Mitchell v. Shepperd Memorial Hospital

797 S.W.2d 144, 1990 Tex. App. LEXIS 2298, 1990 WL 130241
CourtCourt of Appeals of Texas
DecidedAugust 8, 1990
Docket3-88-081-CV
StatusPublished
Cited by10 cases

This text of 797 S.W.2d 144 (Mitchell v. Shepperd Memorial Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. Shepperd Memorial Hospital, 797 S.W.2d 144, 1990 Tex. App. LEXIS 2298, 1990 WL 130241 (Tex. Ct. App. 1990).

Opinion

*145 GAMMAGE, Justice.

Appellant Clara Mitchell appeals from a summary judgment granted in favor of Shepperd Memorial Hospital. In the underlying medical malpractice action, Mitchell sought recovery from the hospital for damages allegedly caused by two physicians who treated her in the hospital’s emergency room. Mitchell complains in one point of error that the trial court erred in granting the hospital’s summary judgment and in holding that she had no right of recovery under the Texas Tort Claims Act (“the Act”). Tex.Civ.Prac. & Rem. Code Ann. § 101.001, et seq. (1986 & Supp. 1990). We will affirm the judgment.

BACKGROUND

In 1982 Clara Mitchell went to the emergency room of Shepperd Memorial Hospital seeking medical care for severe hip injuries. Mitchell did not request any physician by name. She was treated by an emergency room physician and a radiologist, and the hospital billed her directly for services.

Mitchell brought suit against the hospital alleging that the treating physicians, as agents or employees of the hospital, were negligent in their care of her. The hospital denied liability for any alleged negligent acts on the part of the doctors and moved for summary judgment. The summary judgment evidence established that Shep-perd Memorial Hospital is owned and operated by the Burnet County Hospital Authority and that this Authority is a general authority established pursuant to state law. At the hearing on the hospital’s motion, the trial court found that the hospital was a “governmental unit” and that the treating physicians were not “employees” of the hospital, as those terms are defined in the Texas Tort Claims Act. 1 The trial court ruled that because the hospital did not waive sovereign immunity except with regard to the acts or omissions of employees, it was not liable for the treating physicians in this case.

DISCUSSION AND HOLDINGS

Section 101.021 of the Act sets forth the grounds for imposing liability upon a governmental unit:

A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (1986). Consequently, except as specifically waived by the Act, a governmental unit *146 is immune from liability under the doctrine of sovereign immunity. See City of Austin v. Cooksey, 570 S.W.2d 386, 387 (Tex.1978); Whipple v. Deltscheff, 731 S.W.2d 700, 705 (Tex.App.1987, writ ref’d n.r.e.).

A. “Employee” defined

Mitchell argues, however, that section 101.021(2) of the Act (distinguished from subdivision (1) of that section) contains no requirement that the personal injury or death be a result of actions of an “employee.” Mitchell additionally urges that the doctrine of ostensible agency applies in this case since the Act clearly provides that the hospital is liable to her “if the [hospital] would, were it a private person, be liable to [her] according to Texas law.” Texas Tort Claims Act, § 101.021.

We do not agree with either of Mitchell’s contentions. The issue to be decided is whether section 101.021(2) of the Act requires that the injury caused by the use of tangible property be caused by the negligent act or omission of an employee of the hospital. A governmental unit is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Section 101.021(2) (emphasis added). Because section 101.021(2) refers to personal injury and death “so caused,” it is necessary, as a matter of statutory construction, to look to the preceding sections to determine how, in fact, such injury must be caused before a governmental unit waives its sovereign immunity.

There are three possible antecedent phrases in subdivision (1) of section 101.021 to which “so caused” may refer. First, as the trial court found, the phrase could refer to personal injury and death “proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment_” Second, it could refer to personal injury and death arising from the operation or use of motor-driven vehicle or motor-driven equipment. Third, it could refer to personal injury and death where the employee would be personally liable to the claimant according to Texas law. Employing established rules of statutory construction, we look to the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. See J.G. Sutherland, Statutes and Statutory Construction § 47.33 (4th ed. 1984). We conclude that the trial court’s finding was correct, and the phrase “so caused” of section 101.-021(2) should be interpreted as follows:

A governmental unit is liable for:

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(2) personal injury and death [proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment] by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

This construction has previously been adopted by the Texas Supreme Court. In Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976), the Supreme Court paraphrased section 101.021(2) of the Act as follows:

Each unit of government in the State shall be liable for money damages for death or personal injuries so caused (i.e., when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office) from some condition or some use of tangible property under circumstances where there would be private liability.

Lowe, 540 S.W.2d at 299 (emphasis in original); see Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32-33 (Tex.1983).

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797 S.W.2d 144, 1990 Tex. App. LEXIS 2298, 1990 WL 130241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-shepperd-memorial-hospital-texapp-1990.