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Texas SC ruling protects government doctors in malpractice claims

By Steve Korris | Feb 1, 2011


AUSTIN, Texas (Legal Newsline) - Doctors who work for public hospitals gained an extra layer of protection from malpractice suits at the Supreme Court of Texas on Jan. 21.

Six justices reversed decisions from five appellate courts that would have allowed suits to proceed against doctors who work for taxpayers.

The justices scrapped a precedent, Kassen v. Hatley, that denied official immunity to medical personnel for negligent exercise of purely medical judgment.

Justice Nathan Hecht wrote that appellate courts misconstrued a section legislators added to the 1969 Texas Tort Claims Act as part of a tort reform bill in 2003.

He wrote that the majority's construction of section 101.106 would limit recovery for the negligence of a government doctor to that afforded by the act.

"At least one participant in the legislative process that resulted in the enactment of House Bill 4 has written that this change was precisely the intent of the revisions to section 101.106," Hecht wrote.

Hecht quoted Michael Hull, who wrote in the Texas Tech Law Review that plaintiffs had avoided the act's cap on damages by suing government employees individually.

Hull wrote that "a plaintiff will only be able to pursue the governmental entity and not its employees."

"The amendment also solves the problem Texas courts faced in trying to determine if governmental units were entitled to the defense of official immunity," he wrote.

Chief Justice Wallace Jefferson and Justices Dale Wainwright, Paul Green, Phil Johnson and Don Willett joined Hecht's opinion.

Dissenting Justices David Medina and Deborah Lehrmann disputed the claim that legislators intended to overrule the Kassen precedent.

Justice Eva Guzman did not participate.

Medina wrote, "The only support the court can muster for its unfounded assumption is a law review article, published two years after the amendment and authored by a private party, whom the court generously describes as a participant in the legislative process."

"Kassen is not mentioned in any floor debate, bill analysis, or other piece of legislative history," Medina wrote. "If the Legislature intended for this legislation to prohibit medical malpractice claims against publicly employed physicians, it has done a masterful job of concealing that intent."

He wrote that the Tort Claims Act doesn't generally waive immunity for government employees, but waives it for injury caused by a condition or use of tangible property.

Medina wrote that Texas courts have struggled with the meaning and application of those words since the act's adoption more than 40 years ago.

He quoted an opinion Hecht wrote 10 years ago, declaring that the task of infusing the standard with meaning appeared hopeless.

The justices decided six cases through a single opinion.

In the lead case, Stacey Velasquez and Saragosa Alaniz alleged Dr. John Franka and Dr. Nagakrishna Reddy negligently broke their baby's shoulder in delivery at University Hospital in San Antonio.

The fracture damaged nerves that would conduct signals from the spine to the shoulder, arm and hand.

The parents didn't sue the owner of the hospital, Bexar County Hospital District, or the employer of the doctors, the University of Texas Health Science Center.

Franka and Reddy moved for summary judgment, arguing the parents should have sued the Health Science Center. They sought a court order dismissing the case in 30 days unless the parents substituted the Center in place of them.

District Judge Joe Brown denied the motion, and Fourth District appeals judges in San Antonio affirmed him.

They held that a government employee is not entitled to dismissal until he establishes that his employer's immunity has been waived.

According to Hecht, their decision posed serious practical problems.

"Requiring a government employee to prove that his employer's immunity from suit has been waived in order to obtain dismissal forces the parties to take unexpected positions with collateral risks. Ordinarily, one would expect a government employee to support his employer's assertion of immunity. Only a perverse statute would incentivize conflict between the two, and there is nothing to indicate that the Legislature had any such intent. The plaintiff, too, is forced into an awkward position, arguing that immunity was not waived, and thereby cutting off that path to liability and recovery."

The plaintiff would be required to decide within 30 days of the employee's motion to dismiss whether to acquiesce and sue the government instead, Hecht wrote.

"If the plaintiff refuses to dismiss the employee, he risks being faced with the government's stipulation that immunity was waived, after the deadline for suing the government has run."

With the majority's construction, he wrote, "No party is forced into awkward or conflicting positions."

"The immunity issue need not be determined until the governmental unit is in the suit and the issue can be fully addressed."

Dissenter Medina wrote, "The Court reasons that because it is possible to sue the government for medical malpractice under the Tort Claims Act, albeit under limited circumstances, plaintiffs must sue the government, instead of their doctors individually, even when those limited circumstances do not exist."

He wrote, "In the Court's view, the statute is not about giving the plaintiff the right to choose the appropriate defendant but rather about making the government the defendant in all tort cases arising out of its employees' conduct. The government, however, has not specifically consented to be financially responsible for the medical malpractice of its doctors."

"While the Legislature intended to encourage suits against the government in lieu of actions against government employees, section 101.106 does not compel it," Medina wrote. "Instead, it requires that plaintiffs choose their defendants wisely or suffer the consequences."

Under the court's view, Medina wrote, the plaintiffs must "give up their common law medical malpractice claim against the doctors for a new suit against the government, a suit which in all likelihood be dismissed for want of jurisdiction."

He wrote, "If a majority of the Court now feels that the distinction drawn in Kassen between government and medical discretion was in error, we should address the matter directly rather than engage in a distortion of legislative intent."

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