Frank Mussemann, M.D., Amy Plummer, M.D. and Daniel Hersh, M.D. v. Mercedes Villarreal, as Next Friend of Juan Pablo Elizondo, a Minor

Affirmed and Opinion filed August 25, 2005

Affirmed and Opinion filed August 25, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00746-CV

____________

FRANK

MUSSEMANN, M.D., AMY PLUMMER, M.D., AND

DANIEL HERSH, M.D. , Appellants

V.

MERCEDES

VILLARREAL, AS NEXT FRIEND OF

JUAN PABLO ELIZONDO, A MINOR , Appellee

_____________________________________________________________

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 02-12675

_____________________________________________________________

O P I N I O N

Appellants Frank Mussemann, M.D.,

Amy Plummer, M.D., and Daniel Hersh, M.D. appeal from the trial court = s denial

of their motion for summary judgment.

After reviewing the record, we conclude that they have failed to

conclusively establish the affirmative defense of official immunity as a matter

of law, and we therefore affirm the trial court = s denial

of their motion for summary judgment.

I. Factual and Procedural Background

Appellants

Frank Mussemann, M.D., Amy Plummer, M.D., and Daniel Hersh, M.D. (hereinafter collectively referred to as the A Doctors @ ) were third-year

and fourth-year residents at Baylor College of Medicine, working rotations at

Ben Taub General Hospital ( A Ben Taub @ ), when

Mercedes Villarreal presented with complications late in pregnancy. The Doctors assisted Villarreal with the

management of these complications and with the eventual caesarean birth of

Villarreal = s son. Villarreal = s son was

born in distress and suffers from severe birth defects. Appellee Mercedes Villarreal, as next friend

of her son Juan Pablo Elizondo, has sued the Doctors, alleging that they

negligently performed their duties.

Although the Doctors dispute that they were negligent, they moved for

summary judgment based on the affirmative defense of official immunity. The trial court denied the Doctors = motion,

and the Doctors have filed this interlocutory appeal, arguing that the summary-judgment

evidence conclusively establishes their entitlement to official immunity as a

matter of law. [1]

A. Villarreal = s

Experience at Ben Taub

Villarreal is from Mexico. She came to the United States when she was

about three months pregnant and began receiving prenatal care from the

Southwest Community Clinic, a public facility operated by the City of Houston. Thereafter, she intermittently saw doctors at

Ben Taub = s

obstetric clinic, beginning in December 1994.

When Villarreal was diagnosed as a high risk patient near the end of her

pregnancy, she was referred to Ben Taub = s High

Risk Obstetric Clinic for continued prenatal care and eventual delivery.

Villarreal suffered from

gestational diabetes. In addition, her

baby was in a breech position. When the

medical providers at Ben Taub began managing her pregnancy, they first tried to

correct the baby = s breech

presentation by a procedure called a A version, @ which is

an external manipulation of fetal position.

This procedure was not successful, so it became necessary to consider

delivery by caesarean section. Given the

probable caesarean section, and the fact that gestational diabetes can

compromise fetal lung maturity, Villarreal was advised to undergo a

third-trimester amniocentesis to make sure the baby = s lungs

had matured sufficiently.

On

April 20, 1995, Dr. Plummer performed the amniocentesis on Villarreal.

Afterwards, Dr. Plummer monitored the baby for five to ten minutes on

ultrasound equipment. At this time, Dr.

Plummer did not monitor the baby using an electronic fetal monitor.

Three days after the

amniocentesis, Villarreal came to Ben Taub complaining that she had not felt

her baby moving that day. A nurse placed

her on an electronic fetal monitor, which showed that the fetal heart rate was

minimally reactive and needed investigation.

A first-year resident supervised by Dr. Hersh evaluated Villarreal and

began a biophysical profile ( A BPP @ ) of the

baby. When the resident saw no evidence

of fetal movement, he contacted Dr. Hersh to continue the BPP. Dr. Hersh completed the BPP, which

yielded abnormal results and showed that the baby had been motionless for the

entire examination. According to Dr.

Hersh, these facts required an A urgent @

caesarean section. Dr. Hersh consulted

with his supervising resident, Dr. Mussemann, regarding this proposed course of

treatment, and Dr. Mussemann concurred.

During preparations for the

caesarean section, Villarreal had a contraction, and the fetal heart rate

further declined. With this development,

Dr. Mussemann determined that a A stat @ or A emergency @

caesarean section should be performed immediately. Villarreal = s baby

was soon delivered by caesarean section.

He was limp and pale, and tests revealed that he had severe anemia due

to a massive fetal-maternal hemorrhage, that is, a loss of the baby = s blood

into the mother = s

system. After treatment in the neonatal

unit, the baby eventually was discharged.

After the baby = s

discharge, medical providers determined that, among other things, he suffered

from severe global developmental delay and mental retardation.

B. Villarreal = s Lawsuit

on Behalf of Her Son

Villarreal,

as next friend of her son, filed a medical-malpractice suit against the

Doctors. In this suit, Villarreal

asserts the Doctors were negligent based on the following alleged acts and

omissions:

! Dr. Plummer = s performance of an amniocentesis that was

unnecessary and conducted improperly;

! Dr. Plummer = s failure to monitor the fetus after the

amniocentesis with an electronic fetal monitor, so that any adverse effect

could be identified and addressed;

! Dr. Hersh = s failure to properly supervise a first-year resident;

! Dr. Hersh = s failure to promptly recognize an uncorrectable,

non-reactive fetal heart-rate pattern on the fetal-monitor strip;

! Dr. Hersh = s failure to consult more promptly with the

supervising resident, Dr. Mussemann, or an attending physician, when faced with

an uncorrectable, non-reactive fetal heart-rate pattern;

! Dr. Hersh = s performance of an unnecessary BPP of the fetus,

which delayed the caesarean section;

! Dr. Mussemann = s failure to properly

supervise Dr. Hersh;

! Dr. Mussemann = s failure to perform an A emergency @ caesarean section, as

opposed to an A urgent @ caesarean section, when

first consulted by Dr. Hersh;

! Dr. Mussemann = s choice of anesthesia for

performing the caesarean section; and

! Dr. Mussemann = s failure

to consult more promptly with the attending physician.

C. Official Immunity and the Nature of the Practice at Ben Taub

Although the Doctors dispute

Villarreal = s allegations of negligence, for

the purposes of this appeal, they rely on the defense of official

immunity. Because Ben Taub is a public

hospital operated by the Harris County Hospital District, which provides

acute-care medical services to the indigent and low-income population of Harris

County, the Doctors contend that they are immune from liability for their

actions in treating Villarreal.

To support their position

regarding official immunity, the Doctors proffered summary-judgment evidence

regarding the nature of the practice at a large public hospital like Ben

Taub. The Doctors claim that Ben Taub is

chronically strained by budgetary constraints and that it does not have access

to state-of-the-art equipment, an adequate nursing staff, or even sufficient

space to accommodate its extremely high patient load. The Doctors also note that their practice is

characterized by higher-than-average workplace stress due to the combination of

a high patient load and inadequate resources.

The Doctors allege that treating an indigent or low-income population

has its own complications, including frequent language barriers and incomplete

or misplaced medical records, with resulting uncertainty regarding a patient = s medical

history.

The Doctors contend that these

and other factors complicate the treatment of the typical obstetric

patient. Many obstetric patients have

had gaps in prenatal care and testing, and may have an uncertain date for the

beginning of pregnancy. Due in part to

these problems, many of these patients either are or have become high risk and

present more complicated medical issues than do patients at private hospitals. In addition, longer-than- average delays

sometimes complicate prenatal testing and procedures. The Doctors claim that these and other

factors impacted their treatment of Villarreal.

Notwithstanding these

difficulties, Ben Taub = s

physicians are required to treat all patients who present themselves for

treatment, as long as Ben Taub routinely provides the type of treatment such

patients are seeking. Because Ben Taub

provides obstetric care for both normal and high risk pregnancies, obstetric

patients such as Villarreal, who present themselves to Ben Taub = s High

Risk Obstetric Clinic, are routinely treated, irrespective of complications

they may have or risks of a poor outcome.

The Doctors moved for summary

judgment, claiming that these factors conclusively established their right to

official immunity. The trial court

denied the motion for summary judgment.

Appealing this ruling, the Doctors argue that they are entitled to

official immunity because they exercised governmental discretion, or medical

discretion A colored by governmental factors

and concerns, @ when they treated Villarreal. Alternatively, the Doctors contend that

public policy considerations require this court to re-evaluate the doctrine of

official immunity as it is applied to medical personnel under Kassen v.

Hatley , 887 S.W.2d 4 (Tex. 1994).

II. Standard

of Review

We review a trial court = s denial

of summary judgment de novo. See Joe

v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 156 (Tex. 2004). Because the doctrine of official immunity is

an affirmative defense, to prevail on summary judgment, a movant must establish

conclusively each element of this affirmative defense. Kassen v. Hatley , 887 S.W.2d 4, 8 (Tex.

1994). To meet this burden, the Doctors

must demonstrate that there is no genuine issue of material fact and that they

are entitled to judgment as a matter of law.

Id . at 8 n.2. In

determining whether an issue of material fact exists, we take as true all

evidence favorable to the nonmovant and indulge all reasonable inferences in

the nonmovant = s favor. Id .

III. Analysis

A. Have the Doctors conclusively

established that they exercised governmental discretion?

Ordinarily, public officials must

show the following elements to establish a defense of official immunity: (1)

the performance of a discretionary function, (2) in good faith, and

(3) within the scope of the employee = s

authority. [2] Kassen , 887 S.W.2d at 9 . In Kassen , the Texas Supreme Court

adopted the rule of official immunity from other states that requires

government-employed medical personnel [3]

who seek official immunity to prove that they are being sued for the exercise

of A governmental

discretion @ rather than A medical

discretion. @

Id . at 11. The Kassen

court agreed with cases from other states holding that governmental discretion,

which would entitle such medical personnel to immunity, refers to actions taken

in an administrative or policy-making capacity.

Id . at 11 & n.7 (noting agreement with Henderson and Comley

cases); Henderson v. Bluemink , 511 F.2d 399 , 403 & n.24 (D.C. Cir.

1974) (stating that governmental discretion, to which official immunity

applies, includes acts performed in an administrative capacity); Comley v.

Emanuel Lutheran Charity Bd. , 582 P.2d 443 , 451 B 52 (Or.

Ct. App. 1978) (holding doctor did not have immunity in suit alleging he

committed various acts of medical negligence in treating a patient and stating

that doctor = s alleged acts were not the

exercise of governmental discretion because they did not involve decisions

regarding public policy). The Kassen

court also stated that it agreed with decisions from other states holding that

discretion exercised in the treatment of individual patients is medical

discretion not entitled to immunity. Kassen , 887 S.W.2d at 11 & n.7 (noting

agreement with Womble , Cooper , and Protic cases); Womble

v. Singing River Hosp ., 618 So. 2d 1252 , 1262 B 65 (Miss.

1993) (stating that government-employed medical personnel have no immunity for

their decisions involving individual medical treatment but that they have

immunity for decisions regarding the formulation and implementation of public

policy), superseded by statute as stated in Sparks v. Kim , 701

So. 2d 1113 , 1115 & n.2 (Miss. 1997); Cooper v. Bowers , 706 S.W.2d

542, 543 (Mo. Ct. App. 1986) (holding that a government-employed doctor does

not perform a governmental function by treating patients); Protic v. Castle

Co. , 392 N.W.2d 119, 122 (Wis. Ct. App. 1986) (stating that providing

medical care to patients does not involve governmental policy and

decision-making that would entitle government-employed doctor to

immunity).

To qualify for protection, the

discretion exercised need not be A uniquely

governmental. @ Kassen , 887 S.W.2d at 12 . To determine the character of the discretion

medical personnel exercised, we must examine the facts of each case and the

underlying policies promoted by official immunity. Id.

Our decision necessarily involves a balancing of individual rights and

the public interest. Id. The Kassen court declined to provide a

precise definition for determining when the acts of government-employed medical

personnel involve governmental discretion.

Id. at 12 . n.8. However,

the Kassen court recommended that courts consider the following factors:

1. the nature and importance of the function that the employee

is performing,

2. the extent to which passing judgment on the exercise of

discretion by the employee will amount to passing judgment on the conduct of a

coordinate branch of government or an agency thereof,

3. the extent to which the imposition of liability would impair

the employee = s free exercise of discretion,

4. the extent to which financial responsibility will fall on the

employee,

5. the likelihood that harm will result to the public if the

employee acts,

6. the nature and seriousness of the type of harm that may be

produced, and

7. the availability to the injured party of other remedies and

forms of relief.

Id . (citing Restatement (Second) of Torts ' 895D cmt. f (1977)).

In discussing the distinction

between governmental discretion and medical discretion, the Kassen court

indicated that government-employed medical personnel exercise governmental

discretion in the following circumstances: (1) when they exercise policy-making

or administrative responsibilities not shared by private-sector providers, and

(2) when they decide how to allocate a scarce pool of state resources among possible

recipients. Kassen , 887 S.W.2d at

10 . On the other hand, the Kassen court

indicated that discretion exercised by government-employed medical personnel in

their treatment of patients is medical discretion not subject to immunity. See id . at 10 B 11. The Kassen court stated that, if

governmental factors and concerns colored the discretion of government-employed

medical personnel, policy considerations may call for immunity, even though

these personnel have duties and responsibilities that coincide with

private-sector providers. Id . at

12.

It is undisputed that the Doctors

exercised discretion; the issue on appeal is whether the trial court erred in

determining that the Doctors did not conclusively establish each element of

their official-immunity defense. More

specifically, we must determine whether the trial court erred in ruling that

the Doctors did not conclusively establish that Villarreal is suing them for

exercising their governmental discretion.

Villarreal alleges negligence

based on the need for a third-trimester amniocentesis, the performance of the

amniocentesis itself, and the need for monitoring afterwards. All of these acts or omissions relate to a doctor = s

specialized knowledge, judgment, and discretion in treating a specific

patient. The same is true for the

decisions involving Villarreal = s labor

and delivery. What sort of tests to

perform and the interpretation of the test results each required a physician to

assess the situation and decide the appropriate course of action. What sort of anesthesia to use during a

caesarean section and whether to perform the procedure on an A urgent @ or an A emergency @ basis

are exercises of medical discretion.

Finally, supervising the medical decision-making of less-experienced

doctors, along with determining when to consult more-experienced physicians,

are the exercise of medical discretion. See,

e.g., Drogin v. Campbell , 928 S.W.2d 205, 207 (Tex. App. C San

Antonio 1996, no writ) (holding that a decision based on medical necessity

involved the exercise of medical discretion). Under the legal standard set

forth in Kassen , we conclude that Villarreal is suing the Doctors based

on their exercise of medical discretion rather than governmental discretion. See id . (holding that employees of state

hospital did not have official immunity for their alleged negligence in

treating and releasing patient because they exercised medical discretion under Kassen );

Womble , 618 So. 2d at 1262 B 65

(holding that emergency-room doctors were not immune from malpractice action

against them because their treatment of the patient in question did not involve

formulating or implementing government policy); Cooper , 706 S.W.2d at

542 B 43

(holding that a prison doctor did not have immunity for discontinuing an inmate = s

medication because the doctor was treating a patient, which is not A conduct

partaking of the essence of governing @ )

(quotations omitted); Comley , 582 P.2d 443 , 450 B 52

(holding doctor was not immune because his alleged negligence in treating

premature child did not involve governmental discretion); Protic , 392

N.W.2d at 122 (holding that doctor was not entitled to immunity because his

alleged negligence in treating patient did not involve governmental

decisionmaking).

The Doctors argue that they

exercised A governmental discretion @ in

treating Villarreal because they provided health care to the indigent, caring

for government patients with government resources in a government

facility. These factors do not show that

the Doctors exercised governmental discretion under the Kassen legal

standard. The Kassen court

indicated that discretion exercised by government-employed medical personnel in

their treatment of patients is medical discretion not subject to immunity. Kassen , 887 S.W.2d at 10 B 11. The facts of Kassen involved a

challenge to the decision-making of a third-year resident serving at a public

hospital. Id . at 7. The Kassen court concluded that,

because the challenged decision was motivated by A therapeutic

considerations, @ the A exercise

of discretion was medical only, @ and the

resident, though working at a public hospital, was A not

entitled to official immunity. @ Id . at 12.

Concluding that government doctors are entitled to immunity simply

because they practice medicine in the setting of a government hospital, under

more adverse conditions than private doctors, would be contrary to Kassen

and the cases cited therein. See id .

at 9 B 12.

In addition, the Doctors have

developed a record of what they contend are A governmental

factors and concerns @ that

allegedly A colored @ the

exercise of their discretion. They

contend that these factors were not present in Kassen and that the

presence of these factors and concerns affected their medical discretion in a

manner that requires us to grant them immunity.

We do not find the Doctors =

arguments persuasive.

The Doctors introduced evidence

regarding what sort of patient Villarreal was, claiming that the following

facts were governmental factors or concerns that colored their discretion:

! Villarreal had gaps in prenatal care and limited

availability of records.

! Villarreal = s prenatal care was provided by different

providers at different locations.

! Villarreal = s limited ability to speak English may have

created a language barrier.

! The Doctors viewed Villarreal as a A non-compliant @ patient who had a high

risk for a poor outcome.

Although these issues may have influenced how

the Doctors treated Villarreal, none of the factors is governmental in

nature. Instead, any patient C even a

private patient C may

present for treatment with factors like these, ultimately requiring a private

physician to make treatment decisions under less-than-perfect circumstances. Cf. Borrego v. City of El Paso , 964

S.W.2d 954, 959 (Tex. App. C El Paso

1998, pet. denied) (stating that decision to immobilize critical patient prior

to moving him from scene of accident was medical in nature and thus not

entitled to immunity). Even if these factors occur with more frequency in an

indigent or low-income population, this does not convert the Doctors = exercise

of medical discretion into governmental discretion.

The Doctors also introduced

evidence about the nature of public hospitals, noting that Ben Taub, like

similar institutions, suffers from budgetary constraints, limited equipment and

testing, the necessity of using residents to perform services, and the mandate

to accept all patients who present for treatment. These problems, however, are the sort that

are likely to be present in most or all public hospitals. To hold that these factors conclusively

establish a right to official immunity would eviscerate the Kassen legal

standard. Indeed, as discussed, some of

these problems were either present or noted in Kassen itself. See, e.g., Kassen , 887 S.W.2d at 10

(stating that A government health care providers

have less latitude in choosing patients than their private-sector counterparts @ ); see

also Gross v. Innes , 930 S.W.2d 237, 241 (Tex. App. C Dallas

1996) (stating that A the fact

that [medical personnel] did not have the option to refuse treating [a patient]

is not a governmental factor coloring medical discretion in this case @ ), writ

dism = d w.o.j. , 988

S.W.2d 727 (Tex. 1998).

The Doctors argue that their care decisions were influenced

by the fact that resources, such as electronic fetal monitors, were limited,

and that some lab work, like analysis of the amniocentesis, had to be

outsourced. These facts still fail to

establish that the Doctors exercised governmental discretion. See, e.g., Gross , 930 S.W.2d at 241

(stating that A deciding what equipment to use in

treating [patient] was an exercise of medical discretion @ ). The Kassen court indicated

that A the need to allocate scarce state

hospital resources among potential patients @ is a A governmental concern. @

887 S.W.2d at 12 . In this case, however,

there is no summary-judgment evidence that the Doctors were involved in

the allocation of

hospital resources among patients or in the exercise of any other

administrative or policy-making discretion at Ben Taub. [4]

The Doctors also rely on a series

of cases granting immunity to other public servants, such as a paramedic, a

pathologist, a constable, and a mortician, to argue that doctors serving the

public are entitled to immunity. [5] The facts in these cases, however, are

distinguishable from the present situation.

Each case involved decision-making that implicated some aspect of public

safety at large, such as traffic safety or accident investigation or

management. The Doctors = actions

in this case, by contrast, do not directly relate to the safety of the public

at large. They instead relate to the

health of a single individual and her unborn child, a circumstance that the

court in Kassen determined does not necessarily implicate the public interest. See Kassen , 887 S.W.2d at 11 (stating A the

exercise of medical discretion does not require the same protection as the

exercise of governmental discretion @ ); see

also Gross v. Innes , 988 S.W.2d 727, 730 (Tex. 1998) (holding that

paramedic = s emergency transportation was

distinguishable from exercise of medical discretion and thus did not give rise

to conflict jurisdiction).

Under the Kassen standard

and for the reasons stated above, we conclude the summary-judgment evidence

does not conclusively prove that Villarreal is suing the Doctors based on their

exercise of governmental discretion.

Therefore, the Doctors did not conclusively establish each element of

the affirmative defense of official immunity. Accordingly, we overrule the

Doctors = first

issue.

B. Is there a separate inquiry into whether

governmental factors and concerns colored the Doctors = exercise of medical

discretion?

The Doctors argue that the

conclusion that they exercised medical discretion does not end the inquiry

under Kassen . The Doctors claim

they still may be entitled to immunity if they can show that their medical

discretion was A colored

by governmental factors and concerns. @ They base this assertion on the following

language from Kassen :

We anticipate difficult cases

in which government-employed medical personnel will have duties and

responsibilities that coincide with private-sector providers. In such cases, if governmental factors and

concerns colored the doctor = s or nurse = s discretion, policy

considerations may still call for official immunity. Such decisions necessarily involve a

balancing of individual rights and the public interest.

Kassen , 887 S.W.2d at 12 .

The Doctors assert that this

language from Kassen requires a separate inquiry into whether the

Doctors = exercise

of discretion, even if it was medical discretion, was colored by governmental

factors and concerns. We disagree with

this reading of Kassen . Just

before the above-quoted language, the Kassen opinion states, A [w]e hold

that government‑employed medical personnel are not immune from tort

liability if the character of the discretion they exercise is medical and not

governmental. @

Id . at 11. An independent

inquiry into whether governmental factors and concerns colored the Doctors = medical

discretion would contradict this holding.

Furthermore, the Kassen court cites cases from other states that

determine whether immunity applies based on whether the discretion in question

is medical or governmental. Just after

the cited language upon which the Doctors rely to support an independent

inquiry, the Kassen court, in a footnote, lists the factors that courts

should consider in determining whether the discretion at issue is governmental

discretion. See id. at 12 &

n.8.

In this context, we conclude that

the language upon which the Doctors rely does not prescribe a second inquiry

into whether governmental factors and concerns colored their medical

discretion. Rather, this language

describes the determination of whether the discretion at issue was medical or

governmental and states that, if governmental factors and concerns colored this

discretion, policy considerations may call for a determination that the

discretion was governmental, even though the personnel in question have duties

and responsibilities that coincide with private-sector providers. See id . The summary-judgment evidence does not show

that Villarreal is suing the Doctors based on their exercise of any

administrative or policy-making discretion at Ben Taub. Nor does the summary-judgment evidence show,

let alone conclusively prove, that the Doctors = alleged

acts and omissions were an exercise of discretion colored by governmental

factors and concerns. Based on the Kassen

legal standard, we have determined that the discretion at issue is medical and

not governmental. The Kassen

precedent does not require a second inquiry, as urged by the Doctors. [6]

Our construction of the Kassen

legal standard is supported by the fact that the Kassen court did not conduct a separate inquiry into

whether governmental factors and concerns colored the medical discretion of the

doctor in question. See id . Further, most courts that have applied the Kassen

legal standard have not conducted such a separate inquiry. See, e.g., City of El Paso v. Higginbotham ,

993 S.W.2d 819, 824 (Tex. App. C El Paso

1999, no pet.) (asking only whether paramedic = s

challenged action was governmental or related A to the

proper course of medical treatment @ ); Borrego ,

964 S.W.2d at 959 (determining only that A EMS

utilized its medical discretion @ ); Drogin ,

928 S.W.2d at 207 (determining only that appellants A exercised

their medical discretion @ in

providing treatment); Carrola v. Guillen , 935 S.W.2d 949, 953 (Tex. App. C San

Antonio 1996, no writ) (stating A the

summary judgment evidence does not show that governmental discretion played a

role in the decisions that form the basis of this lawsuit @ ); but

see Gross , 930 S.W.2d at 241 B 42

(treating Kassen as articulating two alternatives for showing

entitlement to official immunity).

We conclude that, under Kassen ,

there is no independent inquiry into whether governmental factors and concerns

colored the Doctors = medical

discretion. The issue of whether

governmental factors and concerns colored the Doctors =

discretion is part of the determination as to whether Villarreal is suing the

Doctors based on their exercise of governmental discretion.

C. Do

public policy concerns necessitate re-evaluation of the standard set forth by

the Texas Supreme Court in Kassen v. Hatley ?

In their

second issue, the Doctors urge this court to re-evaluate the rule in Kassen . The Doctors claim that applying Kassen

to government doctors is not fair and fails to take account of various public

policy concerns that support shielding public doctors from liability. Particularly,

the Doctors point to the cost of liability insurance and note that the threat

of liability will discourage able physicians and residents from serving in

public hospitals. The Doctors further

claim that denying government physicians official immunity threatens the

viability of the public health care system in Texas.

The Texas Supreme Court already

has weighed these concerns and determined that, when balanced with individual

patients = rights,

an appropriate compromise is to grant immunity to government medical personnel

only when they exercise governmental, as opposed to medical, discretion. As an intermediate appellate court, we are

not at liberty to re-evaluate the propriety of this rule or to refuse to apply

it to the facts of this case. In re

K.M.S. , 91 S.W.3d 331 (Tex. 2002) (courts of appeals are not free to

disregard pronouncements from Texas Supreme Court); Lofton v. Texas Brine

Corp. , 777 S.W.2d 384, 386 (Tex. 1989).

If the Doctors want to change the legal standard in Kassen , they

should address these arguments to the Texas Supreme Court. Furthermore, if, as

the Doctors contend, the practice of medicine in the public sector is

approaching a crisis, then the Doctors also have the ability to seek redress

from the Texas Legislature, which already has provided the medical profession

some statutory relief. [7] We overrule the Doctors = second

issue.

IV. Conclusion

For the

foregoing reasons, we conclude that the Doctors did not conclusively establish

that their allegedly negligent conduct occurred during the exercise of

governmental, as opposed to medical, discretion. Therefore, the Doctors did not conclusively

prove each element of the affirmative defense of official immunity. Accordingly, we overrule the Doctors = issues

and affirm the trial court = s order

denying summary judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed August 25, 2005.

Panel consists of Justices Anderson, Frost, and Seymore.

[1] We have

jurisdiction over this interlocutory appeal under section 51.014(a)(5) of the

Texas Civil Practice and Remedies Code. See

Tex. Civ. Prac. & Rem. Code ' 51.014(a)(5) (Vernon Supp. 2005).

[2] We note that

the only issue before this court is the Doctors =

entitlement to summary judgment based on their defense of common-law official

immunity. There are no issues of

sovereign immunity or statutory immunity before us.

[3] The Texas

Health and Safety Code provides that residents of supported medical schools are

employees of the State A for the purposes of determining the liability, if any,

of the person for the person = s acts or omissions while engaged in the coordinated

or cooperative activities of the unit, school, or entity. @ Tex. Health

& Safety Code Ann. ' 312.007(a) (Vernon 2001). It is not disputed that the Doctors were

residents at Baylor College of Medicine when they provided Villarreal treatment

or that Baylor College of Medicine was a supported medical school as defined by

the Texas Health and Safety Code. See

Tex. Health & Safety Code Ann.

' 312.002(6).

[4] Appellant

Plummer argues that an electronic fetal monitor was not available to her in the

High Risk Obstetric Clinic. However, in

her affidavit, appellant Plummer also notes that she could have transferred

Villarreal to the Labor and Delivery Unit for further monitoring had

complications from the amniocentesis been apparent on the ultrasound.

[5] See, e.g.

DeWitt v. Harris County , 904 S.W.2d 650 , 651 B 54 (Tex.

1995) (recognizing that off-duty constable had official immunity arising from

clearing and investigating a traffic accident); Rivas v. City of Houston ,

17 S.W.3d 23 , 26 B 29 (Tex. App. C Houston

[14th Dist.] 2000, pet. denied) (holding paramedic was entitled to immunity in

suit regarding emergency transport of patient in ambulance); Guerrero v.

Tarrant County Mortician Servs. Co. , 977 S.W.2d 829 , 832 B 34 (Tex. App. C Fort

Worth 1998, pet. denied) (holding mortician company who contracted with county

medical examiner to remove remains from scene of accident entitled to

immunity); Putthoff v. Ancrum , 934 S.W.2d 164 , 169 B 70 (Tex. App. C Fort

Worth 1996, writ denied) (holding pathologist investigating unexplained cause

of death entitled to immunity).

[6] Even if Kassen

did require such a second inquiry, the summary-judgment evidence does not show,

much less conclusively prove, that Villarreal is suing the Doctors based on

their exercise of medical discretion that was colored by governmental factors

and concerns.

[7] In 2003, Texas

Legislature provided some protection to physicians by, among other things,

limiting liability in health care liability claims. See Tex.

Civ. Prac. & Rem. Ann. ' ' 74.301 B .303 (Vernon 2004).