Thomas v. Harris County

30 S.W.3d 51, 2000 Tex. App. LEXIS 6704, 2000 WL 1476721

• Court: Court of Appeals of Texas
• Decided: October 5, 2000
• Docket: 01-99-00774-CV
• Status: Published

Opinions

OPINION ON REHEARING

JACKSON B. SMITH, Jr., Justice (Retired).

A majority of the Justices of this Court have denied appellants’ motion for en-banc rehearing. However, we withdraw our opinion of July 6, 2000 and issue this one in its stead.

Appellants brought suit, asserting federal constitutional claims as well as claims under the Texas Tort Claims Act (TTCA) and the Texas wrongful death and survival statutes.¹ The trial court granted Harris County’s no-evidence motion for summary judgment on all claims based on Texas law.² We affirm.

Facts

Stephen Charles Murray was booked into the Harris County Jail on July 10, 1994. He was seen and evaluated by a physician the same day. He informed the physician he was on medication for high blood pressure. The physician ordered that he be notified if Murray’s blood pressure rose above 140/90.

Murray’s blood pressure was measured at 140/100 on July 25. The physician prescribed an antihypertensive, Procardia XL. The Procardia XL prescription was renewed on August 24. On September 8, Murray complained of vomiting and an inability to move his legs. He was diagnosed with gastroenteritis and admitted to the infirmary. He was discharged and returned to his cell the next day.

On September 12, Murray was involved in an altercation with another inmate. He was taken to the clinic, where his blood pressure reading was 172/108. On September 15, Murray complained of a headache, fever, and congestion. He was prescribed Cafergot and Dimetapp. On September 16, Murray was found dead in his cell.

An autopsy showed the cause of death was an acute subarachnoid hemorrhage. Appellants contend the hemorrhage occurred because Murray was given medications that raise a person’s blood pressure and that should not be given to a person suffering from high blood pressure.

Analysis

In their second point of error, appellants contend the trial court erred by granting summary judgment based on the argument that Harris County was not legally responsible for the physicians’ acts.

The physicians who treated Murray were contract physicians, employees of University of Texas Health Science Center at Houston (UTHSC). The agreement executed between Harris County and UTHSC explicitly provided that the physicians are not employees of Harris County and that UTHSC was an independent contractor of Harris County:

[1] Physicians, Contract Physicians, residents, medical students, and all other personnel assigned to the Detention Facilities by the University and accepted by the Sheriff or his designee shall not be considered employees of, nor employed by, the County or the Sheriff. In performing the obligations under this Agreement, the University shall act as an independent contractor and not as an agent or employee of the county.

Harris County cannot be held liable under the TTCA for the negligence of persons not employed by Harris County. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995). The TTCA waives immunity only for acts “of an employee.” Tex.Civ.PRAC. & Rem.Code Ann. § 101.021 (Vernon 1997). An “employee” is defined as:

[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.

Tex.Civ.Prac. & Rem.Code Ann. § 101.001(1) (Vernon 1997) (emphasis added).³ The legislature specifically refused to waive the immunity of counties for acts of independent contractors like UTHSC.

Appellants, in response to Harris County’s 166a(i) summary judgment motion, offered no evidence that the physicians who treated Murray were in the paid service of Harris County. A government is not hable for acts in its behalf of a person who is not a paid employee. See Harris County v. Dillard, 883 S.W.2d 166, 167-68 (Tex.1994).⁴ “We have repeatedly held that the extent of governmental immunity is a matter for the legislature to determine ... To accept plaintiff’s argument would be to extend the waiver further than the Act provides, which we will not do.” Id. at 168.

Appellants argue that Harris County has a non-delegable duty to provide adequate health care and cannot relieve itself of its responsibility to provide adequate health care to its inmates. See Tex. Code CRIm.PROc.Ann. art. 16.21 (Vernon 1997) (“Every Sheriff shall keep safely a person committed to his custody. He shall use no cruel or unusual means to secure this end.... ”). We agree. Harris County discharged that duty by entering into a contract with a reputable health care provider to provide for the medical needs of those incarcerated.

In support of their contention that a party cannot avoid liability for negligence when it has a duty imposed by a statute or administrative regulation, appellants cite MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex.1992). In MBank, the owner of an automobile brought an action against a bank for damages arising out of the repossession of the automobile. The Court held that the bank, pursuing nonjudicial repossession, had a duty to take precautions for public safety and was prohibited from delegating the duty to an independent contractor. Id. at 154.

Appellants’ reliance on MBank is misplaced. MBank is distinguishable in many respects. First, it has nothing to do with governmental immunity, which is the controlling issue here. Second, it was based on a policy preference for judicial foreclosure in order to avoid violence that often attends self-help repossession. Id. at 152-53. That is foreign to this case. Third, due to the extensive educational requirements to practice medicine, as well as the complex nature of medical treatment itself, it is necessary for Harris County to contract for inmate medical services.

UTHSC was obligated to supply a sufficient number of physicians to provide adequate medical care for inmates. The agreement does not require a specific number of physicians, nor does it require that any particular physician employed by UTHSC work in the jail. Screening, training, assignment, and supervision of physicians were all obligations of UTHSC.

The fact that the sheriff reserved the right to effectuate the removal of any physician deemed undesirable does not mean Harris County controlled the details of the physicians’ work. See Continental Ins. Co. v. Wolford, 526 S.W.2d 539, 541-42 (Tex.1975). Indeed, the very nature of practicing medicine makes it impossible for Harris County to do so.

The fact that Harris County required UTHSC personnel to comply with Harris County’s security policies and guidelines is also no indication that Harris County controlled the details of the physicians’ work. Obviously, security is the primary consideration in a jail. Requiring health care workers to observe security procedures within the confines of the jail is not an exercise of control over the physicians’ work. Id. For example, construction workers performing repairs in the jail would clearly be obligated to adhere to the jail’s security procedures, but it could not be reasonably argued that the workers were county employees simply by virtue of the fact they were practicing them occupation within the confines of the jail.

The physicians practicing in the Harris County Detention Center were not employees of Harris County. They were employees of UTHSC. Because the physicians were not “in the paid service” of Harris County, and because Harris County had no right to control the details of the physicians’ work, Harris County’s sovereign immunity under the TTCA has not been waived. Therefore, appellants’ claims against Harris County under the TTCA must fail.

After carefully considering the dissent, we respectfully disagree with its analysis. The legislature has chosen to enact the TTCA and to waive immunity only for conduct “of an employee,” and it defined the term “employee” specifically to exclude “independent contractors.” See Tex.Civ. PRAC. & Rem.Code Ann. §§ 101.021; 101.001(1) (Vernon 1997). The fact that other states have chosen to define the term “employee” differently under their analogous Tort Claims Acts is of no consequence to the proper determination of this case.⁵ Further, the Shea v. City of Spokane opinion cited in the dissent is based on common law and prior Washington state court decisions, not Texas statutory law, as is the case here. 562 P.2d 264 (Wash.Ct.App.1977). The only way that the dissent’s proposed resolution is feasible as a matter of law is if this panel finds that section 101.001(1) is unconstitutional under the facts of this case. We decline to do so.

The United States Supreme Court case law cited in the dissent is not controlling because it concerns Eighth Amendment issues that were not raised before this Court. The trial judge did not err in granting summary judgment.

We overrule appellants’ second point of error. The disposition of the second point of error in favor of Harris County negates the need to address the first point.

We affirm the judgment.

A majority of the justices of the Court voted to overrule appellants’ motion for en-banc rehearing.

Justice O’CONNOR dissents from the overruling of appellants’ motion for en-banc rehearing.

1 . Tex.Civ.Prac. & Rem.Code Ann § 101.002 (Vernon 1997); Tex .Civ.Prac & Rem.Code Ann. §§ 71.001, 71.021 (Vernon 1997).

2 . Harris County previously removed the action to United States District Court, where it was heard before Judge Sim Lake. Judge Lake granted summary judgment in favor of Harris County with regard to the federal constitutional claims, but remanded the state law claims to state district court.

3 . The same definition is now found in TTCA section 101.001(2). Tex.Civ.Prac. & Rem.Code Ann. § 101.001 (Vernon 1997).

4 . In Dillard, a volunteer reserve deputy did not fall within the definition of "employee” under section 101.001(1) of the TTCA because he was not paid by the county. Id. at 167.

5 . For example, the North Carolina Tort Claims Act encompasses claims arising from

the negligence of any officer, employee, involuntary servant or agent of the State while acting in the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the rules of North Carolina.

N.C.Gen.Stat. § 143-291 (1990). Unlike the TTCA, the North Carolina Act does not provide a definition of ''employee,” an omission that causes the case to be of little value in reaching the merits of the case before this Court.