Opinion issued July 2, 2015
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 ON REHEARING 1
1
We issued an opinion on November 25, 2014. The appellants and one appellee (Leah
Anne Gonski Marino f/k/a Leah Anne Gonski) moved for rehearing; Gonski also moved
This health care liability case arises from the death of a UT Physicians
(UTP) patient, 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 “the Lenoirs”). The
Lenoirs sued the resident-physician and nurse who treated Shana, the attending
physician, and the clinic.
Both doctors moved for dismissal of the claims against them, arguing 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 mandated their dismissal. The trial court granted their motions and
dismissed both physicians from the suit.
In three issues, the Lenoirs contend that neither physician was entitled to
dismissal and challenge the affidavits submitted on the physicians’ 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 dismissing
Dr. Gonski, and remand for further proceedings against Dr. Gonski.
for en banc reconsideration. We grant rehearing, withdraw our previous opinion and
judgment, and substitute this opinion and judgment in their place. The disposition
remains the same. We deny the motion for en banc reconsideration as moot. See
Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.]
2004, pet. denied) (op. on reh’g).
2
Background
Shana Lenoir received prenatal care at the UTP clinic. Because the physician
scheduled to see her was unavailable, she was seen by Dr. Gonski—a second-year
medical resident. Shana told Dr. Gonski about complications with an earlier twin
pregnancy that resulted in preterm delivery, the death of one twin, and lengthy
hospitalization of the other. At the time Shana saw Dr. Gonski, she was between 32
and 35 weeks pregnant with twins. Dr. Gonski prescribed weekly injections of
progesterone. A nurse gave Shana her first progesterone injection during the office
visit. Several hours later, Shana began having difficulty breathing. Emergency
medical assistance was called, but Shana and her unborn children died before they
arrived at the hospital.
The Lenoirs sued the treating physician (Dr. Gonski), the attending
physician overseeing Dr. Gonski (Dr. Huang), the nurse who injected the
progesterone medication, and the UTP clinic.
Drs. Gonski and Huang moved for dismissal under Tort Claims Act section
101.106(f), arguing that the election-of-remedies provision of the Act mandated
dismissal of the health care liability claims asserted against them. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). Dr. Gonski alleged that she
was an employee of the University of Texas System Medical Foundation, a
nonprofit corporation that appoints medical residents to the UT Health Science
3
Center residency program, that her conduct was within the general scope of her
employment at the Foundation, and that the Lenoirs’ claim against her could have
been brought against the “governmental unit (the Foundation)” that employed her.
Relying on the same provision, Dr. Huang asserted that he was an employee of the
University of Texas Health Science Center at Houston and was overseeing the
work of medical 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.
In this interlocutory appeal, 2 the Lenoirs argue that the trial court erred by
dismissing the claims against the physicians because they did not establish that
they met the statutory definition of governmental unit employees.
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). However, the proper standard of review is not
necessarily determined by the caption of the motion to which the order relates,
rather it is determined by the substance of the issue to be reviewed. Singleton v.
2
A party against whom a dismissal order is entered based on governmental
immunity may bring an interlocutory appeal of that order. TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(8) (West Supp. 2014).
4
Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied).
Here, the motions to dismiss raised the 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).
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.). 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. City of 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 Dismissal
By common law, the State is immune from suit unless it consents by
waiving immunity. Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350,
353 (Tex. 2013); Dallas Cnty. Mental Health & Mental Retardation v. Bossley,
968 S.W.2d 339, 341 (Tex. 1998). The State may waive immunity to the degree it
sees fit, taking into account public policy and financial considerations. See Tex.
Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 854 (Tex. 2002).
5
A waiver of sovereign immunity is construed narrowly. TEX. GOV’T CODE ANN.
§ 311.034 (West 2013); Ngakoue, 408 S.W.3d at 353.
The Tort Claims Act (TCA) addresses governmental immunity. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2011). Through the TCA, Texas
has chosen to establish a limited waiver of immunity in suits against the State for
deaths proximately caused by a governmental employee’s negligence while acting
within the scope of employment if the death was 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 under Texas law. Id. § 101.021.
The TCA applies both to the State and to governmental units of the State.
See id. The term “governmental unit” is defined to include the State of Texas, all of
its various agencies, political subdivisions, emergency service organizations, and
“any other institution, agency, or organ of government the status and authority of
which are derived from the Constitution of Texas or from laws passed by the
legislature under the constitution.” Id. § 101.001(3).
TCA Section 101.106, titled Election of Remedies, provides a mechanism
for dismissal of governmental employees in certain circumstances. It provides:
6
(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
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 (emphasis added).
The Texas Supreme Court has held that any tort action brought against a
governmental 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 immunity has not been waived.
Franka, 332 S.W.3d at 378, 381 & n.66; 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). As a result, to obtain summary
7
dismissal under TCA section 101.106(f) in a tort case, the individual defendant
has the burden to establish—as a matter of law—two things: (1) she is 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; Williams, 394 S.W.3d at 13.
The election-of-remedies provision forces plaintiffs to decide “at the outset”
“whether an employee acted independently and is thus solely liable, or acted within
the general scope of his or her employment such that the governmental unit is
vicariously liable.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
657 (Tex. 2008); accord Molina v. Alvarado, No. 14–0536, 2015 WL 2148055, at
*3 (Tex. May 8, 2015); Kamel v. Sotelo, No. 01-07-00366-CV, 2009 WL 793742,
at *2 (Tex. App.—Houston [1st Dist.] Mar. 26, 2009, no pet.) (mem. op.). If the
plaintiff sues the governmental unit, she is forever barred from suing the
governmental unit’s employees. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a);
Molina, 2015 WL 2148055, at *2–3. If the plaintiff elects, instead, to sue the
governmental employee and maintains that the employee acted independently
(which could lead to individual liability unlimited by the cap imposed by TCA
section 101.023), the plaintiff is forever barred from suing the governmental
employer unless the governmental unit consents. Id. § 101.106(b); Garcia, 253
S.W.3d at 659; see Ngakoue, 408 S.W.3d at 357.
8
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.” Garcia, 253 S.W.3d at 657.
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.); see
Ngakoue, 408 S.W.3d at 355. But claims against governmental employees may be
pursued if they do not fall within the election of remedies categories created by
section 101.106.3
TCA section 101.001(2) defines an “employee” of a governmental unit as
a person, including an officer or agent, who is in the paid service of a
governmental unit by competent authority, but does not include an
independent contractor, an agent or employee of an independent
contractor, or a person who performs tasks the details of which the
governmental unit does not have the legal right to control.
3
As explained in Mission Consolidated Independent School District v. Garcia, 253
S.W.3d 653, 657 (Tex. 2008),
Under the Tort Claim Act’s election scheme, recovery against an individual
employee is barred and may be sought against the governmental unit only
in three instances: (1) when suit is filed against the governmental unit only,
id. § 101.106(a); (2) when suit is filed against both the governmental unit
and its employee, id. § 101.106(e); or (3) when suit is filed against an
employee whose conduct was within the scope of his or her employment
and the suit could have been brought against the governmental unit, id.
§ 101.106(f).
9
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (emphasis added). The burden
is on the individual defendant to show that she was in the paid service of a
governmental unit and that the governmental unit had the legal right to control the
details of her work. 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.
Dr. Gonski
Dr. Gonski alleges in her plea to the jurisdiction that she is an employee of a
governmental unit, which she identified as the Foundation. Thus, it was her burden
to establish, as a matter of law, that she was paid by the Foundation and that it had
the legal right to control her work. See Miranda, 133 S.W.3d at 227–28. To the
extent a fact issue exists on either point, dismissal was in error. See id.
Because we conclude that Dr. Gonski has not established that the
Foundation had the legal right to control her work, we conclude that the trial court
erred by granting her motion to dismiss. Based on this holding, we do not address
whether the Foundation is properly considered a governmental unit. To explain our
10
holding, we turn to Dr. Gonski’s evidence that she was in the paid service of and
under the legal right of control of the Foundation.
A. Paid service
It is undisputed that Dr. Gonski received her pay from the Foundation;
therefore, she has met this first element.
B. Right of control
The second element concerns the legal right of control over Dr. Gonski’s
work. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2); Murk v. Scheele, 120
S.W.3d 865, 867 (Tex. 2003).
The right of control in the context of a medical professional has been
repeatedly addressed. E.g., Murk, 120 S.W.3d at 865 (holding that UT Health
Science Center faculty-physician was properly dismissed because Health Science
Center had right to control his work); Dalehite v. Nauta, 79 S.W.3d 243 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied) (concluding that doctor who moved
for dismissal was employee of UTMB, not independent contractor, even though
UTMB did not control details of diagnoses or treatments he performed); Smith v.
Altman, 26 S.W.3d 705, 709 (Tex. App.—Waco 2000, pet. dism’d w.o.j.)
(affirming denial of summary judgment because of fact issue regarding hospital’s
right of control over physician). When the medical professional is a resident, the
determination of which entity controls her work can be more complicated because
11
residents are often hired by one institution to work at a second location under the
supervision of faculty-physicians employed by a third entity. 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).
As evidence that the Foundation had the legal right to control her work, Dr.
Gonski relies on the affidavit of Dr. Brent King (President of the Board of
Directors of the Foundation), the Foundation’s UT Graduate Medical Education
Resident Handbook, and the Foundation’s articles of incorporation and bylaws.
1. King affidavit
Dr. King averred that the Foundation appoints residents to the Health
Science Center residency program and that, as “a term and condition of their
appointment, residents participating in the . . . residency program are obligated to
abide by the policies and procedures set forth in the Graduate Medical Education
Resident Handbook.” Dr. Gonski argues that the requirement that she follow the
Foundation’s Handbook establishes that the Foundation had the legal right to
control the details of her work.
12
2. Handbook
The Foundation’s Handbook describes the its role in the Health Science
Center’s residency program as administrative:
The Foundation performs administrative and education functions for
the benefit of both the Resident Physician and the Program. These
functions include, but are not limited to 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.
In contrast, the Handbook describes the Health Science Center’s role as directorial
and managerial. The Handbook lists the resident’s responsibilities, termed
“conditions of appointment.” These include: “accept[ing] the duties,
responsibilities, and rotations assigned by the [Center’s] Program Director”;
meeting the Program’s standards for learning and advancement; abiding by the
Center’s Handbook of Operating Procedures and the policies of the medical school
and hospitals to which the resident is assigned; serving at the hospitals to which the
Center’s Program Director assigns each resident; and participating on the hospital
and departmental committees where 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
13
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 he/she is permitted
to act with conditional independence” from the “supervision faculty members.”
Thus, the Health Science Center teaching staff determine, along with the Center’s
Program Director, the level of responsibility assigned to each resident.
The Handbook specifies that the Center’s Program Director will establish
the mechanism for evaluating residents and will determine, along with the
Departmental Chairperson, whether a resident will advance within the program.
Resident grievances are resolved by the Program Director and the Department
Chairperson. The Foundation’s Policy Review Committee’s involvement is limited
to ensuring that the Center’s decision-makers have provided the resident with the
requisite notice of unsatisfactory performance and guidance, i.e., a procedural
instead of substantive role. Thus, once appointed by the Foundation, reappointment
and advancement decisions are made “at the discretion of the Medical School
Department Chair and the Program Director.”
14
In other words, the Foundation’s Handbook instructs the resident to receive
training from and follow the directions of the Health Science Center. The
Foundation’s administrative role in connection with resident’s provision of medical
care, under the supervision of Center faculty-physicians, does not support the
conclusion that the Foundation has the legal right to control the details of the
resident’s work. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex. 2002)
(“merely exercising or retaining a general right to recommend” safety measures
does not create a right of control); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d
693, 702 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (stating that
requiring independent contractor to abide by premises owner’s safety rules and
regulations and retaining authority to preclude work from beginning or stop work
once it has begun does not establish actual control); Bell v. VPSI, Inc., 205 S.W.3d
706, 714 (Tex. App.—Fort Worth 2006, no pet.) (stating that “requirements that a
worker comply with applicable laws, regulations and safety requirements that
relate to performance of the contract likewise do not constitute evidence that the
employer controls the details of how the worker performs his job.”). Likewise,
retaining the right to terminate Dr. Gonski’s residency does not establish a legal
right to control the details of her medical work. See Bell, 205 S.W.3d at 714.
15
3. Foundation’s corporate documents
The Foundation’s bylaws also do not demonstrate a right to control.
Paragraph Four of the 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 [Foundation] 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]. Paragraph Five continues, “Physicians employed
16
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, a medical resident, such as Dr. Gonski, who is selected and paid by
the Foundation but is not working at a Foundation-owned hospital, is subject to the
“direction and control” of the hospital where she works. Consistent with that
division of control and potential for subsequent liability, the hospital where the
resident works has to agree, in writing, to control the resident’s work and
indemnify the Foundation from any resulting liability. Another provision in the
Foundation’s bylaws states that the Foundation 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.”
Through its bylaws, the Foundation has disavowed any right to control the
work of a resident it appoints to the Health Science Center residency program who
is working at a non-Foundation owned facility; the Foundation also has disavowed
any liability for medical malpractice that might result from that work. 4
4
Dr. Gonski argues that we should disregard the bylaws because they “have never
been followed, and thus must be considered abandoned,” and further, they conflict
with the Foundation’s articles of incorporation. There is no evidence of
abandonment, and the provisions do not conflict. We reject both arguments.
17
Accordingly, we conclude that Dr. Gonski’s evidence does not establish, as
a matter of law, that the Foundation had the legal right to control her work at UTP
clinic, where she was treating Shana. Dr. Gonski makes several arguments for a
contrary conclusion. We consider each in turn.
C. Medical discretion is not analogous
Dr. Gonski analogizes the limitations on the Foundation’s ability to control
her work to the concept of medical discretion discussed by the Texas Supreme
Court in Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003). In that case, the plaintiffs
sued a physician employed by the Health Science Center. Id. at 867. The plaintiffs
agreed that the physician met the first element to qualify as an employee of the
Health Science Center—i.e., he was paid by it—but they contended that he failed
to meet the second requirement of control by the governmental unit because a
physician “exercise[s] . . . independent professional judgment” so that the
physician’s employer cannot be said to control the details of her work. Id.
The Court rejected the argument, holding that the “exercise [of] some
independent medical judgment” does not take the physician out of the definition of
an employee if the physician’s “practice is controlled by [the] governmental unit.”
Id. According to the Court, the physician’s medical decisions “were subject to
regimens prescribed by” the Health Science Center, including its requirement that
the physician participate in daily rounds, be supervised and reviewed by other
18
Health Science Center physicians, and have his decisions vetoed by more senior
Health Science Center physicians. Id. “While the nature of his practice as a
physician required him to make many medical decisions using his own
professional judgment, the necessity for that judgment did not, by itself, vitiate [the
Health Science Center]’s right to control the details of his practice.” Id. (citing St.
Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex. 2003), and Dalehite, 79 S.W.3d
at 245–46).
We do not view Murk to support Dr. Gonski’s arguments. Rather, to the
extent that case is applicable, it better supports the conclusion that a doctor
working under the guidance of Health Science Center physicians is subject to the
Health Science Center’s control.
D. Clinical setting is not dispositive
Next, Dr. Gonski argues that 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. Paragraphs four
and five, when read together, require that a resident working at a location not
owned by the Foundation be under the control of the entity operating that location.
We disagree that this limitation applies only to hospitals and not clinics or other
medical facilities. Further, the Program Director for the Health Science Center
Residency Program to which Dr. Gonski was appointed explained that the UTP
19
clinic is an “internal site” of the Health Science Center, which means that it was
not owned by the Foundation.
E. In distinguishing actual control from legal control, Dr. Gonski still
offers no evidence of right of control
Finally, Dr. Gonksi argues that actual control is a distinct legal concept from
legal right of control and cases analyzing actual control are inapposite. On this
basis, she seeks to distinguish St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex.
2003), which involved a similar disavowment of the right to control a resident’s
work. There, St. Joseph Hospital, which ran the resident’s training program in
Houston, entered into a contractual relationship with CTMF to allow St. Joseph
residents additional medical experience at hospitals outside of Houston. See id. at
520–21. The contract stated that St. Joseph did not have the right to control the
work of its residents while assigned to CTMF for training. Id. at 522-23. 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 performed by
residents’” assigned to CTMF and treating patients at Brackenridge Hospital in
Austin. Id. at 543. Thus, the Court concluded that St. Joseph Hospital was not
vicariously liable for its resident’s actions while at Brackenridge Hospital. See id.
First, we note that the Foundation’s connection to Dr. Gonski is even more
removed than St. Joseph’s connection to its resident. St. Joseph paid the resident,
was the entity that operated the residency program through which he was taught,
20
and managed his instruction while at its Houston hospital. It was only when the
resident was assigned to Brackenridge Hospital in Austin that St. Joseph was not
controlling his work.
Here, by contrast, the Foundation played only an administrative role,
supporting another entity’s residency program. The evidence does not suggest that
the Foundation played any role in training or supervising the residents; instead, that
responsibility belonged to the Health Science Center and its faculty-physicians.
Thus, the Supreme Court’s analysis in Wolff presumed that St. Joseph had a legal
right of control (when the resident was working at its Houston hospital) that simply
has not been established in this case with regard to Dr. Gonski and her alleged
employer, the Foundation. See id. at 542–43.
Second, to determine whether an individual defendant meets the statutory
definition of an employee under the TCA for dismissal, the TCA relies on the same
“supreme test” of right of control as discussed in Wolff and other contexts. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (defining “employee” to exclude
any person “who performs tasks the details of which the [employer] governmental
unit does not have the legal right to control”); Newspapers, Inc. v. Love, 380
S.W.2d 582, 590 (Tex. 1964) (stating that “right of control” is “supreme test” to
determine employment status); see also Olivares v. Brown & Gay Eng’g, Inc., 401
S.W.3d 363, 368–78 (Tex. App.—Houston [14th Dist.] 2013) (reviewing decision
21
on plea to jurisdiction of alleged governmental unit employee under “right of
control” test), aff’d, 2015 WL 1897646 (Tex. Apr. 24, 2015); Altman, 26 S.W.3d at
709 (analyzing sovereign immunity claim under “right to control” standard).
The record is devoid of any evidence that the Foundation had the legal right
to control Dr. Gonski’s work. To the extent the Foundation placed requirements on
the residents through its Handbook, the record also supports the conclusion that the
Foundation required them to abide by the rules of the Health Science Center,
follow directions from Health Science Center staff, and submit to their evaluations
and advancement decisions.
The Foundation’s Handbook and corporate documents, as well as the
affidavit of its board president, establish that the Foundation plays an
administrative role in support of the Health Science Center’s residency program by
appointing residents, issuing the residents’ paychecks, and coordinating efforts for
the Health Science Center’s provision of training. This does not conclusively
demonstrate that the Foundation had a legal right to control the details of Dr.
Gonski’s work, even if we were to accept Dr. Gonski’s effort to distinguish legal
right of control from the Health Science Center’s actual control.
F. Foundation and Health Science Center are separate entities
Dr. Gonski attempts to avoid a negative result from being paid by the
Foundation but under the right of control of the Health Science Center by noting
22
the two entities’ relatedness. She argues that the Foundation “is not wholly
unrelated” from the Health Science Center and, thus, being paid by one and under
the control of the other should not take her out of the definition of a governmental
unit employee. For support, Dr. Gonski refers us to this Court’s earlier decision,
Kamel v. Sotelo, No. 01-07-00366-CV, 2009 WL 793742 (Tex. App.—Houston
[1st Dist.] Mar. 26, 2009, no pet.) (mem. op.).
Kamel does not apply. There, the resident took the opposite position and
claimed to be an employee of the Health Science Center, even though her
paychecks were paid from a Foundation account. Id. at *3. This Court noted that
there was no evidence to suggest that the Foundation was a separate entity from the
Health Science Center, such that the resident would fail to meet the statutory
requirement that the governmental unit that employed her both paid her and
controlled her work. Id. at *5 & n.8. Here, there is evidence in the record that the
two entities are distinct. The record contains the Foundation’s articles of
incorporation and bylaws, which establish its separateness from the Health Science
Center.
Moreover, Dr. Gonski took the position, in her underlying motion to
dismiss, that she was supplying the evidence that was lacking in Kamel for the
express purpose of establishing that she was an employee of the Foundation, not
23
the Health Science Center as the Kamel resident had asserted. Dr. Gonski
explained:
This Motion carefully establishes the identity of the Foundation as
Dr. Gonski’s true employer due, in part, to vague, past opinions
addressing the employment status of [Health Science Center] resident
physicians, which have not included an explanation of the relationship
between [the Health Science Center], its residents, and the
Foundation, which is undertaken here. See e.g., Kamel v. Sotelo . . . .
G. Conclusion
Dr. Gonski has not shown, as a matter of law, that the Foundation had the
legal right to control her work. Without establishing that a governmental unit has
the legal 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.5 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”); id. § 101.106(f) (mandating dismissal of “employee” of
governmental unit acting within general scope of employment if suit could have
been brought under TCA against governmental unit); see Adkins v. Furey, 2
S.W.3d 346, 348 (Tex. App.—San Antonio 1999, no pet.) (holding that medical
5
Because we conclude that Dr. Gonski failed to establish as a matter of law that she
was the employee of the Foundation, for TCA purposes, we do not reach the
Lenoirs’ alternative arguments that the Foundation was not a governmental unit
entitled to immunity or that Dr. Gonski’s conduct was not within the scope of her
employment but was ultra vires.
24
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); cf. 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.”). Accordingly, we conclude that the trial court erred in
granting Dr. Gonski’s motion to dismiss. We sustain the Lenoirs’ 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. According to Dr. Huang, 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. Dr. Huang averred that he was
required to provide medical care to patients in assigned hospitals and out-patient
clinics, including UTP clinic, and to supervise and train the Health Science
Center’s residents in those locations. When Shana was treated at the UTP clinic by
Dr. Gonski, Dr. Huang was the attending physician, charged with supervising the
medical residents there that day.
25
The Lenoirs do not dispute that the Health Science Center is a governmental
unit. Instead they argue that (1) Dr. Huang was not in the “paid service” of the
Health Science Center, (2) he was an independent contractor as a matter of law
because the medical practice at the UTP clinic was an “auxiliary enterprise” and,
by statute, those who work for auxiliary enterprises are “contractors,” (3) the
Health Science Center did not control the details of his work, and (4) his actions
were ultra vires and, therefore, not within the scope of his employment.
A. Paid service
Dr. King, the Health Science Center Executive Vice Dean for Clinic Affairs,
averred that, under Health Science Center policies, all physicians’ professional fees
are required to be deposited into a trust account for the Health Science Center’s
benefit. He explained that “[a]ll patient fees and other professional income
generated by the [Health Science Center] faculty physician[s] are assigned to and
become property of the [Health Science Center] to be held in the . . . trust fund
account . . . to pay its faculty physicians’ salaries and fringe benefits, as well as for
institutional development,” “to pay for research, equipment, development of new
programs, and the endowment of chairs and professorships,” as well as
“administrative expenses associated with patient billing and collections.” Thus, the
fees generated by Dr. Huang’s professional work at the UTP clinic were placed in
an account for the benefit of the Health Science Center, which used the funds for a
26
variety of expenditures, only one of which was Dr. Huang’s and other physicians’
compensation. Dr. Huang confirmed in his affidavit that his compensation for “in-
patient and out-patient professional medical services” was “solely received” from
the Health Science Center.
The Lenoirs argue that Dr. Huang was not in the “paid service” of the Health
Science Center because payment for his services were made by outside sources and
deposited into a trust account. However, the only entity authorized to remove funds
from the trust account was the Health Science Center and it was within the Health
Science Center’s discretion where to expend those funds once withdrawn. Only a
portion of the trust funds were used by the Health Science Center to compensate
Dr. Huang. There is no evidence that Dr. Huang was paid by any source other than
Health Science Center funds from the trust account. According, we conclude that
Dr. Huang was in the paid service of the Health Science Center.
B. Employee versus auxiliary-enterprise independent contractor
Next, the Lenoirs argue that Dr. Huang was an independent contractor
working for an auxiliary enterprise instead of an employee of the Health Science
Center. For support, the Lenoirs point to Government Code section 2252.061,
which defines “auxiliary enterprise” to mean “a business activity that is conducted
at a state agency, provides a service to the agency, and is not paid for with
appropriated money.” TEX. GOV’T CODE ANN. § 2252.061(1) (West 2008). The
27
Lenoirs contend that UTP clinic provided a service that was not paid with
appropriated funds and, therefore, was an auxiliary enterprise. The auxiliary
enterprise statute also provides that “an individual, association, corporation, or
other business entity that operates an auxiliary enterprise or performs a service of
the auxiliary enterprise” is a “contractor.” Id. § 2252.061(2). The Lenoirs contend
that, under these two provisions, Dr. Huang is a “contractor” instead of an
employee.
Under the Lenoirs’ analysis, the term “contractor” is synonymous with
“independent contractor,” which would exclude Dr. Huang from the statutory
definition of a governmental employee. We find nothing in the statute to support
this approach. Instead, to address whether Dr. Huang is an “employee” as defined
by the TCA, we must determine whether the governmental unit had the “legal right
to control” his work. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (defining
employee); § 101.106(f) (mandating dismissal of governmental unit employee
acting within general scope of employment if suit could have been brought against
governmental unit under TCA). Accordingly, we focus our analysis on whether the
Health Science Center had the legal right to control Dr. Huang’s work.
C. Legal right to control work
The Management Agreement between the Health Science Center and the
UTP clinic provided that the Health Science Center “has requested [UTP] to assist
28
[it] with certain functions to support the provision of health care by faculty
physicians of [the Health Science Center].” The UTP clinic was contractually
required to provide the Health Science Center with medical offices, furnishings,
clinic equipment, and business and clinical supplies. The UTP clinic was required
to supply “non-physician personnel reasonably necessary for [the Health Science
Center]’s practice” at the medical offices. The agreement further provided that
UTP “shall be responsible for all non-medical operations of [the Health Science
Center]’s practices at the Offices,” including scheduling, maintaining patient
records, marketing, billing, and collections. The Health Science Center, on the
other hand, was required “at all times [to] be responsible for the quality of medical
care practiced at the Offices.”
Dr. Huang had a written agreement with UTP. That agreement did not
purport to be an employment agreement. Instead, it was a “participation
agreement” through which Dr. Huang agreed to “participate in” the clinic’s
“professional activities.” In turn, UTP agreed “to arrange for the delivery of health
care services to patients . . . by its participating physicians . . . .” Cf. Farlow v.
Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 915 (Tex. App.—Fort Worth
2009, pet. denied) (holding that agreement between doctor and hospital was not
employment agreement but, instead, addressed logistics necessary to provide
hospital’s on-call coverage requirements).
29
The agreement also provided that Dr. Huang would accept new patients
unless the Health Science Center provides UTP written notice otherwise. If such
notice were given by the Health Science Center, Dr. Huang would have been
prohibited, under the terms of his agreement with UTP, from accepting any new
patients. Thus, the agreement gave the Health Science Center control over whether
Dr. Huang could see new patients at the UTP clinic.
According to Dr. Huang’s affidavit, the Health Science Center also
controlled his work schedule at the clinic. He averred: “I was assigned to be at the
[UTP] clinic during the afternoon [of Shana’s medical treatment] by the
Department of Obstetrics, Gynecology, and Reproductive Sciences at [the Health
Science Center].” He also averred that “providing professional medical services at
the [UTP] clinic [on that day] was a condition of my employment with [the Health
Science Center] and was a part of my patient care and teaching responsibilities
with [the Health Science Center].”
There is no indication that a UTP clinic employee or manager supervised
Dr. Huang’s clinic work. Neither is there evidence that his clinic participation was
distinct from his obligation, as a Health Science Center physician, to provide out-
patient care for the community and training for the medical residents. In fact, the
UTP participation agreement stated that Dr. Huang was required to retain his
faculty status at the Health Science Center to qualify for participation. If Dr. Huang
30
left his Health Science Center faculty position, his participation at UTP would “be
automatically terminated.”
Thus, the agreement between UTP and Dr. Huang is reasonably viewed as
an agreement between UTP and a Health Science Center physician, not a physician
who also happens to teach at the Health Science Center. The evidence supports the
conclusion that it was the Health Science Center, and not UTP, that held the legal
right to control Dr. Huang’s provision of medical care at the clinic.
D. Acting within scope of employment
The Lenoirs’ final challenge to Dr. Huang’s assertion that he was an
employee of the Health Science Center questions whether he was acting within the
scope of his employment with the Health Science Center when he oversaw
Dr. Gonski’s care of Shana.
“Scope of employment” is defined by the TCA as the performance “of a task
lawfully assigned to an employee.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(5). 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.”).
31
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
residency program. This supervision occurred at Memorial Hermann Hospital and
in clinical settings, including the UTP clinic. According to Dr. Huang’s affidavit,
his Health Science Center employment required him to supervise these residents.
He was the assigned attending physician at the UTP clinic on the day Shana
received treatment there and, in that capacity, was required to supervise Dr. Gonski
and other residents providing care at the clinic. 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 Shana’s treatment.
The Lenoirs argue that Dr. Huang is not entitled to dismissal despite this
conclusion because his actions were ultra vires, meaning that they were
unauthorized and beyond the authority provided to him by his employer, due to
Medicaid billing errors. In support of their argument, the Lenoirs rely on a 1987
case that held that “[u]nlawful or unauthorized actions 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.).
However, the reasoning of this case has been rejected. See, e.g., City of Elsa v.
32
M.A.L., 226 S.W.3d 390, 392 (Tex. 2007); Tex. State Technical Coll. v. Cressman,
172 S.W.3d 61, 66 (Tex. App.—Waco 2005, pet. denied). The issue is not whether
Dr. Huang’s conduct was somehow “unlawful or unauthorized”; it is, instead,
whether Dr. Huang acted within or outside the scope of his employment. See
Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014); City of Lancaster v.
Chambers, 883 S.W.2d 650, 658 (Tex. 1994).6
As more recent case law has established, 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, 883 S.W.2d
at 658; Hopkins v. Strickland, No. 01-12-00315-CV, 2013 WL 1183302, at *3
(Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.); Lopez, 414
S.W.3d at 894–95; Anderson, 365 S.W.3d at 126. Similarly, a governmental
employee can act within the scope of his employment, even if it is later determined
that some error was committed in connection with his actions. See Ballantyne v.
Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004) (concluding that board
6
The Lenoirs’ reliance on City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009),
is likewise misplaced. The portion of that opinion on which the Lenoirs rely is
concerned with declaratory judgment actions against state officials acting outside
of their authority. Id. at 373 & n.7. It has no application to this suit against
Dr. Huang for damages. In the referenced footnote, the Texas Supreme Court
acknowledges that state officials may be sued in their individual capacity but notes
that such suit would be for “conduct fairly attributable to the officer himself,”
meaning outside of his general scope of employment. Id. at 373 n.7 (citing Alden
v. Maine, 527 U.S. 706, 757, 119 S. Ct. 2240, 2267–68 (1999)).
33
of adjusters members were discharging duties assigned to them even though later
judicial decision established that board action was incorrect).
Section 101.106(f) states that a suit against a governmental employee in his
individual capacity “is considered to be against the employee in the employee’s
official capacity only” if the suit is “based on conduct within the general scope of
that employee’s employment . . . .” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.106(f). In other words, a suit against an employee acting within the scope of
his employment is “in all but name only, a suit against the governmental unit.”
Ngakoue, 408 S.W.3d at 357. “Conversely, suits against an employee based on
conduct outside the scope of employment are suits against an employee in his
individual capacity and seek personal liability.” Molina v. Alvarado, No. 14-0536,
2015 WL 2148055, at *2 (Tex. May 8, 2015) (citing Alexander, 435 S.W.3d at
791); cf. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.7 (Tex. 2007). The
election-of-remedies provision forces the plaintiff to decide at the outset whether
the employee acted independently or within the general scope of his employment.
Molina, 2015 WL 2148055, at *3; Garcia, 253 S.W.3d at 657. Here, the Lenoirs
elected to proceed under the theory that Dr. Huang acted independently. We,
however, have determined that he was acting within the scope of his authority with
regard to the allegations of medical negligence asserted against him. Accordingly,
Dr. Huang was entitled to dismissal under section 101.106(f).
34
Accordingly, we overrule the Lenoirs’ second issue.
Challenge to Affidavits
In the Lenoirs’ final issue, they challenge affidavits relied on by Dr. Huang
in support of his motion to dismiss. The Lenoirs 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 Shana and to the affidavit of the Health
Science Center’s Senior Executive Vice President confirming Dr. Huang’s
statement. The Lenoirs objected that these affidavits were “legally conclusory and
factually incorrect” based on their legal argument that UTP was engaged in an
“auxiliary enterprise” because the fees charged to the clinic’s patients passed
through a trust fund before ultimately being used by the Health Science Center to
pay its physicians’ salaries.
The Lenoirs further objected to the affidavits of the Health Science Center’s
residency program director and the Foundation’s president. The Lenoirs again
allege that these affidavits contain “legal conclusions not supported by facts.”
The trial court did not rule on the Lenoirs’ 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.” Skelton v. Comm’n
for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.]
35
2001, no pet.); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130
(Tex. App.—Houston [1st Dist.] 1999, no pet.). The Lenoirs did not have to obtain
a ruling on their 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.). 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.); Nichols v. Lightle,
153 S.W.3d 563, 570 (Tex. App.—Amarillo 2004, pet. denied). On the other hand,
logical conclusions are not improperly conclusory if they are based on underlying
36
facts stated in the affidavit or its attachments. Rizkallah v. Conner, 952 S.W.2d
580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
The Lenoirs’ 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 the
affidavits. 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, they contend 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 entities within the UT
System 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
rejected the Lenoirs’ legal contentions challenging Dr. Huang’s employment, we
likewise reject their assertion that the statements are conclusory.
Accordingly, we overrule the Lenoirs’ third issue.
37
Conclusion
We overrule the Lenoirs’ challenge to the dismissal of Dr. Huang. We
further overrule their challenge to the affidavits attached to his motion to dismiss.
We sustain the Lenoirs’ 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.
38