Franka v. Velasquez

• Citation: 332 S.W.3d 367
• Decision Date: 10 September 2008
• Docket Number: No. 07–0131.,07–0131.
• Parties: John Christopher FRANKA, M.D., and Nagakrishna Reddy, M.D., Petitioners,v.Stacey VELASQUEZ and Saragosa Alaniz, individually and as next friends of their minor child, Saragosa Mario Alaniz, Respondents.
• Court: Supreme Court of Texas

332 S.W.3d 367

John Christopher FRANKA, M.D., and Nagakrishna Reddy, M.D., Petitioners,

v.Stacey VELASQUEZ and Saragosa Alaniz, individually and as next friends of their minor child, Saragosa Mario Alaniz, Respondents.

No. 07–0131.

Supreme Court of Texas.

Argued Sept. 10, 2008.Decided Jan. 21, 2011.Rehearing Denied April 1, 2011.

Thomas H. Crofts Jr., Crofts & Callaway, P.C., Rosemary L. Hollan, Karen Rau Roberts, Hollan Law Firm, P.C., San Antonio, TX, for John Christopher Franka, M.D.Gene S. Hagood, Brad Allen Guillory, Hagood, Neumann & Huckeba, L.L.P., Alvin, TX, for Stacey Velasquez.Michael Patrick Murphy, Assistant Solicitor General, for amicus curiae State of Texas.Justice HECHT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice WAINWRIGHT, Justice GREEN, Justice JOHNSON, and Justice WILLETT joined.

Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting within the general scope of his employment must be dismissed “if it could have been brought under this chapter [that is, under the Act] against the governmental unit”.¹ The court of appeals construed the quoted clause to mean that, to be entitled to dismissal, the employee must establish that governmental immunity from suit has been waived by the Act.² But as we stated in Mission Consolidated Independent School District v. Garcia: “we have never interpreted ‘under this chapter’ to only encompass tort claims for which the Tort Claims Act waives immunity.” ³ Rather, “all [common-law] tort theories alleged against a governmental unit ... are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” ⁴ Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

I

Dr. John Christopher Franka and Dr. Nagakrishna Reddy, petitioners here, delivered S.M.A., the son of Stacey Velasquez and Saragosa Alaniz, respondents, at University Hospital, a public teaching hospital owned and operated by the Bexar County Hospital District, doing business as the University Health System.⁵ The Hospital is staffed with medical faculty, residents, and students of the University of Texas Health Science Center at San Antonio. ⁶ Franka was a faculty member employed by the Health Science Center, and Reddy was a resident in the Center's program.

S.M.A.'s fetal heart rate had slowed, and Franka and Reddy thought it best to attempt a vaginal delivery facilitated by a vacuum extractor, an instrument that attaches to the top of a baby's head, helping move it through the birth canal. The head appeared and the extractor was removed, but delivery of the baby's front shoulder was obstructed, a relatively infrequent but well-recognized obstetric emergency known as shoulder dystocia. Franka and Reddy tried to free the baby's shoulder with their hands, but just as it appeared, Reddy heard a snap that she knew meant a bone had broken. The baby's left clavicle was fractured, and he suffered injury to his brachial plexus, requiring surgery several months later.

Velasquez and Alaniz, individually and on behalf of S.M.A., sued Franka and Reddy but not the Center (or the District or Hospital). Franka moved to dismiss the action under section 101.106(f) of the Texas Tort Claims Act, which states:

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.⁷

In their response, plaintiffs acknowledged that Franka was employed by a governmental unit, the Center, and that their suit was based on conduct within the general scope of his employment. But, they argued, to invoke section 101.106(f), Franka had the burden of proving that suit “could have been brought under” the Act, and to discharge that burden, he had to offer evidence that the Center's immunity was waived by the Act. The only basis for such a waiver, they continued, was that their injuries were “caused by a condition or use of tangible personal ... property” under section 101.021 of the Act,⁸ and “[n]othing appears in this record to implicate the use or misuse of tangible personal property in causing the orthopaedic and neurological injuries to baby [S.M.A.].” Plaintiffs suggested that the Center stipulate that its immunity from suit was waived. Failing that, they urged that Franka's motion be denied.

Apparently the trial court never ruled on Franka's motion. More than a year passed, and defendants each filed a motion for summary judgment based on section 101.106(f), differing only as to the circumstances of their employment. Each argued that “suit against [them] could have been brought against the [Center] because the conduct of [defendants] on which the allegations are based involved the use of tangible property, namely the vacuum extractor”. Each attached an affidavit stating that S.M.A.'s “treatment included the use of tangible property, including a vacuum extractor.” And each requested the court to order that “unless [plaintiffs] substitute [the Center] as the defendant, the case will be dismissed in thirty days.” Plaintiffs responded that defendants had failed to establish that suit could have been brought against the Center because there was “no evidence that the condition or use of tangible property, the vacuum extractor, was the instrumentality of the harm, and therefore no waiver of immunity”. Plaintiffs also argued that defendants had not established that they were government employees as defined by the Act.

The trial court denied defendants' motions, and they appealed. ⁹ The court of appeals affirmed, holding that a government employee is not entitled to dismissal under section 101.106(f) until he has established that his employer's immunity from suit has been waived by the Act.¹⁰ In its view, the argument that the raising of a fact issue as to whether the suit “could have been brought under this chapter against the governmental unit” should be sufficient to enable a trial court to dismiss employees under section 101.106(f) ... is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, a trial court also is not permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the suit “could have been [brought] under this chapter against the governmental unit.” ¹¹

We granted defendants' petition for review.¹²

II

A threshold issue is whether Franka and Reddy are “employee[s] of a governmental unit” to whom section 101.106(f) applies. In this Court, plaintiffs do not contest Franka's employee status ¹³ because section 101.001(2) of the Act defines an employee as “a person ... in the paid service of a governmental unit ... [but not] an independent contractor ... or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” ¹⁴ The Center is a governmental unit, ¹⁵ and Franka was a paid member of its faculty.¹⁶

Reddy, however, was a resident under a three-party “Graduate Medical Education Agreement”, in which she, the Center, and the District, also a governmental unit,¹⁷ agreed that the District would compensate her but would have no legal right to control the details of her work.¹⁸ Because Reddy was not both paid by and subject to the legal control of the same governmental unit,¹⁹ she states that she “does not claim to be a § 101.001(2) employee.” ²⁰

Instead, Reddy argues that section 312.007(a) of the Texas Health & Safety Code makes her a government employee for purposes of section 101.106(f) of the Act. Section 312.007(a) states:

A medical and dental unit, supported medical or dental school, or coordinating entity is a state agency, and a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a medical and dental unit, supported medical or dental school, or coordinating entity is an employee of a state agency for purposes of ... determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the unit, school, or entity.²¹

Reddy was a resident of a “medical unit”.²² Recently, in Klein v. Hernandez, we held that a resident covered by this section is a government employee for purposes of determining liability under the Act.²³ Since a liability determination may depend on whether the defendant is immune, we agree with Reddy that section 312.007(a), if applicable, would make her a government employee under section 101.106(f).

But plaintiffs argue that Reddy has failed to show that section 312.007(a) applies in this case. Section 312.003 states:

This chapter [including section 312.007] applies only if a medical and dental unit and a supported medical or dental school agree, either directly or through a coordinating entity, to provide or cause to be provided medical, dental, or other patient care or services or to perform or cause to be performed medical, dental, or clinical education, training, or research activities in a coordinated or cooperative manner in a public hospital. ²⁴

Reddy acknowledges that the applicability of section 312.007(a)...