Illoh v. Carroll

• Decision Date: 05 August 2010
• Docket Number: No. 14-09-01001-CV.,14-09-01001-CV.
• Citation: 321 S.W.3d 711
• Parties: Kachikwu ILLOH, M.D., Appellant, v. Damita CARROLL and Karen Butler, Individually and as Representatives of the Estate of James Carroll, Appellees.
• Court: Texas Court of Appeals

321 S.W.3d 711

Kachikwu ILLOH, M.D., Appellant,

v.Damita CARROLL and Karen Butler, Individually and as Representatives of the Estate of James Carroll, Appellees.

Court of Appeals of Texas,Houston (14th Dist.). Kachikwu ILLOH, M.D., Appellant,

v.Damita CARROLL and Karen Butler, Individually and as Representatives of the Estate of James Carroll, Appellees. No. 14-09-01001-CV. Aug. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

Charles B. Holm, Nancy Bolin Broaddus, Houston, for appellant.

Christopher Bradshaw-Hull, Houston, for appellees.

Panel consists of Justices YATES, SEYMORE, and BROWN.

OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Kachikwu Illoh, M.D., files this interlocutory appeal from the trial court's orders denying his motion to dismiss and separately filed plea to the jurisdiction. Dr. Illoh contends the trial court erred by denying his motion to dismiss and his plea to the jurisdiction. We affirm the trial court's order denying Dr. Illoh's motion to dismiss but lack jurisdiction to consider the trial court's denial of his plea to the jurisdiction.

I. Background

On January 15, 2007, James Carroll was admitted to Memorial Hermann Hospital. Dr. Illoh, who was employed by governmental-entity University of Texas Health Science Center at Houston (“UTHSCH”), was Mr. Carroll's attending physician until January 22. Mr. Carroll was discharged from the hospital on February 16. Subsequently, he died on November 29, 2007, at a separate hospital. On March 31, 2009, Damita Carroll and Karen Butler, individually and as representatives of Mr. Carroll's estate (“appellees”), filed suit against Dr. Illoh and another doctor. Appellees allege that Mr. Carroll died from septicemia caused by bed sores which developed during his treatment at Memorial Hermann. Specifically, appellees claim Mr. Carroll's death was caused by Dr. Illoh's negligence in (1) “failing to implement appropriate care,” (2) “treating a patient without possessing the requisite skill,” (3) “failing to collaborate with Mr. Carroll's family,” (4) “failing to properly supervise his care,” and (5) “failing to obtain a reasonable and necessary consult.”

Dr. Illoh filed a motion entitled “... Plea to the Jurisdiction and Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” in which he argued that the trial court lacked subject-matter jurisdiction because appellees failed to file suit within two years of Dr. Illoh's treatment of Mr. Carroll (“statute-of-limitations motion”). Additionally, Dr. Illoh filed a motion to dismiss in which he argued that appellees were required to amend their petition to substitute Dr. Illoh for UTHSCH pursuant to the election-of-remedies provision in section 101.106(f). Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005). The trial court denied both motions, and Dr. Illoh timely filed this interlocutory appeal.

II. Texas Civil Practice and Remedies Code Section 101.106(f)

We begin with Dr. Illoh's first and second issues in which he contends the trial court erred by denying his motion to dismiss pursuant to section 101.106(f). We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, which allows interlocutory appeals from denials of motions to dismiss pursuant to section 101.106, See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon 2008); Phillips v. Dafonte, 187 S.W.3d 669, 674-75 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

A. Standard of Review

Generally, we review a trial court's order pertaining to a motion to dismiss under an abuse-of-discretion standard. Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). However, the proper standard of review is determined by the substance of the issue rather than the type of motion considered by the trial court. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (to determine proper standard of review, “we must determine whether the [issue] is a question of fact or of law”). Dr. Illoh's motion to dismiss presented an issue of statutory interpretation under section 101.106 of the Texas Tort Claims Act. Matters of statutory construction are reviewed de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003).

In construing a statute, our primary goal is to determine and effectuate legislative intent. Grimes County Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) ( citing In re Canales, 52 S.W.3d 698, 702 (Tex.2001) (orig. proceeding)). If a statute is clear and unambiguous, we need not resort to rules of construction. Id. We may consider, among other things, the statute's objectives and the consequences of a particular construction. Id. We try to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible. Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.2009). We presume that every word of a statute has been included or excluded for a reason. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex.2004).

B. Election of Remedies under the Texas Tort Claims Act

The Texas Tort Claims Act (“TTCA”) establishes a limited waiver of immunity for certain suits against governmental entities. The TTCA waives governmental immunity to the extent liability arises from the “use of a motor-driven vehicle or motor-driven equipment,” or from “a condition or use of tangible personal or real property.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005). To prevent litigants from circumventing the limits of the TTCA by suing government employees instead of governmental entities, the legislature provided several election-of-remedies provisions in section 101.106, including the following:

(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(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(e), (f) (emphasis added). Therefore, to obtain dismissal under section 101.106(f), a government employee must establish the claims against him (1) are based on conduct performed within the general scope of his employment and (2) could have been brought under the TTCA against his government employer.

C. Analysis

In his motion to dismiss, Dr. Illoh presented evidence supporting his contention that appellees' negligence suit is based on conduct that occurred while he was acting within the general scope of his employment with UTHSCH. In response, appellees argued that Dr. Illoh failed to establish the second prong of section 101.106(f) because he did not prove their claims could have been brought against UTHSCH. According to appellees, Dr. Illoh can only establish this prong by proving their negligence suit falls within the TTCA's limited waiver of immunity for claims arising from the condition or use of personal property. Indeed, in 2006, we held that government doctors were not entitled to dismissal under section 101.106(f) because they failed to establish that plaintiff's claims could be brought against the government employer under the TTCA's waiver of immunity. See Phillips, 187 S.W.3d at 675. Undaunted, Dr. Illoh argued below and now argues on appeal that the Texas Supreme Court's 2008 decision in Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653 (Tex.2008), effectively overruled the plaintiff's burden to show a waiver of sovereign immunity as recognized in cases such as Phillips. ¹

In Garcia, the plaintiffs filed suit against a school district and its superintendent, asserting, among other things, common-law negligence claims. Id. at 654. The trial court denied the school district's motion to dismiss pursuant to section 101.106. Id. at 655. In determining that section 101.106 did not apply, the court of appeals opined that only 101.106(e) could apply when a governmental entity and its employee were sued at the same time. Mission Consol. Indep. Sch. Dist. v. Garcia, 166 S.W.3d 902, 904-05 (Tex.App.-Corpus Christi 2005), aff'd in part, rev'd in part, 253 S.W.3d 653 (Tex.2008). The court of appeals held that section 101.106(e) did not apply, reasoning that plaintiffs' common-law negligence claims were not brought “under this chapter” because they did not fall within the TTCA's waiver of immunity. Id. at 905. The supreme court rejected this narrow interpretation of the phrase “under this chapter,” concluding: “Because the [TTCA] is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the TTCA]’ for purposes of section 101.106.” Garcia, 253 S.W.3d at 659. The supreme court also noted, however, that it was not called upon to interpret the phraseology of section 101.106(f):

Section 101.106(f) contains a slightly different phrase. It states that the suit against the employee is to be dismissed when the suit “could have been brought under this chapter against the governmental unit.” The interpretation of section 101.106(f) is not before us here and neither party argues that it applies to this case.

Id. at 660 n. 5.

While acknowledging the supreme court's assertion that it was not asked to interpret the language in section 101.106(f), Dr. Illoh argues Garcia's interpretat...