Rusk State Hosp. v. Black

Decision Date31 August 2012
Docket NumberNo. 10–0548.,10–0548.
PartiesRUSK STATE HOSPITAL, Petitioner, v. Dennis BLACK and Pam Black, Individually and as Representatives of the Estate of Travis Bonham Black, Deceased, Respondents.
CourtTexas Supreme Court


Clarence Andrew Weber, Kelly Hart & Hallman LLP, Daniel T. Hodge, First Asst. Attorney General, David C. Mattax, Director of Defense Litigation, Jonathan F. Mitchell, Solicitor General, Timothy Edward Boughal, Office of the Attorney General, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, Greg W. Abbott, Attorney General of Texas, Michael P. Murphy, Asst. Solicitor General, William (Bill) J. Cobb III, Attorney General's Office, Deputy Atty. General for Civil Litigation, Austin, TX, James C. Ho, Gibson Dunn & Crutcher, LLP, Dallas, TX, for Rusk State Hospital.

Dennis Gerald Black, Jeramy Mitchell Skaggs, Black & Skaggs, P.C., Tyler, TX, for Dennis Black.

Justice JOHNSON delivered the opinion of the Court, in which Justice HECHT, Justice WAINWRIGHT, Justice GREEN, Justice WILLETT, and Justice GUZMAN joined.

In this health care liability claim the trial court denied Rusk State Hospital's challenge to the plaintiffs' expert reports. The Hospital filed an interlocutory appeal from that ruling. On appeal the Hospital, for the first time, asserted it was immune from suit. The court of appeals refused to consider the immunity issue because it had not been presented to the trial court. After addressing the merits of the Hospital's challenge to the expert reports, the court of appeals remanded the case to the trial court for further proceedings.

We conclude that the court of appeals erred by refusing to consider the immunity claim because immunity from suit implicates courts' subject-matter jurisdiction. After considering the immunity claim, which was briefed and argued in this Court, however, we affirm the judgment of the court of appeals remanding the case to the trial court because (1) the pleadings and record neither establish a waiver of the Hospital's immunity nor conclusively negate such a waiver; and (2) the Hospital has not shown conclusively that either the plaintiffs had a full, fair opportunity in the trial court to develop the record as to immunity and amend their pleadings, or that if the case is remanded and the plaintiffs are given such an opportunity they cannot show immunity has been waived.

I. Background

Travis Black was a psychiatric patient in Rusk State Hospital when he was found unconscious with a plastic bag over his head. Efforts to resuscitate him were unsuccessful and he died. Delbert Van Dusen, M.D., performed an autopsy, determined Travis died of asphyxiation, and concluded that he committed suicide.

Travis's parents, Dennis and Pam Black, filed a health care liability suit against the Hospital and other entities that are not parties to this appeal. 1 The Blacks alleged that the Hospital (1) was negligent by providing or allowing Travis access to a plastic bag that was inherently dangerous in an inpatient psychiatric setting, and the negligence involved a condition, use, or misuse of tangible personal property; (2) was negligent in training and supervising its employees, which resulted in Travis's death either by assisted suicide or murder; and (3) acted with deliberate indifference to Travis's medical and psychiatric needs by depriving him of sleep and refusing to prescribe appropriate medication.

The Blacks timely served the Hospital with an expert report from psychologist Dennis Combs, Ph.D., and a copy of Dr. Van Dusen's autopsy report. SeeTex. Civ. Prac. & Rem.Code § 74.351. The Hospital moved for dismissal of the suit on the basis that these reports failed to satisfy the statutory requirements of section 74.351. See id. The trial court denied the motion and the Hospital appealed. See id. § 51.014(a)(9) (providing that a person may immediately appeal an interlocutory trial court order that denies all or part of the relief sought by a motion under section 74.351(b)).

On interlocutory appeal the Hospital argued that the trial court erred by denying its motion to dismiss and, for the first time, asserted it had sovereign immunity from suit. Regarding its immunity claim, the Hospital argued that the Blacks' pleadings did not allege a cause of action for which the Hospital's immunity was waived and therefore the Blacks failed to meet their burden of showing the trial court had jurisdiction. 379 S.W.3d 283, 288. The Blacks responded that their filings complied with statutory expert report requirements; the court of appeals could not consider the Hospital's immunity argument because it was neither presented to nor considered by the trial court; and in any event their pleadings were sufficient to demonstrate a claim for which the Hospital's immunity was waived. Id. at 288–89.

The court of appeals did not address the immunity issue because “the weight of authority” precluded it from considering the issue on interlocutory appeal when it had not been presented to or ruled on by the trial court. Id. at 290. The appeals court, considering both Dr. Combs's report and Dr. Van Dusen's autopsy report as statutory reports, concluded that the Blacks' claims regarding sleep deprivation, failure to prescribe adequate medication, and indifference to Travis's medical needs were not addressed by them, so it dismissed those claims with prejudice. Id. at 293. Although the appeals court also concluded that the Blacks' expert reports were deficient with respect to their remaining negligence claims, it determined the reports nonetheless represented a good-faith effort to comply with section 74.351 and remanded for the trial court to consider whether to grant a 30–day extension for the Blacks to cure the deficiencies. SeeTex. Civ. Prac. & Rem. CodeE § 74.351(c) (providing that “the court may grant one 30–day extension to the claimant in order to cure the deficiency” if it concludes the claimant's timely filed expert reports are deficient); Leland v. Brandal, 257 S.W.3d 204, 205 (Tex.2008) (holding that “when elements of a timely filed expert report are found deficient, either by the trial court or on appeal, one thirty-day extension to cure the report may be granted” and remanding the case to the trial court for it to consider whether to grant an extension).

The Blacks did not seek review of the court of appeals' decision, but the Hospital did and we granted its petition for review. 54 Tex.Sup.Ct.J. 1156 (June 17, 2011). The Hospital argues that immunity from suit deprives the trial court of subject-matter jurisdiction and the interlocutory appeal statute did not preclude the court of appeals from determining the jurisdictional issue. The Hospital then argues that we should dismiss the case because the Blacks' pleadings, even if true, do not allege a claim for which the Hospital's immunity has been waived by the Tort Claims Act (TCA). SeeTex. Civ. Prac. & Rem.Code §§ 101.001–.109.

We begin by addressing our jurisdiction over the interlocutory appeal.

II. Interlocutory Appeal Jurisdiction

Generally, Texas appellate courts have jurisdiction only over final judgments. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001). An exception exists for certain interlocutory orders. SeeTex. Civ. Prac. & Rem.Code § 51.014(a); Jackson, 53 S.W.3d at 355. In relevant part, section 51.014(a) provides that

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:


(8) grants or denies a plea to the jurisdiction by a governmental unit ...; [or]


(9)denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351.

Tex. Civ. Prac. & Rem. CodeE § 51.014(a)(8), (9). Section 74.351(b), which section 51.014(9) references, specifies that a court must dismiss a health care liability claim if the plaintiff does not timely serve an expert report and the defendant physician or health care provider properly objects. See id. § 74.351(b).

When an interlocutory appeal is taken pursuant to section 51.014(a), the court of appeals' judgment ordinarily is conclusive. SeeTex. Gov't Code § 22.225(b)(3). But we may consider an interlocutory appeal when the court of appeals' decision conflicts with the decision of another court of appeals on a material issue of law. Id. §§ 22.001(a)(2), (e); 22.225(c). This case presents an issue on which the courts of appeals are in conflict: May an appellate court consider on interlocutory appeal whether a governmental entity has immunity when the trial court did not address the issue first. Compare379 S.W.3d. at 290 ([W]e hold that the weight of authority precludes our consideration on interlocutory appeal of jurisdictional challenges not presented to or ruled on by the trial court.”), with Fort Bend Cnty. Toll Road Auth. v. Olivares, 316 S.W.3d 114, 118 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (“An appellate court must consider challenges to the trial court's subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court.”). We have jurisdiction to resolve the conflict. Tex. Gov't Code § 22.001(a)(2).

III. Sovereign Immunity
A. Nature of Immunity

The doctrine of sovereign immunity derives from the common law and has long been part of Texas jurisprudence. See Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (holding that the State could not be sued in her own courts absent her consent “and then only in the manner indicated”); see also City of Dallas v. Albert, 354 S.W.3d 368, 373 (Tex.2011) ([The] boundaries [of sovereign immunity] are established by the judiciary, but we have consistently held that waivers of it are the prerogative of the Legislature.”).

Sovereign immunity in Texas embodies two concepts: immunity from...

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