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Marino v. Lenoir

Supreme Court of Texas

April 28, 2017

Leah Anne Gonski Marino, M.D. f/k/a Leah Anne Gonski, M.D., Petitioner,
v.
Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir, and Christopher McKnight, Individually and as Next Friend of Nayla McKnight, Respondents

          Argued February 16, 2017

         On Petition for Review from the Court of Appeals for the First District of Texas

          Don R. Willett Justice

         In this case, a resident physician sought dismissal of a malpractice claim on grounds that she was an employee of a governmental unit. We agree with the court of appeals that the physician did not establish that she was an employee under the relevant provisions of the Texas Tort Claims Act. We therefore affirm the judgment of the court of appeals.

         I. Background

         Shana Lenoir received prenatal care at the University of Texas Physicians Clinic in Houston. She was pregnant with twins and was seen by Dr. Leah Anne Gonski, a second-year medical resident. Gonski prescribed weekly progesterone injections, and a nurse gave Shana the first such injection at the clinic. Shana experienced breathing difficulties, and she and her unborn children died. Shana's mother and the father of Shana's living child (collectively Lenoir) brought a medical malpractice suit against Gonski and other defendants.

         Gonski was in a residency program in obstetrics and gynecology offered by the University of Texas Health Science Center at Houston (UTHSCH). Dr. Pamela Promecene, the program director of this residency program, attested that the program is accredited by the Accreditation Council of Graduate Medical Education (ACGME).[1] She stated that this residency program is sometimes called UTHSCH's Memorial Hospital or MMH program, because it is sponsored by UTHSCH and its "primary clinical site" under ACGME guidelines is Memorial Hermann Hospital in Houston. The University of Texas System Medical Foundation (Foundation) is involved in the administration of this and other University of Texas residency programs. The Foundation, as set out in its articles of incorporation, is a non-profit corporation. Its authorized powers include the employment of qualified persons to serve as residents or interns on the staff of any hospital owned or operated by the University of Texas System. The Foundation appointed Gonski to the residency program under a contractual "University of Texas System Medical Foundation Notice of Appointment" that was signed by Gonski and the dean of UTHSCH.

         Gonski filed a motion to dismiss under the election-of-remedies provision of the Tort Claims Act, specifically section 101.106(f).[2] She claimed this provision entitled her to dismissal because she was an employee of a governmental unit, namely the Foundation, and met other elements of the provision. The trial court granted the motion.[3] The court of appeals reversed and remanded as to Gonski, concluding that she had not established she was an employee of the

         Foundation.[4]

         II. Discussion

         A. Standard of Review

         The parties submitted evidence in support of and in opposition to Gonski's motion to dismiss. On appellate review, we may consider whether there are issues of material fact that should have precluded the trial court from granting the motion to dismiss.[5] Here we conclude the relevant evidence is undisputed, and our decision largely turns on whether, on these facts, section 101.106 requires dismissal. The question before us, therefore, is a question of statutory construction, and our review is de novo.[6]

         B. The Governing Statutory Provisions

Gonski sought dismissal under section 101.106(f), which provides:
If 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.

         Among other elements of this provision is the requirement that the individual defendant be an "employee" of a governmental unit. "Employee" is a defined term in the Act, and means

a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.[7]

         C. Analysis of the Evidence and Our Caselaw

         Gonski contends she was an employee of the Foundation under the Tort Claims Act. We agree with the court of appeals that the statute, the evidence, ...


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