THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellant
JAMES STEWART, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LESLIE STEWART, Appellee
Appeal from the 165th District Court Harris County, Texas
Trial Court Case No. 2016-14078
consists of Justices Jennings, Higley, and Massengale.
Michael Massengale Justice
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.
reverse the trial court's interlocutory order and render
judgment dismissing the doctors from the suit.
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
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."
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).
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
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.
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
§§ 101.023, 101.025. The Act includes an