Jerry A. Powell, MD v. Eric Knipp and Laura Knipp
479 S.W.3d 394
| Tex. App. | 2015Background
- Dr. Jerry A. Powell was a full‑time assistant professor of radiology employed and paid by the University of Texas Southwestern Medical Center (UTSWMC); he provided radiology services to patients at Children’s Medical Center under a contract between UTSWMC and Children’s.
- In Feb. 2011, a resident misread a radiograph of the Knipps’ son James as an old rib fracture; additional studies were negative, but Children’s reported a possible abuse allegation to CPS; Powell later signed reports and the record contained the disputed interpretation.
- The Knipps sued Children’s, Dr. Morrissey, the resident King, and Powell, alleging professional negligence (and initially other claims later nonsuited); they asserted Powell was a borrowed employee of Children’s (not a governmental employee) and thus not entitled to dismissal under the Texas Tort Claims Act.
- Powell moved to dismiss / for summary judgment under Tex. Civ. Prac. & Rem. Code § 101.106(f), asserting he was a governmental employee of UTSWMC, his conduct was within the scope of that employment, and he sought substitution/dismissal; he supported the motion with his appointment, W‑2, and HR affidavit.
- The trial court denied summary judgment; Powell appealed interlocutorily. The court of appeals reviewed whether the summary‑judgment evidence conclusively established Powell’s entitlement to dismissal under § 101.106(f).
Issues
| Issue | Plaintiff's Argument (Knipp) | Defendant's Argument (Powell) | Held |
|---|---|---|---|
| Whether Powell was a "borrowed employee" of Children’s (i.e., whether Children’s had legal right to control the details of his work) so that § 101.001(2) excludes him from Act coverage | Children’s controlled Powell’s work (scheduling, facility/equipment, records, billing, committee roles, quality standards) so Powell was borrowed and not a governmental employee | Powell was a full‑time UTSWMC employee; the UTSWMC–Children’s contract and his employment records show UTSWMC retained legal right to control his medical judgments; borrowed‑employee doctrine does not negate his status here | Held for Powell: no genuine fact issue—contract, disclosures, and lack of evidence that Children’s controlled the details of his radiological diagnosis establish Powell was a UTSWMC employee and entitled to dismissal under § 101.106(f) as to the negligence claim |
| Whether Powell’s motion and evidence addressed the Knipps’ declaratory‑judgment claims under § 101.106(f) | Knipps urged declaratory relief and argued immunity did not apply | Powell did not raise declaratory claims in his summary‑judgment motion (raised only in reply/after appeal) | Held for Knipps procedurally: Powell waived/failed to move on declaratory claims at trial and did not preserve that ground on appeal; the declaratory claims remain pending |
| Procedural/standard issues: burden and scope for § 101.106(f) summary judgment | N/A (context) | A governmental employee seeking dismissal must conclusively prove the elements of § 101.106(f); if proven, the burden shifts to nonmovant to raise fact issues | Court applied de novo review and concluded Powell met his burden on the negligence claim; summary judgment dismissal was proper |
Key Cases Cited
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (§ 101.106(f) substitution/dismissal analysis and burden principles)
- Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003) (Act’s definition of "employee" excludes persons whose details of tasks the governmental unit does not have legal right to control)
- St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) (borrowed‑employee analysis in medical context; right‑to‑control is the supreme test)
- Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411 (Tex. 2015) (analyzing § 101.106 on a claim‑by‑claim basis)