Opinion

Court: Texas Court of Appeals, 14th District (Houston)
Filed: Feb 26, 2009
Status: Published
Cited by: 0 cases
Authority: More cited than 38.0%

choosing the statutory interpretation that appeared most logical given the statutory language and related case law

How later courts described this case

choosing the statutory interpretation that appeared most logical given the statutory language and related case law
rejecting blanket immunity for government medical personnel
A government -employed medical personnel exercise considerable judgment and deliberation in performing their medical duties @
describing section 101.106(f) as authorizing immunity from suit

Written by the judges who cited it.

The opinion

Appellant=s Motion for Rehearing En Banc Denied; Affirmed, Majority and

Concurring Opinions of December 23, 2008 Withdrawn, and Majority and Concurring

Opinions filed February 26, 2009

Appellant = s Motion for Rehearing En Banc Denied; Affirmed,

Majority and Concurring Opinions of December 23, 2008 Withdrawn, and Majority

and Concurring Opinions filed February 26, 2009.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00736-CV

____________

GEORGE SAADE, M.D., MICHAEL BELFORT ,

M.D., RAKESH MANGAL, M.D., AND CHARLES MONIAK, M.D. , Appellants

MERCEDES VILLARREAL, AS NEXT FRIEND

OF JUAN PABLO ELIZONDO, A MINOR , Appellee

____________

NO. 14-07-00926-CV

____________

GEORGE SAADE, M.D., MICHAEL BELFORT, M.D., RAKESH

MANGAL, M.D., Appellants

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. 2007-20855

M A J O R I T Y O P I N I O N

We withdraw our opinion of December 23, 2008, issue the

following opinion on rehearing, and overrule appellants = motion for

rehearing.

These consolidated interlocutory appeals stem from a

medical malpractice lawsuit filed by appellee ,

Mercedes Villarreal, as next friend of Juan Pablo Elizondo ,

a minor, against appellants, George Saade , Michael Belfort , Rakesh Mangal , and Charles Moniak .

In cause number 14-07-00736-CV, all of the appellants challenge the trial court = s order denying

their motion to dismiss based on Texas Civil Practice & Remedies Code ' 101.106(f),

requiring dismissal of a lawsuit against a governmental employee under certain

circumstances. In cause number 14-07-00926-CV, appellants Saade , Belfort , and Mangal

challenge the trial court = s order denying their motion for summary

judgment based on common law official immunity. We affirm both orders.

I. Background

In late 1994, near the end of her pregnancy, Mercedes

Villarreal was referred to the High Risk Obstetric Clinic at Ben Taub

General Hospital.

The Harris County Hospital District owns and operates Ben Taub ,

and the hospital is staffed largely by faculty and students from Baylor College

of Medicine. On April 12, 1995, Villarreal presented at the clinic

complaining of no fetal movement. Upon examination, the fetus was found

to be in a breech position. After external manipulation failed to remedy

the problem and Villarreal declined a trial of labor, delivery by caesarean

section became the most promising option. Based on this determination and

a diagnosis of gestational diabetes, which can compromise fetal lung maturity,

Villarreal was advised to undergo a third‑trimester amniocentesis to make

sure the baby = s lungs had matured sufficiently. After

attending physicians Dr. Michael Belfort and Dr.

George Saade approved the procedure, Dr. Amy Plummer,

a third-year resident, performed the amniocentesis on April 20, 1995.

Plummer then monitored the baby for five to ten minutes using ultrasound

equipment but did not use a fetal heart monitor. Because no complications

were detected, Villarreal was released and told to return in a week.

Three days later, Villarreal again presented at Ben Taub complaining of a lack of fetal movement. She was

placed on a fetal heart monitor, which revealed that the baby = s heart rate was

minimally reactive. First‑year resident Dr. Charles Moniak evaluated Villarreal and determined that a

biophysical profile ( A BPP @ ) was in

order. He began the BPP, discovered no evidence of fetal movement, and

called upon third-year resident Dr. Daniel Hersh to

complete the evaluation. The results apparently showed that the baby had

been motionless for the entire examination. According to Hersh , this necessitated an A urgent @ caesarean

section. He consulted with his supervising resident, Dr. Frank Mussemann , who concurred in the assessment.

During preparations for the operation, Villarreal

experienced a contraction, and the fetal heart rate further decreased.

Based on this development, Mussemann decided that

a A stat @ or A emergency @ caesarean section

was required. Dr. Rakesh Mangal

was the attending physician in the obstetric unit at the time of delivery, although it is disputed to what degree he

supervised or participated in the delivery. The infant Juan Pablo Elizondo was delivered by caesarean section; tests

administered soon thereafter revealed that he had severe anemia due to a

massive fetal‑maternal hemorrhage, i.e., loss of the child = s blood into the

mother = s system.

Later, Elizondo was diagnosed with severe global

developmental delay and mental retardation.

As next friend of Elizondo , Villarreal

filed a series of lawsuits against their health care providers, alleging that

the care providers = conduct caused, exacerbated, or failed to

prevent Elizondo = s injuries.

In one lawsuit, Villarreal alleged medical malpractice against Drs. Plummer, Hersch , and Mussemann . See Mussemann v. Villarreal , 178

S.W.3d 319 (Tex. App. C Houston [14th Dist.]

2005, pet. denied). [1]

In the present lawsuit, she alleges medical malpractice against Drs. Saade , Belfort , Mangal ,

and Moniak .

In the court below, appellants filed a motion to dismiss

the present lawsuit based on Texas Civil Practice & Remedies Code ' 101.106(f),

contending that because appellants were acting within the scope of their duties

as state employees, the only proper defendant was their employer, Baylor

College of Medicine. Certain appellants also filed a motion for summary

judgment, asserting common law official immunity. The trial court denied

both motions, and the current appeals ensued.

II. Dismissal Under Section 101.106(f)

A. Appellants = Contentions

Appellants challenge the trial court = s denial of their

motion to dismiss based on Texas Civil Practice & Remedies Code ' 101.106(f).

That section provides:

If a suit is filed against an employee

of a governmental unit based on conduct within the general scope of that

employee = s employment and

if it could have been brought under this chapter against the governmental unit,

the suit is considered to be against the employee in the employee = s official

capacity only. On the employee = s motion, the suit

against the employee shall be dismissed unless the plaintiff files amended

pleadings dismissing the employee and naming the governmental unit as defendant

on or before the 30th day after the date the motion is filed.

Tex.

Civ . Prac . & Rem . Code ' 101.106(f). As appellants correctly

recognize, in order to be entitled to dismissal under this provision, they had

to demonstrate that (1) they were employees of a governmental unit at the time

of the conduct forming the basis of Villarreal = s lawsuit; (2)

said conduct was within the general scope of that employment; and (3) the

lawsuit could have been brought against Baylor under the Texas Tort Claims Act

( A TTCA @ ). See

id. ; Phillips v. Dafonte , 187 S.W.3d 669,

675 (Tex. App. C Houston [14th Dist.] 2006, no pet.).

It is uncontested that appellants were all Baylor employees

during the relevant time period and that the conduct at issue fell within the

scope of that employment. The key issues in dispute are (1) whether

Baylor should be considered a governmental unit, and (2) if so, whether

Villarreal could have brought suit against Baylor under the TTCA. In its

order, the trial court specifically found against appellants on both issues.

We begin by addressing the question of whether Baylor

should be considered a governmental unit in this context. Appellants

contend that under the TTCA, all entities classified as A state agencies @ also constitute A governmental units, @ citing Civil

Practice and Remedies Code ' 101.001(3)(A) B (D). [2]

They further contend that Baylor is a A supported medical school @ under Texas

Health and Safety Code ' 312.002(6), and that when operating as a

supported medical school, Baylor is a state agency and, thus, a governmental

unit. Tex.

Health & Safety Code ' 312.002(6). [3]

Appellants presented evidence in support of their motion to dismiss showing

that Baylor meets the criteria for being a supported medical school; neither

Villarreal nor the trial court has suggested otherwise. Accordingly, we

shall narrow our analysis to the question of whether a private institution such

as Baylor C acting in its capacity

as a supported medical school C should be considered a

state agency and thus a governmental institution for purposes of applying

section 101.106(f).

Appellants contend that section 312.007(a) of the Health

and Safety Code A expressly and unequivocally @ provides that a

supported medical school is a state agency. Section 312.007 states in its

entirety:

(a) A medical and dental unit, supported medical or

dental school, or coordinating entity is a state agency, and a director,

trustee, officer, intern, resident, fellow, faculty member, or other associated

health care professional or employee of a medical and dental unit, supported

medical or dental school, or coordinating entity is an employee of a state

agency for purposes of Chapter 104, Civil Practice and Remedies Code, and for

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.

(b) A judgment in

an action or settlement of a claim against a medical and dental unit, supported

medical or dental school, or coordinating entity under Chapter 101, Civil

Practice and Remedies Code, bars any action involving the same subject matter

by the claimant against a director, trustee, officer, intern, resident, fellow,

faculty member, or other associated health care professional or employee of the

unit, school, or entity whose act or omission gave rise to the claim as if the

person were an employee of a governmental unit against which the claim was

asserted as provided under Section 101.106, Civil Practice and Remedies Code.

Tex.

Health & Safety Code ' 312.007.

Subsection (a), upon which our analysis must focus, can be

broken down into four constituent clauses as follows:

(1) A A . . . supported medical . . .

school . . . is a state agency , @

(2) A a [n] employee of a . . . supported medical . . . school . . . is an

employee of a state agency , @ [4]

(3) A for purposes of Chapter 104, Civil Practice and Remedies Code , @ and

(4) A for 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 . .

. school . . . . @

Villarreal

and the trial court interpret section 312.007(a) such that clauses 3 and 4

modify both clause 1 and clause 2. In other words, they conclude that a

supported medical school is a state agency only for purposes of Chapter 104 [5]

and for purposes of determining the liability of an employee. [6]

In contrast, appellants would have us read clause 1 as an independent clause

unaffected by the remainder of the sentence, with clauses 3 and 4 modifying

only clause 2 and not clause 1. Appellants base their argument primarily

on the placement of the comma after the term A state agency @ in clause 1.

B. Standards of Review

We review a trial court = s interpretation

of an applicable statute under a de novo standard. See Johnson v. City

of Fort Worth , 774 S.W.2d

653 , 655‑56 (Tex.

1989) . In construing a statute, our objective is to determine and

give effect to the legislature = s intent. See Nat = l Liab . & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If

possible, we must ascertain that intent from the statutory language itself and

not look to extraneous matters for guidance. Id . If the meaning of the

statutory language is unambiguous, we will adopt the interpretation supported

by the plain meaning of the provision = s words. St.

Luke = s Episcopal Hosp. v. Agbor , 952 S.W.2d 503,

505 (Tex.

1997). We must not engage in forced or strained construction; instead, we

yield to the plain sense of the words the legislature chose. See id .

C. Analysis [7]

According to appellants, pursuant to the rules of grammar,

the placement of the comma after A state agency @ in section

312.007(a) cuts off everything before the comma from the rest of the sentence,

creating two exclusive, independent clauses: one containing just clause 1

identified above, and the other containing clauses 2, 3, and 4. [8]

Appellants, however, do not recite any of the supposed rules of grammar on

which they rely. A An independent

clause expresses a complete thought and can stand alone as a sentence . @ The Gregg Reference Manual 553.

(9th ed. 2001). However, the mere fact that a

clause is an independent clause does not mean that it cannot be modified by

other elements within the sentence. See, e.g., id . at 25

(identifying at least one situation in which a single phrase can modify two

separate independent clauses in the same sentence). Additionally, it

appears that the comma in question was used for purposes of clarity. See

id . at 38 (stating that a comma can be used for

clarity and to prevent misreading). Subsection (a) is comprised of a

single compound sentence. Although the comma after A state agency @ provides a break

after the first independent clause and the start of the second independent

clause, it also keeps the first clause from running into the list which begins

clause 2 ( A a director, trustee, officer . . . @ ). Without

the comma, a reader might initially be confused as to where the first clause

ends and the list at the start of the second clause begins. The comma in

question does not by itself establish that clauses 3 and 4 (technically A adverbial phrases , @ see id . at 557) do not modify both

independent clauses (i.e., clauses 1 and 2). Accordingly, we find

appellants = grammatical argument unpersuasive. [9]

Looking at subsection (a) in its entirety and in the

context in which it occurs, it seems unlikely and illogical for the legislature

to have intended by the insertion of clause 1 in subsection (a) to make

supported medical schools into state agencies for all purposes. See

generally In re J.A.J. , 225 S.W.3d 621 , 626 n.7 (Tex. App. C Houston

[14th Dist.] 2006) (choosing the statutory interpretation that appeared most

logical given the statutory language and related case law), rev = d in part on other

grounds , 243 S.W.3d 611 (Tex.

2007). Section 312.007 is labeled A Individual Liability, @ and while the

heading of a statutory provision is not determinative of its content, the

entirety of section 312.007 is devoted to providing limitations on the

potential liability of persons working for certain medical entities. See

generally In re Shaw , 204 S.W.3d 9, 17 (Tex. App. C Texarkana

2006, pet. refused) (noting that a statute = s title must give

fair notice of the statute = s contents but ultimately the language of

the statute controls its meaning). Dropping in a provision that supported

medical schools (and certain other medical entities) are state agencies for all

purposes C a mandate that could

have far reaching effects C in the middle of this

section otherwise dealing only with individual liability makes no sense.

Further still, had the legislature intended to say in section 312.007 that such

entities were state agencies for all purposes, it would have been more logical

to put such an important pronouncement in its own separately lettered

subsection, or at a minimum, to put it in a separate sentence within subsection

(a), most helpfully with an indication that the pronouncement was for all

purposes and not just for the purposes enunciated in section 312.007.

Coherence requires that clauses 3 and 4 modify not only clause 2 but clause 1

as well.

Appellants further argue that reading clauses 3 and 4 as

modifying clause 1 would render subsection (a) senseless. To make this

point, they offer a merged version of clause 1 with clauses 3 and 4, as

follows: A [ A] supported

medical . . . school . . . is a state agency for purposes of Chapter 104 . . .

and for 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 . . . school

. . . . @ This

interpretation is fallacious. Eliminating clause 2 from subsection (a)

would render the subsection unclear, in large part because clause 4 refers back

to 2 (for a definition of A person @ ) and thus without

clause 2, clause 4 makes no sense regardless of whether it modifies clause 1 or

not. We cannot ignore that the subsection does in fact contain clause

2. Reading all four clauses together makes it clear that a supported

medical school is a state agency and an employee of a supported medical school

is an employee of a state agency for purposes of Chapter 104 and for purposes

of determining the employee = s liability under certain

circumstances. The subsection neither says nor stands for more than that.

In their reply brief, appellants additionally argue that

the legislative history of Chapter 312 evinces an intent

to equalize the level of potential liability between private medical

institutions and governmental institutions when those institutions engage in

cooperative or coordinated health care services, citing House Committee on

Higher Education, Bill Analyses, Tex. S.B. 1062, 71st Leg., R.S. (1987). [10]

The cited history does support the contention that the legislature desired to

equalize potential liability between cooperating institutions; however, viewed

more specifically, the cited history supports rather than refutes the

interpretation of section 312.007(a) as providing that a supported medical

school is a state agency only for purposes of Chapter 104 and for purposes of

determining the liability of an employee. In other words, the cited

history supports the conclusion that clauses 3 and 4 of subsection (a) modify

both clause 1 and clause 2.

To begin with, the two bill analyses do not state at any

point that supported medical schools should be considered state agencies for

all purposes rather than just for the purposes stated in section

312.007(a). More importantly, in offering a synopsis of the specific

language at issue here, one of the bill analyses states that the employees of

the private institutions A shall be deemed

employees of a state agency and the unit, school, or entity shall be deemed a state

agency for purposes of the Civil Practice and Remedies Code, and for purposes

of determining liability while engaged in coordinated or cooperative

activities. @ The other bill analysis states similarly that A the unit, school, or

entity shall be deemed a state agency for purposes of Chapter 104, Civil

Practice and Remedies Code, and for purposes of determining liability while

engaged in coordinated or cooperative activities. @ Both bill

analyses reverse the order of clauses 1 and 2 from how they are presented in

the final statute, thus confirming that both clause 1 and clause 2 are intended

to be modified by clauses 3 and 4 regardless of their order in the

sentence. In short, the legislative history cited by appellants actually

supports the interpretation proffered by Villarreal and adopted by the trial

court and not that proposed by appellants. Based on the foregoing, we

find that appellants = argument that section 312.007(a) makes

Baylor a state agency for all purposes C and

thus a governmental unit under Civil Practice & Remedies Code ' 101.106(f) C is without merit.

Lastly, in one paragraph of their reply brief, appellants suggest that even if

section 312.007(a) is interpreted to mean that supported medical schools are

state agencies only for the limited purposes of chapter 104 and of determining

liability, Baylor should be deemed a state agency in this case because this

lawsuit seeks to determine appellants = liability. [11]

However, by moving for dismissal under section 101.106(f), appellants asserted immunity

from suit not immunity from liability . See Phillips ,

187 S.W.3d at 672-73 (describing section 101.106(f) as authorizing immunity

from suit); see generally Baylor Coll. of Med. v. Hernandez , 208 S.W.3d

4, 9-10 (Tex. App. C Houston [14th Dist.]

2006, pet. denied) (distinguishing between statutes granting immunity from suit

and statutes granting immunity from liability).

In their reply brief, appellants offer no argument as to

how the reference to determining liability in section 312.007(a) could

encompass immunity from suit under section 101.106(f). Indeed, immunity

from suit precludes a determination of liability; thus, the statement in

section 312.007(a) that supported medical schools are state agencies for purposes

of determining liability would not appear to apply to section 101.106(f), which

provides a method for avoiding altogether a determination of liability.

In their

motion for rehearing, appellants argue that the phrase A determining liability @ in section 312.007(a) encompasses

both determinations of immunity from liability as well as determinations of

immunity from suit. They assert that the term A liability @ in this context is broader than the

phrase A immunity from liability . @ They further support this

argument by renewed reference to legislative history (discussed above), wherein

the legislature to some degree expressed an intent to level the field of

liability faced by private and public medical entities when cooperating to

provide patient care at public facilities. One problem with appellants = new interpretation, reading A determining liability @ so as to encompass immunity from

suit, is that it would render paragraph (b) of section 312.007

meaningless. Paragraph (b) bars any action against an employee of a

supported medical school when there has already been a judgment or settlement

entered in a claim against the medical school based on the same subject matter,

A as if the person were an employee of a governmental unit . . . as provided

under Section 101.106 . @

See

generally Tex. Dept. of Agric. v. Calderon , 221 S.W.3d 918, 922 (Tex. App. C Corpus Christi 2007, no pet.) ( holding that A bars any suit @ language in a

statute provides an unequivocal grant of immunity from suit). If the legislature intended in

paragraph (a) to make employees of supported medical schools immune from suit

just like state employees, as appellants now argue, there would have been no

reason for the legislature to then grant one specific type of governmental

employee immunity from suit in paragraph (b). When possible, we must not

interpret one portion of a statute so as to render another portion of the

statute meaningless. See Tex. Gov = t Code ' 311.021; Tex. Mun . Power Agency v. Public Util. Comm = n of Tex. , 253 S.W.3d 184, 199 (Tex. 2008); see also Bexar Metro. Water Dist. v. City of San Antonio , 228 S.W.3d 887, 898 (Tex. App. C Austin

2007, no pet.) ( citing section

311.021 in interpreting a statute so as not to be redundant).

Consequently, we reject appellants = motion for rehearing

argument.

The trial court did not err in denying appellants = motion to dismiss

based on section 101.106(f). Because of our resolution of this issue, we

need not address the subsidiary issue of whether Villarreal could have sued

Baylor. Accordingly, we overrule appellants = two issues in

cause number 14-07-00736-CV. We also overrule appellant = s motion for

rehearing.

III. Common Law Official Immunity

In cause number 14-07-00926-CV, appellants Saade , Belfort , and Mangal [12]

challenge the trial court = s denial of their motion for summary

judgment based on common law official immunity. [13]

In their first issue, appellants contend that our prior opinion in a related case

is not dispositive of the present appeal under the A law of the case @ doctrine.

In their second issue, appellants contend that the trial court erred in

determining that they failed to establish their right to common law official

immunity. In their third issue, appellants urge us to reconsider the Kassen rule insofar as the Texas Supreme Court has

unfairly placed an additional and unwarranted burden on medical care providers

in government service. Kassen v. Hatley , 887 S.W.2d 4, 8 (Tex. 1994).

A. Standards of Review

Official immunity constitutes an affirmative defense; thus,

to be entitled to summary judgment, appellants had to conclusively establish

each element. Kassen , 887

S.W.2d at 8 . To meet this burden, appellants 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 . We review a trial court = s denial of

summary judgment de novo. Joe v. Two Thirty Nine Joint Venture , 145

S.W.3d 150, 156 (Tex.

2004). 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. Kassen , 887 S.W.2d at 8 n.2 .

To establish a defense of official immunity, public employees

must prove the following elements: (1) the performance of a discretionary

function, (2) in good faith, and (3) within the scope of the employee = s authority.

Kassen , 887 S.W.2d at 9 .

Government‑employed medical personnel must further establish that they

are being sued for the exercise of A governmental @ rather than

strictly A medical @ discretion.

Id . at 10-11; Mussemann v.

Villarreal , 178 S.W.3d 319, 323 (Tex. App. C Houston

[14th Dist.] 2005, pet. denied). A Governmental discretion @ in this context

generally refers to actions taken in an administrative or policy‑making

capacity and excludes strictly medical decision-making. Kassen ,

887 S.W.2d at 11 & n.7; Mussemann , 178

S.W.3d at 323-24 . Both Kassen and

Mussemann suggest that the actual

treatment of individual patients will generally require the exercise of only

medical as opposed to governmental discretion and, thus, will not occasion

immunity. Kassen , 887 S.W.2d at 10 -11 & n.7; Mussemann ,

178 S.W.3d at 324 .

In discussing the distinction between governmental

discretion and medical discretion, the Kassen

court indicated that government‑employed medical personnel exercise

governmental discretion when they: (1) exercise policy‑making or

administrative responsibilities not shared by private‑sector providers,

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

recipients. 887 S.W.2d at 10 . The court

further 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. Thus, the issue does not turn specifically on

whether the discretion at issue was A uniquely governmental @ ; instead, we must

examine the facts of the particular case in relation to the underlying policies

promoted by official immunity. Id . [14]

While the Kassen court declined to draw a

bright line for determining when discretionary acts are governmental rather

than medical in nature, it did recommend consideration of 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 . at 12 n.8 (citing Restatement (Second) of Torts '

895D cmt . f (1977)) . [15]

B. Mussemann v. Villarreal

The parties initially dispute to what extent our opinion in

Mussemann , which involved the same plaintiff

and the same alleged harm, controls our decision in the present appeal.

Specifically, in their first issue, appellants attempt to differentiate their situations

from those confronted by the doctors in Mussemann

by pointing out that they (appellants) were only supervisors and did not

actually perform any procedures on Villarreal. This distinction is not

strictly accurate. Mussemann involved

two doctors, Mussemann and Hersch ,

who were being sued, at least in part, because of their supervision of other

defendants. In regards to these allegations, we stated that A supervising the medical

decision-making of less-experienced doctors, along with determining when to

consult more-experienced physicians, are the exercise of medical discretion. @ Mussemann , 178 S.W.3d at 325 . Appellants

additionally have attempted to distance themselves from Mussemann

by providing more evidence regarding the nature of practice at Ben Taub Hospital.

We agree that because (1) the order before us is the denial of a summary

judgment, (2) the defendants are different than those in Mussemann ,

and (3) additional evidence has been presented, Mussemann

does not control the current appeal as A law of the case @ ; Mussemann does, however, guide our analysis. See

generally Loram Maint .

of Way, Inc. v. Ianni ,

210 S.W.3d 593, 596 (Tex. 2006) (discussing A law of the case @ doctrine);

Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716 (Tex. 2003) (same). [16]

C. Governmental Versus Strictly Medical Discretion

In their second issue, appellants assign error to the trial

court = s holding that

they failed to establish as a matter of law their entitlement to common law

official immunity. Appellants maintain that they established exercise of

governmental discretion by virtue of their supervision of government healthcare

providers in a government hospital. More specifically, appellants argue

that given the responsibilities and constraints associated with working at Ben Taub , their supervision was an exercise of governmental

discretion because it was significantly colored by governmental factors and

constituted an administrative duty involving the allocation of state

resources. They emphasize that physicians in the private sector are not

required to perform these functions under the exact conditions that exist at

Ben Taub , particularly the large patient population

and the ratio of supervising doctors to residents. They further make

arguments based on the seven factors identified in Kassen

and emphasize the dearth of evidence regarding the precise nature of Mangal = s supervision of delivery.

1. Practice and Conditions at Ben Taub

It is clear from the pleadings in this lawsuit and the

proceedings thus far that Villarreal is suing appellants for medical

decision-making and the supervision of medical decision-making in relation to

her pregnancy and the delivery of Juan Pablo Elizondo .

Appellants recognize that the mere fact of a government hospital environment

does not necessarily render their supervision governmental in nature when

similar supervision in the private sector would clearly not be

governmental. See Kassen ,

887 S.W.2d at 11 (rejecting blanket immunity for government medical personnel).

Instead, appellants argue that governmental factors colored their medical

decision-making and supervision such that policy concerns warrant application

of official immunity. [17]

Appellants presented evidence that Ben Taub

supervising physicians, such as themselves, must supervise more healthcare

providers treating more patients than do supervising physicians in private

sector obstetric units. [18]

They further presented evidence that the healthcare providers under their

supervision tended to have less experience and greater responsibilities than in

the typical private sector situation and that patients

at public facilities often have more risk factors than do patients in private

facilities. In Mussemann , we pointed out

that the difficulties

appellants highlight at Ben Taub (the alleged A governmental factors @ coloring their decision-making) are likely

present in most or all public hospitals; thus, to hold that the existence of

these factors conclusively establishes a right to official immunity would

render the Kassen analysis practically

meaningless. Mussemann , 178 S.W.3d at 326 . While public hospital

supervision may be more difficult, this characteristic alone does not render

conduct governmental when it otherwise would not be. It is the nature

of the decision being made, not its complexity, that renders it

governmental. Indeed, strictly medical decisions may often be more

difficult and complex than decisions involving governmental discretion. See

generally Kassen , 887 S.W.2d at 11 ( A government -employed medical

personnel exercise considerable judgment and deliberation in performing their

medical duties @ ). Ultimately, in the present case, discretion

was exercised in the treatment of an individual patient. The courts in Kassen and Mussemann

both emphasized that discretion exercised in the treatment of individual

patients is generally medical in nature, not governmental. See Kassen , 887 S.W.2d at 10 -11

& n.7; Mussemann , 178 S.W.3d at 324 .

Governmental discretion, on the other hand, typically

occurs when government physicians: (1) exercise policy‑making or

administrative responsibilities not shared by private‑sector providers,

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

recipients. Kassen , 887

S.W.2d at 10 . Appellants additionally argue that they had

administrative duties and were allocating scarce government resources, citing

as an example only the allocation of their own time. The problem with

this assertion is that it is too broad: every physician in a

government hospital (and even in private settings) is required to allocate his

or her time among patients. Thus, if a physician = s allocation of his or her own time were sufficient for

official immunity, then every government physician would be entitled to

immunity without the need for further analysis: Kassen

would again be rendered meaningless. [19]

Under both Kassen and Mussemann ,

we must draw a distinction between decisions made in the treatment of

individual patients (such as whether a supervisor should become more involved

in a particular patient = s care under the circumstances) and

decisions that make policy or determine how to allocate resources. Kassen ,

887 S.W.2d at 10 -11 & n.7; Mussemann , 178

S.W.3d at 323-24 . Appellants = decisions

regarding the level of their involvement with Villarreal were specific

treatment decisions for an individual patient, not a generalized policy-making

or allocation decision; thus, under Kassen and

Mussemann , these decisions were purely medical

in nature and not governmental. [20]

2. The Seven Kassen Factors

We now turn to the seven factors

identified in Kassen . Appellants tacitly

acknowledge that three of the factors do not support finding official immunity

in this case (as numbered in Kassen ):

(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, and

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

Turning to the first listed factor C the

nature and importance of the function that the employee is performing C appellants

emphasize the important role that supervising physicians play at Ben Taub . While we acknowledge its importance, the role

played by the physicians here appears to be a medical one: supervising the

care of individuals. Kassen , 887 S.W.2d at 10 -11 & n.7; Mussemann ,

178 S.W.3d at 323-24 . Even though supervision at Ben Taub may be a difficult and important task, appellants have

not shown that it typically involves governmental rather than medical discretion.

In discussing the second factor C the

extent to which passing judgment on the exercise of discretion will amount to

passing judgment on the conduct of a coordinate branch of government or an

agency thereof C appellants argue that

examining their conduct will require passing judgment on the very model of care

employed at Ben Taub . We do not agree.

Villarreal = s claims attack appellant = s individual

medical decision-making regarding a single patient, not the overall scheme of

care at Ben Taub .

Addressing the third factor C the

extent to which the imposition of liability would impair the employee = s free exercise of

discretion C appellants argue that

imposing liability would require Ben Taub supervising

physicians to personally observe or perform all procedures in the future.

We disagree. Villarreal = s complaints are principally that the

supervising physicians made negligent medical decisions and failed to properly

supervise, not that they should have performed every procedure themselves.

Lastly, concerning factor seven C the

availability to the injured party of other remedies and forms of relief C appellants point out that Villarreal could

recover for her injuries from Baylor as well as from the residents who

performed the procedures in question. While the argument may be correct,

this single factor does not outweigh the other six in the analysis.

Examined together, the seven factors identified in Kassen

support our conclusion that appellants have not established their entitlement

to official immunity.

3. Dr. Mangal

Subsidiary to their primary argument that they established

official immunity as a matter of law, appellants point out the alleged dearth

of proof that Mangal actively supervised any aspect

of Villarreal = s care. Appellants claim to have conclusively

proved that Mangal was not consulted regarding

Villarreal = s care and did not personally examine her. In

support, they offer only Mangal = s affidavit

attached to the motion for summary judgment. In this affidavit, Mangal states that he was the A on -call supervising

physician @ in Obstetrics and Gynecology at Ben Taub on the night Elizondo was

born. Mangal states that he was physically

present in the Labor and Delivery Unit that night and was available to the

residents for consultation. He indicates that he generally becomes

involved in a particular patient = s care only if

consulted. He does not A recall whether [he] was

consulted regarding Ms. Villarreal . . . whether [he] ever became aware of her

presence on the unit before her delivery [or] whether [he] was physically

present at Ms. Villarreal = s bedside or in the operating room during

her cesarean section. @ This affidavit establishes only

that (1) Mangal was present as a supervisor in the

unit when Villarreal gave birth, and (2) he does not remember whether or not he

was directly involved in Villarreal = s care.

Moreover, Villarreal introduced evidence that Mangal

signed Villarreal = s chart as having A supervised @ her delivery,

although Mangal stated that he often signed charts in

this manner simply to show that he was on call and available for

consultation. Appellants = argument regarding Mangal

appears aimed more at demonstrating that he did not exercise any discretion at

all, not that he exercised governmental discretion. In order to be

entitled to summary judgment on official immunity, appellants (including Mangal ) were required to show that they exercised

governmental discretion. See Kassen , 887 S.W.2d at 10 -11 ; Mussemann ,

178 S.W.3d at 323 . The evidence concerning whether Mangal

actually supervised Villarreal = s care goes to the issue of liability, not

the exercise of governmental discretion. Based on the foregoing analysis,

we find that appellants failed to conclusively demonstrate their entitlement to

summary judgment based on official immunity. Accordingly, we overrule

appellants = second issue.

D. Kassen Revisited

In their third issue, appellants argue that the Texas

Supreme Court acted unfairly in Kassen by

requiring government physicians to meet an additional burden, i.e., proving

that their conduct involved governmental rather than medical discretion, to be

entitled to common law official immunity. As we explained in Mussemann , the supreme court

has considered and rejected appellants = arguments, and as

an intermediate appellate court, we may neither re-evaluate the supreme court = s pronouncements

nor refuse to apply them where applicable. 178 S.W.3d at 329 (citing In

re K.M.S. , 91 S.W.3d 331 (Tex.

2002)). Accordingly, we overrule appellants = third issue in

cause number 14-07-00926-CV. Because we find no merit in any of

appellants = arguments concerning the propriety of the trial court = s denial of the

motion for summary judgment, we affirm the trial court = s order.

IV. Disposition

In cause number 14-07-00736-CV, we affirm the trial court = s denial of

appellants = motion to dismiss. In cause number

14-07-00926-CV, we affirm the trial court = s denial of the

motion for summary judgment.

/s/

Adele Hedges

Chief Justice

Panel consists of

Chief Justice Hedges and Justices Guzman and Brown. (Guzman, J. Concurring).

[1] As will be explained in greater detail below,

in Mussemann , we held that the trial court

properly denied the doctors = motion for

summary judgment because the doctors failed to conclusively establish that they

were entitled to common law official immunity. 178

S.W.3d at 320, 329-30 . The opinion and disposition in the prior

appeal informs but does not control certain of our holdings in the present

appeal.

[2] Section 101.001(3) defines A governmental

unit @ for purposes of the TTCA to mean:

(A) this state and all the several agencies of

government that collectively constitute the government of this state, including

other agencies bearing different designations, and all departments, bureaus,

boards, commissions, offices, agencies, councils, and courts;

(B) a political subdivision of this state, including

any city, county, school district, junior college district, levee improvement

district, drainage district, irrigation district, water improvement district,

water control and improvement district, water control and preservation

district, freshwater supply district, navigation district, conservation and

reclamation district, soil conservation district, communication district,

public health district, and river authority;

organization; and

(D) any other institution,

agency, or organ of government the status and authority of which are derived

from the Constitution of Texas or from laws passed by the legislature under the

constitution.

Tex. Civ . Prac . & Rem . Code ' 101.001(3).

[3] Section 312.002(6) defines A supported

medical school @ as A a medical school . . .

organized as a nonprofit corporation that is under contract with the Texas

Higher Education Coordinating Board to provide educational services under

Subchapter D, Chapter 61, Education Code . @ Tex. Health

& Safety Code ' 312.002(6).

[4] For simplicity purposes, we use the first A employee @ in

this excerpted phrase in place of the categorical list which includes: A director ,

trustee, officer, intern, resident, fellow, faculty member, or other associated

health care professional or employee. @

[5] Chapter 104 of the Civil Practice and Remedies

Code governs state indemnification of public servants for conduct in the scope

of their office, employment, or contractual obligation with the state. See

Tex. Civ . Prac . & Rem . Code ' 104.001-.009.

[6] In Klein v. Hernandez , the First Court

of Appeals also concluded that clauses 3 and 4 modify both clause 1 and clause

2; however, in coming to that conclusion, the court did not specifically

address the arguments appellants make in the present case. 260 S.W.3d 1, 7-8 (Tex. App. C Houston [1st Dist.]

2008, pet. filed). Accordingly, we will make no further reference

to Klein in our analysis of subsection (a).

[7] We previously denied without opinion Villarreal = s motion to dismiss this interlocutory appeal for want

of jurisdiction, a decision compelled by our prior precedent. See

Young v. Villegas , 231 S.W.3d 1, 7-8 (Tex. App. C Houston [14th Dist.]

2007, pet. denied) (holding that Civil Practice and Remedies Code section

51.014(a) authorizes an interlocutory appeal based on Health and Safety Code

section 312.007(a)); Phillips , 187 S.W.3d at 673-75 (holding that

section 51.014(a) authorizes an interlocutory appeal based on Civil Practice

and Remedies Code section 101.106(f) even when the underlying motion sought

dismissal instead of summary judgment). We note, however, that this area

of jurisdictional jurisprudence is highly unsettled. See,

e.g., Klein , 260 S.W.3d at 9-10 (declining to follow Young ); Hudak v. Campbell , 232 S.W.3d 930, 931 (Tex. App. C Dallas

2007, no pet.) ( declining to follow Phillips );