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Flores v. Law12/23/1999
This is a dispute regarding the constitutionality of section 101.106 of the Texas Tort Claims Act. Appellant, Bertha Flores, brings an interlocutory appeal after an adverse ruling on her motion for summary judgment based on the affirmative defense of official immunity. The only issue here is the constitutionality of a Tort Claims Act provision that bars claims against an employee after a judgment is rendered in the action giving rise to the claim. If constitutional, appellee, Anne Law, is barred from asserting her claims against Flores. We reverse and render.
Facts and Procedural History
Law sued the University of Texas Health Science Center at Houston (UTHSC), and Flores, a UTHSC employee, for medical malpractice. Law suffered an ectopic pregnancy that was not diagnosed by Flores while Law was in the care of UTHSC. UTHSC was granted summary judgment, and the trial court granted its motion to sever, leaving Flores as the only remaining defendant.
After UTHSC was granted summary judgment, Flores filed a motion for summary judgment asserting Law was barred from continuing with her claims against Flores based on section 101.106, a provision which bars claims against an employee after a judgment has been rendered in the action giving rise to the claim. The trial court denied Flores's motion, and this appeal ensued.
Standard of Review
To be entitled to summary judgment, the movant must establish there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Enchanted Estates Community Ass'n, Inc. v. Timberlake Improvement Dist., 832 S.W.2d 800, 801 (Tex. App.-Houston [1st Dist.] 1992, no writ). If the movant's motion for summary judgment is based on an affirmative defense, the movant must establish all the elements of the affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
Is Section 101.106 Constitutional?
Before we begin our analysis, we will eliminate matters not before this Court:
(1) Law concedes she has no cause of action against UTHSC based on sovereign immunity. University of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994).
(2) Both parties concede that, until summary judgment was granted in favor of UTHSC, Law could have pursued a cause of action for medical malpractice against Flores. Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex. 1995).
(3) Law concedes that under section 101.106, if a judgment was granted against UTHSC, Law would have no cause of action against Flores.
(4) As the only remaining issue, Law asks this Court to distinguish her case, because the summary judgment was granted in favor of UTHSC, and not against it.
Law contends section 101.106 is unconstitutional because it unreasonably restricts her ability to bring a common-law cause of action for medical negligence. Section 101.106 provides:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim. Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (emphasis added).
Article I, section 13 of the Texas Constitution provides, in pertinent part, that " ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, § 13. When challenging a statute as unconstitutional on the basis that it restricts a common-law cause of action, th
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