Opinion
NO. 01-16-00865-CV
06-15-2017
THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellant v. JAMES STEWART, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LESLIE STEWART, Appellee
On Appeal from the 165th District Court Harris County, Texas
Trial Court Case No. 2016-14078
MEMORANDUM OPINION
Appellee James Stewart filed suit against The University of Texas M.D. Anderson Cancer Center and six doctors who worked there. Stewart claimed that M.D. Anderson and the doctors were grossly negligent in the care and treatment of his wife, causing her death. M.D. Anderson filed a motion to dismiss Stewart's claims against the doctors pursuant to the election-of-remedies provision of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 101.106(e). The trial court denied the motion. M.D. Anderson now brings this interlocutory appeal, and in a single issue, it contends that the trial court erred by denying its motion to dismiss the doctors.
We reverse the trial court's interlocutory order and render judgment dismissing the doctors from the suit.
Background
James Stewart brought a suit for damages against several medical providers and their employees, including M.D. Anderson and six doctors it employed. In his original petition, Stewart alleged that M.D. Anderson and the doctors were grossly negligent in the care and treatment of his wife, Leslie. Stewart claimed that his wife died as a result of the alleged inadequate care and treatment provided by the hospital and its doctors.
After answering the suit, M.D. Anderson filed a motion to dismiss the doctors pursuant to Civil Practice and Remedies Code Section 101.106(e). It submitted evidence establishing that the doctors were employees of the hospital. In response, Stewart amended his petition to add a new allegation, in the alternative, that "upon information and belief" the doctors "acted outside the course and scope of their employment" in their diagnoses and treatment of his wife. He further alleged that "the physicians engaged in an independent course of conduct intended to further their own purposes only and thereby not intended to serve any purpose of M.D. Anderson or Mrs. Stewart."
The trial court denied the motion to dismiss the doctors. M.D. Anderson has brought this interlocutory appeal from that order. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(5); Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011); Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997).
Analysis
In a single issue, M.D. Anderson contends that the trial court erred by denying its motion to dismiss the individual doctors from the suit. It argues that the doctors should have been dismissed under Civil Practice and Remedies Code Section 101.106(e).
M.D. Anderson's motion to dismiss raised an issue about the scope of the waiver of immunity under the Texas Tort Claims Act. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011); Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—Houston [1st Dist.] 2015, no pet.). To the extent immunity applies, the trial court lacks subject-matter jurisdiction over the case. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. M.D. Anderson's motion also raised matters of statutory construction, which also are reviewed de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).
The Tort Claims Act establishes a limited waiver of immunity, and it caps damages for certain suits against governmental entities. See TEX. CIV. PRAC. & REM. CODE §§ 101.023, 101.025. The Act includes an election-of-remedies provision, which provides, in pertinent part:
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.Id. § 101.106. The Supreme Court of Texas has held that one apparent purpose of the election-of-remedies provision is to "force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable." E.g., Laverie v. Wetherbe, No. 15-0217, 2017 WL 1301501, at *2 (Tex. Apr. 7, 2017) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)). "By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs." Garcia, 253 S.W.3d at 657.
. . . .
(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.
M.D. Anderson contends that the medical-negligence claims at issue are subject to the Tort Claims Act, and Stewart did not dispute this contention in his appellate brief. During oral argument, however, Stewart disputed whether his claims are subject to that statute. The "Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government," and "all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be 'under [the Tort Claims Act]' for purposes of section 101.106." Id. at 659 (quoting Newman, 960 S.W.2d at 622). Accordingly, as it is undisputed for purposes of this appeal that M.D. Anderson is a state governmental unit, Stewart's medical-negligence claims, derived from common-law tort theories of negligence, are assumed to arise under the Tort Claims Act. See id.
M.D. Anderson further contends that the election-of-remedies provision authorizes the dismissal of Stewart's claims against the doctors. The Act specifically provides that if 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." TEX. CIV. PRAC. & REM. CODE § 101.106(e). Stewart contends that the allegation in his amended petition that the doctors acted outside the course and scope of their employment precludes dismissal of the claims against them. Specifically, he argues that Section 101.106(e) applies only if a suit is filed against an employee of a governmental unit based on conduct within the general scope of the employee's employment. M.D. Anderson argues that the amended petition was not properly before the trial court at the time it ruled on the motion to dismiss, but we need not resolve that dispute because the trial court should have dismissed the doctors regardless of which petition it considered.
Stewart's argument misinterprets Section 101.106 by incorrectly conflating the distinct provisions of subsections (e) and (f). Subsection (e) applies in the circumstance when suit is filed "against both a governmental unit and any of its employees," and it authorizes dismissal of claims against the employees on the governmental unit's motion. Id. Separately, subsection (f) applies when 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." Id. § 101.106(f). In that circumstance, subsection (f) authorizes dismissal on the employee's motion, "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." Id.
Consistent with the plain text of Section 101.106, subsections (e) and (f) were distinguished in Texas Adjutant General's Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013). In the TAGO case, the Supreme Court explained that for an employee to obtain dismissal under subsection (f), the employee must prove that his actions were within the general scope of his employment, while subsection (e) has no such requirement. See TAGO, 408 S.W.3d at 357-58. Further, when a governmental unit files a motion to dismiss under subsection (e), the "governmental unit effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party." Id. at 358. Thus, because a government employee's dismissal under subsection (e) is not contingent upon a showing that his conduct occurred within the course and scope of his employment, an allegation that the employee acted outside the scope of his employment does not preclude the trial court from dismissing him under that subsection. See TEX. CIV. PRAC. & REM CODE § 101.106(e); TAGO, 408 S.W.3d at 357-58.
Stewart argues that Alexander v. Walker, 435 S.W.3d 789 (Tex. 2014) (per curiam), stands for the proposition that as long as a plaintiff alleges that a government employee engaged in an independent course of conduct not intended to serve any purpose of the governmental unit, the trial court is precluded from dismissing the employee. 435 S.W.3d at 792. Stewart's reliance upon Alexander is misplaced. That case addressed the legal standard for determining whether a claim was based on conduct within the general scope of an employee's employment for purposes of dismissal under subsection (f). See id. at 790-92. It says nothing about whether allegations that an employee acted outside the general scope of his employment preclude dismissal of claims against the employee pursuant to subsection (e). See id.
Dismissal of the claims against the doctors was required on M.D. Anderson's motion because Stewart alleged a tort claim against both M.D. Anderson and the doctors. See TEX. CIV. PRAC. & REM CODE § 101.106(e). This conclusion is consistent with subsection (a), which provides that "the filing of suit" against a "governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit . . . against any individual employee of the governmental unit regarding the same subject matter." Id. § 101.106(a). Thus, once Stewart chose to file suit against a governmental unit, such as M.D. Anderson, he was barred from also bringing a suit regarding the same subject matter against employees of the same governmental unit in their individual capacities. See Alexander, 435 S.W.3d at 791. Moreover, the purpose of Section 101.106 of requiring "a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable" would be undermined if plaintiffs were allowed to plead in the alternative as Stewart has in this case. Garcia, 253 S.W.3d at 657.
Stewart also suggests that M.D. Anderson failed to prove that one of its doctors was its employee, but as previously noted, by filing a Section 101.106(e) motion to dismiss a governmental unit "effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party." TAGO, 408 S.W.3d at 358. In addition, M.D. Anderson submitted a memorandum of appointment which provided evidence of the disputed doctor's acceptance of employment. As a result, we conclude that M.D. Anderson adequately established that all six of the defendant doctors were its employees.
Stewart, in both his original and amended petitions, brought suit against a governmental unit and its employees alleging common-law tort claims. M.D. Anderson filed a motion to dismiss its employees. The trial court erred when it denied the motion to dismiss the claims against the doctors. See TEX. CIV. PRAC. & REM. CODE § 101.106(e). We thus sustain M.D. Anderson's sole issue on appeal.
Conclusion
We reverse the order of the trial court denying M.D. Anderson's motion to dismiss the doctors, and we render judgment dismissing them from the suit.
Michael Massengale
Justice Panel consists of Justices Jennings, Higley, and Massengale.