Bansal v. Univ. of Tex. M.D. Anderson Cancer Ctr.

502 S.W.3d 347

Meena Bansal Individually and as Representative of the Estate of Munish Bansal, Deceased, and Virinder Bansal, Appellants

v.University of Texas M.D. Anderson Cancer Center, Appellee

NO. 14-15-00986-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 25, 2016

Dilip M. Amin, Houston, TX, for Appellants.

Laura B. Fountain, Austin, TX, for Appellee.

Panel consists of Justices Boyce, Christopher, and Jamison.

OPINION

Tracy Christopher, Justice

In this wrongful-death and survival action, the plaintiffs appeal the grant of the defendant state hospital's plea to the jurisdiction asserting sovereign immunity. We conclude that the hospital's Eleventh Amendment sovereign immunity from suit on the plaintiff's federal claim has been neither waived nor abrogated, and that the plaintiffs' state-law claims cannot be brought within the Texas Tort Claims Act's waiver of sovereign immunity. We therefore affirm the trial court's judgment granting the jurisdictional plea and dismissing the plaintiffs' claims with prejudice.

I. BACKGROUND

After surgery and eight rounds of chemotherapy for stage IV colon cancer, Munish Bansal was admitted to the University of Texas M.D. Anderson Cancer Center with complaints of fever, fluid buildup, and difficulty urinating. Munish remained in the hospital until he died on September 19, 2012, a week after his admission.

His father Virinder Bansal and his wife Meena Bansal, individually and as the representative of Munish's estate, sued M.D. Anderson. They alleged that after Munish's oncologist determined that chemotherapy had not worked and recommended Munish's discharge to hospice care, M.D. Anderson did not stabilize Munish or relieve his pain. According to the Bansals, Munish died less than twenty-four hours after M.D. Anderson allegedly reduced the care it provided to him.

The Bansals asserted state-law claims of breach of contract, negligence, and negligence per se, and a federal claim for violation of the Emergency Medical Treatment and Active Labor Act ("EMTALA"). See 42 U.S.C. § 1395dd (2014). EMTALA provides that if a person comes to a hospital and the hospital determines that the person has an emergency medical condition, then the hospital must either (a) provide such further medical examination and treatment "as may be required to stabilize the medical condition," given the hospital's available staff and facilities; or (b) transfer the person to another medical facility if certain conditions are met. Id. § 1395dd(b). If the hospital is a "participating hospital," that is, if it has entered into a provider agreement required to accept Medicare payments, then a person harmed by the hospital's violation of EMTALA may sue the hospital and obtain the personal-injury damages available under state law. Id. § 1395dd(d)(2)(A) (providing for suit); id. § 1395dd(e)(2) (defining "participating hospital" as one that has entered into a provider agreement under 42 U.S.C. § 1395cc ); id. § 1395cc (listing the contents of the agreement required for a provider of services to receive Medicare payments).

M.D. Anderson filed a plea to the jurisdiction in which it argued that it was entitled to sovereign immunity from suit. About a year later, the Bansals amended their petition, and the parties filed a Rule 11 agreement in which they agreed that the Bansals would neither seek additional discovery nor amend their pleadings for the purpose of establishing the trial court's subject-matter jurisdiction over their claims. M.D. Anderson then filed a brief in support of its jurisdictional plea in which it argued that the Bansals' claims did not fall within the waiver of sovereign immunity found in the Texas Tort Claims Act ("the TTCA"). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001 –.109 (West 2011 & Supp. 2016). In response, the Bansals maintained that EMTALA preempts sovereign immunity.

The trial court granted the plea to the jurisdiction and dismissed the Bansals' claims with prejudice. In a single issue, the Bansals challenge that ruling.

The Bansals concede that, as pleaded, their state-law claims are barred by sovereign immunity. Thus, the focus of this appeal is whether the trial court erred in determining that M.D. Anderson is entitled to sovereign immunity from the Bansals' EMTALA claim.

II. STANDARD OF REVIEW

Unless waived or abrogated, sovereign immunity shields the state from a lawsuit for damages by depriving the trial court of subject-matter jurisdiction. See Hous. Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 158 n. 1 (Tex.2016) ("[I]t is the Legislature's sole province to waive or abrogate sovereign immunity." (quoting Tex. Nat. Res. Conservation Comm'n v. IT–Davy , 74 S.W.3d 849, 853 (Tex.2002) )); Univ. of Houston v. Barth , 403 S.W.3d 851, 853 (Tex.2013) (per curiam) (dismissing case for lack of subject-matter jurisdiction where sovereign immunity was not waived); Hearts Bluff Game Ranch, Inc. v. State , 381 S.W.3d 468, 476 (Tex.2012) (sovereign immunity applies to lawsuits for damages). The plaintiff bears the burden to establish the trial court's jurisdiction. See Heckman v. Williamson County , 369 S.W.3d 137, 150 (Tex.2012).

Whether the trial court has subject-matter jurisdiction is a question of law that can be challenged by a plea to the jurisdiction. See Suarez v. City of Texas City , 465 S.W.3d 623, 632 (Tex.2015). We review the trial court's ruling on a plea to the jurisdiction by determining whether the plaintiff's pleadings, construed in the plaintiff's favor, allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction over the claim. See Hearts Bluff , 381 S.W.3d at 476. If the plaintiff's pleadings affirmatively negate jurisdiction, then the court must grant the plea to the jurisdiction. See Heckman , 369 S.W.3d at 150.

III. THRESHOLD ISSUES

In the trial court, M.D. Anderson argued that the Bansals' EMTALA claim does not fall within the waiver of immunity under the TTCA. On appeal, however, M.D. Anderson argues for the first time that the claim is barred by M.D. Anderson's sovereign immunity under the Eleventh Amendment. See U.S. CONST. amend. XI. The Bansals reply that this court cannot consider M.D. Anderson's Eleventh Amendment argument because (a) M.D. Anderson is prohibited from raising an argument on appeal that was not raised in the trial court, and (b) raising a new sovereign-immunity argument on appeal violates the parties' Rule 11 agreement. See TEX. R. CIV. P. 11. We disagree with both contentions.

A. New Arguments in Support of Sovereign Immunity Can Be Raised on Appeal.

The Bansals contend that because M.D. Anderson did not argue in the trial court that it was entitled to sovereign immunity under the Eleventh Amendment, we cannot address that argument on appeal. In support of this contention, the Bansals rely on Anderson v. American Federation of Government Employees, AFL – CIO , 338 S.W.3d 709, 713 (Tex.App.—Houston [1st Dist.] 2011, pet. denied). In holding that an appellate court "do[es] not have jurisdiction to consider grounds outside those raised in the plea to the jurisdiction," the First Court of Appeals relied on two cases: Dallas v. First Trade Union Savings Bank , 133 S.W.3d 680, 687 (Tex.App.—Dallas 2003, pet. denied), disapproved of by Rusk State Hosp. v. Black , 392 S.W.3d 88 (Tex.2012), and Brenham Housing. Authority v. Davies , 158 S.W.3d 53, 61 (Tex.App.—Houston [14th Dist.] 2005, no pet.), disapproved of by Rusk State Hosp. v. Black , 392 S.W.3d 88 (Tex.2012) )).

The statements in Anderson , First Trade Union Savings Bank , and Brenham Housing Authority have not been an accurate statement of the law since at least 2012, when the Texas Supreme Court decided Rusk State Hosp. v. Black .¹ In that interlocutory appeal from the denial of a motion to dismiss a health-care-liability claim, the court held that sovereign immunity could be raised for the first time on appeal, even though no plea to the jurisdiction had been filed in the trial court. See Rusk , 392 S.W.3d at 95. In the course of that decision, the Rusk court expressly disapproved of the Fifth Court of Appeals' contrary holding in First Trade Union Savings Bank and our similar holding in Brenham Housing Authority . See id. at 95 n. 8. These two now-disapproved opinions were the only authorities cited by the Anderson court as support for the holding that an appellate court lacks jurisdiction to consider grounds for challenging the trial court's subject-matter jurisdiction that were not raised in the plea to the jurisdiction. See Anderson , 338 S.W.3d at 713.

It is now well-established that "an appellate court must consider all of a defendant's immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all." San Antonio Water Sys. v. Nicholas , 461 S.W.3d 131, 136 (Tex.2015) (quoting Dall. Metrocare Servs. v. Juarez , 420 S.W.3d 39, 41 (Tex.2013) (per curiam)); see also Greene v. Farmers Ins. Exch. , 446 S.W.3d 761, 764 n. 4 (Tex.2014) ("We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court."). Thus, we are not merely authorized to consider new immunity-from-suit arguments; we are required to do so.

B. In Its Rule 11 Agreement with the Bansals, M.D. Anderson Did Not Waive the Right to Raise New Sovereign-Immunity Arguments on Appeal.

The Bansals additionally assert that in a Rule 11 agreement between the parties, M.D. Anderson waived the right to raise new sovereign-immunity arguments. See TEX. R. CIV. P. 11. The Rule 11 Agreement says,

This is to confirm the parties' agreement in the above referenced case whereby Plaintiffs agree they will not seek any additional discovery, either written or oral, for the purpose of establishing subject matter jurisdiction of the court. In addition, Plaintiffs agree that they waive the opportunity to further amend Plaintiffs' Petition for

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