Geoffrey Zimmerman, M.D. v. Wendy Gonzalez Anaya, Individually and a/n/f of Christopher Gabriel Hernandez, Deceased, and Jose Hernandez, Individually--Appeal from 113th District Court of Harris County
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Opinion on rehearing issued March 31, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00570-CV
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GEOFFREY ZIMMERMAN, M.D., Appellant
V.
WENDY GONZALEZ ANAYA, INDIVIDUALLY AND A/N/F
CHRISTOPHER GABRIEL HERNANDEZ, DECEASED, AND
JOSE HERNANDEZ, INDIVIDUALLY, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2006-14198
MEMORANDUM OPINION ON REMAND ON REHEARING
Wendy Gonzalez Anaya, individually and as next friend of Christopher
Gabriel Hernandez, deceased, and Jose Hernandez (collectively, Gonzalez Anaya)
have moved for rehearing.
We grant rehearing, withdraw our opinion and
judgment of November 10, 2010, and issue the following in their stead.1 Our
disposition of the case remains unchanged.
Geoffrey Zimmerman, M.D.,
challenges the trial court‘s order denying his motion for summary judgment on the
health care liability claims against him by Gonzalez Anaya. Following a remand
from the Texas Supreme Court, we consider Zimmerman‘s contention that his
affirmative defense of official immunity bars Gonzalez Anaya‘s negligence claims.
We reverse and render.
Background
Gonzalez Anaya sued Zimmerman for alleged negligence during the
delivery of her son which caused him to suffer personal injuries and death.
Zimmerman moved for summary judgment on immunity grounds, asserting that, as
a resident of Baylor College of Medicine who provided publicly-funded health care
at Ben Taub General Hospital, he is entitled to immunity under section 101.106 of
the Texas Civil Practice and Remedies Code because Gonzalez Anaya made an
irrevocable election to sue Baylor first and is thus barred from suing him. See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.106(a) (Vernon Supp. 2010).
Zimmerman‘s contention rests on the assumption that Baylor qualifies as a
governmental unit under section 312.007 of the Texas Health and Safety Code,
making him an employee of a state agency for purposes of immunity under the
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We also grant Gonzalez Anaya‘s motion for extension of time to file motion for
rehearing.
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Tort Claims Act. Following our own precedent in Klein v. Hernandez, we granted
Gonzalez Anaya‘s motion to dismiss Zimmerman‘s appeal on the ground that
section 51.014(a)(5), which allows for interlocutory appeal of the denial of a
summary judgment based on an assertion of immunity by an individual who is an
officer or employee of the state, did not apply. 315 S.W.3d 549, 551–52 (Tex.
App.—Houston [1st. Dist] 2008), rev’d, 315 S.W.3d 523 (Tex. 2010) (citing Klein,
260 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2008), rev’d, 315 S.W.3d 1 (Tex.
2010)).
The Supreme Court reversed our judgments in both Klein and Zimmerman.
The Court explained that Ben Taub is ―a part of the Harris County Hospital
District, a political subdivision of the State.‖ See Klein v. Hernandez, 315 S.W.3d
523, at *1 (Tex. 2010) (citing TEX. HEALTH & SAFETY CODE § 281.002(a) and TEX.
CONST. art. IX, § 4)). The delivery of Gonzalez Anaya‘s son took place at Ben
Taub, where Zimmerman practiced as a resident physician with the Baylor College
of Medicine. Baylor is a ―supported medical school‖ that ―has contracts with the
Texas Higher Education Coordinating Board and receives state funding
specifically allocated for training physicians who provide medical care at public
hospitals such as Ben Taub.‖ Id. (citing TEX. HEALTH & SAFETY CODE ANN.
§ 312.002(6)).
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Considering the funding sources, functions, and relationship among the
State, the hospital district, and the medical school, the Court declared that
a supported medical school, like Baylor, ―is a state agency,‖ and a
resident of a supported medical school, such as Zimmerman, ―is an
employee of a state agency‖ for two purposes: (1) obtaining indemnity
under Chapter 104, Civil Practice and Remedies Code, which requires
the state to indemnify employees in certain circumstances based on
acts or omissions in the course and scope of/ employment, and (2)
determining liability, if any, for acts or omissions while engaged in
the coordinated or cooperative activities of a supported medical
school.
Klein, 315 S.W.3d at *6; Zimmerman, 315 S.W.3d at 524. Thus, for purposes of
section 51.014(5) when, as here, the underlying litigation arises from a residency
program coordinated through a supported medical school, the resident is entitled to
bring an interlocutory appeal like any other state employee. Klein, 315 S.W.3d at
*8.
Discussion
We review a trial court‘s summary judgment de novo, taking as true all
evidence favorable to the nonmovant and indulge every reasonable inference and
resolve any doubts in the nonmovant‘s favor. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910,
911 (Tex. 1997).
Under the traditional standard for summary judgment, the
movant has the burden to show that no genuine issue of material fact exists and
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that the trial court should grant a judgment as a matter of law. TEX. R. CIV. P.
166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999). A defendant moving for summary judgment based on an
affirmative defense, such as immunity, must conclusively establish each element of
that defense. Sci. Spectrum, Inc., 941 S.W.2d at 911.
We therefore consider whether Zimmerman conclusively established that
Gonzalez Anaya, having irrevocably elected to sue Baylor first, is barred from
suing him. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (Vernon Supp.
2010). The record shows that Gonzalez Anaya named Baylor as the sole defendant
in her original petition. Plaintiffs first named Zimmerman in their second amended
petition. Baylor is a ―governmental unit‖ for purposes of the Tort Claims Act, and,
as a result, has sovereign immunity. Klein, 315 S.W.3d at *7 (citing TEX. CIV.
PRAC. & REM. CODE ANN. § 101.001(3).
On rehearing, Gonzalez Anaya contends that she did not bring suit against
Baylor under the Tort Claims Act because she did not allege any facts showing a
waiver of immunity. Because the pleading, on its face, demonstrated a lack of
subject matter jurisdiction, she claims it was a nonevent and does not bar her suit
against Zimmerman.
Shortly after Gonzalez Anaya moved for rehearing, the Texas Supreme
Court issued its decision in Franka v. Velasquez. No. 07-0131, 2011 WL 182198
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(Tex. Jan. 21, 2011). Franka specifically rejects Gonzalez Anaya‘s contention.
The Court confirmed the established rule that ―any tort claim against the
government is brought ‗under‘ the Act for purposes of section 101.106, even if the
Act does not waive immunity.‖ 2011 WL 182198 at *4. After reviewing section
101.106(f)‘s language in the context of the Tort Claims Act as a whole, the
purpose of the election of remedies provision, the legislature‘s intent in enacting
the 2003 amendments that included section 101.106(f), and the problems that
would result from application of the intermediate appellate court‘s construction,
the Court held ―that for section 101.106(f), suit ‗could have been brought‘ under
the Act against the government regardless of whether the Act waives immunity
from suit.‖ 2011 WL 182198 at *11.
Under Klein, Zimmerman is an employee of a state agency for the purpose
of determining whether he is subject to liability for any acts or omissions while
engaged in the coordinated or cooperative activities of a supported medical school.
315 S.W.3d at *6. Gonzalez Anaya‘s live pleading alleges that Zimmerman acted
negligently in the delivery of her son. These allegations do not involve conduct
that strays outside the scope of Baylor‘s coordinated or cooperative activities at
Ben Taub through Baylor‘s residency program.
Section 101.106 of the Civil Practice and Remedies Code provides that
―[t]he filing of a suit under this chapter against a governmental unit constitutes an
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irrevocable election by the plaintiff and immediately and forever bars any suit or
recovery by the plaintiff against any individual employee of the governmental unit
regarding the same subject matter.‖
TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.106(a). We hold that Zimmerman met his summary judgment burden to
show that section 101.106(a) bars Gonzalez Anaya‘s suit against him.
Conclusion
The trial court erred in denying Zimmerman‘s motion for summary
judgment.
We therefore reverse the judgment of the trial court and render
judgment dismissing Gonzalez Anaya‘s claims with prejudice.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley, and Bland.
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