Franka v. Velasquez
332 S.W.3d 367
| Tex. | 2011Background
- Franka and Reddy, physicians employed by a public health system, delivered S.M.A. at University Hospital, a public teaching hospital.
- S.M.A. suffered shoulder dystocia with left clavicle fracture and brachial plexus injury during vaginal delivery.
- Velasquez and Alaniz sued Franka and Reddy (not the Center, District, or Hospital) alleging medical negligence; no suit against the governmental unit.
- Franka moved to dismiss under TX TTCA section 101.106(f); plaintiffs argued waiver evidence required and no waiver shown.
- Courts below held a government employee is not entitled to dismissal under 101.106(f) until waiver by government is shown; issue focused on scope and applicability of 101.106(f).
- At issue is whether 101.106(f) allows dismissal when suit could have been brought under the Act against the governmental unit, regardless of waiver, and how employee status and agency consent affect dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 101.106(f) requires waiver by the government to allow dismissal. | Franka/Franka's view: waive immunity must be shown for dismissal against employee. | Franka's view: 'could have been brought' includes waivers; government consent not required at this stage. | Suit could have been brought under the Act against the government regardless of waiver. |
| Whether Reddy is an employee under 101.106(f) given the three-party GME agreement. | Reddy may be a government employee under 312.007(a) if the agreement applies. | Applicability of 312.003/312.007(a) not shown; record insufficient to determine employee status. | Record insufficient to determine Reddy's 101.106(f) employee status as a government employee. |
| Whether Franka, as a government employee, could be dismissed under 101.106(f) given that the government consent issue remains unresolved. | Waiver may be implicated; dismissal should be allowed if suit could have been brought against the government. | Court should require government consent to be sued for 101.106(f) dismissal to be proper. | Court rejected court of appeals' approach; held that suit could be brought under the Act against the government regardless of waiver. |
| Whether the Texas Legislature intended 101.106 to parallel the Westfall Act or to preserve a field where plaintiffs may elect remedies. | Legislative intent to preserve election-of-remedies, consistent with Mission Garcia and prior cases. | Legislation intended to align with federal Westfall Act, creating a uniform official-capacity defense. | Court construes 101.106(f) to harmonize with the Act and Mission Garcia; not a Westfall Act replica. |
| Whether the 2003 amendments to 101.106 harmonize with Kassen v. Hatley on physician discretion and official immunity. | Kassen should control medical discretion baseline; amendments do not extinguish Kassen. | HB4 amendments modify/expand immunity scheme, creating official-capacity defense for employees. | Court holds amendments align with Kassen's framework; official-capacity defense applies where conditions met. |
Key Cases Cited
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (revised 101.106 to harmonize waivers and 'under this chapter' scope)
- Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997) (tort claim against government is 'under' the Act even without waiver)
- Bossley (Dallas Cnty. Mental Health & Mental Retardation v. Bossley), 968 S.W.2d 339 (Tex. 1998) (dismissal of employee when government unit is immune)
- Sykes v. Harris County, 136 S.W.3d 635 (Tex. 2004) (applies 101.106 to bar claims against government employee despite no waiver)
- Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994) (official immunity not available to physicians when medical discretion at issue)
- Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003) (practice of medicine within TTCA framework for employee under 101.106)
- Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838 (Tex. 2009) (interpretation of 101.106 in context of hospital districts)