Jennifer LeBlanc and Bryan Rutherford win appeal for dental college and oral surgeon

A Plaintiff sued an oral surgeon and dental college under the Texas Tort Claim Act, for alleged injuries sustained during a surgical procedure conducted at the college by the oral surgeon. The oral surgeon filed a motion to dismiss under Section 101.106 of the Texas Civil Practice & Remedies Code, which mandates dismissal of a claim filed against an employee when suit is filed against both a governmental until and its employee. The trial court granted the oral surgeon’s motion to dismiss.

The dental college subsequently filed a motion for summary judgment alleging that there was no use or misuse of tangible personal property within the meaning of the Texas Tort Claim Act so as to come within the waiver of sovereign immunity. The trial court granted the dental college’s motion for summary judgment, finding that there was no evidence that the oral surgeon’s use or misuse of equipment and instruments used during the surgery caused Plaintiff’s alleged injuries. Consequently, there was no waiver of sovereign immunity under the Texas Tort Claims Act.

The Plaintiff appealed both decisions of the trial court.

On December 30, 2009, the Tenth Court of Appeals affirmed the trial court’s orders, dismissing the oral surgeon and granting the dental college’s motion for summary judgment based on sovereign immunity. The Court of Appeals concluded that based on the undisputed evidence, the dental college established as a matter of law that the oral surgeon was in the paid service of the dental college. The Court of Appeals also found that the trial court did not err in its finding that the dental college had the right to control the oral surgeon’s actions. Thus, the trial court properly determined that oral surgeon was an employee of the dental college within the meaning of the Tort Claims Act.

In addition, the Court of Appeals analyzed the instruments used during Plaintiff’s surgery, and found that there was no evidence that the oral surgeon’s use or misuse of the instruments caused Plaintiff’s alleged injuries. Therefore, there was no waiver of the dental college’s sovereign immunity based on use or misuse of tangible personal property, and the trial court properly granted the dental college’s motion for summary judgment.

Click here to view the opinion. for Miers v. Texas A&M Univ. Sys. Health Science Ctr., ___ S.W.3d ___, No. 10-08-00183-CV (Tex. App.–Waco, December 30, 2009, no pet.)



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