Leonard v. Glenn

332 S.W.3d 403, 54 Tex. Sup. Ct. J. 501, 2011 Tex. LEXIS 75, 2011 WL 183925

• Court: Texas Supreme Court
• Decided: January 21, 2011
• Docket: 09-0665
• Status: Published

Opinion

PER CURIAM.

Respondent Andre Glenn sued petitioners Terry Leonard, P.A., and her supervisor, April Dawn Hain, M.D., both employees of Bexar County Hospital District d/b/a University Health System on health care liability claims after Leonard diagnosed Glenn with gout and prescribed In-domethacin, which led to Glenn’s kidney failure. Leonard and Hain moved to dismiss the suit under section 101.106(f) of the Texas Tort Claims Act, Tex. Crv. Prac. & Rem.Code § 101.106(f), alleging that the suit was based on conduct within the general scope of their employment could have been brought against UHS. Glenn did not file a motion to amend his petition to name UHS as a defendant, but instead disputed whether he could have brought claims against UHS.

The trial court denied the defendants’ motions to dismiss under section 101.106(f), as well as the defendants’ objections to the plaintiffs expert report and motion to dismiss under Tex. Civ. Prac. & Rem.Code § 74.351, and the defendants brought an interlocutory appeal. The court of appeals affirmed on both issues. 293 S.W.3d 669, 684 (Tex.App.-San Antonio 2009).

While this case has been pending on appeal, we have decided Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011), holding among other things that, for purposes of Tex. Civ. Prac. & Rem.Code § 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. 332 S.W.3d at 370-71. In light of Franka, we grant Leonard’s and Hain’s petition for review and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex.R.App. P. 59.1.