NO . 01- 13 - 01034 - CV

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT

OF TEXAS AT HOUSTON

SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR , ET AL. , Appellants , V. LEAH ANNE GONSKI, M.D. AND JAOU-CHEN HUANG, M.D., Appellees

.
On Appeal from the 16 4 th Judicial District Court of Harris County, Texas

Trial Court Cause No. 2012-35806A

JAOU-CHEN HUANG , M.D.’S RESPONSE IN OPPOSITION TO APPELLANTS’ MOTION FOR REHEARING

Charles B. Holm State Bar No. 09900300 cholm@holmbambace.com Kyle M. Smith State Bar No. 24054226 ksmith@holmbambace.com Holm Bambace LLP 1010 Lamar, Suite 1100 Houston, Texas 77002 (713) 652-9700

– Telephone (713) 652-9702

– Facsimile ATTORNEYS FOR APPELLEE, JAOU-CHEN HUANG, M.D. ACCEPTED 01-13-01034-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/10/2015 4:08:53 PM CHRISTOPHER PRINE

CLERK2

TO THE HONORABLE FIRST COURT OF APPEALS: Comes now, Appellee, JAOU

- CHEN HUANG, M.D. (“Dr. Huang”), and files this Response in Opposition to Appellants , SHIRLEY LENOIR, Individually and as Personal Representative of the ESTATE OF SHANA LENOIR and CHRISTOPHER MCKNIGHT, Individually and as Next Frie nd of NAYLA MCKNIGHT ’s (“Appellants”) Motion for Rehearing regarding the portion of this Court’s Opinion, issued on November 25, 2014, affirming the trial court’s dismissal of Dr. Huang pursuant to Texas Civil Practice & Remedies Code § 101.106(f). For th e reasons set forth below, Appellants’
Motion should be denied.
I.

DR. HUANG SUBMITTED COMPETENT EVIDENCE In their Motion, Appellants argue that certain evidence Dr. Huang
submitted with his Brief 1
, as well as in support of his underlying Motion to
Dismiss P ursuant to Texas Civil Practice & Remedies Code § 101.106(f) that was filed in the trial court , was allegedly based on allegedly incompetent legal conclusions and was also allegedly contradicted by other
evidence . S pecifically, Appellants contend that Dr. Huang’s participation

1 See Tab A (C.R. 333

- 335) and Tab C (C.R. 803

- 808) to Dr. Huang’s Brief.3

agreement 2 with U.T. Physicians (hereinafter “UTP”) (formerly known as University Care Plus (hereinafter “UCP”)) contrad icted the two sworn affidavits submitted by Dr. Huang with his Brief, and therefore re nder ed said evidence incompetent to support his Motion to Dismiss Pursuant to Texas Civil Practice & Remedies Code § 101.106(f). Dr. Huang has shown, and this Court accepted , that th ese two sworn affidavits, along with Dr. Huang’s other additional evidenc e, detailed below, incontrovertibly
established that he was in the paid service of the University of Texas Health Science Center at Houston (“UTHSCH”), a governmental unit, and
that Dr. Huang was acting in the general scope of his employment with UTHSCH when he was providing medical services at the UTP C linic on April 8, 2010

. Appellants further argue in their Motion that Dr. Huang ’s sworn affidavits were allegedly disputed or insufficient because : (1) the y did not reference any evidence or have any evide nce attached to t hem , (2) because the sworn affidavits were allegedly conclusory, and (3) because the sworn affidavits were allegedly contradicted by other
evidence

– Dr. Huang’s participation agreement with UTP (formerly known

2 See C.R. 1046

- 1062 (“Acknowledgement of Physician Participation in University Care Plus”).4

as UCP)

. Appellants’ assertions are untenable , as the evidence in the record clearly demonstrate d otherwise

. Appellants incorrectly assert ed in their Motion that Dr. Huang only offered the two aforementioned sworn affidavits

– the original Affidavit of Dr. Huang 3 and the Suppl emental Affidavit of Dr. Huang 4

– in support of his argument that he was solely in the paid service of UTHSCH, a governmental unit, and that he was acting in the general scope of his employment with UTHSCH when he was providing medical services at the UTP C linic on April 8, 2010. To the contrary, Dr. Huang also offered
additional evidence in his Brief that Appellants failed to mention in their
Motion : the Affidavit of T. Kevin Dillon 5
, Dr. Huang’s Memorandum of Appointment with UTHSCH 6
, the Affidavit of Br ent King, M.D. 7
, the Affidavit of Andrew Casas 8 , and the Affidavit of Pamela Promecene, M.D

. 9
Mr. Dillon is the Senior Executive Vice President, Chief Operating & Financial Officer for UTHSCH , and in that capacity, he supervise d the Department of Human Resources and ha d access to UTHSCH’s personnel

3 See Tab A (C.R. 333

- 335) to Dr. Huang’s Brief. 4 See Tab C (C.R. 803

- 808) to Dr. Huang’s Bri ef. 5 See Tab B (C.R. 336

- 338) to Dr. Huang’s Brief. 6 See Tab E (C.R. 813

- 814) to Dr. Huang’s Brief. 7 See Tab D (C.R. 809

- 812) to Dr. Huang ’s Brief. 8 See Tab F (C.R. 815

- 818) to Dr. Huang’s Brief. 9 See Tab G (C.R. 740

- 744) to Dr. Huang’s Brief.5

databases. 10 Because of his position and access , it was within Mr. Dillon’s
p ersonal knowledge whether someone was i n the paid service of UTHSC H at any given time. 11 Mr. Dillon’s Affidavit established that Dr. Huang was in the paid service of UTHSCH , as a full

- time physician and Assistant Professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences , on April 8, 2010, the date Shana Lenoir ( the “ De cedent ”)
receiv ed medical care at the UTP C linic at issue. 12 Dr. King wa s formerly the Executive V i ce Dean for Clinical Affairs at UTHSCH, a position he held at the time of the preparation of his Affidavit,
and d ue to his position and tenure at that time , Dr. King ha d personal knowledge regarding the creation, i mplementation, and function of the Medical Service Research and Development Plan ( “ MSRDP ” ) trust fund

accoun t utilized by UTHSCH

. 13 Dr

. King’s Affidavit established, among other things, that the MSRD P trust fund account did not have any employees, and more specif i cally, it did not employ, and has never employed, Dr. Huang. 14

10 See T ab B (C.R. 336

- 338) to Dr. Huang’s Brief. 11 Id. 12 Id. 13 S ee Tab D (C.R. 809

- 812) to Dr. Huang’s Brief. 14 Id.6

Mr. Casas is a Vice President for UTHSCH, and is r esponsible for the administrative and business operations of the practice plan for UTHSCH. 15
I n this administrative capacity for UTHSCH, Mr. Casas also serve d as the Chief Operat ing Officer for UTP , and i n his administrative capacity for UTHSCH, as well as in his role as Chief Operating Officer for UTP,
Mr. Casas ha d access to UTP ’s personnel databases

. 16 Because of his position and access with UTP, it wa s within Mr. Casas’ p ersonal knowledge
whether someone was i n the paid service of UTP a t any given time. 17 In that regard, Mr. Casas’ Affidavit established that Dr. Huang was not an employee or independent contractor of UTP on April 8, 2010, or at any other time. 18
Dr. Promecene is the Program Director of the Obstetrics and Gynecology Residency Program sponsor ed by UTHSCH, a position she
has held since 2006 , and d ue to her position and tenure, Dr. Promecene
ha d personal knowledge regarding the role UTHSCH faculty physicians play ed in the UTHSCH Obstetrics and Gynecology R esidency P rogram. 19 In that regard, Dr. Promecene’s Affidavit established that one of the main

15 See Tab F (C.R. 815

- 818) to Dr. Huang’s Brief. 16 Id. 17 Id. 18 Id

. 19 See Tab G (C.R. 740

- 744) to Dr. Huang’s Brief.7

reasons why Dr. Huang was at the UTP C linic at issue on April 8, 2010 was to supervise residents participating in the UTHSCH Obstetrics and Gynecology R esidency P rogram. 20
Th e aforementioned evidence conclusively establishe d that
Dr. Huang was in the paid service of UTHSCH , and that he was acting in the general scope of his employment with UTHSCH , at all times in question. Turning to Appellants ’ argument concerning Dr. Huang’s agreement with UTP (forme rly UCP) , Dr. Huang agrees he entered into a participation agreement with UTP (under its former UCP name ) ; however, this document
did not change or alter his status as a UTHSCH faculty physician at the
times he provid ed medical services at any UTP c linic , including on April 8, 2010. Appellants have focused on the following language from the agreement at issue, “Participation in University Care Plus (now U.T Physicians) has no effect on or relationship to faculty status at UT - H or medical staff privileges a t any hospital ...”

. Interestingly; however, Appellants omit the remaining portion of this provision f rom the participation agreement at issue :

20 Id.8

1. Participation in University Care Plus has no effect on or relationship to faculty status or medical staff privileges at any hospital, except that loss of faculty status at UT - H or medical staff privileges results in termination of University Care Plus part icipation in accordance w ith Section E of this Agreement;

... 21 It is obvious after a reading of the entire provision at issue that Appellants have completely misinterpreted the meaning of this provision. T his provision did not make Dr. Huang an employee of UTP , when he was providing medical services its clinics, nor did it give UTP the legal right to control the details of Dr. Huang’s work at the UTP C linic at issue

. 22 R ather,
t his provision expressly state d that even though Dr. Huang entered into this agreement with UTP to participate in the provision of medical services at
UTP ’s clinics; such participation could not affect or alter his faculty status at UTHSCH. Essentially, this provision state d that if Dr. Huang was a UTHSCH faculty physician before he entered into the agreement , he
remain ed a UTHSCH faculty physician after he enter ed into the agreement

. In fact , this agreement expressly state d that should Dr. Huang lose his UTHSCH faculty status, he would also lose his ability to participate in this

21 See C.R. 1049 at D.1. (“Effect of Participation in University Care Plus.”) (Emphasis added). 22 “Em ployee” means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independ ent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control. See T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.001(2).9

medical services program with, or provide medical services at, UTP ’s
clinics : 1. Upon Physician’s departure or resignation from the faculty of UT

- H or retirement from the active practice of medicine, UT

- H shall so notify University Care Plus, and Physician’s participation in University Care Plus shall be automatically terminated upon the date specified by University Care Plus’ Board or its designee. 23
D espite Appellants’ assertion that Dr. Huang’s participation agreement with UTP contradict ed the testimony contained in his sworn affidavits; a simple reading of th is document’s plain language shows that
this assertion is untenable

. Additionally, n owhere in th e participation agreement does Dr. Huang ever relinquish his faculty status with UTHSCH,
nor does he give UTP the legal right to control the details of his work. 24 By entering into this participation agreement, Dr. Huang simply agree d to abide by the bylaws of UTP , when he was providing medical services at UTP ’s clinics, as a UTHSCH faculty physician. Moreover , n owhere in this
document d id UTHSCH relinquish its control over the details of Dr. Huang ’s
work , n or d id UTP assume control over the same. 25 F urthermore, although Dr. Huang’s participation agreement with UTP m ay be silent as to his

23 See C.R. 1049 at E.1. (“ Termination of Participation.”). 24 See Footnote 22, above; see also T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.001(2). 25 Id.10

supervision of residents at UTP ’s clinics , as a part of the UTHSCH residency program, the Affidavit of Dr. Promecene 26 firmly establishe d that one of the main reasons why Dr. Huang was at the UTP C linic at issue on April 8, 2010 was to supervise residents participating in the UTHSCH Obstetrics and Gynecology R esidency P rogram. 27 For the reasons set forth above, th is Court’s finding that Dr. Huang

was in the paid service of UTHSCH , and that he was acting in the general scope of his employment with UTHSCH , when medical care was being provided to the Decedent at the UTP C linic , at all times in question , was the correct ruling. I t is abundantly clear that the competent and uncontroverted evidence submitted by Dr. Huang support ed th is Court’s ruling

. II. ULTRA VIRES ISSUES Although they argue otherwise, Appellants’ allegations of ultra vires
conduct do not save their claims for monetary relief against Dr. Huang

. Appellants ’ ultra vires allegations are blocked by statutory immunity and
there is no exception

.

26 See Tab G (C.R. 740

- 744) to Dr. Huang’s Brief. 27 Id.11

Ultra vires claims may be asserted against governmental employees: (1) in their official capacity only , (2) must be based on allegations t hat the governmental employee acted without legal authority or failed to perform a purely ministerial act, and (3) may seek only prospective, injunctive relief. 28 Because Appellants filed their medical negligence lawsuit against
Dr. Huang: (1) allegedly in his individual capacity, (2) based on conduct that is inherently discretionary in nature, and (3) that seeks only monetary damages for past conduct, Appellants’ allegations fail ed to state a valid
ultra vires claim and also fail ed to create any legal “exc eption” to immunity. For these reasons, Appellants’ allegations of ultra vires conduct were nothing more than an improper effort to recast tort claims in an attempt to avoid applicable immunity statutes.
A government al employee who is sued for allegedly ultra vires act s

can only be sued in his official capacity. 29 Appellants allegedly sued
Dr. Huang in his individual capacity only. 30 Because Appellants allegedly
sued Dr. Huang in his individual capacity only, they cannot state a legally
valid ultra vires claim or exception to immunity. Notably , not only are

28 City of El Paso v. Heinrich , 284 S.W.3d 366, 372

- 74 (Tex. 2009). 29 Texas Department of Insurance v. Reconveyance Services, Inc. , 306 S.W.3d 256, 258 (Tex. 2010) (emphasis added). 30 See Plaintiffs’ First Amended Original Petition at ¶ 62; C.R. 954

.12

Appellants’ allegations of ultra vires conduct against Dr. Huang untenable, they attempt to have it both ways

– Appellants contend that Dr. Huang was not a governmental employee at the time of the allegedly negligent medical care; however, they also contend that the ultra vires exception saves their individual claims against Dr. Huang. This cannot be, as explained above,
the ultra vires exception is only available if Dr. Huang was a governmental employee , acting in his official capacity only. Appellants have to make a decision, was Dr. Huang a governmental employee or not? As explain ed above, Dr. Huang’s evidence clearly established that he was. They cannot have it both ways. In fact, t he Texas Supreme Court’s Franka o pinion e xpressly stated that its construction of Section 101.106(f) forecloses suit against a government official in t he i r individual capacity , so long as t he government official was acting with in the scope of their employment. 31 Although

31 Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011) ( “ This construction of §101.106 does , however, foreclose suit against a government employee in his individual capacity if he was acting within the scope of his employment. This changes, among other things, the rule in Kassen v. Hatley which has allowed malpractice suits against physicians e mployed by the government [in their individual capacities] even though acting within the scope of employment.”)

. Although Franka acknowledges that a suit alleging ultra vires conduct against an employee in his official capacity is an exception to the general rule that a suit against an employee in his official capacity is a suit against his government employer, it provides no authority for the notion that a governmental employee may be sued in t he i r individual capacity for an ul tra vires act, nor ha ve Appellants cited any other authority to support13

Heinrich notes that state officials may be sued in both their official and individual capacities 32 , nothing in Heinrich supports the notion that an ultra
vires law suit may lie against a government al employee in t he i r individual capacity, or create d any exception to immunity from which a governmental employee sued in t he i r individual capacity would otherwise benefit. Appell ants’ ultra vires allegation s also fail because they are based on alleged acts or omissions that are purely discretionary in nature. To come
within an ultra vires exception to an immunity statute, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act. 33 App ellants ’ ultra vires claim against Dr. Huang allege s that he should have been physically present
when Co

- Appellee, LEAH ANNE GONSKI, M.D. (“Dr. Gonski”) , provided
medical treatment to the Decedent, and therefore he allegedly fail ed to

this notion. Id. at 832

- 83.

32 Heinrich, 284 S.W.3d at 373 n. 7

. 33 Id. at 372; see also Pennhurst State School & Hospital v. Halderman , 465 U.S. 89, 110

- 11 (1984) (the provision of health services necessarily requires the exercise of

“ broad discretion ” ); see also McLane Co., Inc. v. Strayhorn , 148 S.W.3d 644, 649 (Tex. App.

– Austin 2004, pet. denied) (citing City of Lancaster v. Chamber s , 883 S.W.2d 650, 654 (Tex. 1994) (holding “[a] discretionary act is one that requires the exercise of ‘personal deliberation, decision and judgment.’”) ) ; see also Layton v. City of Fort Worth , Cause No. 02

- 14

- 00084

- CV, 2014 WL 6997350, at *6 (Tex. App.

– Fort Worth 2014, no pet. h.).14

follow federal and st ate Medicaid regulations

. 34 Dr. Huang’s decision
whether to be physically present , as the attending physician , when
Dr. Gonski provided medical care to the Decedent , on April 8, 2010 , is an activity that is inherently discretionary in nature, and was conducted within the general scope of his employment with UTHSCH as an attending physician. 35 Additionally, Appellants have misinterpreted what Medicaid requires , and they fail to recognize that there is no federal or state Medicaid practice regulation or guideline requiring Dr. Huang to be physically present when Dr. Gonski provided medical care to the Decedent on April 8, 2010. Rather, the Medicaid guideline that Appellants reference d , wh ich is solely a billing guideline, is that in order for Medicaid to pay for the medical care provided by a resident physician, an attending physician must be physically present at the time the medical care is provided. 36 Simply put, there is not
a Medicaid practice regulation or guideline that require d an attending physician to be physically present in order for a resident physician to provide medical care to a patient; rather, the regulation/guideline is that Medicaid will only pay for those medical services if an attending physician

34 See Plaintiffs’ First Amended Original Petition at ¶¶ 65

- 67; C.R. 954

- 955. 35 See Ta b G at ¶ 8 (C.R. 74 2 ) of Dr. Huang’s Brief; see also Footnote 33, above. 36 See R.R. 63.15

was physically present at the time the medical services were rendered. 37 As fully explained in his Brief, Dr. Huang did not even violate the aforementioned Medicaid billing guideline, because he did not s ubmit the bill at issue to Medicaid; rather, that was done by UTP. 38 As a result, Appellants fail to meet th e second prong of the ultra vires claim elements
as well. Lastly, Appellants are seeking only monetary damages for past events as a remedy for alle ged ly ultra vires activity. A suit brought under
the ultra vires waiver of governmental immunity cannot be used to obtain monetary relief for past damages from alleged ultra vires acts. 39 As Appellants’ First Amended Original Petition seeks only money dam ages based on past events, they have not stated valid ultra vires claims against Dr. Huang for which relief can be granted. In summation, Appellants’ ultra vires allegations represent an improper effort to “recast” their medical negligence or health care liability
claims as ultra vires claims to avoid the immunity provisions set forth in Chapter 101 of the Texas Civil Practice & Remedy Code. Appellants’ only
liab ility theory is medical negligence. A party may not circumvent

37 Id. ; see also Ta b G at ¶ 8 (C.R. 74 2 ) of Dr. Huang’s Brief

. 38 S ee Tab C (C.R. 803

- 808) and Tab F (C.R. 815

- 818) of Dr. Huang’s Brief

. 39 Heinrich, 284 S.W.3d at 374

- 76.16

governmental immunity statutes by characterizing its claims in a manner designed to avoid the requirement of legislative consent to suit. 40
III. CONCLUSION AND PRAYER For the reasons set forth above, Dr. Huang respectfully requests that this Court deny Appellants’ Motion for Rehearing

. Dr. Huang further respectfully requests that this Court grant him all other and further relief
t hat he may be justly entitled. Respectfully submitted,
H OLM BAMBACE LLP By: /s/ Charles B. Holm Charles B. Holm State Bar No. 09900300 cholm@holmbambace.com Kyle M. Smith State Bar No. 24054226 ksmith@holmbambace.com 1010 Lamar, Suite 1100 Houston, Texas 77002 (713) 652

- 9700

– Telephone (713) 652

- 9702

– Facsimile ATTORNEYS FOR APPELLEE, JAOU - CHEN HUANG , M.D.

40 Texas Natural Resource Conservation Commission v. IT

- Davy , 74 S.W.3d 849, 855 (Tex. 2002); Freedman v. The University of Houston , 110 S.W.3d 504, 508 (Tex. App.

– Houston [1 st Dist.] 2003, no pet.).17 C ERTIFICATE OF SERVICE This will certify that pursuant to Texas Rule of Appellate Procedure 9.5, a true and correct copy of the above and foregoing Jaou

- Chen Huang , M.D.’s Response in Opposition to Appellants’ Motion for Rehearing was forwarded to the following counsel of record via e - f il e , e - m ail, U.S. First Class Mail, c ertified m ail, r eturn r eceipt r equested, facsimile, or hand delivery on Tuesday , February 10, 2015 : Joseph M. Gourrier The Gourrier Law Firm, PLLC 530 Lovett Boulevard, Suite B Houston, Texas 77006 Via e - File Via e - Mail: joseph@gourrierlaw.com John R. Strawn, Jr. Victoria P. Skinner Strawn Pickens LLP Pennzoil Place, South Tower 711 Louisiana Street, Suite 1850 Houston, Texas 77002 Via e - File Via e - Mail : j

strawn@strawnpickens.com vskinner@strawnpickens.com

/s/ Charles B. Holm Charles B. Holm18 CERTIFICATE OF COMPLIANCE This will certify that pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the foregoing Jaou

- Chen Huang, M.D.’s Response in Opposition to A ppellants’ Motion for Rehearing, as well as his previously filed Brief, comply with Texas Rule of Appellate Pro cedure 9.4(i)(2)(B)’s word

- count limitation for computer

- generated documents. Specifically, the undersigned certifies that Jaou

- Chen Huang, M.D.’s Response in Opposition to Appellants’ Motion for Rehearing contains 3,825 words , and his previously filed Brief contained 9,727 words, which is within the 27,000 word aggregate limit for all briefs filed by a party with the court of appeals in a civil case. /s/ Charles B. Holm Charles B. Holm