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Leonard, et al. v. Glenn

Respondent Andre Glenn sued petitioners Terry Leonard P.A. and her supervisor, April Dawn Hain M.D., both employees of Bexar County Hospital District d/b/a University Health System (UHS), on health-care liability claims after Leonard diagnosed Glenn with gout and prescribed Indomethacin, which led to Glenn's kidney failure. Leonard and Hain moved to dismiss the suit under Texas Tort Claims Act �101.106(f), alleging that the suit, based on conduct within the general scope of their employment, could have been brought against UHS. Glenn did not file a motion to amend his petition to name UHS as a defendant but instead disputed whether he could have brought claims against UHS. The trial court denied the defendants' motions to dismiss under �101.106(f), as well as the defendants' objections to the plaintiff's expert report and motion to dismiss, and the defendants brought an interlocutory appeal. The court of appeals affirmed on both issues. While this case has been pending on appeal, the Texas Supreme Court decided Franka v. Velasquez (2011), holding that, for purposes of �101.106(f), a tort action is brought "under" the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. In light of Franka , Leonard's and Hain's petition petition for review is granted, and without hearing oral argument, the court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 09-0665, 01-21-2011

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Respondent Andre Glenn sued petitioners Terry Leonard, P.A., and her supervisor, April Dawn Hain, M.D., both employees of Bexar County Hospital District d/b/a University Health System on health care liability claims after Leonard diagnosed Glenn with gout and prescribed Indomethacin, which led to Glenn’s kidney failure. Leonard and Hain moved to dismiss the suit under section 101.106(f) of the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE § 101.106(f), alleging that the suit was based on conduct within the general scope of their employment could have been brought against UHS. Glenn did not file a motion to amend his petition to name UHS as a defendant, but instead disputed whether he could have brought claims against UHS.

The trial court denied the defendants’ motions to dismiss under section 101.106(f) , as well as the defendants’ objections to the plaintiff’s expert report and motion to dismiss under TEX. CIV. PRAC. & REM. CODE § 74.531, and the defendants brought an interlocutory appeal. The court of appeals affirmed on both issues. 293 S.W.3d 669, 684 (Tex. App.–San Antonio 2009).

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