Lenoir v. Marino
469 S.W.3d 669
Tex. App.2015Background
- Shana Lenoir died (and two unborn children) hours after receiving prenatal care and a progesterone injection at a UT Physicians (UTP) clinic; suit was brought by her mother and the father of her living child against the resident (Dr. Gonski), the attending (Dr. Huang), the injecting nurse, and the clinic.
- Drs. Gonski and Huang moved to dismiss under Tex. Civ. Prac. & Rem. Code § 101.106(f) (Tort Claims Act election-of-remedies), claiming they were governmental-unit employees acting within the scope of employment.
- Dr. Gonski asserted she was paid by the University of Texas System Medical Foundation (Foundation) and thus an employee of a governmental unit; Dr. Huang asserted he was employed by the University of Texas Health Science Center (Health Science Center) and supervised residents at the clinic.
- The trial court granted both motions and dismissed both physicians; the Lenoirs appealed interlocutorily, challenging whether each physician met the TCA employee test and contesting certain affidavits as conclusory.
- The appellate court reviewed jurisdiction/statutory-interpretation issues de novo and evaluated whether each physician proved (as a matter of law) that (1) they were employees of a governmental unit (paid service and legal right to control) and (2) they acted within the general scope of employment.
- Holding: the court affirmed dismissal of Dr. Huang (Health Science Center employee acting within scope) but reversed dismissal of Dr. Gonski (insufficient proof that the Foundation had legal right to control her work) and remanded as to Gonski; the court also rejected the Lenoirs’ challenges that affidavits were conclusory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether physician is an "employee" under TCA (paid service + legal right to control) | Lenoirs: physicians were not governmental employees; evidence insufficient to show employer had legal right to control details | Gonski: paid by Foundation and bound by its handbook/bylaws; Huang: paid/compensated via Health Science Center trust and subject to its control | Gonski: paid but failed to prove Foundation had legal right to control her clinic work — dismissal reversed. Huang: Health Science Center had right to control and he was in paid service — dismissal affirmed |
| Whether physicians acted within the general scope of employment | Lenoirs: Huang exceeded scope (ultra vires) and thus not immune; Gonski acted independently | Huang: supervising residents at clinic was an assigned job duty; acts were within scope even if negligent | Court: Huang acted within scope (supervision/teaching duties) so §101.106(f) dismissal proper; ultra vires argument rejected |
| Whether suit could have been brought against governmental unit (§101.106(f) prerequisite) | Lenoirs: even if employees, prerequisites not satisfied | Defs: suits against employees for conduct within scope could have been brought against their governmental employers | Court: For Huang, requirement satisfied; for Gonski, court did not reach governmental-unit status because right-of-control lacking |
| Admissibility / conclusory nature of affidavits supporting motions | Lenoirs: affidavits contained legal conclusions and were factually incorrect (auxiliary-enterprise theory) | Defs: affidavits tied to supporting documents and explained institutional relationships | Court: affidavits were not conclusory given attached documents and factual bases; objections overruled |
Key Cases Cited
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (employee moving for §101.106(f) dismissal must establish both paid service and conduct within general scope of employment)
- Miranda v. Tex. Dep’t of Parks & Wildlife, 133 S.W.3d 217 (Tex. 2004) (jurisdictional facts taken as true for plea-to-jurisdiction standard; subject-matter jurisdiction reviewed de novo)
- Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003) (exercise of professional judgment does not preclude finding employer’s right to control where practice is subject to employer regimens and supervision)
- St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2003) (contractual disavowal of right to control residents can negate employer liability)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (explaining TCA election-of-remedies framework)
- Ngakoue v. Tex. Adjutant Gen.’s Office, 408 S.W.3d 350 (Tex. 2013) (sovereign immunity principles and limits on waiver)