Hernandez v. Kanlic, 08-18-00011-CV

583 S.W.3d 878

Julio A. HERNANDEZ and Rocio Martinez, Appellants,

v.Enes M. KANLIC, M.D., El Paso County Hospital District d/b/a University Medical Center, and Texas Tech Health Sciences Center, Appellees.

No. 08-18-00011-CV

Court of Appeals of Texas, El Paso.

August 14, 2019

ATTORNEY FOR APPELLEE: Nichelle A. Cobb, Assistant Attorney General, Tort Litigation Division, P. O. Box 12548, Capitol Station, Austin, TX 78711-2548, Steven L Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, PC, P.O. Box 1977, El Paso, TX 79999-1977.

ATTORNEY FOR APPELLANT: James D. Lucas, 2316 Montana Ave., El Paso, TX 79903.

Before McClure, C.J., Rodriguez, J., and Chew, C.J. (Senior Judge), Chew, C.J. (Senior Judge), sitting by assignment

OPINION

ANN CRAWFORD McCLURE, Chief Justice This appeal explores the complexities of whether to sue either a governmental employee or governmental entity under the Texas Tort Claims Act's election-of-remedies provision and pre-suit notice requirements. The situation is further complicated here with the overlap of the Texas Medical Liability Act with its expert report requirement. And these issues all swirl around the different governmental employees found in the surgical theater of a public hospital served by a medical school.

Tragically, Julio Hernandez was rendered a paraplegic following pelvic surgery at University Medical Center, which is a public hospital run by the El Paso County Hospital District (and hereinafter "UMC"). The surgeon, Enes M. Kanlic, MD, was employed at the time by Texas Tech University Health Sciences Center ("TTUHSC"). As we explain below, UMC, Dr. Kanlic, and TTUHSC were all dismissed on what could be termed procedural motions--that is, motions based on the failure to file an expert report, or failure to serve a notice of claim, or failure to sue the correct party. The net result is that Hernandez lost his opportunity to litigate the merits of his medical malpractice claim. While that result adds a second possible tragedy to this story, we are precluded from granting any of the relief sought, and we affirm the judgment below.

BACKGROUND

The Claim

Julio Hernandez was injured in a vehicular accident and admitted to UMC. While at UMC, Dr. Kanlic performed a surgery to repair Hernandez's pelvis on August 18, 2014. Following the surgery, Hernandez lost all feeling below the waist. The claim here, supported by the expert report of a physician, is that during the pelvic surgery Hernandez's lower spine was negligently mispositioned with the use some device, such as a sandbag, so as to hyperextend the spine. This restricted blood flow to his spinal cord which rendered him a paraplegic. For the purposes of this appeal, we assume all these facts to be true, noting that none of the allegations have been proven before a fact finder.

Pre-suit Notices

UMC is a governmental entity and as such enjoys governmental immunity.¹ Dr. Kanlic was an employee of TTUHSC at the time of the surgery. TTUHSC is as arm of the State of Texas and enjoys sovereign immunity.² The status of these parties presented Hernandez with distinct hurdles in vindicating his rights.

The Texas Tort Claims Act (TTCA) governs suits against state agencies and governmental units. TEX.CIV.PRAC.&REM.CODE ANN. § 101.025 (waiver of immunity to the extent of TTCA's provisions). Under the TTCA, a governmental entity is entitled to receive notice of a claim against it "not later than six months after the day that the incident giving rise to the claim" that describes the incident, its time and place, and the damages or injury. Id. at § 101.101(a). As an exception, formal notice is excused if the governmental unit has actual notice that the claimant has received some injury. Id. at § 101.101(c).

From our record, an attorney representing Hernandez and his wife, Rocio Martinez, sent a notice letter to UMC on February 13, 2015, which would be within the six-month window. Our record lacks any formal notice letter sent to TTUHSC or Dr. Kanlic, or proof of their actual knowledge of the injury.³

The Lawsuit

Hernandez and his wife (who we collectively refer to as "Hernandez") filed their suit on August 16, 2016. They named Dr. Kanlic and UMC as defendants, but the pleading itself made no substantive allegations against UMC. Instead, the pleading in its factual and liability sections, uses to the singular term "Defendant" which refers only to Dr. Kanlic. UMC answered and complained that the body of the petition made no substantive mention of UMC. Hernandez responded by filing an amended petition, that added this single sentence allegation against UMC:

Additionally, and in the alternative, EL PASO COUNTY HOSPITAL DISTRICT D/B/A UNIVERSITY MEDICAL CENTER is vicariously liable and directly liable for the negligence of its employees who dropped the plaintiff or otherwise mishandled the plaintiff resulting in injury to his spinal column resulting in paralysis. [bolding original]

UMC is Dismissed

Hernandez's claim also implicates the Texas Medical Liability Act (TMLA), as UMC and Dr. Kanlic are health care providers, the injury occurred during a medical procedure, and would undoubtedly constitute a health care liability claim. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). The TMLA requires that within 120 days of when each defendant health care provider files an answer that an "expert report" as to that provider must be served by the plaintiff. TEX.CIV.PRAC.&REM.CODE ANN. § 74.001(a)(11)(12)(13) (definitions of health care institution, health care provider, and health care liability claim). An "expert report" is statutorily defined as one that "provides a fair summary of the expert's opinions" regarding (1) the standard of care, (2) how the health care provider failed to meet that standard, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. at § 74.351(r)(6). The report must distinctly address each health care defendant's breach of the standard of care and how that breach caused injury. Clapp v. Perez , 394 S.W.3d 254, 259 (Tex.App.--El Paso 2012, no pet.).

Hernandez filed a report directed at the conduct of Dr. Kanlic. It generally alleged that the use of sandbags or other devices used to position Hernandez's body were misused so as to cause ischemia (loss of blood flow) in the nerves innervating the legs. The loss of blood flow caused permanent injury to those nerves, rendering Hernandez a paraplegic. The report directs its criticism exclusively at Dr. Kanlic, who is referred to a doctor employed by Texas Tech University. After the deadline for filing reports passed, UMC filed a motion to dismiss the claim against it based on the lack a report directed to the conduct of its employees. The record does not show that Hernandez and his wife filed any responsive pleading to the motion to dismiss. The court granted UMC's motion. Our record does not contain the transcript of a hearing on that motion, but at a later hearing Hernandez's counsel stated that he agreed to the dismissal order.

[HERNANDEZ'S COUNSEL]: You know, Judge, there is also another order of dismissal regarding El Paso County Hospital District. I also agreed to that, but I don't know if it's been entered by you yet. Are you aware of that?

THE COURT: I did sign the order dismissing --

[HERNANDEZ'S COUNSEL]: The county hospital.

Dr. Kanlic and TTUHSC Do a Texas Two-Step

After UMC's dismissal, Dr. Kanlic was the sole remaining defendant. He then urged his own motion to dismiss based on TEX.CIV.PRAC.&REM.CODE ANN. 101.106(f). That statute provides:

(f) 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.

Id. Dr. Kanlic's motion to dismiss alleged that his conduct fell within the general scope of his employment with TTUHSC. The motion was supported by an affidavit of TTUHSC's Executive Director of Human Resources who swore that Dr. Kanlic was a "faculty physician" in TTUHSC's Department of Orthopedic Surgery at the time of the surgery and "wholly compensated" by TTUHSC for the procedure.

At a hearing on that motion, Hernandez agreed that under the statute, TTUHSC was the proper defendant, and the trial court should enter an order dismissing Dr. Kanlic:

[HERNANDEZ'S COUNSEL]: Yes, Judge. And we don't really need a hearing on this. First want to apologize. I don't know why this wasn't on my calendar. I called Ms. Cobb last week. I wanted to discuss this case, because I read the case law on it. And I think the case law, Franka v. Velasquez , which is 332 S.W.3d 36[7], [sic] supports the motion. So I think the -- although morally I don't agree with it, but it's the law in Texas. I think the doctor has to be substituted by the employer, Texas Tech, under the law.⁴

The trial court signed an order dismissing Dr. Kanlic and within thirty days of that order, Hernandez filed a third amended petition that named TTUHSC as the sole remaining defendant.

TTUHSC then filed its own motion to dismiss and plea to the jurisdiction, which principally alleged that it had never received notice of the injury under Section 101.101. Hernandez did contest that motion. The response argued that Section 101.106(f) is in conflict with Section 101.106(b) that reads: "The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents." TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(...