Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight v. Leah Anne Gonski Marino F/K/A Leah Anne Gonski and Jaou-Chen Huang, M.D.
01-13-01034-CV
| Tex. App. | Mar 18, 2015Background
- Plaintiffs (Shirley Lenoir, as personal representative of Shana Lenoir, and Christopher McKnight as next friend of Nayla McKnight) appeal a dismissal that rested on a determination that Dr. Leah Ann Gonski was not an "employee" of the Foundation for purposes of the Texas Tort Claims Act (TTCA).
- The key legal question is whether the Foundation had the legal right to control the details of Dr. Gonski’s medical care when she treated Shana Lenoir, because TTCA employee status turns on that right-to-control inquiry.
- The Foundation’s articles, bylaws, franchise tax certificate, appointment notice, and handbook are in the appellate record and include provisions (¶VI.4–VI.5) that (a) limit Foundation authority to direct residents at facilities not owned/operated by the Foundation and (b) require written agreements shifting control and indemnity when residents serve at non-Foundation hospitals.
- Dr. Gonski performed care at a UT Physicians clinic affiliated with Memorial Hermann Hospital (MHH), a facility the Foundation did not own or operate; the handbook indicates MHH covers residents under its liability insurance.
- The court of appeals concluded the Foundation’s bylaws disavowed a right to control residents’ clinical work at such non-Foundation facilities and therefore Dr. Gonski failed to prove she was the Foundation’s employee under the TTCA; appellants seek denial of rehearing and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foundation was an "employee" under TTCA (right-to-control) | Lenoir: Foundation lacked right-to-control, so defendant not entitled to dismissal | Gonski: Foundation exerted sufficient control (or partially controlled) over her work to qualify her as its employee | Court held Foundation disavowed right-to-control by its bylaws; Gonski failed to prove employee status under TTCA |
| Reliance on St. Joseph Hosp. v. Wolff vs. Murk v. Scheele | Lenoir: Wolff’s right-to-control analysis is applicable and consistent with Murk | Gonski: Murk controls; Wolff not relevant because it predated TTCA statutory definition | Court (and appellants) say Wolff’s right-to-control discussion is applicable and cited with approval in Murk |
| Enforceability/role of Foundation bylaws and articles (disavowal of liability) | Lenoir: Bylaws (and appointment notice) show residents agree to abide by bylaws; bylaws prevent Foundation from controlling clinical work at non-owned facilities | Gonski: Bylaws are internal, not binding on third parties; possibly abandoned or in conflict with articles; residents still controlled by Foundation | Court found bylaws unambiguous in disavowing control; no evidence bylaws were abandoned or conflicted with articles |
| Raising new control theories on rehearing (instruction via UTHSCH) | Lenoir: New argument not raised below and cannot be raised first on rehearing; no evidence Foundation instructed UTHSCH to control Gonski | Gonski: UTHSCH effectively controlled residents per program sponsorship/agreements | Court (appellants) note the argument was not preserved; even if considered, no record evidence Foundation directed UTHSCH to control Gonski |
Key Cases Cited
- St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) (right-to-control test governs vicarious liability for resident physicians)
- Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003) (TTCA employee analysis and approval of Wolff’s control discussion)
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (holding residents alleging governmental-employee status often fail to meet burden)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (purpose of §101.106 is to force plaintiff to choose proper defendant at outset)
- Weech v. Baptist Health Sys., 392 S.W.3d 821 (Tex. App.—San Antonio 2012) (conclusory affidavit insufficient to raise fact issue)
- Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1997) (same)