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University of Texas M.D. Anderson Cancer Center v. Stewart

Court of Appeals of Texas, First District

June 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

          Panel consists of Justices Jennings, Higley, and Massengale.

          MEMORANDUM OPINION

          Michael Massengale Justice

         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 ยงยง 101.023, 101.025. The Act includes an ...


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