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Flores v. Law12/23/1999
e litigant must show: (1) that the statute restricts a well-recognized cause of action; and (2) that the restriction is unreasonable when balanced against the purpose of the statute. Thomas, 895 S.W.2d at 357. Law cannot meet the first requirement.
At common law, individuals had a recognized cause of action for medical negligence. See Melendez v. Beal, 683 S.W.2d 869, 872 (Tex. App.-Houston [1st Dist.] 1984, no writ). However, a cause of action for medical malpractice could not be asserted against a governmental entity operating a hospital. See Edinburg Hosp. Auth. v. Trevino, 904 S.W.2d 831, 840 (Tex. App.-Corpus Christi 1995, no writ). Such a suit was precluded under the doctrine of sovereign immunity because operating a hospital was considered a government activity. City of Dallas v. Smith, 107 S.W.2d 872, 875 (Tex. 1937).
With the adoption of the Tort Claims Act, the State expanded a litigant's ability to assert medical malpractice claims against government hospitals and their employees by waiving its immunity in certain circumstances. Edinburg, 904 S.W.2d at 840. Thus, contrary to Law's position, the Tort Claims Act does not restrict, but, by waiving immunity in specified areas, it actually expands a common-law action for medical negligence.
Law argues that no Texas court has addressed the issue of whether section 101.106 violates the "open courts" provision of the Texas Constitution when a judgment is granted in favor of the governmental entity. Law argues section 101.106 keeps plaintiffs from suing state employees only if the plaintiff settles with or wins a judgment against the State. As such, Law contends it discourages suits against employees without taking away the plaintiff's right to recover. Law argues this rationale, however, does not apply when a judgment is granted in favor of the governmental entity because it "totally rob the plaintiff of his or her right to recover anything for her injuries."
Several Texas appellate courts have applied section 101.106 when the judgment was in favor of an employer, and even when the judgment was not rendered on the merits. Brand v. Savage, 920 S.W.2d 672, 674 (Tex. App.-Houston [1st Dist.] 1995, no writ), citing Cox v. Klug, 855 S.W.2d 276, 280 (Tex. App.-Amarillo 1993, no writ) (holding summary judgment in favor of government hospital based on plaintiff's failure to comply with notice requirement also barred action against individual doctor); Davis v. Mathis, 846 S.W.2d 84, 88-89 (Tex. App.-Dallas 1992, no writ) ("Section 101.106 provides automatic derivative immunity for a governmental employee.").
In Brand, the plaintiff sued the City of El Lago, Taylor Lake Village, and a police officer. Brand, 920 S.W.2d at 672. The trial court granted summary judgment in favor of the city, village, and police officer, based on provisions of the Tort Claims Act, and the plaintiff appealed. Id. at 672-673. This Court held that because the appellant did not allege in her petition, nor raise in her response to the motion for summary judgment, any facts that would place her claim within the statutory exceptions to governmental immunity, the trial court properly granted summary judgment in favor of the city, village, and police officer. Id.
Moreover, this Court went so far as to state we "recognize the effect of the statute seems harsh; however as the Court noted in Gibson, ` lthough a plaintiff who pursues the statutory remedy against the government may lose his or her common law remedy against the employee, the plaintiff is not required to follow this course." Id. at 675 (citing Gibson v. Spinks, 895 S.W.2d 352, 357 (Tex. 1995)). "The plaintiff `may still opt to pursue the full common law remedy against
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