Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight v. Leah Anne Gonski Marino F/K/A Leah Anne Gonski and Jaou-Chen Huang, M.D.

Opinion

ACCEPTED 01-13-01034-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/18/2015 4:46:55 PM CHRISTOPHER PRINE CLERK

NO. 01-13-01034-CV

In the Court of Appeals FILED IN 1st COURT OF APPEALS for the First Judicial District HOUSTON, TEXAS Houston, Texas 3/18/2015 4:46:55 PM CHRISTOPHER A. PRINE Clerk SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND AS NEXT FRIEND OF NAYLA MCKNIGHT Appellants, VS.

LEAH ANN GONSKI MARINO F/K/A LEAH ANNE GONSKI AND JAOU-CHEN HUANG, M.D.

Appellees.

On Appeal From the 164th Judicial District Court of Harris County, Texas Trial Court Cause No. 2012-35806A The Honorable Alexandra Smoots-Hogan, Judge Presiding

APPLELLANTS’ RESPONSE TO APPELLEE GONSKI’S MOTION FOR REHEARING AND/ORMOTION FOR EN BANC RECONSIDERATION

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

In its opinion of November 14, 2014, this Court correctly overruled the trial

court’s order granting Dr. Gonski’s motion to dismiss because it determined that

Gonski failed to prove she was an “employee” of the Foundation since it did not

have the legal right to control the details of her work at the time of the incident, as

required by the TTCA.

1 RESPONSE TO POINT ONE

Dr. Gonski argues, in her motion for rehearing, that the Court erred in its

analysis because it relied upon the holding in St. Joseph Hosp. v. Wolff, 94 S.W. 3d

513, 542 (Tex. 2002), instead of Murk v. Scheele, 120 S.W. 3d 865, 866-67 (Tex.

2003). According to Dr. Gonski, Wolff is not applicable because it did not interpret

the statutory definition of “employee” contained in §101.001 (2) of the Texas Tort

Claims Act (TTCA).

The TTCA defines an “employee”, for purposes of the TTCA in TEX. CIV.

PRAC. & REM. CODE §101.001(2):

“Employee” means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

Thus, one of the main focuses of the statute is whether the governmental unit

has a legal right to control the task which purports to establish its vicarious liability.

The discussion of right to control in the context of a medical resident’s

malpractice liability was central to the holding in Wolff. Indeed, the Court stated,

“We have even gone so far as to say that ‘the right to control remains the ‘supreme

test’ for whether the master-servant relationship exists’ and thus whether the rule of

vicarious liability applies.” St. Joseph Hosp. v. Wolff, 94 S.W. 3d at 542.

2 In fact, the Murk opinion cited Wolff with approval for its discussion regarding

right to control. See, Murk v. Scheele, 120 S.W.3d 865, 867, n. 11. Thus, Gonski’s

argument that Wolff is not applicable because it did not specifically discuss the

TTCA definition of “employee” is without merit, since the issue for which it was

relied upon by the Court was its discussion of right to control which is included in

the TTCA definition of “employee.”

Next, Dr. Gonski claims that Murk supports her argument that the Foundation

only has to partially control the details of her work. But, Dr. Gonski has provided

no evidence that any of the details of the medical care she provided to Shana Lenoir

were controlled by the Foundation. In fact, the Foundation’s bylaws conclusively

negate any right to control by the Foundation of medical care provided by Dr. Gonski

to Shana Lenoir at the UT Physicians’ clinic, as found by the Court.

Finally, Dr. Gonski cites Kamel v. Sotelo, No. 2009 WL 793742 (Tex. App.—

Houston [1st Dist.] 2009, no pet.), in support of her argument that she was the

Foundation’s employee. However, a critical difference between this case and Kamel

is that the resident in Kamel testified that she was employed by UTHSCH, instead

of the Foundation. Further, the Kamel court did not consider the Foundation’s

articles of incorporation and franchise tax certificate because these documents were

not made a part of the appellate record. Id. at footnote 4. Here, Dr. Gonski asserted

she was employed by the Foundation and the Foundation’s articles of incorporation,

3 bylaws and franchise tax certificate are in the appellate record. This Court properly

relied upon the Foundation’s bylaws to determine it did not have the right to control

the details of Dr. Gonski’s work at the time of the incident.

RESPONSE TO POINT TWO

In Point Two, Dr. Gonski claims that the Court also erred in its ruling because

she conclusively established that the Foundation had a legal right to control her

work. However, this Court determined that, “By the terms of its bylaws, the

Foundation has disavowed any right to control the work of the residents it appoints

to the Health Science Center residency program and any liability for medical

malpractice that might result from that work.” Opinion at 18. The Court also found

that a similar disavowal of a resident’s work occurred in Wolffe, which the Texas

Supreme Court held was sufficient to negate the existence of the right to control, as

a matter of law. Id. at 19.

For the first time on appeal, Dr. Gonski argues in her motion for rehearing

that UTHSCH exercised control over her through instruction from the Foundation.

However, Dr. Gonski never made this argument in the trial court and cannot raise it

for the first time on appeal in a motion for rehearing. City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1971); TEX. R. APP. P. 33 (a)(1)(A).

However, in the event the Court considers this new argument, the Lenoirs respond

that there is no evidence that the Foundation ever told or instructed UTHSCH to do

4 anything regarding Dr. Gonski. Like St. Joseph in Wolff, UTHSCH had certain

responsibilities as the sponsoring institution for Dr. Gonki’s educational program

under ACGME guidelines. See, St. Joseph Hosp. v. Wolff, 94 S.W. 3d at 543.

Dr. Gonski argues there is no evidence of a contract whereby the Foundation

relinquished the right to control Gonski to a third party or that a third party agreed

to accept liability for Dr. Gonski. This is precisely the reason that the Lenoirs sued

Dr. Gonski in her individual capacity in the first place and the trial court erred in

granting her §101.106 (f) motion to dismiss—no other entity was legally responsible

for her medical malpractice at the time she rendered medical care to Shana Lenoir,

so Dr. Gonski is liable for her own negligent conduct. See, Mission Consol. Indep.

Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 (Tex., 2008) (the purpose of §101.106 is

“to force a plaintiff to decide at the outset whether an employee acted independently

and is thus solely liable…").

Dr. Gonski argues that the Foundation’s internal bylaws are not binding on or

enforceable against any third party and cannot be legally relied upon by the

Foundation to “disavow” legal responsibility for its residents. While it is unclear

what third party Dr. Gonski is referring to, the Notice of Appointment she signed

says residents are subject to and agree to abide by the Foundation’s policies, which

necessarily includes its bylaws. CR 264. As such, Dr. Gonski agreed that she was

subject to would abide by the Foundation’s bylaws. The Foundation’s bylaws

5 prevent Dr. Gonski from arguing that the Foundation had a legal right to control the

details of her work since she was practicing medicine at a facility that the Foundation

did not own or operate.

Dr. Gonski cites no legal authority for her argument that the Foundation

cannot “disavow” legal responsibility for residents, particularly when the resident is

not complying with the Foundation’s policies. Dr. Gonski assumed the risk of any

potential malpractice liability by practicing medicine at a facility that the Foundation

did not own or operate, under the plain terms of the Foundation’s bylaws.

Next, Dr. Gonski argues that the Foundation’s bylaws have never been

followed and must be considered abandoned. However, there is no evidence that the

Foundation’s bylaws have never been followed, so that they should be considered

abandoned and Dr. Gonski cites no evidence in support of her argument. Instead,

Dr. Gonski makes the blanket statement, “[T]o the extent that Paragraph 5 of the

bylaws prohibits the practice of medicine by Foundation employees except at

facilities owned or operated by the Foundation, these internal bylaws have never

been followed and can never be followed because the Foundation does not and has

not…ever owned or operated any ‘facilities.’” See, Mtn for Rehearing at 8.

In effect, Dr. Gonski is arguing that Paragraph VI.5 does not apply because it

is impossible, since the Foundation does not own or operate any medical facilities.

6 Dr. Gonski misinterprets Paragraph VI.5. According to ¶VI.5 of the Foundation’s

by-laws (CR 313):

5. Physicians employed by the corporation shall have no authority to engage in the practice of medicine for or on behalf of the corporation except at a clinic, hospital, or other facility owned or operated by the corporation. Upon written authorization of the President, physicians employed by this corporation may act in a consulting capacity at other clinics, hospitals, or facilities.

Paragraph VI.5 does not prohibit the practice of medicine by Foundation

employees at facilities that the Foundation does not own or operate, instead it

prohibits the practice of medicine for or on behalf of the Foundation except at

facilities the Foundation owns operates. Thus, Dr. Gonski could practice medicine

at the UT Physicians clinic where she treated Shana Lenoir, she just could not do so

for or on behalf of the Foundation because the Foundation did not own or operate

the clinic. Dr. Gonski is liable for her own negligent conduct that occurred at the

UT Physicians clinic according to the Foundation’s bylaws and the Court properly

determined she was not acting as the Foundation’s “employee” at the time of the

incident.

Similarly, Dr. Gonski argues that the Foundation’s bylaws should be

disregarded because of an alleged conflict with the Foundation’s articles of

incorporation. However, Dr. Gonski offers no evidence of an actual conflict

between the Foundation’s articles of incorporation and its bylaws. Instead, Dr.

Gonski relies upon her incorrect interpretation of the bylaws to fabricate an alleged 7 conflict. Dr. Gonski argues that the Foundation’s articles of incorporation allow

residents to practice at any hospitals owned or operated by the UT System or that

has an affiliation agreement with a medical component of the UT System. “This

provision expressly contemplates that Foundation employees will work at facilities

that are not owned by the Foundation.” See, Mtn for Rehearing at 9. However, Dr.

Gonski does not identify a conflict between this provision and any bylaw, in fact,

the bylaws address the scenario where a resident is working at a facility not owned

or operated by the Foundation.

According to ¶VI.4 of the Foundation’s by-laws (CR 313):

4. All physicians employed by the corporation for the purpose of serving as a member of the staff of any hospital or hospitals that are neither owned nor operated by the corporation shall, in the performance of their duties as members of the staff of such hospital or hospitals, be subject to the direction and control of the hospital or hospitals upon whose staff he serves. No physician employed by the corporation shall serve upon the staff of a hospital not owned or operated by the corporation unless and until the governing body of such hospital shall agree in writing to assume full responsibility for the direction and control of the acts of such physician while serving upon the staff of the hospital and shall further agree in writing to hold the corporation harmless from all liability whole engaged in the scope and course of his duties as a member of the staff of such hospital. No director, officer, or employee of the corporation shall be authorized to act on behalf of the corporation to direct or control the acts of any physician employed by the corporation while said physician is serving as a member of the staff of any hospital or hospitals not owned or operated by the corporation.

8 Thus, before a Foundation resident can practice medicine at a hospital not

owned or operated by the Foundation, several conditions must be met: (1) the

resident will be subject to the direction and control of the hospital, (2) the governing

body of the hospital has to agree in writing to direct and control the resident and

indemnify the Foundation, and (3) the Foundation cannot direct or control the acts

of the resident while serving at the hospital. The Court also summarized this bylaw

provision in its opinion. See, Opinion at 18.

In this case, the Foundation assigned Dr. Gonski to the residency program at

MHH—Memorial Hermann Hospital—a hospital it did not own or operate. CR 264.

Thus, MHH had to comply with Paragraph VI.4 of the Foundation’s bylaws. The

Foundation’s handbook identifies MHH as a hospital affiliated with the residency

program. CR 714. Further, the Foundation’s handbook indicates that residents

practicing at MHH are covered by MHH’s liability insurance. CR 722.

Although Dr. Gonski admits there are contractual agreements between the

Foundation, UTHSCH and MHH regarding the placement of residents, these

contracts have not been produced and Dr. Gonski claims they are not relevant. See,

Mtn for Rehearing at 14. The Court should disregard Dr. Gonski’s argument that

the Foundation’s bylaws have been abandoned when she has failed to produce the

documents which would show that the bylaws have not been abandoned and are

actively being complied with by the Foundation.

9 Finally, Dr. Gonski claims that the care at issue occurred in an “internal clinic”

and tries to draw a distinction between such a clinic and a hospital to argue that

Paragraph VI.4 of the bylaws does not apply. Dr. Gonski’s sole support for the

“internal clinic” vs. hospital distinction is the Affidavit of Pamela Promecene, M.D.

at ¶¶4-7 where she briefly discusses ACGME guidelines. CR 741.

Although there are ACGME guidelines attached to her affidavit, there is no

discussion of “internal clinics” like UT Physicians contained in these materials, nor

does her affidavit contain a specific reference to the ACGME guidelines where this

information can be found. CR 745-775. Therefore, the Court and the Lenoirs have

no choice but to take Dr. Promecene’s word that the information is correct. The

Lenoirs timely objected that Dr. Promecene’s affidavit was conclusory. CR 897. As

the Court stated in its opinion, “A conclusory statement is one that does not provide

the underlying facts to support the conclusion.” Weech v. Baptist Health Sys., 392

S.W.3d 821, 826 (Tex. App.—San Antonio 2012, no pet.) (quoting Rizkallah v.

Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.).

Although the Court’s opinion overruled the Lenoir’s objections regarding affidavits

submitted by Appellee Dr. Huang, it did not address the Lenoirs’ conclusory

objection regarding Dr. Promecene’s affidavit submitted by Dr. Gonski.

Contrary to Dr. Gonski’s construction argument, the Court’s construction of

the Foundation’s bylaws is also best calculated to promote the corporation’s welfare

10 because it is clear that the overall intent of the bylaws is to avoid liability by the

Foundation for a resident’s medical malpractice and the Court should reject Dr.

Gonski’s attempt to parse and piecemeal the language in the bylaws.

The Texas Supreme Court has repeatedly held that residents alleged to be

governmental employees have failed to meet their burden of proof. See, Franka v.

Velasquez, 332 S.W.3d 367, 373-75 (Tex. 2011); Murk v. Scheele, 120 S.W. 3d 865,

866-67 (Tex. 2003). This Court properly determined that Dr. Gonski failed to prove

she was the Foundation’s “employee” at the time of the incident and the trial court

erred in granting her §101.106 (f) motion to dismiss.

PRAYER

For the reasons set forth above, Appellants respectfully request that this Court

deny Appellee Leah Anne Gonski’s request for a rehearing, and remand this case to

the trial court for further proceedings and grant Appellants all other relief to which

they may be entitled.

Respectfully submitted, THE GOURRIER LAW FIRM, PLLC

By: /s/ Joseph M. Gourrier JOSEPH M. GOURRIER Texas State Bar No. 24007258 530 Lovett Boulevard, Suite B Houston, Texas 77006 joseph@gourrierlaw.com Telephone: 713-533-9077 Facsimile: 713-533-9376 ATTORNEY FOR APPELLANTS 11 CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 9.4(i)(3), Appellants certify that this brief is 2,567 words which is in compliance with Texas Rule of Appellate Procedure 9.4(i)(2).

By: /s/ Joseph M. Gourrier JOSEPH M. GOURRIER Texas State Bar No. 24007258

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to all known counsel of record in this cause in accordance with the Texas Rules of Civil Procedure via U.S. Mail, certified, return receipt requested, e- service, and/or facsimile and/or hand delivery, on this 18th day of March 2015.

Charles B. Holm John R. Strawn, Jr. Kyle M. Smith Victoria P. Skinner Holm Bambace, LLP Pennzoil Place, South Tower 1010 Lamar, Suite 1100 711 Louisiana, Suite 1850 Houston, Texas 77002 Houston, Texas 77002 Telephone: (713) 652-9700 Telephone: (713) 659-9600 Facsimile: (713) 652-9702 Facsimile: (713) 659-9601 Attorneys for Defendants Leah Ann Attorneys for Defendant Leah Ann Gonski Marino f/k/a Leah Anne Gonski Marino f/k/a Leah Anne Gonski and Jaou-Chen Huang, M.D. Gonski

/s/ Joseph M. Gourrier Joseph M. Gourrier