Lambert Knizel v. Gordon R. Bozarth, M.D.--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00242-CV
Lambert KNIZEL,
Appellant
v.
Gordon R. BOZARTH, M.D., et al,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-07729
Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

 

Delivered and Filed: May 23, 2007

 

AFFIRMED

 

Lambert Knizel appeals from the trial court's order granting Defendant, Gordon R. Bozarth's "Motion for Summary Judgment of Substitution or Dismissal," dismissing Dr. Bozarth from the suit and substituting the University of Texas Health Science Center San Antonio ("UTHSCSA"). In one issue on appeal, Knizel contends the trial court erred in applying the definition of "employee" located in 312.007(a) of the Texas Health & Safety Code ("the Code") to the Texas Tort Claims Act ("the Act") instead of the definition of "employee" contained within the Act. See Tex. Civ. Prac. & Rem. Code Ann. 101.001 (Vernon 2005); Tex. Health & Safety Code Ann. 312.007(a)(Vernon 2001). We affirm the trial court's judgment.

Factual and Procedural Background

Knizel underwent knee replacement surgery at University Hospital in July of 2003. The surgery was performed by Defendants, Peter F. Holmes, M.D. and Gordon R. Bozarth, M.D. At the time, Bozarth was a resident physician engaged in a cooperative educational program with UTHSCSA; however, University Hospital, which is part of the University Health System, paid Bozarth's salary.

Immediately following the knee replacement procedure, Knizel experienced pain and difficulty moving his knee. It was eventually discovered that the spacer used in the procedure was too large. In February 2004, a second surgery was performed on Knizel by Dr. Mabrey to replace the spacer with a smaller one. After this second procedure, Knizel improved.

In August of 2005, Knizel brought suit against Holmes, Bozarth, and the University Health System. Bozarth subsequently filed a "Motion for Summary Judgment of Substitution or Dismissal" which the trial court granted. Knizel's suit against Bozarth was severed from all other claims, and Knizel now brings this appeal.

Discussion

Knizel's lawsuit was brought pursuant to the Act. The section of the Act relevant to this appeal, and which Bozarth relied on in his motion, is entitled "Election of Remedies" and provides:

(f) If a 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.

 

Tex. Civ. Prac. & Rem. Code Ann. 101.106(f) (Vernon 2005). In Bozarth's motion, he argued that the suit against him should be dismissed and re-filed against UTHSCSA. In response, Knizel urged that the Election of Remedies provision contained in 101.106(f) is inapplicable because Bozarth does not fit the definition of "employee" as set forth in the Act. The Act defines "employee" as follows:

. . . 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 contract, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

 

Tex. Civ. Prac. & Rem. Code Ann. 101.001 (emphasis added). Thus, argues Knizel, since Bozarth is paid, not by UTHSCSA, but by the University Hospital, Bozarth is not an "employee" of UTHSCSA; therefore, the "Election of Remedies" provision of the Act does not apply.

The trial court, however, refused to apply the Act's definition and instead applied the definition of "employee" contained in the Code, which provides that:

A medical and dental unit, supported medical or dental school, or coordinating entityis a state agency, and a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a medical and dental unit, supported medical or dental school, or coordinating entity is an employee of a state agency for purposes of Chapter 104, Civil Practice and Remedies Code, andfor purposes of determining the liability, if any, of the person for the person's acts or omissions while engaged in the coordinated or cooperative activities of the unit, school, or entity.

 

Tex. Health & Safety Code Ann. 312.007(a)(emphasis added).

 

It is undisputed that Chapter 312 of the Code is applicable to the relationship between UTHSCSA, the University Health System, and Bozarth. Chapter 312, entitled "Medical and Dental Clinical Education in Public Hospitals", states as its purpose "to authorize coordination and cooperation between medical and dental units, supported medical or dental schools, and public hospitals and to remove impediments to that coordination and cooperation . . . ." Tex. Health & Safety Code Ann. 312.001(b)(Vernon 2001). And, in this case, there is a Graduate Medical Education Agreement between UTHSCSA, University Health System, and Bozarth which is in furtherance of the purpose of the Code.

Further, there is no dispute that UTHSCSA, is a "medical unit" and that Bozarth is a "resident" "for purposes of determining the liability, if any, of [Bozarth] for [Bozarth's] acts or omissions while engaged in the coordinated or cooperative activities of the unit, school, or entity" under 312.007(a) of the Code. Tex. Health & Safety Code Ann. 312.007(a). Therefore, the Code makes Bozarth an employee of UTHSCSA for liability purposes while he is engaged in the activities of UTHSCSA. Id. Knizel's suit is one brought under the Act seeking to determine liability against Bozarth. Thus, despite the definition of "employee" contained within the Act, Bozarth is, pursuant to the Code, a UTHSCSA employee for purposes of liability.

Knizel, however, argues that the definition of "employee" contained within the Act is in irreconcilable conflict with the definition contained within the Code and that, by applying rules of statutory construction, the definition contained in the Act should apply. Bozarth likewise points to rules of statutory construction in urging that the two definitions do not irreconcilably conflict.

The supreme court has long held that courts are to construe statutes so as to harmonize with other relevant laws. La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 565 (Tex. 1984) (citing State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937)); see also State v. Newton, 179 S.W.3d 104, 109 (Tex. App.--San Antonio 2005, no pet.). We must, therefore, construe the two statutes so they work together in order to bring about the legislature's intent. Newton, 179 S.W.3d at 109. Additionally, the Code Construction Act provides that "[i]f a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both." Tex. Gov't Code Ann. 311.026(a) (Vernon 2005).

Bozarth contends that in Chapter 312 of the Code, the legislature evidenced its intention that some of the Code's provisions apply to certain issues concerning "Medical and Dental Clinical Education in Public Hospitals" that would otherwise be subject to the broader applications of the Act. As an example, Bozarth points out that 312.006 incorporates the Act's damage cap for cases arising out of medical or dental clinical education "regardless of whether . . . the medical and dental unit . . . is a 'governmental unit' as defined by Section 101.001 [of the Act]." Tex.Health & Safety Code Ann. 312.006 (Vernon 2001). Further, Bozarth points to section 312.007(b) of the Code which refers to the Act and treats medical residents as state employees for the purpose of a judgment against a medical and dental unit barring an action involving the same subject matter against a resident. Tex. Health & Safety Code Ann. 312.007(b)(Vernon 2001). Thus, urges Bozarth, the definition of "employee" in the Act applies to the conduct of any person who works for governmental entities, and the Code then incorporates certain medical professionals who would not otherwise be protected by the Act into the Act's scheme by defining them as employees "for purposes of determining the liability, if any, of the person for the person's act or omissions." We agree with Bozarth that, using this analysis, the Act and the Code can be read together so that effect can be given to both and that the two provisions do not irreconcilably conflict. See La Sara Grain Co., 673 S.W.2d at 565; see also Newton, 179 S.W.3d at 109. We overrule Knizel's issue on appeal.

 

Conclusion

Accordingly, we affirm the trial court's judgment.

 

Karen Angelini, Justice