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Texas Supreme Court Holds Claims Against Governmental Employees Fall Under the Texas Tort Claims Act

by Leah Greene, JD, LLM on January 27th, 2011

On January 21, 2011, the Texas Supreme Court decided seven cases regarding whether a tort suit is brought “under” Section 101.106(f) of the Texas Tort Claims Act (“TTCA”). Ultimately, the Court held that any tort action is brought “under” the TTCA, even if the governmental unit has not waived its immunity for such action. The Court explained its reasoning in Franka v. Velasquez. Section 101.106(f) of the TTCA 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) (Phrase at issue emphasized.)

Plaintiffs sued two physicians, Dr. Franka and Dr. Reddy, who delivered their son at University of Texas Health Science Center at San Antonio (“UTHSC”), a governmental entity. Dr. Franka was an UTHSC faculty member, and Dr. Reddy was in UTHSC’s residency program. The physicians used a vacuum extractor during delivery and removed it after the head appeared. A shoulder dystocia was then identified and the physicians used their hands to free the shoulder, but the infant experienced a left clavicle fracture and, a brachial plexus injury. Plaintiffs sued the physicians individually, but not UTHSC. Dr. Franka moved to dismiss the action under section 101.106(f). The trial court never ruled on Dr. Franka’s motion. Both physicians filed motions for summary judgment, which the trial court denied. The Court of Appeals affirmed the ruling, holding a government employee must establish his employer’s immunity from suit has been waived before he is entitled to dismissal under Section 101.106(f).

Plaintiffs conceded Dr. Franka was a governmental employee, but contended he had to prove that suit could have been brought “under” the TTCA and thus had to offer evidence that UTHSC’s immunity was waived by the TTCA. Plaintiffs argued there was no evidence of use or misuse of tangible personal property, the only basis for such a waiver, and suggested UTHSC stipulate that its immunity from suit was waived, or if not, that Dr. Franka’s motion be denied. Both Defendants argued that suit could have been brought against UTHSC because treatment involved the use of tangible personal property, the vacuum extractor.

Dr. Reddy argued she was not a governmental employee, based on the “Graduate Medical Education Agreement,” which provided the County Hospital District would compensate her but UTHSC controlled the details of her work. She claimed that because the same entity did not both pay her and have legal control of her work, she was not a governmental employee. The Court, however, determined that under Texas Health and Safety Code §312.007(a), Dr. Reddy was a resident of a medical unit, and as such, was a governmental employee for purposes of determining liability under the TTCA.

The Court reversed the Court of Appeals, and decided any tort claim against the government was brought “under” the TTCA for purposes of section 101.106, even if immunity was not waived.

The Court listed a variety of “Catch-22” situations for a plaintiff if the Court of Appeals’ interpretation of the TTCA were adopted. For instance, a plaintiff could box himself into a position that would result in dismissal of a viable claim only because he named the incorrect party (government employee versus entity) due to incomplete information.

The Court also decided The University of Texas Health Science Center at San Antonio v. Bailey. At issue was whether an action against a governmental entity as a substituted defendant was barred after limitations run. In this case, the Plaintiffs sued a physician at UTHSC, but did not add UTHSC until after the statute of limitations had run. The Court determined that neither the relation-back doctrine nor misnomer or misidentification applied. Under section 101.106(f), the Plaintiffs’ suit against the physician was a suit against UTHSC. UTHSC did not complain of being prejudiced by the delay in being named as a party, which is allowed by the statute. Substituting UTHSC for the physician was not actually a change in the real party in interest, thus the Court decided UTHSC could not prevail on its defense of limitations.

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