In re Texas Tech University Health Sciences Center5/17/1999
By this original proceeding, relator Texas Tech University Health Sciences Center, (TTUHSC) seeks a writ of mandamus to compel respondent, the Honorable Patrick A. Pirtle, Judge of the 251st Judicial District Court of Potter County, to vacate his order denying relator's motion to sign judgment and motion for severance, and directing the respondent to sign a judgment based upon relator's confession of judgment, in cause number 84,602-C, entitled Shirley W. Jones, Individually, and for the Estate of Clarence E. Jones, Sr., deceased, Clarence E. Jones, Jr., Richard P. Jones, and Stephen B. Jones v. Baptist St. Anthony's Health System, Texas Tech University Health Sciences Center, Marichu Balmes, M.D., Morgan H. McCaleb, M.D., and other unknown individuals, the underlying action. Following receipt of responses from the real parties in interest and oral argument, we conclude that the petition for writ of mandamus must be denied.
The underlying lawsuit is a "health care liability claim" filed by the family of Clarence E. Jones, Deceased, real parties in interest (the family) pursuant to the Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Pamph. Supp. 1999). By their action filed on February 27, 1998, and their amended petition filed April 29, 1998, the family seeks wrongful death/survival damages, actual and exemplary, in unspecified amounts against the two physicians, individually and also against TTUHSC and Baptist St. Anthony's Health System (BSA). Among other allegations, the family alleges the two physicians were employees or agents of TTUHSC. The two physicians filed separate answers on March 17, 1998 and April 2, 1998 and, by separate counsel, TTUHSC filed an answer and jury demand on March 26, 1998. In addition to a general denial, the answer of TTUHSC raised defenses of sovereign immunity, and the $250,000 limitation on recovery against TTUHSC and other defenses imposed by the Texas Tort Claims Act, see Tex. Civ. Prac. & Rem. Code Ann. § 101.023(a) (Vernon 1997), and non-applicability of exemplary and punitive damages. See Tex. Civ. Prac. & Rem. Code Ann. § 101.024 (Vernon 1997).
The family's request for depositions of the two physicians has been stayed by order of the trial court. However, answers to interrogatories filed on August 18, 1998, by the physicians show that insurance coverage exists in the amount of $100,000 for Dr. Balmes and $400,000 for Dr. McCaleb. Without amending or withdrawing its live pleading and demand for jury trial, on October 28, 1998, TTUHSC filed its confession of judgment under Rule 314 of the Texas Rules of Civil Procedure, confessing judgment both as to its liability in the underlying cause and damages, not to exceed the amount of $250,000 pursuant to section 101.023(a) of the Texas Civil Practice and Remedies Code. Also, TTUHSC tendered the amount of $250,000 into the registry of the court. Then, on November 4, 1998, the family filed a motion for non-suit without prejudice as to TTUHSC asserting that TTUHSC wished to have judgment entered against it for $250,000 so as to prevent the family from having any further cause of action against the individual physicians, and on that same date also filed an objection and response to the confession of judgment.
By order dated November 6, 1998, the trial court set a hearing on the motion for non-suit and confession of judgment for January 12, 1999. Then on December 10, 1998, TTUHSC filed its motion to sign judgment and motion to sever, and an order setting a hearing on this motion for January 12, 1999, was signed. The record provided shows that the two physicians did not join in the TTUHSC motion to sign judgment and motion to sever. Following the hea
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