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University of Texas Health Science Center v. Schroeder12/8/2005
n employee of UT, a necessary prerequisite to waiver of immunity. UT also asserted that no waiver occurred because Schroeder's injuries were not caused by the negligent use of personal property.
Attached to UT's plea to the jurisdiction is an affidavit by Robert L. Engelmeier, the Director of the Graduate Prosthodontic Program at UT. Dr. Engelmeier's affidavit states that none of the students in the program receive any compensation from UT. "The students are responsible for paying tuition and fees to UT." It describes the school's function as follows:
Anyone in the general public needing dental treatment can apply to UT to become one of its 'teaching cases' as part of its educational program in graduate studies. Those persons which qualify as 'teaching cases' are accepted as such and are offered reduced fee services. However, on the average, only about one applicant in ten qualify as 'teaching cases'. Ms. Terry Schroeder was accepted as a 'teaching case'.
The affidavit also states that, "Since December, 1999 [Dr. Silverman] has had no involvement whatsoever with any of the graduate Prosthodontics Department cases, including Ms. Terry Schroeder's." Finally, the affidavit states, "Dr. Nicholas Tsoukalis was a student at UT paying tuition for and studying under the Graduate program. At no time was Dr. Tsoukalis ever employed by UT or paid any wages, earnings or any other money by UT."
Dr. Silverman's deposition was also attached to UT's plea to the jurisdiction. When asked if he did any hands-on work with Ms. Schroeder, Dr. Silverman answered, "no."
In response to UT's plea to the jurisdiction, Schroeder states that Dr. Tsoukalas primarily treated her. She states that Dr. Silverman "participated in the analysis, creation and implementation of the treatment plan." She alleges that "Dr. Silverman had the right to control the physical details of Tsoukalas' work." In her response, Schroeder states that the basis of her malpractice claim was that the treatment plan was wholly unnecessary. She further states that "the gist of Plaintiff's complaint is that UT embarked on an unnecessary course of care (crowning the teeth) based upon a misdiagnosis or no diagnosis at all." She argues that under section 101.021(2), the statute does not contain any explicit "paid employee" language. Rather, the statute requires only a showing that the governmental entity would be liable if it were a private person. Attached to Schroeder's response is a deposition transcript from Dr. Silverman in which he testified that 100% of the work on Ms. Schroeder was done by Dr. Tsoukalas. Dr. Silverman admitted that he did have responsibility within the UT educational guidelines to monitor the work that Dr. Tsoukalas performed on Ms. Schroeder and that he was responsible for seeing that Dr. Tsoukalas "was prepared for the procedures for that day" and "to see that those procedures were performed."
Paid Employee
In its first issue on appeal, UT argues that the trial court erroneously denied its plea to the jurisdiction because Dr. Tsoukalas was a student and was not a paid employee of UT.
As addressed above, to waive UT's governmental immunity, Schroeder had to allege facts that demonstrated UT's waiver of governmental immunity. Schroeder predicated UT's waiver of governmental immunity on section 101.021(2) of the TTCA. Section 101.021 provides that a governmental unit in the state is liable for:
(1) property damage, personal injury , and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises f
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