Susanna Rodriguez v. Christus Spohn Health System, et al

Filing

PUBLISHED OPINION FILED. [10-40371 Vacated and Remanded ] Judge: TMR , Judge: FPB , Judge: EBC Mandate pull date is 01/13/2011 [10-40371]

Susanna Rodriguez Case: 10-40371 Document:et al v. Christus Spohn Health System, 00511331914

Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 23, 2010 N o . 10-40371 Lyle W. Cayce Clerk

S U S A N N A HINOJOSA RODRIGUEZ, P la in t if f -A p p e lle e v. C H R I S T U S SPOHN HEALTH SYSTEM CORPORATION: C H R I S T U S SPOHN HEALTH SYSTEM CORPORATION, doing business as C h r is t u s Spohn Hospital Corpus Christi, -Memorial; C H R I S T U S HEALTH, D e fe n d a n t s -A p p e lla n t s

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges. R E A V L E Y , Circuit Judge: A p p e lla n t s CHRISTUS Spohn Health System Corp., CHRISTUS Spohn H e a lth System Corp. d/b/a CHRISTUS Spohn Hospital Corpus

C h ris t i­ M e m o ria l, and CHRISTUS Health (collectively "CHRISTUS") appeal the d is t r ic t court's denial of their Rule 12(b)(1) motion to dismiss Appellee Susanna H in o jo s a Rodriguez's state law claims based on government immunity. The p r im a r y issue on appeal is whether Rodriguez's claims fall under the Texas Tort C la im s Act. If so, defendant CHRISTUS is entitled to government immunity on

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No. 10-40371 h e r state law claims,1 and defendant John Hill must be dismissed pursuant to t h e Tort Claims Act's election of remedies provision. The district court denied C H R I S T U S 's motion to dismiss under Rule 12(b)(1), holding that Rodriguez's c la im s were statutory claims and therefore not covered by the Tort Claims Act. We vacate that order but a limited claim is approved. I . Background R o d r ig u e z brought suit alleging that while receiving voluntary inpatient m e n ta l health treatment at Christus Spohn Hospital Corpus Christi­Memorial, B e h a v io r a l Medicine Department she was sexually assaulted by a staff member, J o h n Hill ("Hill"). Along with allegations of violations of the Texas and United S t a te s Constitutions, she pleaded causes of action against CHRISTUS for v io la t io n s of (1) Chapter 74 of the Texas Civil Practice and Remedies Code--the M e d ic a l Liability Act; (2) Chapter 81 of the Texas Civil Practice and Remedies C o d e -- t h e Sexual Exploitation by Mental Health Services Provider Act; and (3) C h a p t e r 321 of the Texas Health and Safety Code--"Patient Bill of Rights." Additionally, she pleaded a cause of action against Hill for assault and battery. C H R I S T U S filed a Rule 12(b)(1) motion to dismiss based on immunity and e le c t io n of remedies, or alternatively a motion for partial summary judgment. With one small exception, the district court denied CHRISTUS's 12(b)(1) motion, r u lin g that CHRISTUS did not have immunity from suit on Rodriguez's claims. The district court granted CHRISTUS's motion to certify its order under 28 U .S .C . § 1292(b). We subsequently granted their motion for leave to appeal. We, t h e r e fo r e , have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(b). I I . Discussion

Rodriguez brought both state and federal claims. Only her state law claims are at issue here.

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No. 10-40371 " W e review a ruling on a FED. R. CIV. P. 12(b)(1) motion to dismiss for lack o f subject matter jurisdiction de novo,"2 "applying the same standards as the d is t r ic t court."3 A district court may determine its jurisdiction based on "(1) the c o m p la in t alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the c o u r t's resolution of disputed facts."4 "[I]f the court's decision rests on one of the fir s t two of these bases--in which case the court need not decide among c o n flic tin g factual positions--our review is limited to determining whether the d is t r ic t court's application of the law is correct and, if the decision is based on u n d is p u t e d facts, whether those facts are indeed undisputed."5 "But, if the court h a s relied . . . on its own determination of disputed factual issues, we must then r e v ie w those findings as we would any other district court resolution of factual d i s p u t e s -- w e must accept the district court's findings unless they are `clearly e r r o n e o u s . '" 6 A. C la i m s Against CHRISTUS A s a threshold matter, the parties do not contest the district court's d e t e r m in a t io n that CHRISTUS is a "hospital district management contractor" a s defined by section 285.071 of the Texas Health and Safety Code. Since C H R I S T U S is a hospital district management contractor, it is entitled to g o v e r n m e n t a l immunity7 for the purposes of Chapters 101, 102, and 108 of the

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Budget Prepay, Inc. v. AT&T Corp., 605 F.3d 273, 278 (5th Cir. 2010). LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005). Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001). Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Id.

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Both sovereign immunity and governmental immunity "afford the same degree of protection and both levels of government are subject to the Tort Claims Act." Mission Consol.

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No. 10-40371 T e x a s Civil Practice & Remedies Code.8 Chapter 101 is the Texas Tort Claims A c t , while chapters 102 and 108 cover tort claims payments by local g o v e r n m e n t s , and limitation of liability for public servants, respectively. And R o d r i g u e z does not claim that a Tort Claims Act tort would be entitled to the lim it e d waiver of immunity provided by the Act.9 Where the parties part ways is on the question whether Rodriguez's three state law claims are torts that fall u n d e r the Act. 1. T o r t s Falling "Under the Tort Claims Act"

C H R I S T U S contends that the district court erred when it held that s t a t u t o r y claims may never fall under the Tort Claims Act, and argues that T e x a s courts have long applied the Act to various statutory causes of action. Rodriguez argues that the waiver granted to "hospital district management c o n t r a c to r s " should be extremely limited--applying to common law torts only; t o read it otherwise would essentially make these contractors a part of the g o v e r n m e n t . However, the statute itself and the case law do not support her a rg u m en t. T h e Tort Claims Act itself contains no language limiting its scope to c o m m o n law torts. Instead, the Act's limited waiver allows for certain actions fo r which a person "would be personally liable to the claimant according to Texas la w ," not Texas common law.1 0 Also, the Texas Legislature placed it in Title 4 o f the Civil Practice and Remedies Code, entitled "Liability in Tort," which c o d ifie s , or makes statutory, many traditional common law torts, such as L ib e l-- C h a p t e r 73, Trespass--Chapter 80, and Products Liability--Chapter 82.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008).
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TEX. HEALTH & SAFETY CODE § 285.072. See TEX. CIV. PRAC. & REM. CODE § 101.021. § 101.021 (emphasis added).

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No. 10-40371 A n d , the Legislature clearly contemplated the interplay of statutory torts with t h e Tort Claims Act. For example, in Chapter 74--the Medical Liability Act, the L e g is la t u r e provided that "in the event of a conflict between this chapter and S e c ti o n 101.023, 102.003, or 108.002, those sections of this code control to the e x t e n t of the conflict,"1 1 and specified that "[t]his chapter does not waive s o v e r e ig n immunity from suit or from liability."1 2 Nor does the plain language o f § 285.072 of the Texas Health and Safety Code, conveying governmental im m u n it y to hospital district management contractors, limit immunity to c o m m o n law torts alone.1 3 T h e Texas Supreme Court has held that causes of action based on statutes c o n t a in in g their own waiver of immunity do not fall under the Act.1 4 However, t h e Texas Supreme Court has never barred all statutory claims from falling u n d e r the Tort Claims Act. And, subsequent cases from the state courts of a p p e a ls have followed the pattern of distinguishing claims based on statutes c o n t a in in g independent waivers of immunity.1 5 Further, Texas courts treat

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TEX. CIV. PRAC. & REM. CODE § 74.002(b), § 74.003.

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"A hospital district management contractor in its management or operation of a hospital under a contract with a hospital district is considered a governmental unit for purposes of Chapters 101, 102, and 108, Civil Practice and Remedies Code[.]" TEX. HEALTH & SA F E T Y CODE § 285.072. Garcia, 253 S.W.3d at 659 ("Claims against the government brought pursuant to waivers of sovereign immunity that exist apart from the Tort Claims Act are not brought `under the [Tort Claims Act].'") (emphasis added). See, e.g., Castro v. McNabb, 319 S.W.3d 721, 731­32 (Tex. App.­El Paso 2009, no pet.) (holding that plaintiff's claim under the Declaratory Judgment Act was not "under the Tort Claims Act," because the Declaratory Judgment Act separately waived sovereign immunity); see also Kelemen v. Elliott, 260 S.W.3d 518, 523 (Tex. App.­Houston [1st Dist.] 2008, no pet.) ("Like the claim in Garcia, the statutory claim under the [Human Rights Act] and the claim for the Whistleblower Act violation are claims brought against the government pursuant to waivers of sovereign immunity that exist apart from the Tort Claims Act" and "are similarly not claims under the Tort Claims Act.").
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No. 10-40371 s t a t u to r y torts like common law torts absent some conflicting statutory p r o v is io n s .1 6 We are, therefore, persuaded that statutory claims may fall under t h e Tort Claims Act provided (1) they are tort claims, and (2) they do not contain in d e p e n d e n t waivers of sovereign immunity, and we analyze Rodriguez's claims a c c o r d in g ly . I t should be understood that "the Tort Claims Act does not create a cause o f action; it merely waives sovereign immunity as a bar to a suit that would o t h e r w i s e exist."1 7 Claims brought under the Tort Claims Act must first be c la im s based on a viable theory of tort liability. So, the phrase "brought under t h e Tort Claims Act" is merely shorthand for the fact that the government may n o t be sued in tort unless a separate, viable tort fits within the limited waiver p r o v id e d by the Act. T h e r e fo r e , the question becomes whether Rodriguez's statutory claims s o u n d in tort, and, if so, whether they contain an independent waiver of im m u n it y . The Tort Claims Act does not define tort, so we apply its commonly a c c e p t e d meaning. Tort liability depends on both the existence and violation of a duty.1 8 Statutes may create duties on which tort liability is premised.1 9 Not a ll statutory claims sound in tort, so the court must examine each claim to

See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 705 (Tex. 2008) (applying the Texas proportionate responsibility statute, TEX. CIV. PRAC. & REM. CODE § 33.002, to UCC article 3 conversion claims); Garcia, 253 S.W.3d at 659 ("[A]s we have said, all tort theories of recovery alleged against a governmental unit are presumed to be under the [Tort Claims Act].") (internal quotation marks omitted).
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City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).

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See, e.g., City of Waco v. Kirwan, 298 S.W.3d 618, 623­24 (Tex. 2009) (examining the duty imposed by statue governing recreational use of land, TEX. CIV. PRAC. & REM. CODE § 75.002); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683­85 (Tex. 2007) ("In the Dram Shop Act, the Legislature created a duty, not recognized at common law, on alcohol providers[.]").

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No. 10-40371 d e t e r m in e its basis. "The precise nature of the claim is ordinarily identified by e x a m in in g the damages alleged: when the damages are purely economic, the c la im sounds in contract, but a . . . claim alleging damages for death or personal in ju r y sounds in tort."2 0 2. C h a p te r 74 Claim

In her first claim against CHRISTUS, based on Chapter 74 of the Texas C iv il Practice and Remedies Code--the Medical Liability Act, Rodriguez alleges in te r alia that CHRISTUS owed her a duty to keep her safe by following proper p r o c e d u r e s for warning patients, hiring and training employees, and providing a safe environment. Because of CHRISTUS's alleged breach of its duty,

R o d r ig u e z claims that she was sexually assaulted by an employee. She seeks d a m a g e s for her injury. Chapter 74 does not create a separate cause of action, b u t rather governs all tort claims that are considered "health care liability c la im s " as defined by the statute.2 1 But even if it did create a statutory cause of a c t io n , it would sound in tort. The Texas Legislature classified Chapter 74 as a ffe c t in g tort claims when it placed it in Title 4 of the Texas Civil Practice and R e m e d ie s Code, entitled Liability in Tort. Rodriguez's Chapter 74 claim sounds in tort. Additionally, Chapter 74 expressly does not waive sovereign immunity.22 R o d r ig u e z 's Chapter 74 claim must be dismissed because it is a tort based on a s t a t u t e that contains no independent waiver of immunity. 3. C h a p te r 81

I n the second claim, under Chapter 81 of the Texas Civil Practice and R e m e d ie s Code--the Sexual Exploitation by Mental Health Provider Act,

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JCW Elecs., 257 S.W.3d at 705.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13); See Clark v. TIRR Rehab. Ctr., 227 S.W.3d 256, 260 (Tex. App.­Houston [1st Dist.] 2007, no pet.) (evaluating plaintiff's negligence claim to determine if it was a "health care liability claim" under Chapter 74).
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TEX. CIV. PRAC. & REM. CODE § 74.003.

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No. 10-40371 R o d r ig u e z alleges that she was sexually assaulted by Hill--an employee of C H R I S T U S . Here, she claims personal injury for which she seeks monetary d a m a g e s and/or equitable relief. This claim also sounds in tort. However,

C h a p t e r 81 contains a partial waiver of immunity.2 3 Section 81.010 allows a c a u s e of action as defined in § 81.002 2 4 against governmental units but only for " (1 ) an order requiring the governmental unit to discharge the mental health s e r v ic e s provider who committed the conduct; (2) court costs; and (3) reasonable a t t o r n e y 's fees, as determined by the court."2 5 Since CHRISTUS is "considered a governmental unit for the purposes of [the Tort Claims Act]," it enjoys the s a m e level of partial immunity.2 6 Thus, it is immune to any claim under Chapter 8 1 except as allowed by § 81.010. Rodriguez's Chapter 81 claim must be

d is m is s e d , except to the extent that it falls under § 81.010. 4. C h a p te r 321 Claim

R o d r ig u e z 's last claim is based on violations of Chapter 321 of the Texas H e a lt h and Safety Code--"Patient Bill of Rights." Section 321.002 imposes on

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TEX. CIV. PRAC. & REM. CODE § 81.010. Section 81.002 provides that:

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A mental health services provider is liable to a patient or former patient of the mental health services provider for damages for sexual exploitation if the patient or former patient suffers, directly or indirectly, a physical, mental, or emotional injury caused by, resulting from, or arising out of: (1) sexual contact between the patient or former patient and the mental health services provider; (2) sexual exploitation of the patient or former patient by the mental health services provider; or (3) therapeutic deception of the patient or former patient by the mental health services provider. TE X . CIV. PRAC. & REM. CODE § 81.002.
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§ 81.010(b), (d). See TEX. HEALTH & SAFETY CODE § 285.072.

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No. 10-40371 a ll mental health facilities an affirmative duty to inform patients of their r ig h t s .2 7 Section 321.003 provides a cause of action for breaches of this duty and p r o s c r ib e s remedies.2 8 A plaintiff may sue for injunctive relief and/or damages, in c lu d in g damages for mental anguish. Although Chapter 321 does not fall w it h in Title 4 of the Civil Practice and Remedies Code codifying tort liability, the c la im sounds in tort because of the remedy sought.2 9 And since the Texas

S u p r e m e Court has determined that § 321.003 does not contain an independent w a iv e r of sovereign immunity,3 0 Rodriguez's Chapter 321 claim also falls under t h e Tort Claims Act and must be dismissed. B. C la i m s Against Hill C H R I S T U S argues that the district court erred when it denied C H R I S T U S 's Rule 12(b)(1) motion to dismiss Rodriguez's claims for assault and b a tt e r y against Hill. CHRISTUS contends that pursuant to the Tort Claims A c t 's election of remedies scheme laid out in § 101.106,3 1 Hill must be dismissed a s a party. Rodriguez counters that for the reasons she urged above, the Tort C la im s Act, and therefore its election of remedies provision, is inapplicable. In their briefing, the parties do not dispute that Hill is an employee of C H R I S T U S3 2 or that CHRISTUS filed a motion under this section to have Hill

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TEX. HEALTH & SAFETY CODE § 321.002(f). § 321.003. See JCW Elecs., 257 S.W.3d at 705. Beaumont State Ctr. v. Kozlowski ex rel. Allen, 108 S.W.3d 899, 900 (Tex. 2003) (per

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curiam). Section 101.106(e) provides that "[i]f a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit." TEX. CIV. PRAC. & REM. CODE § 101.106(e). For the first time, at oral argument, Rodriguez argued that Hill was an employee of the hospital district, not CHRISTUS. Since Rodriguez did not brief this issue, it is waived. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 417 (5th Cir. 2009) ("[W]e deem this issue
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No. 10-40371 d is m is s e d . As discussed above, Rodriguez's claims all fall within the scope of the T o r t Claims Act. And, her claims against Hill and CHRISTUS arise from the s a m e incident--the alleged sexual assault by Hill.3 3 The Texas Supreme Court h a s held that all claims falling under the Tort Claims Act, not just those for w h ic h the Tort Claims Act waived immunity, trigger the election of remedies p r o v is io n .3 4 Therefore, pursuant to the election of remedies provision of the Tort C la im s Act, Rodriguez's claims against Hill must be dismissed. I I I . Conclusion F o r the foregoing reasons, the order being appealed is vacated but a lim it e d claim pursuant to Section 81.010 of the Texas Civil Practice and R e m e d ie s Code is approved. The case is remanded for further proceedings not in c o n s is t e n t with this opinion. V A C A T E D and REMANDED.

waived due to inadequate briefing."). See Garcia, 253 S.W.3d at 657 (Section 101.106 "is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer").
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Id. at 659.

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