Klein, MD and BCM v. Hernandez (pdf), No. 08-0453 315 S.W.3d 1 (Tex. 2010). (Tex. May 7, 2010)
(Medina) (medical resident at private state-supported medical school working in public hospital entitled to bring
interlocutory appeal of denial of summary judgment motion based on immunity defense)
GEOFFREY KLEIN, M.D. AND BAYLOR COLLEGE OF MEDICINE v. CYNTHIA HERNANDEZ, AS THE PARENT
AND NEXT FRIEND OF N.H., A MINOR; from Harris County;
1st district (01‑06‑00569‑CV, 260 SW3d 1, 04‑17‑08) 2 petitions
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that
court.
Justice Medina delivered the opinion of the Court. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
See Electronic Briefs in GEFFREY KLEIN, M.D. and BAYLOR COLLEGE OF MEDICINE v. HERNANDEZ
══════════════════════════════════════════════════════════════════════
Klein v. Hernandez 315 S.W.3d 1 (Tex. 2010)(Justice Medina)
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Argued October 7, 2009
Justice Medina delivered the opinion of the Court.
Justice Willett filed a concurring opinion.
By statute, a state employee may appeal an interlocutory order denying a motion for summary judgment
based on an assertion of immunity. Tex. Civ. Prac. & Rem. Code § 51.014(5). The issue here is whether a
resident physician, working at a public hospital under an agreement with his private medical school, may take
an interlocutory appeal under this statute. The court of appeals decided he could not, dismissing the
interlocutory appeal because the resident physician was not a state employee. 260 S.W.3d 1, 10-11. We
conclude, however, that by statute a resident physician at a private medical school is to be treated like a state
employee for purposes of section 5l.014(5) when the underlying litigation arises from a residency program
coordinated through a supported medical school at a public hospital. Accordingly, we reverse the court of
appeals’s judgment, reinstate the physician’s interlocutory appeal, and remand the case to the court of
appeals for its review.
I
Cynthia Hernandez sued Dr. Geoffrey Klein and Baylor College of Medicine, alleging malpractice during the
delivery of her daughter at Ben Taub General Hospital. Ben Taub is a part of the Harris County Hospital
District, a political subdivision of the State. See Tex. Health & Safety Code § 281.002(a); see also Tex. Const.
art. IX, § 4. Baylor is a private, non-profit medical school, but is also a “supported medical school,” which
means that it has contracts with the Texas Higher Education Coordinating Board and receives state funding
specifically allocated for training physicians who provide medical care at public hospitals such as Ben Taub.
Tex. Health & Safety Code § 312.002(6). Dr. Klein was a Baylor obstetrics and gynecology resident at Ben
Taub under this arrangement when he delivered Hernandez’s daughter in 1994.
Responding to Hernandez’s claims, Baylor and Klein jointly filed a motion to dismiss for lack of jurisdiction
and a motion for summary judgment, asserting they were entitled to immunity under sections 312.006 and
312.007 of the Texas Health and Safety Code. Hernandez responded to the motions, but also non-suited her
claim against Baylor. Despite the non-suit, the trial court denied the motions as to both defendants, and Baylor
joined Klein in appealing the trial court’s interlocutory order.
The court of appeals dismissed both appeals. 260 S.W.3d 1. The court held it lacked jurisdiction to consider
the interlocutory appeals under either section 51.014(a)(5) or (a)(8) of the Civil Practice and Remedies Code.
Id. at 7-11. Section 51.014(a)(5) allows an interlocutory appeal from the denial of “a motion for summary
judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state,”
while section 51.014(a)(8) authorizes an interlocutory appeal from the grant or denial of “a plea to the
jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem. Code § 51.014(a)(5), (8). The court reasoned that
it lacked jurisdiction under (a)(5) because Klein was not an “officer or employee of the state,” and under (a)(8)
because Baylor was not a “governmental unit.” 260 S.W.3d at 7-11. The court also concluded that Chapter
312 of the Texas Health and Safety Code did not confer immunity upon either Baylor or Klein. Id. at 8, 10.
II
Because this is an interlocutory appeal, we first consider the matter of our own jurisdiction. Interlocutory
appeals are generally final in the courts of appeals, Tex. Gov’t Code § 22.225(b)(3), although exceptions to
this general rule exist. See Tex. Gov’t Code § 22.001(a)(1)-(2), (c), (d); see also Univ. of Tex. Sw. Med. Ctr. of
Dallas v. Margulis, 11 S.W.3d 186, 187 (Tex. 2000) (per curiam). One exception is when a court of appeals’s
decision conflicts with another court of appeals’s prior decision. Tex. Gov’t Code § 22.001(a)(2). That
exception applies here as the court acknowledged that its decision regarding Klein conflicted with the
Fourteenth Court of Appeals’s decision in Young v. Villegas, 231 S.W.3d 1 (Tex. App.–Houston [14th Dist.]
2007, pet. denied). See 260 S.W.3d at 9-11 (disagreeing with the conclusion in Young that “a Baylor doctor,
who was similarly situated to Dr. Klein in the instant case,” was authorized by section 51.014(5) “to appeal the
denial of his summary judgment motion, in which he asserted immunity from individual liability”).
We also have jurisdiction over this appeal because the court of appeals declined to exercise its interlocutory-
appellate jurisdiction. See Lewis v. Funderburk, 253 S.W.3d 204, 206 (Tex. 2008). Even though we may lack
jurisdiction over the substance of an appeal, we always have jurisdiction to determine whether the court of
appeals correctly applied its jurisdiction. Badiga v. Lopez, 274 S.W.3d 681, 682 n.1 (Tex. 2009); Del Valle
Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) (citing Long v. Humble Oil & Ref. Co., 380 S.W.2d
554, 555 (Tex. 1964) (per curiam)).
III
As another preliminary matter, we note the parties’ agreement here that Hernandez’s non-suit left no case or
controversy as to Baylor. As a general rule, a plaintiff may voluntarily dismiss a case — take a non-suit — at
any time before all of the plaintiff’s evidence other than rebuttal evidence has been introduced. Tex. R. Civ. P.
162. When this occurs, the non-suit typically moots the case or controversy from the moment of its filing or
pronouncement in open court. Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98,
100 (Tex. 2006) (per curiam). Exceptions exist, such as when the defendant has asserted a claim for
affirmative relief, see Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990),
but Baylor submits it had no such claim in the trial court.
Appellate courts are prohibited from deciding moot controversies because the separation-of-powers article
prohibits advisory opinions on abstract questions of law. Tex. Const. art II, § 1; Brooks v. Northglen Ass’n, 141
S.W.3d 158, 164 (Tex. 2004). Assuming the non-suit in the trial court ended the case against Baylor, as the
parties apparently agree, there was no live controversy for the court of appeals to decide. But the court of
appeals did not dismiss Baylor’s appeal because the case was moot, but rather reasoned that Baylor was not
entitled to an interlocutory appeal because it was not a “governmental unit.” See 260 S.W.3d at 7-8 (holding
that the Health and Safety Code does not make Baylor a “governmental unit” entitled to interlocutory appeal).
Baylor therefore asks us to declare the part of the court of appeals’s opinion pertaining to it void as an
advisory opinion. Hernandez, on the other hand, argues that the court of appeals’s judgment is correct
whether based on Baylor’s failure to meet the requirements for an interlocutory appeal or due to the absence
of a live controversy between the parties. Under either circumstance, the correct action is to dismiss Baylor’s
appeal, which is what the court of appeals has done.
When a plaintiff is entitled to a non-suit, the trial court’s dismissal order is ministerial. Hooks v. Fourth Court
of Appeals, 808 S.W.2d 56, 59 (Tex. 1991). Before the motions hearing in this case, the trial court
acknowledged its understanding of this, observing that the non-suit had taken Baylor out of the case. Its
subsequent order, however, purported to deny both Klein’s and Baylor’s motions. This may have been
inadvertent, but even if the trial court changed its mind about Baylor’s status in the case, the determination is
no basis for an interlocutory appeal. That is, even if we assume the trial court’s action here to be a refusal to
comply with its ministerial duty to dismiss, no statute provides Baylor the right to an interlocutory appeal under
these circumstances. Mandamus, we have said, is the appropriate remedy when a trial court refuses to comply
with its ministerial duty to dismiss after a non-suit. Id.
While we do not necessarily agree with the court of appeals’s reasons for dismissing Baylor’s appeal, we
agree with its judgment. The court did not err in dismissing Baylor’s appeal and that part of its judgment is
accordingly affirmed. The viability of Klein’s interlocutory appeal, however, remains in dispute because
Hernandez has not similarly dismissed her claim against him.
IV
Klein asserts a right to an interlocutory appeal under section 51.014(a)(5) of the Civil Practice and
Remedies Code. That section provides for the appeal of an order that “denies a motion for summary judgment
that is based on an assertion of immunity by an individual who is an officer or employee of the state or a
political subdivision of the state.” Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). The order here unquestionably
meets some of the statutory requirements: (1) the summary judgment motion is based on an individual’s
assertion of immunity, and (2) the trial court’s order denies the motion. The requirement in dispute concerns
the status of the movant; that is, whether this individual, who is a resident physician at a supported medical
school, is also a state employee for purposes of the statute.
Klein contends that section 312.007(a) of the Texas Health and Safety Code classifies him as a state
employee for purposes of his work at Ben Taub. The section, entitled “Individual Liability,” provides:
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.
Tex. Health & Safety Code § 312.007(a) (emphasis added). Under this section, a supported medical school,
like Baylor, “is a state agency,” and a resident of a supported medical school, like Dr. Klein, “is an employee of
a state agency” for two purposes: (1) obtaining indemnity under Chapter 104, Civil Practice and Remedies
Code, which requires the state to indemnify employees in certain circumstances based on acts or omissions in
the course and scope of employment, and (2) determining liability, if any, for acts or omissions while engaged
in the coordinated or cooperative activities of a supported medical school. Because Klein “is an employee of a
state agency” for purposes of determining his liability in the underlying suit, he submits that he is a state
employee for purposes of this litigation, which includes the right to an interlocutory appeal under section 51.014
(a)(5).
The court of appeals, however, disagreed. It concluded Klein was not entitled to the same rights as an
“actual” employee of a state agency. 260 S.W.3d at 9-11. More particularly, the court reasoned that the
Legislature did not intend to extend sovereign or official immunity, or any attendant rights and benefits
associated with such immunity, to a resident of a supported medical school by merely casting the resident as
“an employee of a state agency” for purposes of determining liability. Id. at 10-11 (discussing Tex. Health &
Safety Code § 312.007(a)). The court’s analysis of the preceding provision, section 312.006(a), informed its
understanding of section 312.007(a).
Section 312.006(a), entitled “Limitation on Liability,” states that a supported medical school engaged in
coordinated or cooperative medical education, including patient care at a public hospital,
is not liable for its acts and omissions in connection with those activities except to the extent and up to the
maximum amount of liability of state government under Section 101.023(a), Civil Practice and Remedies Code,
for the acts and omissions of a governmental unit of state government under Chapter 101, Civil Practice and
Remedies Code.
Id. § 312.006(a). By its specific reference to section 101.023(a), the court inferred that the Legislature
intended only to limit a supported medical school’s liability to the damages caps in the Texas Tort Claims Act.
260 S.W.3d at 5-6 (quoting Tex. Civ. Prac. & Rem. Code § 101.023(a) which limits liability under the Tort
Claims Act). Extending that inference to section 312.007(a) as well, the court reasoned that the Legislature
intended to make Baylor a state agency and its residents state employees only to the extent of the Tort Claims
Act’s damages cap provision, specifically mentioned in 312.006(a), and Chapter 104's indemnity provisions,
specifically mentioned in 312.007(a). Id. at 6-8.
Klein asserts that the court misinterprets these provisions. He submits there are three parts to section
312.006(a): (1) a grant of immunity (“is not liable”), (2) a limited waiver for certain acts (“except to the extent ...
of a governmental unit of state government [under the Tort Claims Act]”), and (3) a limitation on damages for
those acts (“except ... up to the maximum amount of liability of state government [under the Tort Claims Act]”).
He complains that the court of appeals’s analysis only accounts for the last part, ignoring the rest. We agree
that the court of appeals reads these provisions too narrowly.
The cardinal rule of statutory construction is to ascertain and give effect to the Legislature’s intent. Leland v.
Brandal, 257 S.W.3d 204, 206 (Tex. 2008). When determining that intent, the Code Construction Act further
guides our analysis, listing a number of relevant factors including the object sought to be obtained by the
legislation, the circumstances under which its was enacted, legislative history, and former statutory provisions
on the same or similar subjects, among others. Tex. Gov’t Code § 311.023.
The provisions at issue were first enacted in 1987. That year, the Seventieth Legislature amended Title 71
of the Revised Civil Statutes, which pertained to public health, by adding article 4494t, which related to
coordinated medical and dental clinical education. Act of May 28, 1987, 70th Leg., R.S., ch. 219, 1987 Tex.
Gen. Laws 1508-10. The Legislature concluded that the clinical education and patient care at public hospitals
would benefit from coordination and cooperation rather than competition and that cooperation would enhance
educational opportunities while conserving public resources. Id. at 1508. As further background, the senate bill
analysis noted that Baylor College of Medicine and the University of Texas Health Science Center at Houston
had preliminarily agreed to staff the Harris County Hospital District’s expanding health care facilities and
coordinate their education and research efforts, but that “residents, interns, faculty and other health care
professionals at the Baylor College of Medicine, a private institution, [did] not have the same level of liability as
UTHSCH, a state agency-owned school.” Senate Comm. on Health and Human Services, Bill Analysis, S.B.
1062, 70th Leg., R.S. (1987). The analysis recited the intent to overcome this impediment by equalizing
liability, noting that, among other purposes, the bill “establishes that liability of units, schools, and entities
engaged in cooperative or coordinated activities and services is the same as state government liability for a
governmental unit of state government.” Id.
Two years later, the Legislature repealed article 4494t and recodified it as Chapter 312 of the Health and
Safety Code. Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 3165. The
codification reorganized the original statute and retitled some of its provisions. For example, before
codification, article 4494t contained a single liability section, providing:
Sec. 6. LIABILITY. No coordinating entity, medical and dental unit, or supported medical or dental school
engaged in coordinated or cooperative medical or dental clinical education, including patient care and the
provision or performance of health or dental services or research at a public hospital, pursuant to Section 4 of
this article, shall be liable to any person for its acts and omissions in connection therewith except to the extent
and up to but not in excess of the maximum amount of the liability of the state government as specified in
Subsection (a) of Section 101.023 of the Texas Tort Claims Act (Chapter 101, Civil Practice and Remedies
Code), for the acts and omissions of a governmental unit of the state government as provided in the Texas
Tort Claims Act (Chapter 101, Civil Practice and Remedies Code), whether or not such a unit, school, or entity
is a “governmental unit” as therein defined. A judgment in an action or a settlement of a claim against any such
unit, school, or entity thus permitted under the provisions of the Texas Tort Claims Act shall ban any action
involving the same subject matter by the claimant against any director, trustee, officer, intern, resident, fellow,
faculty member, or other associated health care professional or employee of such 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
such claim was asserted as provided in Section 101.106 of the Texas Tort Claims Act. All directors, trustees,
officers, interns, residents, fellows, faculty, and other associated health care professionals and employees of
the medical and dental unit, the supported medical or dental school, or the coordinating entity so engaged
shall be deemed to be employees of a state agency, and said unit, school, or entity shall be deemed to be a
“state agency” for purposes of Chapter 104, Civil Practice and Remedies Code, and for purposes of
determining the liability, if any, of such persons for their acts and omissions while engaged in such coordinated
or cooperative activities of the units, schools, or entities.
Act of May 28, 1987, 70th Leg., R.S., ch. 219, § 6, 1987 Tex. Gen. Laws 1509-10, repealed by Act of June 14,
1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 3165. After codification, this liability section
became sections 312.006 and 312.007 of the Texas Health and Safety Code and was retitled, “Limitation on
Liability” and “Individual Liability,” respectively. Tex. Health & Safety Code §§ 312.006 – .007. This
reorganization, however, did not affect any substantive changes. Act of June 14, 1989, 71st Leg., R.S., ch.
678, § 1.001(a), 1989 Tex. Gen. Laws 2230, 2236.
As before, Baylor remained a supported medical school. See Tex. Health & Safety Code § 312.002(6)
(defining “supported medical or dental school”). As such, the Legislature has authorized Baylor to coordinate
and cooperate with other medical or dental schools and contract to provide medical, dental, or other patient
services to public hospitals; the rationale being that such relationships will “(1) enhance the education of
students, interns, residents and fellows attending [the schools]; (2) enhance patient care; and (3) avoid any
waste of public money.” Id. § 312.001(b); see also id. §§ 312.003 – .004; § 312.002(5) (defining “public
hospital”). Under this authorization, Baylor has contracted with the Texas Higher Education Coordinating Board
and receives state funding for training physicians who provide medical care at public hospitals.
Ben Taub is one such public hospital, being a part of the Harris County Hospital District. This District, like all
such countywide districts, is a political subdivision of the State authorized by the Legislature to “provide for the
establishment of a hospital or hospital system to furnish medical aid and hospital care to indigent and needy
persons residing in the district.” Id. § 281.002(a). These districts and their hospitals are “governmental units”
for purposes of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code § 101.001(3).
Here, Baylor and the University of Texas Medical School at Houston, through a coordinating entity called
Affiliated Medical Services (“AMS”), have agreed to provide medical care and services, and medical education,
training and research activities at Ben Taub and other public hospital facilities and clinics owned and operated
by the Harris County Hospital District. The Commissioner of Health has approved this agreement between
Baylor and UT regarding AMS, and the State Board of Medical Examiners has certified AMS as a non-profit
corporation organized to benefit the public. Under the agreement, Baylor provides all obstetrical and
gynecological medical care services at Ben Taub. That was the arrangement in 1994, when Hernandez’s
daughter was delivered, and it remains the arrangement today.
Had Klein been directly employed by Ben Taub, he would be a governmental employee under the Tort
Claims Act. Similarly, had the University of Texas Medical Branch or a similar public university provided Klein to
the hospital, he would be a governmental employee under the Act. Instead, Baylor provided Klein’s services to
Ben Taub. This distinction, however, makes no difference under Chapter 312, which classifies Baylor as a
“governmental unit of state government” and a “state agency” for certain purposes, including its services at
Ben Taub. Tex. Health & Safety Code §§ 312.006(a) – .007(a).
In addition to making Baylor a “state agency” for certain purposes, including its services at Ben Taub,
Chapter 312 also makes Klein a state employee for these same purposes. Tex. Health & Safety Code §
312.007(a). The chapter provides that a supported medical school like Baylor “is not liable for its acts or
omissions” in connection with the provision or performance of these services:
except to the extent and up to the maximum amount of liability of state government under Section 101.023(a),
Civil Practice and Remedies Code, for the acts and omissions of a governmental unit of state government
under Chapter 101, Civil Practice and Remedies Code.
Id. § 312.006(a).
Contrary to the court of appeals’s reading, we construe “the extent” and “the maximum amount” of liability as
referencing separate subjects. Thus, a supported medical school is not liable, except (1) to the extent of
liability of state government for the acts and omissions of a governmental unit of state government under the
Tort Claims Act, and (2) up to the maximum amount of liability of state government under Section 101.023(a) of
the Act. Section 312.006(b) confirms this reading, stating that “[t]he limitation on liability provided by this
section applies regardless of whether” the supported medical school “is a ‘governmental unit’ as defined by
section 101.001, Civil Practice and Remedies Code.” Id. § 312.006(b). Thus, a supported medical school does
not need to be a governmental unit — like UT Medical Branch — to be entitled to immunity; the Health and
Safety Code bestows such status by its own terms.
We conclude that the Legislature intended through Chapter 312 to treat Baylor like other governmental
entities providing services at public hospitals, extending the same protection and benefits to Baylor and its
residents who work at these hospitals. In the words of the chapter, a supported medical school “is a state
agency” and a resident of a supported medical school “is an employee of a state agency . . . for purposes of
determining liability, if any.” Tex. Health & Safety Code § 312.007(a). As an employee of a state agency,
complaining about the denial of his motion for summary judgment based on an assertion of immunity, Klein was
entitled to bring this interlocutory appeal like any other state employee, and the court of appeals erred in
holding otherwise.
* * *
The judgment of the court of appeals is reversed, in part, and Klein’s interlocutory appeal is remanded to
the court for consideration of the merits.
_____________________________
David M. Medina
Justice
OPINION DELIVERED: May 7, 2010