Beware of Government Hospitals in Texas

by Jim Orr

In Texas, many of our hospitals are run by the government. Examples in the North Texas area are Parkland, John Peter Smith and Denton Regional Medical Center. After a recent Texas Supreme Court decision, if an employee of a government hospital is negligent and causes injury or death, the hospital and the employee are probably immune from liability. In other words, no lawsuit can be filed against the hospital or employee for the injury or death caused by their negligence. This is because of a law called the Texas Tort Claims Act, and the Texas Supreme Court’s surprising interpretation of it.

Under English common law, a person could not sue the government for wrongs committed against a person. The King could do no wrong. Because our laws are based on the English common law, the law initially adopted in the United States followed this rule. The doctrine is called “sovereign immunity.” Through time however, most states have passed laws that allow citizens to sue the government if a governmental employee or agent, including a hospital employee, is negligent and causes injury. In 1969, the Texas Legislature enacted such a waiver of sovereign immunity when it passed the Texas Tort Claims Act. The Act was a partial waiver of the sovereign immunity of governmental units of the state.

The Act was only a partial waiver because it created only two circumstances under which the government (e.g., state, county or city) can be sued. They are 1) damage or injury arising from the operation of a motor-driven vehicle, and 2) personal injury and death caused by a condition or use of tangible personal or real property. Also, damages were capped at $100,000 for cases against a county and $250,000 for cases against cities or the state. Because medical malpractice cases typically don’t involve motor-driven vehicles or a condition or use of personal or real property, under the Texas Tort Claims Act, a hospital cannot be sued for the negligence of its employees. However, until recently, the employees (e.g., nurses or doctors) themselves could be held responsible for their own negligence. All of this changed because of an opinion of the Texas Supreme Court earlier this year.

In Franka, M.D. v. Velasquez, the Court construed Section 101.106(f) of the Texas Tort Claims Act. 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 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.

Prior to the Franka case, this provision of the Act had generally been understood to require a plaintiff injured by a government employee to sue the governmental unit instead of the employee if such a claim fit under one of the two areas of waiver of sovereign immunity (i.e., “could have been brought under this chapter”). If, however, a claim against the governmental unit was not allowed under the Act, then the employee could be held responsible. In an amazing contortion of the language and intent of Section 101.106(f), the Texas Supreme Court changed this understanding of the Texas Tort Claims Act. In this regard, the Court held that when the statute says “could have been brought under this chapter,” it does not mean that a claim has to be allowed by the Act. The Court found 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.” The Court reasoned:

Two other sections of the Act also make plain that suits brought “under” the Act include those for which immunity is not waived. Section 101.103(a) requires the attorney general to “defend each action brought under this chapter”. One would hardly suppose that the attorney general would be relieved of this responsibility whenever he thought, as he regularly does, his client’s immunity remained intact despite the plaintiff’s allegations. Section 101.102, entitled “Commencement of Suit”, provides that “[a] suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.” If this applies only to suits for which immunity is waived, can suits for which immunity is not waived, of which there are many, be brought anywhere? One would hardly think so. These examples serve to illustrate the obvious: that suit is brought under the Act when it is filed, not when waiver of immunity by the Act is established.

The Court asserted several other equally convoluted explanations for its holding. In the end, the Court admitted that their “construction of Section 101.106(f) does, however, foreclose suit against a government employee in his individual capacity if he was acting within the scope of employment.”

Under this new court ruling, if you are the victim of medical malpractice at a governmental hospital (or the victim of the negligence of some other governmental agent), the bottom line result is that you cannot bring a claim for injury or damages no matter how egregious their conduct. Clearly, this was not the intent of the legislature. If this had been the intent, the statute could have easily just stated in one sentence that government employees cannot be sued for acts or omissions committed in the course and scope of their employment. Hopefully the legislature will correct this Texas Supreme Court’s blatant legal activism that was clearly intended to protect negligent healthcare providers and other negligent governmental agents from liability for wrongs they commit.

by Jim Orr

Jim Orr is a licensed attorney and a partner at HO&P focusing on business and personal injury litigation. Jim was selected multiple times to the Super Lawyers List and has tried 70+ cases to verdict.