Suing the Governmental Unit or the Government Employee: Franka MD v. Velasquez set for oral argument

TO SUE OR NOT TO SUE - THE GOVERNMENTAL UNIT or THE GOVERNMENT'S EMPLOYEE

Can the defendants have it both ways? Argue that the employees be dismissed because the proper defendant is the entity (here UT Health Science Center), and have suit against the entity dismissed because the entity partakes of the state's sovereign immunity?

07-0131
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ, BOTH INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06)

This cause has been set for oral argument at 9:00 a.m., September 10, 2008. Time allotted to argue: 20/20 minutes

Opinion with dissent below: Franka v. Velasquez (Tex.App.- San Antonio, Sep. 6, 2006, pet. granted) (med-mal suit against governmental unit or employee, employee's motion to substitute the entity and motion to dismiss)

Courts Below Denied Employees' Motion to Dismiss:

John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. appeal the trial court's orders denying their motion for summary judgment of substitution or dismissal. Franka and Reddy contend that the trial court erred in denying their motion because they were entitled to be dismissed from the underlying cause pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code.

Because we hold that Franka and Reddy failed to establish that the underlying lawsuit could have been brought against the University of Texas Health Science Center, we affirm the trial court's orders.

The statutory provision at issue:

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 Ann. § 101.106(f) (Vernon 2005).

The Court of Appeals would not leave the plaintiff without a remedy. Given its track record in judicial tort reform generally, and its rulings favoring governmental defendants in the name of immunity specifically, the Texas Supreme Court may disagree.

Franka and Reddy appear to be suggesting that the raising of a fact issue as to whether the suit "could have been brought under this chapter against the governmental unit" should be sufficient to enable a trial court to dismiss employees under section 101.106(f). Such a suggestion is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), a trial court also is not permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the suit "could have been under this chapter against the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The trial court's orders are affirmed.