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MacDonald v. Warner10/20/2005
Appellant, Richard C. MacDonald, challenges the trial court's rendition of summary judgment in favor of appellees, William S. Warner, M.D. and Romeo Castillo, M.D., in his suit alleging medical malpractice. In two points of error, MacDonald contends that the trial court erred in granting Warner's and Castillo's summary judgment motion because Warner and Castillo failed to establish, as a matter of law, their affirmative defenses under section 101.106 of the Texas Tort Claims Act (the "Act") and section 312.007 of the Texas Health and Safety Code. We affirm.
Factual and Procedural Background
In April 2001, MacDonald was treated at the UTMB-Galveston ("UTMB") emergency room for a wound to his foot. Warner, a UTMB faculty member working in the emergency room, and Castillo, a UTMB resident on rotation in the emergency room, examined and treated MacDonald. MacDonald filed suit against UTMB, Warner, and Castillo on April 25, 2003, alleging that "UTMB, its agents, servants, and employees were negligent in failing to promptly and properly perform the necessary surgical procedure and/or in failing to properly and promptly refer to the proper orthopedic physician," and that such negligence caused him personal injuries.
UTMB filed a plea to the jurisdiction and motion to dismiss and sever, which the trial court granted. Warner and Castillo subsequently filed a summary judgment motion, contending that MacDonald's claims against them individually were barred by section 101.106 of the Act, or, alternatively, that MacDonald's claims were barred by section 312.007(b) of the Texas Health and Safety Code. Without specifying the grounds on which it relied, the trial court granted Warner's and Castillo's summary judgment motion.
Standard of Review
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law because there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.---Houston [1st Dist.] 1996, no writ). A movant must either negate at least one essential element of the non-movant's cause of action, or prove all essential elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In conducting our review, we assume that all evidence favorable to the non-movant is true and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Nixon, 690 S.W.2d at 548--49. When a trial court's order does not specify the grounds under which summary judgment was granted, we will affirm the judgment on any meritorious theory advanced in the motion. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
Governmental Immunity
In his first issue, MacDonald contends that Warner and Castillo failed to establish their affirmative defense under section 101.106 of the Act as a matter of law and that there was a genuine issue of material fact on one or more elements of their affirmative defense under section 101.106.
Former section 101.106 provided:
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.
See Act of May 17, 1985, 69th Leg., ch. 959, § 1, 1985 Tex. Gen. Laws 3305 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code § 101.106 (Vernon 2005)).
Under section 101.106, when a claim against a governmental entity is dismissed o
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