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Bustillos v. Jacobs12/14/2005
Sitting: Alma L. Lopez, Chief Justice, Catherine Stone, Justice, Rebecca Simmons, Justice.
AFFIRMED
Ida Rose Treviño Bustillos and Isauro Bustillos challenge the take nothing judgment rendered in their medical malpractice action against Jennifer Jacobs, M.D., Roxanna Doucet, M.D., and Ana Beceiro, M.D. Because the Bustilloses' action against the doctors is barred by statute, we affirm the trial court's judgment.
Background
Ida Rose Treviño Bustillos and Isauro Bustillos (the "Bustilloses") met with Dr. Roxanna Doucet, a graduate medical student of the University of Texas Health Science Center ("UTHSC"), for a prenatal examination on October 6, 2000. Following the examination, Dr. Doucet instructed the Bustilloses to report to University Hospital, a public teaching hospital that is owned and operated by Bexar County Hospital District and staffed with medical faculty and residents of UTHSC, for the delivery of their child.
Ida was admitted to University Hospital approximately one and one-half hours after she first reported to the hospital. Upon her admittance, medical personnel examined Ida to check the status of her unborn child. Unfortunately, the examination revealed that the Bustilloses' unborn child had died. Ida, with the assistance of Dr. Jennifer Jacobs, a physician on UTHSC's faculty, and Dr. Ana Beceiro, a UTHSC graduate medical student, subsequently "deliver her baby vaginally" after fourteen hours of labor.
Ida began to suffer abdominal pain and diarrhea sometime after her delivery. University personnel performed a CT scan on Ida and learned that she had suffered a uterine rupture during her delivery. Dr. Jacobs performed an emergency hysterectomy on Ida; however, this procedure left Ida infertile.
The Bustilloses brought a medical malpractice action against the Bexar County Hospital District, UTHSC, Dr. Jacobs, Dr. Doucet, and Dr. Beceiro (collectively the "Doctors") on October 7, 2002. UTHSC responded by filing a "Plea to the Jurisdiction and Motion to Dismiss and Sever" on the ground that the Bustilloses failed to give notice of their claim as required by statute, and that it had no actual notice of the claim. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a) (Vernon 2005). The trial court granted UTHSC's motion, ordered that the Bustilloses take nothing by their action against UTHSC, and severed this part of the action.
After UTHSC's plea to the jurisdiction was granted, the Doctors moved for summary judgment based on the defense of derivative immunity pursuant to section 101.106 of the Civil Practice and Remedy Code, which provides that " judgment in an action . . . 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." The Doctors also moved for summary judgment pursuant to section 312.007 of the Texas Health and Safety Code, which provides that " judgment in an action . . . against a medical and dental unit, supported medical or dental school, or coordinating entity under Chapter 101, Civil Practice and Remedies Code, bars any action involving the same subject matter by the claimant against a . . . resident, fellow, faculty member, or other associated health care professional or employee of the unit, school, or entity whose act or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was asserted as provided under Section 101.106, Civil Practice and Remedies Code."
The Bustilloses filed a response to the Doctors' motion, asserting that summary judgment was improper because: (1) the Do
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