Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight v. Leah Anne Gonski Marino F/K/A Leah Anne Gonski and Jaou-Chen Huang, M.D.

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

7
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.
9
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

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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

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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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