With Friday’s orders list, the Texas Supreme Court issued ten decisions — which as I noted in a tweet, each included an “M.D.”, an “R.N.”, or a hospital in the case caption. Six of the ten decisions are GVR (“grant, vacate, and remand”) dispositions asking the court of appeals to reconsider its answer in light of the Franka case (announced today).
For those scoring along at home, of the four lead cases, two favored the medical provider and two the plaintiff. The biggest one — about the scope of immunity for government doctors — favored the government’s side.
The Court also filled out its March 3 argument calendar by re-setting some previously granted cases: Insurance Company of the State of Pennsylvania v. Carmen Muro, No. 09-0340 (DDB, and In re State, No. 10-0235 (DDB).
As the orders list notes, these March 3, 2011 arguments will be held at UT-Pan American in Edinburg.
- The scope of the immunity shield of § 101.106, which forces plaintiffs to choose between suing a government entity and suing a government employee, in the context of medical malpractice. (The medical professionals get this shield even when the plaintiff did not have the option of suing the institution.) The Court announced six GVRs related to this opinion.
A tension between the medical-malpractice reform act’s two-year statute of limitations and the tolling provisions of the comparative-responsibility statute in Chapter 33 of the civil practice and remedies code. (The med-mal statute wins.)
Whether a government entity can invoke the statute of limitations when a plaintiff accidentally sued an official by name rather than the entity itself. (No, at least not when the lawsuit is framed in the “official capacity” of the defendant.)
And a decision about the scope of “implied findings” when the trial court does not issue formal findings of fact. (The court of appeals cannot affirm on an alternative ground if that relies on a finding not strictly necessary to the judgment it announced.)
These orders featured two important cases about the scope of § 101.106(f) of the Texas Tort Claims Act (Chapter 101 of the Civil Practice and Remedies Code), covering election of remedies in certain claims against the government. Under § 101.106(f),
(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.
This provision is specific to suits against government officials. The statute kicks in whenever the suit is “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.” When that is true, the suit is “considered to be against the employee in the employee’s official capacity only.”
A suit against an official in their “official capacity” is, in effect, a suit against the government office, not the officeholder. Official capacity suits do not result in individual liability on the part of the employee. By the same token, official capacity suits trigger the normal immunity defenses that the government agency itself could invoke.
This first case summary (of Franka) is a doozy. If you want to read the other summaries, just keep scrolling…
Does Section 101.106(f)’s shield apply even when the government is immune from suit?
John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. v. Stacey Velasquez and Sargosa Alaniz, individually and as next friends of their minor child, Saragosa Mario Alaniz, No. 07‑0131 (DDB)
This case focused on the language “if [the suit] could have been brought under this chapter against the governmental unit. Does that phrase mean that § 101.106(f) applies only when the governmental unit has waived its immunity from suit, or does it apply even when the governmental unit is immune from the particular claim?
This was a medical-malpractice case, in which the stakes of that choice are particularly high. That’s because the waiver of immunity in the Texas Tort Claims Act is so idiosyncratic — focusing, in part, on the “condition or use” of “tangible … property” rather than mere negligence. There are medical-malpractice claims that happen to involve that property, but many do not.
The fact pattern here:
[During birth, the baby’s] fetal heart rate had slowed, and Franka and Reddy thought it best to attempt a vaginal delivery facilitated by a vacuum extractor, an instrument that attaches to the top of a baby’s head, helping move it through the birth canal. The head appeared and the extractor was removed, but delivery of the baby’s front shoulder was obstructed, a relatively infrequent but well-recognized obstetric emergency known as shoulder dystocia. Franka and Reddy tried to free the baby’s shoulder with their hands, but just as it appeared, Reddy heard a snap that she knew meant a bone had broken. The baby’s left clavicle was fractured, and he suffered injury to his brachial plexus, requiring surgery several months later.
After being sued by the parents, the doctors invoked §101.106(f). The parents responded with a wrinkle — arguing that, in order to invoke the statute, the doctor had to first establish that the hospital’s immunity had been waived so that the suit “could have been brought under [the Tort Claims Act].” The parents also argued that the medical-resident defendant (Reddy) had not established that she was a government employee.
Ultimately, the trial court granted summary judgment on these questions to the parents. The court of appeals affirmed, holding that in order to invoke §101.106(f) the doctors had to establish that the hospital’s immunity had been waived.
The Texas Supreme Court granted review, and by a 6-2 vote, reversed and remanded. (( Justice Guzman did not participate in this decision. ))
The majority opinion was written by Justice Hecht, and joined by the Chief Justice, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett.
Are these defendants in the class to invoke the statute?
Both defendants joined the petition for review — Franka (the doctor) and Reddy (the medical resident). As a threshold matter, the Court first discussed whether each was “an employee of a governmental unit” within the scope of § 101.106(f).
That was an easy answer for the full-time doctor, but the Texas Supreme Court held that Reddy had not met her summary-judgment proof to show that she fell within the statute. In particular, she had not established that the particular contract under which she worked fit the requirements set by the Court in Klein v. Hernandez, 315 S.W.3d 1 (Tex. 2010).
To my reading, that means that the Court meant to affirm the judgment against Reddy — that although the opinion says “reverse … and remand,” that the judgment is affirmed in part, as to one of the two individual defendants (who presumably will still continue in the suit as an individual defendant).
Are these claims within the scope of the statute?
As to Franka (the doctor, “to whom” we are told “section 101.106(f) does apply”), the Court then turned to construing the meaning of § 101.106(f)’s phrase “if [suit] could have been brought under this chapter against the governmental unit.”
The majority held that a claim fell “under [the Tort Claims Act]” even when it was barred by immunity. The general thrust of the holding is that the Tort Claims Act is meant to regulate all tort suits against the government, and thus the election-of-remedies provision applies even when the government will ultimately be able to prevail on its immunity defense.
The majority also noted that the parents’ theory would lead to strange incentives:
Construing subsection (f) as the court of appeals did in this case … creates at least a disparity, if not an absurdity, in the statute’s operation. If a plaintiff sues only a government employee and not the government, then under subsection (f), according to the court of appeals, the employee need not be dismissed unless a waiver of the government’s immunity for the claim is established. But if a plaintiff sues both the government and its employee, then under subsection (e), according to Mission, the employee must be dismissed, even if the government’s immunity is not waived. There is no reason why an employee should be entitled to dismissal if sued with the government but not if sued alone.
Thus, the majority concluded that §101.106(f) was triggered regardless whether the government’s immunity from suit was waived.
It then suggested some ways in which “the employee, the plaintiff, and the employer could all be whipsawed” by a contrary holding. It would be odd, for example, to ask the employee to prove its own employer’s lack of immunity:
Since the government was not a party to the case at the time, it would not be bound by the ruling and would be free to seek a redetermination and to appeal. Exhibit A in support of its arguments that immunity was not waived would be the plaintiff’s own assertions. And in response, the plaintiff would cite the employee. The immunity issue would thus be encased in confusion and cynicism.
Impact on future medical-malpractice actions
To avoid that situation, the majority opinion relieves the employee of the burden of showing that waiver of immunity. That makes the employee’s task fairly simple — show he was operating in the scope of his employment.
But the price of achieving that consistency is that §101.106(f) effectively forecloses many medical-malpractice claims against government doctors. Once you slice through the procedural wrinkles of the Franka opinion, this is the lingering holding:
This construction of section 101.106(f) does, however, foreclose suit against a government employee in his individual capacity if he was acting within the scope of employment. This changes, among other things, the rule in Kassen v. Hatley, which has allowed malpractice suits against physicians employed by the government, even though acting within the scope of employment. Recovery for the negligence of a government physician acting in the course of employment would be limited to that afforded under the Act.
The Court holds in Franka that the only medical-malpractice claims that can be brought against a government doctor “acting within the scope of his employment” are those claims that happen to fit the idiosyncratic requirements of the Texas Tort Claims Act (such as the injury being caused by “condition or use of tangible personal … property”).
The Franka dissent
Two Justices disagreed. Justice Medina wrote a dissenting opinion, joined by Justice Lehrmann.
The dissent relied heavily on Kassen, arguing that the Legislature’s amendment of § 101.106 was not an implicitly overrule that decision:
In Kassen v. Hatley, we held that government-employed medical personnel were not entitled to the defense of official immunity when sued individually for the negligent exercise of purely medical judgment. 887 S.W.2d 4, 11 (Tex. 1994). Recognizing that medical decisions were typically unrelated to governmental discretion, we concluded that public-sector patients should have the same rights as private-sector patients when only medical judgment was at issue. Id. 11–12. Today, the Court abandons that principle, not because Kassen was wrongly decided, but because the Legislature has amended section 101.106 of the Tort Claims Act. Because this amendment does not speak to the official immunity of physicians accused of malpractice and does not require that we abandon Kassen, I respectfully dissent.
The dissent characterizes the majority’s holding as “making the government the defendant in all tort cases arising out of its employees’ conduct.” And the dissent notes that the Attorney General, through an amicus curiae brief, “shares my concern about the Court’s construction” — an understandable institutional concern for the agency charged with defending governmental units in court if they are more frequently substituted as defendants.
The dissent would have instead permitted plaintiffs to make their initial choice to sue individual defendants such as government doctors, unless there were truly an “actionable claim” against the governmental unit.
In the same orders list, the Court also sent six related cases back to their respective courts of appeals to reconsider in light of that Franka decision:
- William H. Nealon, M.D. and Eric M. Walser, M.D. v. Harry Williams, No. 06‑0752 (per curiam) (DDB)
Terry Leonard, P.A. and April Dawn Hain, M.D. v. Andre Glenn, No. 09‑0665 (per curiam) (DDB)
Because official-capacity suits are in substance against the government entity itself, substituting the names of parties does not violate the statute of limitations
The University of Texas Health Science Center at San Antonio v. Kia Bailey and Larry Bailey, No. 08‑0419 (DDB).
Like the Francka case, this one also involved §101.106, but by the time it reached the Texas Supreme Court the live dispute was about the statute of limitations.
The Baileys had sued a government doctor, and after §101.106(f) was invoked, amended their petition to instead name the government hospital itself as the defendant. The hospital asserted a statute of limitations defense, arguing that the amendment had come too late.
The court of appeals applied the relation-back doctrine, holding that the new claims against the hospital were close enough to the original ones against the doctor that their filing date should be considered the original filing date of the lawsuit. The Texas Supreme Court did not agree that the relation-back doctrine applied here because the amendment added a new party (and not just a new claim) —
We have observed that “[o]rdinarily, an amended pleading adding a new party does not relate back to the original pleading.” Misnomer is an exception, misidentification a more limited one. The Baileys fall under neither. They did not misname or misidentify their defendant; they sued exactly whom they intended to sue: Sanders, and not the Center. The relation-back doctrine does not save their suit against the Center from its limitations defense.
Even so, the Texas Supreme Court affirmed.
Justice Hecht’s opinion for the Court focused on the nature of suing a government official. The distinction between “official capacity” and “individual capacity” suits is often critical in immunity cases. Under this statute, as the opinion explained, the doctor was sued in her official capacity:
In effect, when the Baileys sued Sanders, they sued the Center. Section 101.106(f) provides that when a government employee is sued for conduct within the general scope of employment, as Sanders was, and the employer could have been sued under the Act — in tort, that is — instead, “the suit is considered to be against the employee in the employee’s official capacity only.” So while the Baileys may have intended to sue Sanders in his individual capacity, as the court of appeals concluded they did, section 101.106(f) did not allow them that choice.
For that reason, the opinion concluded, the original lawsuit filed against Sanders was “merely ‘another way of pleading an action against'” the hospital, and the statute of limitations was satisfied by the original lawsuit.
So rather than the relation-back doctrine that might apply to any lawsuit, the Court applied a more narrow reasoning that applies only to suits against state officials. It’s not that a new claim “relates back” to the old filing date. It’s that the original “official capacity” claim was — by its nature — already a suit against the government entity itself.
Deemed findings: When the trial court doesn’t specify its factual findings, only findings that are “necessary” to the judgment can be used to affirm
Ulysses L. Rosemond v. Maha Khalifa Al-Lahiq, M.D., No. 09‑0830 (per curiam) (DDB)
A procedural holding in this little per curiam might be more significant to most civil appellate lawyers than today’s immunity cases.
This was yet another medical-malpractice expert-report case. The doctor asked the trial court to dismiss the claims both because the expert report was untimely and because it was inadequate. Those requests were broken into separate motions, with separate draft orders.
The trial court signed the order about the inadequacy of the report — it made no explicit ruling about whether the report was timely. The trial court did not issue any findings of fact or conclusions of law about any contested issues.
The plaintiff appealed to the court of appeals, which chose to affirm based on timeliness, not adequacy. The court of appeals reasoned that the dismissal could be affirmed on any ground supported in the record and that, implicitly, the trial court had resolved that factual issue against the plaintiff.
The Texas Supreme Court disagreed. On this record, the Court explained, the trial court had chosen not to rule on timeliness. As the Court saw it, the trial court had impliedly ruled in favor of the plaintiff on timeliness — that it was a prerequisite to even reaching the question of adequacy.
Further, before the trial court could rule on the report’s adequacy, it had to conclude that the report was timely served. Otherwise, the trial court’s only option was to dismiss the claim for failure to timely serve an expert report. Hence, we conclude the trial court implicitly overruled the first motion to dismiss.
In other words, the two issues were not independent grounds to affirm. The trial court had to resolve one issue before it could reach the next.
With that foundation laid, the Court set out an interesting procedural holding that might have wider application.
It is often said that, when the trial court doesn’t make findings of fact, the court of appeals presumes that it “made all the necessary findings to support its judgment.” The Rosemond Court put special emphasis on the word “necessary” — yes, using italics — explaining that it was an error to presume that the trial court resolved all disputed facts in favor of the judgment, but only those strictly necessary to the judgment:
The court of appeals erred by effectively holding that the trial court found all facts and conclusions favorable to the prevailing party rather than implying only those facts and conclusions necessary to support the judgment. As discussed above, a failure to timely serve was not a necessary fact to support a dismissal order on adequacy grounds.
The limitations provision in the medical-malpractice statute trumps the more general tolling provision in the comparative-responsibility statute
Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D., No. 09‑0544 (DDB)
This case involved a conflict between two parts of the House Bill 4 tort-reform legislation from 2003. On the one hand, that bill provided a two year statute of limitations for medical-malpractice actions “[n]otwithstanding any other law.” On the other hand, the very same bill made some amendments to Chapter 33 of the Civil Practice and Remedies Code, permitting defendants to shift blame to third-party defendants — and plaintiffs to then join those third parties into the suit, even if the statute of limitations had otherwise run.
The Court divided 7-2, holding that the two-year statute of limitations for medical-malpractice actions trumped the more general, more lenient provisions of the comparative-responsibility statute.
Justice Johnson wrote for the majority. He rejected the argument that the provision was ambiguous and, instead, focused on the plain meaning of the language “[n]otwithstanding any other law.” The majority held that, through including that phrase, the Legislature had unambiguously expressed its intent that the two-year limitation should control.
Justice Lehrmann delivered a dissenting opinion, joined by Justice Medina. She would have concluded that the statutory language was ambiguous enough to warrant looking at legislative history — which included a colloquy in which one of the bill’s sponsors answered the question differently than did the majority.
Both the majority and dissent discussed the Court’s recent opinion in Texas Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). The majority used it as an example of the Legislature using language that expressed a specific intent that one provision trump another. The dissent saw the Lottery Commission case as different because it involved the UCC, which suggested other policy reasons (such as commercial uniformity with other states) for choosing that outcome.