Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez, as the Parent and Next Friend of N.H., a Minor

315 S.W.3d 1, 30 I.E.R. Cas. (BNA) 1201, 53 Tex. Sup. Ct. J. 693, 2010 Tex. LEXIS 352, 2010 WL 1818396
CourtTexas Supreme Court
DecidedMay 7, 2010
Docket08-0453
StatusPublished
Cited by103 cases

This text of 315 S.W.3d 1 (Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez, as the Parent and Next Friend of N.H., a Minor) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez, as the Parent and Next Friend of N.H., a Minor, 315 S.W.3d 1, 30 I.E.R. Cas. (BNA) 1201, 53 Tex. Sup. Ct. J. 693, 2010 Tex. LEXIS 352, 2010 WL 1818396 (Tex. 2010).

Opinions

Justice MEDINA

delivered the opinion of the Court.

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 51.014(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’ judgment, reinstate the physician’s interlocutory appeal, and remand the case to the court of appeals for its review.

I

Cynthia Hernandez sued Dr. Geffrey 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 [3]*3judgment 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. & RemCode § 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)(l)-(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’ 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. Funder-burk, 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)).

Ill

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 plaintiffs 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 ease against Baylor, as the parties apparently agree, there was no live controversy for the court of appeals to [4]*4decide. 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.

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315 S.W.3d 1, 30 I.E.R. Cas. (BNA) 1201, 53 Tex. Sup. Ct. J. 693, 2010 Tex. LEXIS 352, 2010 WL 1818396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geffrey-klein-md-and-baylor-college-of-medicine-v-cynthia-hernandez-as-tex-2010.