Opinion
04-21-00205-CV
11-24-2021
Christian STALLWORTH, M.D., Appellant v. Charles ROBISON, Appellee
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI18541 Honorable Laura Salinas, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
In this interlocutory appeal, Christian Stallworth, M.D. challenges the trial court's denial of his motion to dismiss Charles Robison's healthcare liability lawsuit on the basis of governmental immunity. See TEX. CIV. PRAC. &REM. CODE § 101.106(f). We affirm.
Background
Robison sued Dr. Stallworth in 2018 for permanent injuries he sustained in surgery. Dr. Stallworth moved to dismiss the lawsuit pursuant to section 101.106(f) of the Texas Tort Claims Act. He argued he was immune from suit because he was an employee of the University of Texas Health Science Center at San Antonio (UTHSCSA), a governmental unit, and he acted within the scope of that employment when he operated on Robison at University Hospital. He further argued his UTHSCSA employment status was evident because he supervised surgical residents during Robison's surgery. Robison opposed the motion, arguing Dr. Stallworth treated him at Texas Plastic Surgery, where he conducted his private practice, and Dr. Stallworth was therefore not an employee of UTHSCSA as defined in the Tort Claims Act. Alternatively, Robison argued Dr. Stallworth was acting in his capacity as a private practitioner and not within the scope of any employment with UTHSCSA when he operated on him. Both parties submitted evidence in support of their positions. The trial court denied the motion to dismiss without specifying the grounds for its ruling.
It is undisputed that University Hospital is a separate governmental unit from UTHSCSA. The hospital is owned and operated by the Bexar County Hospital District doing business as University Health System.
Dr. Stallworth's private practice, Dr. Stallworth Facial Plastic Surgery, had an agreement with Texas Plastic Surgery permitting him to conduct his practice using Texas Plastic Surgery's facilities, letterhead, and personnel. Because the parties frequently refer to Texas Plastic Surgery and the distinction is not material to the case, we do the same.
Dr. Stallworth timely appealed the trial court's order.
Standard of Review &Governmental Immunity
Because a motion to dismiss filed by an employee pursuant to section 101.106(f) of the Tort Claims Act challenges the trial court's subject-matter jurisdiction, an appellate court conducts a de novo review. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); Rivera v. Garcia, 589 S.W.3d 242, 245 (Tex. App.-San Antonio 2019, no pet.). When reviewing a trial court's jurisdictional ruling on a plea to the jurisdiction, we consider the plaintiff's pleadings and factual assertions, along with any record evidence relevant to the jurisdictional issue. Id. If the plea to the jurisdiction challenges the existence of jurisdictional facts that are not intertwined with the merits of the case, we decide the jurisdictional issue as a matter of law if the jurisdictional facts are undisputed. Worsdale v. City of Killeen, 578 S.W.3d 57, 66 (Tex. 2019); City of San Antonio v. Herrera, No. 04-18-00881-CV, 2019 WL 3937279, at *1 (Tex. App.-San Antonio Aug. 21, 2019, no pet.) (mem. op.). If those facts are disputed, we defer to the trial court's express or implied factual determinations supported by sufficient evidence. Herrera, 2019 WL 3937279, at *1.
At issue in this case is section 101.106(f) of the Tort Claims Act which provides:
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 § 101.106(f). A trial court is required to dismiss a lawsuit filed against a government employee if the lawsuit is based on conduct within the general scope of his employment, and the suit could have been brought against the governmental unit. See, e.g., Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017).
Robison's Allegations
Robison alleges in his petition that Dr. Stallworth failed to (1) properly or timely evaluate his medical condition; (2) administer adequate care and treatment; (3) counsel him on the risks and benefits of surgery, including for his profession; (4) obtain his consent for surgery; and (5) take proper precautions while performing the surgery. Robison alleges that as a direct and proximate cause of Dr. Stallworth's substandard, inadequate, and negligent medical care and treatment, he suffered permanent injuries.
However, the petition does not provide sufficient facts to determine whether Dr. Stallworth was an employee of a governmental unit acting within the scope of his employment. We therefore examine the arguments and evidence presented by the parties relevant to the jurisdictional facts. See Worsdale, 578 S.W.3d at 66; Herrera, 2019 WL 3937279, at *2.
Whether Dr. Stallworth Was a Governmental Unit Employee
For purposes of the Tort Claims Act, an employee is a "a person . . . in the paid service of a governmental unit by competent authority, but does not include . . . a person who performs tasks the details of which the governmental unit does not have the legal right to control." TEX. CIV. PRAC. &REM. CODE § 101.001(2); see Marino v. Lenoir, 526 S.W.3d 403, 406 (Tex. 2017). The dispute in this case is whether UTHSCSA had the "legal right to control" the details of Dr. Stallworth's tasks.
Robison does not dispute that UTHSCSA is a governmental unit.
Legal right to control the details of the employee's tasks means "an actual right to control" the details of those tasks. Marino, 526 S.W.3d at 409; Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003) (per curiam). An actual right to control the details of those tasks means the employee's "decisions . . . [are] subject to regimens prescribed by [the governmental unit], . . . [and its] supervision and review," including the ability to "veto" the employee's decisions. Marino, 526 S.W.3d at 408 (quoting Murk, 120 S.W.3d at 867). A physician may be subject to actual control if the governmental unit "controlled the[ir] daily rotations, duties, and responsibilities." Id. However, an actual right to control the details of a physician's tasks does not mean an actual right to control a physician's exercise of "some independent medical judgment" when treating patients. Id.; see Murk, 120 S.W.3d at 867 ("Similarly, a physician whose practice is controlled by a governmental unit is not precluded from being an 'employee' within the meaning of the Act simply because he or she must exercise some independent medical judgment.").
Dr. Stallworth argues a party may establish a legal right to control through evidence of a contract that expressly assigns the right to control or, in the absence of a contract, evidence of actual control over the manner in which the work is to be performed, citing Dow Chemical Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)-a negligence case involving private parties. Marino establishes that the evidence of a contract must expressly assign the right to actually control the details of the employee's tasks, not simply a theoretical "right to control." Marino, 526 S.W.3d at 409.
Evidence may include any contract, governmental unit policy, bylaws, handbook, or other relevant document showing an actual right to control the details of those tasks. See Marino, 526 S.W.3d at 406-08 (concluding actual right to control details of resident's tasks was evidenced by resident handbook explaining residency program's teaching staff supervised residents and program director assigned rotations and other duties to residents and authorized leave). It does not include evidence of a general right to change the terms and conditions of employment, a reservation of rights to alter the terms of employment, or evidence of compensation. See Marino, 526 S.W.3d at 406, 409-10 (concluding evidence of right to issue employee's checks, maintain records, provide malpractice insurance to employee, and reservation of right to change terms and conditions of employment in handbook was insufficient to show actual right to control details of employee's tasks).
The undisputed evidence shows that before the surgery, Dr. Stallworth evaluated and treated Robison at Texas Plastic Surgery "every time," and Robison paid Texas Plastic Surgery for Dr. Stallworth's services. The record contains no evidence UTHSCSA had any actual right to control the details of Dr. Stallworth's medical evaluation and treatment of Robison at Texas Plastic Surgery.
In support of his contention that he was a UTHSCSA employee when he evaluated and treated Robison, Dr. Stallworth presented a memorandum of appointment and W-2 showing he was a Clinical Associate Professor in UTHSCSA's Department of Otolaryngology, and he was required to devote seventy-five percent of his time to the position. His memorandum of appointment provided the "appointment [was] subject to the provisions of the Rules and Regulations of the Board of Regents of the University of Texas System, Regental and U.T. System Policies, [and] the rules and regulations of the University" (emphasis added). However, the record has no evidence of the content of the rules or any UTHSCSA policies or how they provide UTHSCSA with the actual right to control Dr. Stallworth's medical evaluation, treatment, or surgery on Robison.
Dr. Stallworth devoted the remaining twenty-five percent of his time to his private practice, which accounted for forty percent of his income.
Dr. Stallworth further argues his appointment as a Clinical Associate Professor required him to perform certain duties including giving lectures, performing head and neck surgery on patients at University Hospital, instructing and supervising surgical residents rendering medical care at University Hospital, and taking weekly calls from the emergency department at the hospital. He further argues these duties, which he performed when he supervised surgical residents during Robison's surgery, along with his obligation to follow policies of both UTHSCSA and University Hospital, establish he was an employee of UTHSCSA. We disagree.
Marino is clear: in order to establish employee status, a party must show he is in the paid service of the governmental unit and the governmental unit has "an actual right to control" the details of those tasks as supported by evidence. See Marino, 526 S.W.3d at 406-09. Although Dr. Stallworth performed certain duties for UTHSCSA including supervising surgical residents during Robison's surgery, performing such duties does not demonstrate UTHSCSA had an actual right to control Dr. Stallworth's surgery on Robison-his private practice patient. Dr. Stallworth has presented no other evidence to demonstrate UTHSCSA had an actual right to control his surgery on Robison.
Dr. Stallworth argues several cases support his argument that he was a UTHSCSA employee when he evaluated, treated, and performed surgery on Robison, and that he only needed to prove that employment in order for the court to dismiss Robison's case. See Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003) (per curiam); Skapek v. Perkins, No. 05-16-00796-CV, 2017 WL 655950 (Tex. App.-Dallas Feb. 17, 2017, pet. denied) (mem. op.); Lee v. Hunter, No. 05-16-00325-CV, 2016 WL 7448338, at *1 (Tex. App.-Dallas Oct. 27, 2016, no pet.) (mem. op.); Powell v. Knipp, 479 S.W.3d 394 (Tex. App.-Dallas 2015, pet. denied); Poland v. Willerson, No. 01-07-00198-CV, 2008 WL 660334 (Tex. App.-Houston [1st Dist.] Mar. 13, 2008, pet denied) (mem. op.); Dalehite v. Nauta, 79 S.W.3d 243 (Tex. App.-Houston [14th Dist.] 2002, pet. denied).
However, in those cases a physician claiming to be an employee of a governmental unit did not evaluate and treat a patient at the physician's private practice and operate at a third-party hospital. Instead, those cases involved full-time employees being sued for work conducted on behalf of their sole employer, a governmental unit. See Murk, 120 S.W.3d at 867; Skapek, 2017 WL 655950, at *3; Powell, 479 S.W.3d at 398-99; Lee, 2016 WL 7448338, at *3; Dalehite, 79 S.W.3d at 245. Furthermore, each of those cases included evidence of an actual right to control by the governmental unit, or the party contesting employment materially conceded evidence of an actual right to control. See Skapek, 2017 WL 655950, at *3 (affidavit from governmental unit's human resources department corroborating employment); Lee, 2016 WL 7448338, at *3 (same); Dalehite, 79 S.W.3d at 245 (appellants admitted appellee was employed by governmental unit); see also Powell, 479 S.W.3d at 396-97 (agreement established no control over radiologist by nongovernmental unit).
The court in Poland does not materially address an actual right to control, considering instead whether the evidence sufficiently established that the medical school was a governmental unit. See Poland, 2008 WL 660334, at *6. Dr. Stallworth also cites Fryday v. Michaelski-a case where the court found a part-time city building inspector was an employee at the time of the events in question even though the inspector also maintained a private inspection business. 541 S.W.3d 345 (Tex. App.-Houston [14th Dist.] 2017, pet. denied). However, the only evidence before the court in Fryday was the affidavit of the defendant, who stated he was acting in his capacity as a city employee when he did the work at issue. Id. at 353.
In Murk, the employee-doctor of the governmental unit, a medical school, presented evidence showing an actual right to control by the medical school including an agreement between the medical school and the hospital and the deposition testimony of one of the doctor's supervisors. Scheele v. Murk, 121 S.W.3d 1, 4 (Tex. App.-San Antonio 2001), aff'd in part, rev'd in part, 120 S.W.3d 865 (Tex. 2003).
Because the record contains no evidence of UTHSCSA's actual right to control Dr. Stallworth's medical evaluation, treatment, and surgery on Robison, the record supports the trial court's implied finding that he was not an employee of a governmental unit. Because he was not an employee of a governmental unit, we need not consider whether his conduct was within the general scope of his UTHSCSA employment. TEX. CIV. PRAC. &REM. CODE § 101.106(f).
Conclusion
We affirm the trial court's order denying Dr. Stallworth's motion.
AFFIRMED.