Bari Ruggeri and Robert Ruggeri v. Baylor College of Medicine ( 2014 )

Opinion issued August 29, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00353-CV
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BARI RUGGERI AND ROBERT RUGGERI, Appellants
V.
BAYLOR COLLEGE OF MEDICINE, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2012-26612
MEMORANDUM OPINION
Bari and Robert Ruggeri challenge the trial court’s order granting Baylor
College of Medicine’s plea to the jurisdiction on their healthcare liability claim.
The Ruggeris contend that the trial court erred in granting Baylor’s plea because
(1) the Texas Tort Claims Act 1 does not apply to their claims of medical
negligence; (2) even if the Act applies, they have alleged a claim for which the Act
waives Baylor’s immunity; and (3) they were not required to provide notice of
their claims to Baylor under the Act or, alternatively, Baylor received written
notice within a reasonable time. We affirm.
Background
On April 8, 2010, the Ruggeris’ twenty-seven year old daughter, Jennifer,
died from liver failure at Ben Taub General Hospital’s emergency room. On May
7, 2012, the Ruggeris sued Baylor for medical negligence alleging that Jennifer
had a history of abusing drugs and prescription medication, and that her liver
failure was due to an overdose of medication that the Baylor physicians working at
Ben Taub had prescribed to her. As a governmental unit under Chapter 312,
Baylor has sovereign immunity for patient care and the provision or performance
of services or research at public hospitals, including Ben Taub. See TEX. HEALTH
& SAFETY CODE ANN. § 312.006 (West 2011); Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004).
On January 25, 2013, Baylor filed its Plea to the Jurisdiction which the trial
court granted on March 27, 2013. The Ruggeris timely filed this appeal.
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2012).
2
Discussion
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Sykes, 136 S.W.3d at 638. Generally,
sovereign immunity 2 deprives a trial court of subject matter jurisdiction over a
lawsuit in which a party has sued the State or a state agency, unless the Legislature
has consented to suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d
384, 388 (Tex. 2011). 3 Whether a court has subject matter jurisdiction is a
question of law subject to de novo review. Id.
2
Sovereign immunity is comprised of both immunity from liability and liability
from suit. Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012). The former
protects governmental entities from judgments while the latter completely bars
actions against those entities unless the Legislature expressly consents to suit. Id.;
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (“[I]mmunity from suit . . . bars
suit against [a governmental] entity altogether.”); Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 696 (Tex. 2003) (“Unlike immunity from suit, immunity
from liability does not affect a court's jurisdiction to hear a case and cannot be
raised in a plea to the jurisdiction.”). Here, we address immunity from suit;
therefore, references to immunity will refer only to immunity from suit unless
otherwise indicated.
3
“Sovereign immunity” and “governmental immunity” are sometimes treated as
interchangeable terms. See Reata Constr. Corp., 197 S.W.3d at 374 n.1.
Sovereign immunity is available to the state and its agencies, and governmental
immunity is available to political subdivisions. Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004).
3
B. Analysis
In issues one through four, the Ruggeris contend that the trial court erred in
granting Baylor’s plea to the jurisdiction because the Texas Tort Claims Act does
not apply to their claims. Specifically, they argue that although the Act provides
official immunity for acts of governmental discretion, it does apply to the cases of
negligent exercise of medical discretion, as alleged here. Baylor responds that the
distinction between governmental discretion and medical discretion has not been
the law of official immunity since 2003. They further assert that the Ruggeris’
argument pertaining to official immunity is misplaced because official immunity is
for individuals and the Ruggeris sued only Baylor, which has sovereign immunity.
1. Applicability of Texas Tort Claims Act
The Ruggeris acknowledge that, for purposes of this suit, Baylor is a
governmental unit of state government under Chapter 312 of the Texas Heath and
Safety Code. See Klein v. Hernandez, 315 S.W.3d 1, 8 (Tex. 2010) (recognizing
that Chapter 312 classifies Baylor as a “governmental unit of state government”
and a “state agency” for certain purposes, including its services at Ben Taub). In
Klein, the Texas Supreme Court concluded that “the Legislature intended through
Chapter 312 to treat Baylor like other governmental entities providing services at
public hospitals, extending the same protection and benefits to Baylor and its
[physicians] who work at these hospitals.” Id. One such protection to which
4
governmental entities are entitled is immunity from suit unless such immunity is
waived under the Texas Tort Claims Act.
Under section 312.006 of the Health and Safety Code, Baylor “is not liable
for its acts and omissions” in connection with “patient care and the provision or
performance of health or dental services” at public hospitals like Ben Taub:
except to the extent and up to the maximum amount of liability of
state government under Section 101.023(a), Civil Practice and
Remedies Code, for the acts and omissions of a governmental unit of
state government under Chapter 101, Civil Practice and Remedies
Code.
TEX. HEALTH & SAFETY CODE ANN. § 312.006(a) (West 2011). Chapter 101 of the
Civil Practice and Remedies Code, also known as the Texas Tort Claims Act,
provides a limited waiver of immunity for certain suits against governmental
entities. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2012);
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
Thus, Baylor is not liable for patient care at Ben Taub except to the extent that a
governmental unit of state government would be liable under the Texas Tort
Claims Act.
The Ruggeris, however, argue that they need not establish a waiver of
immunity under the Texas Tort Claims Act because, at the time their cause of
action accrued, “the Tort Claims Act provided official immunity when
government-employed [medical professionals] were exercising ‘official’ or
5
‘governmental’ decision-making as opposed to physicians and residents exercising
strictly ‘medical’ discretion.” In support of their argument, they rely on the Texas
Supreme Court’s opinion in Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994), and two
subsequent appellate court opinions, Saade v. Villarreal, 280 S.W.3d 511 (Tex.
App.—Houston [14th Dist.] 2009, pet. dism’d) and Klein v. Hernandez, 333
S.W.3d 689 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In Kassen, the court
held that official immunity does not protect a [government-employed] physician
sued in his individual capacity from liability for medical decisions and actions.
See 887 S.W.2d at 11 n.7. Asserting that Kassan, Saade, and Klein remained the
“law of the land” in March and April 2010 when their cause of action accrued, the
Ruggeris conclude that the prescription medication provided to Jennifer by the
Baylor physicians and residents was care and treatment pursuant to their medial
discretion, and not any governmental or official discretion and, therefore, they are
not entitled to official immunity under the Texas Tort Claims Act.
The Ruggeris’ argument misapprehends the law in two respects. First, the
Ruggeris did not sue “government-employed medical professionals”—they sued
only Baylor. Official immunity protects individual employees of a governmental
unit such as Baylor’s physicians and residents. See TEX. HEALTH & SAFETY CODE.
ANN. § 312.007(a) (West 2011). As a governmental unit under Chapter 312,
Baylor has sovereign immunity for patient care and the provision or performance
6
of services or research at public hospitals, including Ben Taub. See TEX. HEALTH
& SAFETY CODE ANN. § 312.006 (West 2011); Sykes, 136 S.W.3d at 638. Because
the Ruggeris sued only Baylor and not its physicians or residents, their official
immunity argument is inapposite.
Second, the Ruggeris’ assertion that the Kassen, Saade, and Klein decisions
were “the law of the land” with respect to official immunity when their cause of
action accrued is a misstatement of the law. In 1988, Congress enacted the
Westfall Act which “made whatever remedy the [Federal Tort Claims Act]
provided against the United States a claimant’s exclusive remedy for a government
employee’s conduct in the scope of employment.” Franka v. Velasquez, 332
S.W.3d 367, 385 (Tex. 2011). In 2003, the Texas Legislature amended section
101.106 of the Texas Tort Claims Act to “achiev[e] the same end under Texas law
as the Westfall Act does under federal law.” Id. at 385; see TEX. CIV. PRAC. &
REM. CODE ANN. §101.106 (West 2012). 4 As the Fourteenth Court of Appeals has
4
Section 101.106(f) provides:
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 [the Texas Tort Claims Act]
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.
7
noted, “by enacting the current version of section 101.106 in 2003, the Legislature
abrogated the rule announced in the Kassen case, in which the Supreme Court of
Texas decided that government-employed personnel do not have official immunity
regarding their alleged negligence in the exercise of medical discretion in the
treatment of patients.” Univ. of Tex. Health Sci. Ctr. v. Crowder, 349 S.W.3d 640,
649 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Franka, 332 S.W.3d
at 380–86). Under the 2003 statutory amendments to section 101.106,
government-employed medical personnel have official immunity even for actions
arising from the exercise of medical discretion. See Franka, 332 S.W.3d at 384–
85. It thus follows that had the Ruggeris sued Baylor’s physicians 5 rather than
Baylor itself, the physicians could have asserted the immunity provided in section
101.106(f) and obtained dismissal.
Having determined that the Ruggeris’ argument premised on official
immunity is unavailing, we overrule their first, second, third, and fourth issues.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2012).
5
Baylor’s physicians and residents are government-employed medical personnel for
purposes of the care they provide at Ben Taub. See TEX. HEALTH & SAFETY CODE
ANN. § 312.007(a) (West 2011).
8
We must now determine whether they have alleged a claim for which the Texas
Tort Claims Act waives Baylor’s sovereign immunity. 6
2. Waiver of Immunity
In their sixth issue, the Ruggeris contend that in the event the Texas Tort
Claims Act applies to their claims, they have pleaded sufficient facts establishing a
waiver of Baylor’s immunity.
Section 101.021(2) of the Texas Civil Practice and Remedies Code provides
that a governmental unit is liable for “personal injury and death so caused by a
condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas law.”
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2012). Here, the Ruggeris
do not complain about a condition of tangible personal property. Rather, they
allege that Baylor waived its immunity because, despite Jennifer’s medical history
of drug abuse, Baylor’s physicians and residents “used [Jennifer’s] medical records
and prescribed the medications which eventually caused her death.” They argue
that Baylor’s physicians and residents “‘put into action’ by writing and ordering on
tangible property (i.e. prescription documents) and ‘employed to a given purpose’
6
In light of our conclusion that the Texas Tort Claims Act applies to the Ruggeris’
claims, we overrule their fifth issue asserting that Baylor was not entitled to notice
as required under the Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a)
(requiring notice of claims “not later than six months after the day that the incident
giving rise to the claim occurred”).
9
that tangible property for the given purpose of providing the means in the use of
that tangible property so that Jennifer Ruggeri would obtain the possession of
prescription medications that ultimately caused her injuries and death.” We
disagree.
Immunity is waived “only when the governmental unit itself uses the
property.” Rusk Sate Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012). “A
governmental unit does not ‘use’ property within the meaning of the [Texas Tort
Claims Act] when it merely allows someone else to use it.” Id. Here, it was
Jennifer’s use of the property—i.e., the medication—that allegedly caused her liver
failure, not her medical records or prescriptions.7 Merely “furnish[ing] the
condition that [makes] the injury possible” does not waive immunity. Tex. Dep’t
of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001); Dallas. Cnty. v.
Posey, 290 S.W.3d 869, 870–71 (Tex. 2009) (per curiam) (concluding that
governmental unit did not use property within section 101.021’s waiver of
immunity by furnishing telephone cord to allegedly suicidal inmate and with
which he hung himself in cell); San Antonio State Hosp. v. Cowan, 128 S.W.3d
244, 245–47 (Tex. 2004) (finding that hospital did not use property within meaning
of section 101.021 by returning to allegedly suicidal mental hospital patient his
suspenders and walker with which he hung himself). Rather, it is the use of
7
In fact, the Ruggeris acknowledge that Jennifer “obtained the prescribed
medications and used the prescribed medications.”
10
tangible property that must have actually caused the injury. Univ. of Tex. M.D.
Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 882 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied) (citing Miller, 51 S.W.3d at 588); Terry A. Leonard, P.A.
v. Glenn, 293 S.W.3d 669, 684 (Tex. App.—San Antonio 2009), rev’d on other
grounds, 332 S.W.3d 403 (Tex. 2011) (per curiam). Moreover, at least three courts
of appeals have concluded that writing prescriptions or administering medications
are not acts that waive immunity under the Texas Tort Claims Act. See King, 329
S.W.3d 882 (concluding hospital did not waive sovereign immunity from suit
where hospital’s alleged use or misuse of medication merely furnished condition—
plaintiff’s state of sleep or unconsciousness—that made injury possible); Tex.
Tech. Univ. Health Sci. Ctr. v. Buford, 334 S.W.3d 334, 336 (Tex. App.—Eastland
2010, no pet.) (holding allegations that government-employed physicians were
negligent in prescribing fentanyl patches to plaintiff based on alleged failure to
consider plaintiff’s medical condition or recognize that patient was not proper
candidate for patches did not involve use of tangible property); Terry A. Leonard,
P.A., 293 S.W.3d at 672 (concluding that written prescription did not constitute
tangible property and, thus, governmental unit’s sovereign immunity was not
waived).
We conclude that Baylor has not waived its sovereign immunity from suit
arising from the Ruggeris’ allegations that Baylor’s physician and residents wrote
11
prescriptions that furnished Jennifer with the ability to obtain medication from Ben
Taub’s pharmacy which Jennifer then used, allegedly causing her injury and tragic
death. See Rusk State Hosp., 392 S.W.3d at 97 (holding immunity is waived only
when governmental unit itself uses property). Because Baylor did not waive its
immunity, the trial court properly granted its plea to the jurisdiction on the
Ruggeris’ claims. 8 We overrule their sixth issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
8
Because we conclude that Baylor did not waive its sovereign immunity, we do not
reach the Ruggeris’ seventh issue regarding whether they provided Baylor with
proper notice of their claims. Moreover, we note that the Ruggeris concede that
they did not give Baylor notice within six months after Jennifer’s death.
12