoir does not dispute that the Health Science Center is a governmental
unit. What she challenges is whether Dr. Huang was acting within the scope of his
employment with the Health Science Center when he oversaw Dr. Gonski’s care of
Lenoir.
“Scope of employment” is defined by the Texas Tort Claims Act as the
performance “of a task lawfully assigned to an employee.” TEX. CIV. PRAC. &
REM. CODE ANN. § 101.001(5). This definition “is broader than the official
immunity insulating state employees from liability.” Molina v. Alvarado, 441
S.W.3d 578, 586 (Tex. App.—El Paso 2014, pet. filed). Thus, “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.); see Anderson, 365 S.W.3d at 126
(“If the purpose of serving the employer’s business motivates the employee, his
acts are within the scope of employment.”).
Dr. Huang’s work included educational, research, and administrative
services provided at Health Science Center-affiliated hospitals and clinics. He
taught and supervised residents participating in the Health Science Center’s
22
residency program. This supervision would occur at Memorial Hermann Hospital
and in clinical settings, including UTP clinic. According to Dr. Huang’s affidavit,
his supervision of these residents and his work at UTP clinic were requirements of
his employment at the Health Science Center and necessary for his compensation.
He was the assigned attending physician at the UTP clinic on the day Lenoir
received treatment there and, in that capacity, was required to supervise the
residents providing care at the clinic, including Dr. Gonski. We, therefore,
conclude that Dr. Huang was performing a task assigned to him by his employer
and acting within the scope of his employment with regard to Lenoir’s treatment.
We reject Lenoir’s argument that alleged violations of Medicaid billing
requirements cause Dr. Huang’s actions to be ultra vires and expose him to
individual liability without the benefits of sovereign immunity protection. This
argument relies on a 1987 case that held that “[u]nlawful or unauthorized acts are
not considered acts of the State” and State officials can be sued in their individual
capacities for wrongful unofficial acts. Bagg v. Univ. of Tex. Med. Branch at
Galveston, 726 S.W.2d 582, 585–86 (Tex. App.—Houston [14th Dist.] 1987, writ
ref’d n.r.e.).
More recent case law establishes, though, that an employee acts within the
general scope of his employment if he is discharging the duties generally assigned
to him even if he does so in a negligent manner. See City of Lancaster v.
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Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (rejecting argument that employee
police officers were outside scope of employment because they had no authority to
drive dangerously); Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL
1183305, at *3 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.)
(stating that “an act may still be within the scope of the employee’s duties even if
the specific act that forms the basis of the civil suit was wrongly or negligently
performed, so long as the action was one related to the performance of his job.”);
Lopez, 414 S.W.3d at 894) (holding that “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.”); Anderson, 365 S.W.3d at 126 (“If the purpose of serving
the employer’s business motivates the employee, his acts are within the scope of
employment.”).
A governmental employee can act within the scope of his employment,
discharging the duties assigned to him, even if it is later determined by a court that
some error was committed in connection with the actions taken. See Ballentyne v.
Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004) (concluding that board
of adjusters members were discharging duties assigned to them even though later
judicial decision established that board action was incorrect).
Accordingly, we overrule Lenoir’s second issue.
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Challenge to Affidavits
In Lenoir’s third and final issue, she challenges affidavits relied on by
Dr. Huang in support of his motion to dismiss. Lenoir objected to an assertion in
Dr. Huang’s affidavit that he “was in the paid service of” the Health Science
Center on the day Dr. Gonski treated Lenoir and to the affidavit of the Health
Science Center’s Senior Executive Vice President confirming Dr. Huang’s
statement. She objected that these affidavits were “legally conclusory and factually
incorrect” based on her legal argument that UTP was engaged in an “auxiliary
enterprise” because the fees charged to patients of the clinic passed through a trust
fund before ultimately being used by the Health Science Center to pay its
physicians’ salaries.
Lenoir further objected to the affidavits of Dr. Promecene, the head of the
Health Science Center residency program, and Dr. King, who is president of the
Foundation. Lenoir again alleges that these affidavits contain “legal conclusions
not supported by facts.”
The trial court did not rule on Lenoir’s objections.
A. Standard of review
An objection that an affidavit is conclusory is an objection to the substance
of the affidavit that can be raised for the first time on appeal. See Skelton v.
Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th
25
Dist.] 2001, no pet.); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126,
130 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Lenoir did not have to obtain a
ruling on her objections to preserve this issue for appeal. Green, 1 S.W.3d at 130.
We review an assertion of trial court error regarding the admissibility of evidence
under an abuse of discretion standard. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,
360 (Tex. 2000).
B. Affidavits were not conclusory
Conclusory statements in affidavits are insufficient to establish the existence
of a fact. See, e.g., Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); James L. Gang &
Assocs., Inc. v. Abbott Labs., Inc., 198 S.W.3d 434, 442 (Tex. App.—Dallas 2006,
no pet.). “A conclusory statement is one that does not provide the underlying facts
to support the conclusion.” Weech v. Baptist Health Sys., 392 S.W.3d 821, 826
(Tex. App.—San Antonio 2012, no pet.) (quoting Rizkallah v. Conner, 952 S.W.2d
580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.)). Thus, an affidavit that is
merely a sworn statement of the allegations in a pleading or that simply
paraphrases statutory language is conclusory and lacks probative force. See Selz v.
Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no pet.)
(holding affiant’s sworn repetitions of allegations in pleadings were conclusory
and insufficient to raise fact issue on summary judgment); Nichols v. Lightle, 153
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S.W.3d 563, 570 (Tex. App.—Amarillo 2004, pet. denied) (holding affidavit that
merely paraphrased statutory language was conclusory and insufficient to raise fact
issue on summary judgment). On the other hand, logical conclusions are not
improperly conclusory if they are based on underlying facts stated in the affidavit
or its attachments. Rizkallah, 952 S.W.3d at 587.
Lenoir’s contention that the affidavits are conclusory does not hinge on
whether there are facts in the attached documents to support the statements made in
the affidavits. Each of these affiants refers to documents or attaches them to their
affidavit. These attachments include accrediting agency regulations, articles of
incorporation, bylaws, and other supporting documents. The documents support
the assertions made in the affidavits. See id.
Rather, she contends that the affidavits are “legally conclusory and factually
incorrect” because—despite these affiants’ understanding of the relationship
Dr. Huang had with the UT entities and despite what the attached documents say—
Lenoir’s legal arguments have effectively undone the employment relationship.
These affidavits explain the interrelationship of the UT System entities and
Dr. Huang’s role and connection to those entities. We do not agree that an
explanation of the UT System structure becomes inadmissible simply because a
party argues that the law should interpret the facts differently. Because we have
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rejected Lenoir’s legal contentions on the merits of Dr. Huang’s employment, we
likewise reject her challenge that the statements are conclusory.
Accordingly, we overrule Lenoir’s third issue.
Conclusion
We overrule Lenoir’s challenge to the dismissal of Dr. Huang. We further
overrule her challenge to the affidavits attached to his motion to dismiss. We
sustain Lenoir’s issue challenging the dismissal of Dr. Gonski and, therefore,
reverse that part of the trial court’s judgment and remand for further proceedings
against Dr. Gonski.
Harvey Brown
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
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