Lenoir v. U.T. Physicians, NO. 01–14–00767–CV

• Court: Court of Appeals of Texas
• Writing for the Court: Harvey Brown, Justice
• Citation: 491 S.W.3d 68
• Parties: 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. U.T. Physicians, Appellee
• Docket Number: NO. 01–14–00767–CV
• Decision Date: 29 March 2016

491 S.W.3d 68

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.
U.T. Physicians, Appellee

NO. 01–14–00767–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 29, 2016
Rehearing En Banc Overruled June 23, 2016

Joseph Michael Gourrier, The Gourrier Law Firm, LLP, Houston, for Appellants.

David R. Iler, Warren S. Huang, Jaqualine P. McMillan, Norton Rose Fulbright US LLP, Houston, Jason Warner, Asst. Atty. Gen., Austin, for Appellee.

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

OPINION ON REHEARING¹

Harvey Brown, Justice

This is a health care liability case arising from the death of Shana Lenoir hours after receiving prenatal care at U.T. Physicians clinic (UTP). UTP obtained dismissal

491 S.W.3d 73

from the suit when the trial court granted its plea to the jurisdiction based on an assertion that it qualifies as a governmental unit and, therefore, has governmental immunity from suit. The appellants (referred to collectively as the Lenoirs) brought this interlocutory appeal challenging the dismissal.

The Lenoirs contend that the trial court erred by granting UTP's plea to the jurisdiction because (1) UTP failed to prove that it is a governmental unit as defined by the Tort Claims Act (TCA) and (2) to the extent the TCA does apply, the Lenoirs adequately alleged that Shana's death was proximately caused by an employee's use of tangible physical property.

Because we conclude that UTP does not have governmental immunity from suit, we reverse the trial court's order granting UTP's plea to the jurisdiction and remand for further proceedings.

Background

Shana Lenoir received prenatal care at UTP clinic. She was seen by Dr. Gonski—a second-year medical resident. Shana discussed with Dr. Gonski complications she had with an earlier twin pregnancy. The twins were born preterm. One died; the other required extensive medical care and was in the neonatal intensive care unit for several months. On this visit, Shana was between 32 and 35 weeks pregnant with twins. Dr. Gonski prescribed weekly injections of progesterone. A nurse employed by UTP clinic, Angela Matthews, gave Shana her initial progesterone injection during the office visit.

While at home several hours later, Shana began having difficulty breathing. She was taken by EMS to Memorial Hermann Hospital; however, she and both of her unborn children died before they arrived.

The Lenoirs sued the treating physician (Dr. Gonski), the attending physician overseeing Dr. Gonski (Dr. Huang), the UTP nurse who injected the progesterone (Matthews), and UTP clinic.² In related appeals, we have rendered judgment for Matthews, affirmed the dismissal of Dr. Huang, and reversed the dismissal of Dr. Gonski.³ We now consider whether the trial court erred by dismissing UTP based on governmental immunity.

The Lenoirs are not Barred by Judicial Admission

As an initial matter, UTP argues that the Lenoirs are prohibited from contesting its status as a governmental unit because they made judicial admissions when contesting the dismissal of UTP's nurse employee, Matthews.

A. A judicial admission is an unequivocal assertion of fact

A judicial admission is an unequivocal assertion of fact that, once made, relieves the opposing party of its burden of proving the admitted fact and bars the admitting party from disputing that fact. See Holy Cross Church of God in Christ v. Wolf 44 S.W.3d 562, 568 (Tex.2001) ; Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983) ; Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980). A judicial admission must be “clear, deliberate, and unequivocal.”

491 S.W.3d 74

Regency Advantage Ltd. P'ship v. Bingo Idea–Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996).

The elements for establishing that a statement is a judicial admission are

(1) the statement must be made in the course of a judicial proceeding;

(2) it must be contrary to an essential fact or defense asserted by the party;

(3) it must be deliberate, clear, and unequivocal;

(4) it cannot be destructive of the opposing party's theory of recovery or defense; and

(5) enforcing the statement as a judicial admission would be consistent with public policy.

H2 O Solutions, Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 617 (Tex.App.–Houston [1st Dist.] 2014, pet. denied) ; Khan v. GBAK Props., Inc., 371 S.W.3d 347, 357 (Tex.App.–Houston [1st Dist.] 2012, no pet.). “An assertion of fact pleaded in the alternative is not a judicial admission.” H2 O Solutions, 438 S.W.3d at 617 ; accord Wolf, 44 S.W.3d at 568.

B. The Lenoirs did not judicially admit that UTP is a governmental unit

UTP's original answer contained an assertion of governmental immunity. Consistent with that assertion, the Attorney General's Office began representing UTP. Subsequently, Matthews moved for dismissal, asserting that she had not been timely served with an expert report. In response, the Lenoirs argued that the AG's actual representation of the employer (UTP) alleged to be vicariously liable for the negligent acts of its employee (Matthews) mandated that the AG also represent the employee. Thus, the Lenoirs argued, timely service of the expert report on the AG's office counted as timely service on Matthews.

Nowhere in that argument is there a “deliberate, clear, and unequivocal” assertion of fact that UTP is a governmental unit. See Regency Advantage Ltd. P'ship, 936 S.W.2d at 278. Instead, the Lenoirs were arguing that, if the defendants were going to “allege” that they had governmental immunity, then they were going to be bound by the laws and rules that accompany that assertion, including that the AG's representation of the employer mandates that the AG also represent the employee. In other words, the defendants (including UTP and Matthews) could not purport to rely on governmental immunity to defeat the Lenoirs' claims while avoiding the effects of that assertion (AG representation and adequate service).

The Lenoirs took a consistent position in the Matthews appeal, arguing in their brief:

U.T. Physicians was represented by the Office of the Attorney General (OAG) because it alleged that it is a governmental unit in its answer. As such, the OAG is also the attorney for U.T. Physicians' former co-employee, Nurse Matthews.... Since U.T. Physicians alleges that it is a governmental unit of the State of Texas and Nurse Matthews was its former employee, the attorney general is her attorney in negligence actions arising from conduct in the course and scope of her employment or contractual performance.

....

The Lenoirs have never argued that the OAG “automatically became Nurse Matthews' attorney simply upon filing of the lawsuit. Instead, the Lenoirs asserted that the OAG was already participating in the lawsuit as the attorneys of record for Nurse Matthews' vicariously liable co-employer, U.T. Physicians, an alleged governmental unit. Therefore, U.T.

491 S.W.3d 75

Physicians must have requested legal representation from the OAG because the OAG filed an answer on behalf of U.T. Physicians, on July 20, 2012. Since the OAG was already representing U.T. Physicians based on the conduct of its co-employee, Nurse Matthews, the OAG was also responsible for providing legal representation to Nurse Matthews, even though she had not yet been served with process.

To the extent there is an “assertion of fact” in this argument, it concerns who was representing Matthews, not whether UTP is a governmental unit.

Likewise, the Lenoirs never admitted that UTP was a governmental unit in the pleadings underlying this appeal. The Lenoirs have consistently maintained that “UT Physicians is an independent contractor to UTHSCH and is not entitled to governmental immunity. Further, Defendant Angela Matthews is an employee of an independent contractor and her employer is not entitled to assert governmental immunity under the plain language of the statute.”

Furthermore, AG representation was not the Lenoirs' only argument against dismissal of Matthews. They made two additional, alternative arguments: (1) Matthews failed to timely object to the Lenoirs' report and, therefore, waived all other challenges to the report and (2) the Lenoirs' diligence in attempting service on Matthews prevented dismissal on constitutional grounds.

In conclusion, the Lenoirs made alternative arguments why Matthews should not be dismissed from the suit. None of the three arguments were based on an unequivocal assertion that UTP qualifies as a governmental unit. We, therefore, conclude that no judicial admission was made. Accordingly, we reject UTP's argument that the Lenoirs are barred from challenging the grant of UTP's plea to the jurisdiction. We turn now to whether the trial court erred by granting UTP's plea to the jurisdiction on immunity grounds.

Governmental Immunity from Suit

...