cases-UTMB


UTMB CASES

PETITIONS DENIED BY TEXAS SUPREME COURT

05-0688  WILLIAM O'ROURKE, INDIVIDUALLY; LAURA O'ROURKE, INDIVIDUALLY; AND LAURA
O'ROURKE, AS NEXT FRIEND OF BROCK O'ROURKE v. ANTONIO J. VILLASAN, M.D.; from Jefferson
County; 9th district (
09-04-00409-CV, 166 SW3d 752, 05-26-05, pet. denied March 2008) (dismissal of
employee, election of remedies, defendant to sue)
This is a case of first impression and requires that we interpret the amended provisions of section
101.106(e) of the Texas Civil Practice and Remedies Code enacted as a part of the Legislature's tort reform
efforts in 2003. See Tex. Civ. Prac. & Rem. Code Ann. §101.106(e) (Vernon Supp. 2005). Section
101.106(e) provides in suits where both the governmental unit and its employee are sued, the suit against
the employee immediately be dismissed on motion of the governmental unit. The ultimate issue is whether
the trial court erred in denying Dr. Antonio Villasan's motions requesting his dismissal from a suit filed by
William O'Rourke and other family members against Dr. Villasan and the University of Texas Medical Branch,
Galveston ("UTMB"). Subsidiary to that issue are questions of whether the trial judge had a mandatory duty
to dismiss Dr. Villasan pursuant to section 101.106(e) based on the government's filing of a motion to do so,
and whether the amendments to section 101.106 apply despite a federal court suit filed by the O'Rourkes
prior to the effective date of the amended provisions. Answering the two subsidiary questions in the
affirmative leads us to conclude the trial court erred in failing to grant Dr. Villasan's motion to dismiss the
claim against him, and accordingly, we reverse and dismiss.