                                                                                         ACCEPTED
                                                                                    01-14-00767-CV
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                1/5/2015 6:05:33 PM
                                                                               CHRISTOPHER PRINE
                                                                                             CLERK

                             NO. 01-14-00767-CV
                            In the Court of Appeals
                         for the First Judicial District   FILED IN
                                                    1st COURT OF APPEALS
                                 Houston, Texas         HOUSTON, TEXAS
                                                    1/5/2015 6:05:33 PM
 SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
                                                    CHRISTOPHER
                                                            Clerk
                                                                 OFA. PRINE
                                                                     THE
 ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND
                 AS NEXT FRIEND OF NAYLA MCKNIGHT
                                                   Appellants,
VS.

                                U. T. PHYSICIANS

                                                             Appellee.


    On Appeal From the 164th Judicial District Court of Harris County, Texas
                     Trial Court Cause No. 2012-35806
          The Honorable Alexandra Smoots-Hogan, Judge Presiding


                 APPELLANTS’ BRIEF ON THE MERITS


THE GOURRIER LAW FIRM, LLP
Joseph M. Gourrier
joseph@gourrierlaw.com
Texas State Bar No. 24007258
530 Lovett Boulevard, Suite B
Houston, Texas 77006
Telephone: 713-533-9077
Facsimile: 713-533-9376

Attorney for Appellants Shirley Lenoir, Individually and as Personal
Representative of the Estate of Shana Lenoir and Christopher McKnight,
Individually and as Next Friend of Nayla McKnight

                     ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a list of all parties to the trial court’s order appealed from,

and the names and addresses of all trial and appellate counsel:

   1. Appellants-Plaintiffs are Shirley Lenoir, Individually and as Personal
      Representative of the Estate of Shana Lenoir and Christopher
      McKnight, Individually and as Next Friend of Nayla McKnight.

   2. Trial and appellate counsel for Shirley Lenoir, Individually and as
      Personal Representative of the Estate of Shana Lenoir and Christopher
      McKnight, Individually and as Next Friend of Nayla McKnight is The
      Gourrier Law Firm, PLLC, Joseph M. Gourrier, 530 Lovett
      Boulevard, Suite B, Houston, Texas 77006-4021.

   3. Appellee-Defendant is U T Physicians.

   4. Trial and appellate counsel for Appellant-Defendant U T Physicians
      are Fulbright & Jaworski LLP, David R. Iler, Warren S. Huang, and
      Jaqualine P. McMillan, 1301 McKinney, Suite 5100, Houston, Texas
      77010-3095.

   5. Trial counsel for Appellant-Defendant U T Physicians are the Office
      of the Attorney General, Greg Abbott, Daniel T. Hodge, David C.
      Mattax, Kara L. Kennedy, and Jason Warner, Tort Litigation Division,
      MC-030, P.O. Box. 12548, Capitol Station, Austin, Texas 78711-
      2548.

   6. Additional defendants in the underlying proceeding (but not parties to
      this appeal) are Angela Matthews, Leah Ann Gonski Marino f/k/a
      Leah Ann Gonski, Jaou-Chen-Huang, M.D. and Insperity PEO
      Services, L.P. f/k/a Administaff Companies II, L.P.

   7. Trial counsel for Defendant Angela Matthews are Fulbright &
      Jaworski LLP, David R. Iler and Jaqualine P. McMillan, 1301
      McKinney, Suite 5100, Houston, Texas 77010-3095 and the Office of
      the Attorney General, Greg Abbott, Daniel T. Hodge, David C.
      Mattax, Kara L. Kennedy, and Jason Warner, Tort Litigation Division,


                                           ii
   MC-030, P.O. Box. 12548, Capitol Station, Austin, Texas 78711-
   2548.

8. Trial counsel for Defendant Leah Ann Gonski Marino f/k/a Leah Ann
   Gonski are Strawn Pickens LLP, John R. Strawn, Jr. and Victoria P.
   Skinner, Pennzoil Place, South Tower, 711 Louisiana, Suite 1850,
   Houston, Texas 77002.

9. Trial counsel for Defendant Jaou-Chen Huang, M.D. are Holm
   Bambace, LLP, Charles B. Holm and Kyle M. Smith, 1010 Lamar,
   Suite 1100, Houston, Texas 77002.

10. Trial counsel for Defendant Insperity PEO Services, L.P. f/k/a
   Administaff Companies II, L.P. are Shepherd, Scott, Clawater, &
   Houston, L.L.P, David J. McTaggart, 2777 Allen Parkway, 7th Floor,
   Houston, Texas 77019.




                                   iii
                                        TABLE OF CONTENTS

                                                                                                            PAGE

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES.....................................................................................vi

STATEMENT OF THE CASE .................................................................................. 1

ISSUE PRESENTED ................................................................................................. 3

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF ARGUMENT ................................................................................. 5

ARGUMENT ............................................................................................................. 6

I.       Standard of Review ......................................................................................... 6

II.      UT Physicians Failed to Prove that it is a Governmental Unit and the
         Appellants Created Fact Issues Regarding the Court’s Jurisdiction ............... 7

         A.       UT Physicians is a Private Non-Profit Corporation Controlled by its
                  Elected Board of Directors .................................................................... 7

         B.       The Legislature Specifically Identified the Entities Under the Control
                  of the UT System Board of Regents in the Statutes .............................. 9

         C.       The UT System Board of Regents Does Not Recognize UT Physicians
                  as an Entity Subject to Its Control....................................................... 11

         D.       UT Physicians is an Independent Contractor to UTHSCH with a
                  Written Agreement Controlling their Relationship ............................. 16

         E.       UT Physicians is an Independent Contractor as a Matter of Law
                  Because it is an “Auxiliary Enterprise.” ............................................. 20


                                                          iv
III.     The Trial Court Erred in Granting the Plea to the Jurisdiction Because the
         Lenoirs Alleged that Shana Lenoir’s Death Was Proximately Caused By An
         Employee’s Use of Tangible Physical Property ............................................ 27

CONCLUSION ........................................................................................................ 29

CERTIFICATE OF COMPLIANCE ....................................................................... 30

CERTIFICATE OF SERVICE ............................................................................... 31




                                                          v
                                   INDEX OF AUTHORITIES
                                                                                               PAGE(S)

CASES

Alamo Workforce Dev., Inc. v. Vann,
     21 S.W.3d 428 (Tex. App.—San Antonio 2000, no pet.) .............................19

Angleton Danbury Hosp. Dist. v. Chavana,
      120 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ............... 28

Bay, Inc. v. Ramos,
      139 S.W.3d 322 (Tex. App.—San Antonio 2004, pet. denied) .................... 18

City of Alton v. Sharyland Water Sup.,
       145 S.W.3d 673 (Tex. App.—Corpus Christi 2004, no pet) ......................... 16

City of Waco v. Kirwan,
       298 SW 3d 618 (Tex. 2009) ............................................................................ 6

Dallas Merchant’s v. City of Dallas,
      852 S.W. 2d 489 (Tex. 1993) ........................................................................ 10

Gonzalez v. Heard, Goggan, Blair & Williams,
     923 S.W.2d 764 (Tex.App.—Corpus Christi 1996, writ denied).................. 16

Indus. Indem. Exch. v. Southard,
      138 Tex. 531, 160 S.W.2d 905 (1942) .......................................................... 16

KDF v. Rex,
     878 S.W. 2d 589 (Tex. 1994) ..................................................................11, 19

Texas A&M Univ. v. Bishop,
      156 S.W.3d 580 (Tex. 2005) ......................................................................... 16

Tex. Dep't of Parks & Wildlife v. Miranda,
      133 S.W.3d 217, 226-27 (Tex.2004) ......................................................... 6, 27

Texas Boll Weevil Eradication Found. v. Lewellen,
      952 S.W.2d 454, 470-72 (Tex. 1997) ............................................................ 19
                                                      vi
Univ. of Health of Science Ctr. v. Stevens,
      330 S.W.3d 335(Tex. App.—San Antonio 2010, no pet.) ............................28

Wise Reg’l Health Sys. v. Brittain,
      268 SW 3d 799 (Tex.App.—Ft. Worth 2008, no pet.) .................................. 28

STATUTES & RULES

TEX. BUS. ORG. CODE §22.001, et seq ....................................................................... 8

TEX. CIV. PRAC. & REM.CODE §§ 101.001-.109 ...................................................... 27

TEX. CIV. PRAC. & REM. CODE §101.001(2) ......................................................17, 26

TEX. CIV. PRAC. & REM. CODE §101.001(3) .............................................................. 7

TEX. CIV. PRAC. & REM. CODE §101.021 (2) .....................................................27, 28

TEX. EDUC. CODE §51.009(b) .................................................................................. 24

TEX. EDUC. CODE §65.02 .......................................................................................7, 9

TEX. EDUC. CODE §73.001 ................................................................................... 7, 10

TEX. EDUC. CODE §73.057 .................................................................................11, 18

TEX. GOV’T CODE §2252.061 (1) ............................................................................. 21




                                                       vii
                          STATEMENT OF THE CASE1

      This is a health care liability case. On June 20, 2012, Appellants-Plaintiffs

Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana

Lenoir, and Christopher McKnight, Individually and as Next Friend of Nayla

McKnight (collectively, “the Lenoirs”), filed suit against Defendant Leah Ann

Gonski Marino f/k/a Leah Ann Gonski (“Gonski”), Defendant Jaou-Chen Huang,

M.D. (“Huang”), Appellee-Defendant UT Physicians (“UTP”), and its employee.

Defendant Angela Matthews, pursuant to the Texas Wrongful Death Act and Texas

Survival Act. CR___; see also CR ___. The Lenoirs alleged that the Defendants’

negligence in treating Shana Lenoir’s (“Ms. Lenoir”) twin pregnancy proximately

caused her death. CR ___. The Lenoirs alleged that UTP was vicariously liable for

the negligent conduct of its employee, Angela Matthews, pursuant to the doctrine

of respondeat superior. CR ___. On January 25, 2013, the Lenoirs filed their First

Amended Original Petition. CR ___.

      On January 31, 2014, UTP filed a plea to the jurisdiction and motion to

dismiss.   CR 4-56.     UTP alleged that it was a governmental unit entitled to

sovereign immunity and that Plaintiffs had not pled a waiver of immunity under

the Texas Tort Claims Act, therefore the trial court lacked subject matter

jurisdiction.

1
 CR ___” refers to the Clerk’s Record. “RR ___” refers to the Reporter’s Record. “App. Tab
___” refers to the Appendix attached.
                                            1
      The Lenoirs filed a response to UTP’s motion on February 12, 2014. CR

71-106. On February 14, 2014, UTP filed a reply in support of its plea and motion

to dismiss. CR 109-117. On February 24, 2014, the Lenoirs filed their Second

Amended Original Petition. CR 116-130. UTP filed supplemental evidence on

April 11, 2014. CR 131-300. On July 10, 2014, the Lenoirs filed a supplemental

response in opposition to UTP’s plea and motion to dismiss. CR 301-397. UTP

filed a reply to the Lenoirs’ supplemental response on July 15, 2014. CR 398-403.

      On July 11, 2014, the trial court held an oral hearing on UTP’s plea to the

jurisdiction and motion to dismiss. RR 1-23. On August 14, 2014, the trial court

granted UTP’s plea to the jurisdiction and motion to dismiss. CR 404-405. The

Lenoirs timely filed their notice of appeal on September 12, 2014. CR 412-419.

      This Court previously reversed the trial court’s order denying Angela

Matthews’ motion to dismiss, in Appeal No. 01-13-1082-CV; Angela Matthews v.

Shirley Lenoir, et al., and the case is pending before the Texas Supreme Court on a

petition for review. This Court also reversed the trial court’s order granting

Gonski’s motion to dismiss and affirmed the order granting Huang’s motion to

dismiss, in Appeal No. 01-13- 1034-CV; Shirley Lenoir, et al., v. Leah Anne

Gonski Marino f/k/a Leah Ann Gonski and Jaou Chen Huang, M.D. This case is

pending before the Court on a motion for rehearing.




                                        2
                             ISSUES PRESENTED

Issue No. 1       Did the trial court err in granting Appellee-Defendant UT
                  Physicians’ Plea to the Jurisdiction and Motion to Dismiss?

Issue No. 2       Did the trial court err in determining that UT Physicians is a
                  governmental unit entitled to raise sovereign immunity?

Issue No. 3       Did the trial court err in determining that Plaintiffs did not
                  plead use of tangible physical property to constitute a waiver
                  under the TTCA?

                          STATEMENT OF FACTS

      On April 8, 2010, Ms. Lenoir presented to the U.T. Physicians Clinic for

medical treatment due to her advanced pregnancy with twins. CR 120. Ms. Lenoir

was seen by Gonski, who was a second-year medical resident at the time with a

limited physician-in-training-permit. CR 120-121.

      Gonski obtained a medical history from Ms. Lenoir, which included

information regarding Ms. Lenoir’s prior preterm delivery of twins at 5-1/2 months

in which one twin did not survive and the other twin was in the NICU for over four

months. Id. In the “Problems” section of the medical record, Dr. Gonski noted

“Twins” and “PTL” (for preterm labor) and commented that “Progesterone weekly

started.” Id.   In the written physician’s orders, Dr. Gonski further noted

“Progesterone shot IM weekly” and signed her name. Id.

      Gonski was not physically supervised by a licensed physician when she saw

Ms. Lenoir or when she ordered the injection. CR 122-123. A 250 mg injection of


                                        3
progesterone was administered to Ms. Lenoir by Nurse Matthews, a licensed

vocational nurse.   CR 121.    Later that night, Ms. Lenoir experienced difficulty

breathing and collapsed. Id. Ms. Lenoir was rushed to the emergency room but

was pronounced dead upon arrival, along with her two unborn children. Id. On

autopsy, she was determined to be between 32 – 35 weeks pregnant. Id.

      The progesterone injection given to Ms. Lenoir was medically unnecessary,

investigational and contraindicated in Ms. Lenoir because of her twin pregnancy.

CR 123-124. It is also considered to be an off-label use of the drug because it had

not been approved by the FDA to prevent pre-term labor. Id.

      On June 20, 2012, the Lenoirs filed their original petition asserting health

care liability claims against the Defendants based on their negligence in treating

Ms. Lenoir. CR____. On January 25, 2013, the Lenoirs filed a first amended

petition. CR ____. On February 24, 2014, the Lenoirs filed a second amended

petition. CR 118-130. In each of their petitions, the Lenoirs alleged that UT

Physicians was vicariously liable for the negligence of its employee, Angela

Matthews, in administering a progesterone injection to Shana Lenoir that was

medically unnecessary and contraindicated which proximately caused her death.

      On July 11, 2014, the trial court held an oral hearing on UT Physicians’ plea

to the jurisdiction and motion to dismiss. RR 1-23. On August 14, 2014, the trial




                                        4
court granted UTP’s motion. CR 404-405. The Lenoirs timely filed their notice of

appeal on September 12, 2014. CR 412-419.

                          SUMMARY OF ARGUMENT

      This Court should overrule the trial court’s August 14, 2014 order granting

Appellee UT Physicians’ plea to the jurisdiction and motion to dismiss because the

trial court erred in finding that: (1) UT Physicians, a private nonprofit corporation,

is a governmental unit subject to the control of The University of Texas Board of

Regents such that it may claim sovereign immunity, (2) that UT Physicians is not

an independent contractor, and (3) that the Appellants did not allege Shana

Lenoir’s death was proximately caused by use of tangible physical property by an

alleged governmental employee to constitute a waiver under the TTCA, even

though they alleged that her death was caused by Nurse Matthews’ administration

of a progesterone injection. At the very least, fact issues exist regarding the trial

court’s jurisdiction that must be decided by a jury.

      For these reasons, the Lenoirs respectfully request that this Court: (1)

overrule the trial court’s August 14, 2014 order granting Appellee UT Physicians’

plea to the jurisdiction and motion to dismiss, and (2) remand this case to trial

court for further proceedings and awarding the Lenoirs’ their costs.

                                   ARGUMENT

I.    Standard of Review


                                          5
      A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction.

City of Waco v. Kirwan, 298 SW 3d 618, 621-22 (Tex. 2009); Tex. Dep't of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). When reviewing a

ruling on a plea, the court first looks to the pleadings to determine if jurisdiction is

proper, construing them liberally in favor of the plaintiffs and looking to the

pleader’s intent and accept as true the factual allegations in the pleadings. Id. at

226. The allegations found in the pleadings may either affirmatively demonstrate

or negate the court’s jurisdiction. Id. at 226-27. If the pleadings do neither, it is an

issue of pleading sufficiency and the plaintiff should be given an opportunity to

amend the pleadings. Id. “However, if a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised.” Id. at 227. A

plea should not be granted if a fact issue is presented as to the court’s jurisdiction.

Id. at 227-28. “However, if the relevant evidence is undisputed or fails to raise a

fact question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law.” Id. at 228. In considering this evidence, the court

must “take as true all evidence favorable to the nonmovant” and “indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.

II.   UT Physicians Failed to Prove that it is a Governmental Unit and the
      Appellants Created Fact Issues Regarding the Court’s Jurisdiction.


                                           6
      As the movant on a plea to the jurisdiction, Appellee UT Physicians

(“UTP”) had the burden of establishing that it is a governmental unit entitled to

raise sovereign immunity.

      In the trial court, UTP argued that it is a governmental unit because its

creation was authorized by the UT System Board of Regents. Defendant UTP’s

argument that it is governmental unit because it is was created by—and therefore

subject to the control of the UT System Board of Regents—fails because it is not

supported by either the statutes, the caselaw or the evidence. Further, Plaintiffs

raised a fact issues as to: (1) whether UTP is subject to the control of the UT

System Board of Regents and (2) whether UTP is an independent contractor to

UTHSCH pursuant to a written Management Agreement, that must be decided by a

jury which required denial of the plea to the jurisdiction. The trial court erred in

granting UTP’s plea to the jurisdiction and must be reversed.

      A.     UT Physicians is a Private Non-Profit Corporation Controlled by
             its Elected Board of Directors.

      It is true that UTHSCH is a “governmental unit” under the TTCA, TEX. CIV.

PRAC. & REM. CODE §101.001(3), because it is part of The University of Texas

System.     See, TEX. EDUC. CODE §65.02 and §73.001.         However, there is no

evidence that UT Physicians is a governmental unit entitled to raise sovereign

immunity.



                                         7
       In spite of its official sounding name, UT Physicians (formerly University

Care Plus, formerly Uni Care Plus) is simply a non-profit corporation formed

pursuant to the Texas Non-Profit Corporation Act. See, TEX. BUS. ORG. CODE

§22.001, et seq. UT Physicians was incorporated on September 30, 1994, under

the name Uni Care Plus. See, Articles of Incorporation, CR 80-85. Uni Care Plus

changed its name to University Care Plus, on April 13, 1995. See, Amendment to

Articles of Incorporation, CR 86. Finally, University Care Plus changed its name

to UT Physicians, on September 22, 2003.                 See, Amendment to Articles of

Incorporation, CR 87. According to its bylaws, UT Physicians is governed by a

Board of Directors elected by the members of the corporation. CR 62-63.

       UT Physicians is a corporate entity that operates an outpatient facility where

UTHSCH faculty members practice medicine because the medical school cannot

operate a teaching hospital using state funds.            UT Physicians entered into a

management agreement with UTHSCH to administer the business operations of the

Medical Service, Research, and Development Plan (MSRDP), including but not

limited to, strategic development, marketing, billing for and collection of

professional fees, contracting for professional services, clinic operations,

credentialing, and managed care operations.2 CR 88-95. The UT System Board of


2
 UT Physicians is paid a “management fee” for the use of its medical care facilities out of the
MSRDP. CR 91 at ¶3.1, (“Amount of Fee.”).


                                              8
Regents authorized the UTHSCH contract with UT Physicians by authorizing the

President to contract with an entity to administer the business operations of the

MSRDP Plan. CR ___ at ¶7.4.1.

B.    The Legislature Specifically Identified the Entities Under the Control of
      the UT System Board of Regents in the Statutes.

      Contrary to its assertion that “U.T. Physicians derives its status and authority

from state law”, UTP’s argument that it is a governmental unit with sovereign

immunity because its creation was authorized by the UT System directly conflicts

with the plain language used by the Legislature in creating the UT System.

      In TEX. EDUC. CODE 65.02 (a), the Legislature created the UT System and

identified the entities which composed the organization.3 In TEX. EDUC. CODE

65.02 (b), the Legislature expressly reserved for itself the power to add entities to

the governance, control, jurisdiction or management of the UT System stating:

       (b) The University of Texas System shall also be composed of such
      other institutions and entities as from time to time may be assigned by
      specific legislative act to the governance, control, jurisdiction, or
      management of The University of Texas System.
3
  TEX. EDUC. CODE §65.02. ORGANIZATION. (a) The University of Texas System is
composed of the following institutions and entities:
***
(9) The University of Texas Health Science Center at Houston, including:
    (A) The University of Texas Medical School at Houston;
    (B) The University of Texas Dental Branch at Houston;
    (C) The University of Texas Graduate School of Biomedical Sciences at Houston;
    (D) The University of Texas School of Health Information Sciences at Houston;
    (E) The University of Texas School of Public Health at Houston;
    (F) The University of Texas Speech and Hearing Institute at Houston; and
    (G) The University of Texas School of Nursing at Houston;


                                          9
      Similarly, in TEX. EDUC. CODE §73.001, the Legislature specifically

identified the entities which comprise The University of Texas at Houston, which

are under the management and control of the board of regents of The University of

Texas System, to include “The University of Texas Medical School at Houston”

and “other institutions and activities assigned to it from time to time.” 4

      By expressly reserving for itself the power to add entities to the control of

the UT System, the Legislature has left no authority for the UT System to do so.

See, Dallas Merchant’s v. City of Dallas, 852 S.W. 2d 489, 493, n. 7 (Tex. 1993)

(discussing the doctrine of expressio unius est exclusio alterius).

      Therefore, UTP’s claim that it is a governmental unit with sovereign

immunity based solely on its alleged creation by the UT System is refuted by the

plain and unambiguous language of the statutes. These statutes also refute UTP’s

contention that it is a wholly owned subsidiary of UTHSCH because the

Legislature has not authorized such a relationship and certainly has not extended

the State’s sovereign immunity to UTP.

4
  TEX. EDUC. CODE §73.001. COMPOSITION. The University of Texas at Houston is
composed of the following component institutions under the management and control of the
board of regents of The University of Texas System:
(1) The University of Texas Medical School at Houston;
(2) The University of Texas Dental Branch at Houston;
(3) The University of Texas M. D. Anderson Cancer Center;
(4) The University of Texas Graduate School of Biomedical Sciences at Houston;
(5) The University of Texas School of Public Health at Houston;
(6) The University of Texas School of Nursing at Houston; and
(7) other institutions and activities assigned to it from time to time.
                                          10
      Consistent with the Legislature’s intent that only it had the authority to add

entities to the UT System, the Legislature did not provide any funding for a

teaching hospital for UTHSCH. In TEX. EDUC. CODE §73.057, the Legislature

mandated that no state funds would ever be used for the “construction,

maintenance, or operation of a teaching hospital” for The University of Texas

Medical School at Houston.

      TEX. EDUC. CODE §73.057 TEACHING HOSPITAL. A complete
      teaching hospital for the school shall be furnished at no cost or
      expense to the state, and the state shall never contribute any funds for
      the construction, maintenance, or operation of a teaching hospital for
      the school. (underlining added)

      Thus, no state funds can be used to pay for the operation of the UTP facility

where the Appellants’ decedent, Shana Lenoir, received the medical treatment that

caused her death and where UTP alleges that residents, like Defendant Leah Ann

Gonski, are taught or to pay the salaries of the UTHSCH faculty members, like

Jaou-Chen Huang, who provide medical care at the UTP facility.

C.    The UT System Board of Regents Does Not Recognize UT Physicians as
      an Entity Subject to Its Control.

      The Texas Supreme Court has held that a sovereign cannot extend sovereign

immunity through private contracts, like the Management Agreement between

UTHSCH and UT Physicians. See, KDF v. Rex, 878 SW 2d 589, 597 (Tex. 1994)

(“While sovereign immunity protects the activities of government entities, no

sovereign is entitled to extend that protection ad infinitum through nothing more
                                        11
than private contracts. Pacholder is not entitled to sovereign immunity protection

unless it can demonstrate its actions were actions of the Kansas government,

executed subject to the control of KPERS.”).

      Consequently, UTP has to prove that it is subject to the control of the UT

System Board of Regents to take advantage of the UT System’s sovereign

immunity. Recognizing this burden, UTP claims that the UT System Board of

Regents authorized its creation and that it is included in a financial statement that

is submitted to the UT System Board of Regents.

      None of the information submitted by UTP establishes that it is subject to

the control of the UT System Board of Regents—indeed, the statutes referenced

above reject such a contention. Moreover, the UT System Board of Regents does

not recognize UTP as an entity that is subject to its control. The UT System Board

of Regents has adopted various rules and regulations which govern its member

institutions, including one directed at nonprofit corporations like UTP.

      According to The University of Texas System Rules and Regulations of the

Board of Regents, Rule 60305 entitled “External Nonprofit Corporations”:




      The Board of Regents recognizes that there are legally
      incorporated nonprofit organizations (most having the word
      “foundation” in their charter) whose sole purpose is to benefit
      The University of Texas System, the institutions, or teaching,
                                         12
      research, and other activities within those institutions. These
      organizations are administered by boards of directors
      independent from the control and supervision of the Board of
      Regents.

      See, The University of Texas System Rules and Regulations of the Board of

Regents, Rule 60305 “External Nonprofit Corporations”, CR 322-323.              Rule

60305 conclusively negates any control or supervision by the UT System Board of

Regents over UT Physicians, as such, it is not a governmental unit entitled to assert

sovereign immunity.

      Here, Rule 60305 applies to Defendant as an external nonprofit corporation.

Defendant UT Physicians attached its corporate bylaws which conclusively

establish that is was created to benefit UTHSCH and its teaching, research and

healthcare mission. See, UT Physicians’ Bylaws at ¶1.2, CR 60. Defendant UTP

also attached minutes from a meeting of the UT System Board of Regents and

claims that “U.T. Physicians is created for the benefit of UTHSCH.”             See,

Defendant’s Reply, CR 111.

      Further, Defendant UTP’s bylaws establish that it is controlled by a Board of

Directors who are not selected by the UT System Board of Regents. See, UT

Physicians’ By-laws, CR 62. Further, Plaintiffs took the Deposition of Brent King,

who was formerly on the Board of Directors for Defendant UTP and was an ex-

officio member of the Board of Directors at the time of his deposition. See,



                                         13
Deposition of Brent King, CR 324-365.      Dr. King testified that he was not

appointed to the UTP Board of Directors by the UT System Board of Regents.

                     12
      14  Q. Let me see if I can help you. Are you on
      15  a committee with Kevin Dillon, Dr. Wolinsky and a
      16  Richard Andrassy dealing with the practice plan?
      17      A. I am -- it depends what committee you're
      18  talking about. Do you have a name for that
      19  committee?
      20      Q. It doesn't have a name for the committee.
      21      A. There was a committee that I was a member
      22  of, but I am now an ex-officio of that committee.
      23  I'm no longer in the committee.
      24      Q. What committee was that?
      25      A. It was the board of directors for
                       13
      1 U.T. Physicians.
      2      Q. So you are currently an ex-officio member
      3 of the board of directors for U.T. Physicians; is
      4 that correct?
      5      A. That's correct.
      6      Q. But you were previously a member of the
      7 board of directors?
      8      A. I was for some time a member of the board
      9 of directors, yes.
      10      Q. How long were you a member of the board
      11 of directors for U.T. Physicians?
      12      A. I don't recall.
      ***
                   85
       4      Q. And you serve -- or you used to serve on
      5 the board of U.T. Physicians; is that correct?
      6      A. That is correct.
      7      Q. Were you appointed or approved to that
      8 position by the board of regents for the University
      9 of Texas System?
      10      A. Not that I'm aware of.

                                      14
      ***
                        86
      13     Q. Do you know what external corporations
      14    are?
      15       A. No.
      16       Q. Do you know if the board of regents for
      17    the University of Texas System has a rule dealing
      18    with external corporations?
      19       A. I do not.

      Further, Dr. King refutes UTP’s contention that it is a subsidiary corporation

of UTHSCH, instead, Dr. King asserts that it is a “medical services organization”

that provides administrative services.

                      73
      4    Q. Do you know if the Foundation provides
      5 any compensation to residents for providing medical
      6 care to patients while serving on the medical staff
      7 at U.T. Physicians?
      8            MS. MCKINLEY: Objection, form.
      9    A. Serving on the medical staff at
      10 U.T. Physicians. As far as I'm aware,
      11 Mr. Gourrier, U.T. Physicians doesn't really have a
      12 medical staff. It's a medical services
      13 organization.
      ***
                     74
      4    Q. What is a medical services organization?
      5    A. They are an organization that provides
      6 administrative services to physician practices. So
      7 they're engaged in contract negotiations. They, in
      8 some cases, might help to manage the
      9 non-professional staff in an office or set up a
      10 call center.
      11    Q. Where does your understanding of
      12 U.T. Physicians' operations come from?
      13    A. From my experience with the medical
      14 school and as a board member at U.T. Physicians.
                                         15
      This evidence establishes that UT Physicians is an independent contractor to

UTHSCH because it is not controlled by UT System Board of Regents. The trial

court erred in determining that UTP is entitled to take advantage of UTHSCH’s

sovereign immunity as an independent contractor and this Court should reverse.

D.    UT Physicians is an Independent Contractor to UTHSCH with a
      Written Agreement Controlling their Relationship.

      The Appellants provided evidence to establish that UT Physicians is an

independent contractor to UTHSCH.         See, Texas A&M Univ. v. Bishop, 156

S.W.3d 580, 584-85 (Tex. 2005) quoting Indus. Indem. Exch. v. Southard, 138

Tex. 531, 160 S.W.2d 905, 906 (1942). In Bishop, the Texas Supreme Court

stated:

      There are several factors to consider in determining whether or not a
      worker is an independent contractor:

      (1) The independent nature of his business; (2) his obligation to
      furnish necessary tools, supplies, and material to perform the job; (3)
      his right to control the progress of the work, except as to final results;
      (4) the time for which he is employed; and (5) the method of payment,
      whether by time or by the job.

      Id. at 584.85.

      UT Physicians is not entitled to assert sovereign immunity as an independent

contractor to UTHSCH. See, City of Alton v. Sharyland Water Sup., 145 S.W.3d

673, 682 (Tex.App.—Corpus Christi 2004, no pet.); Gonzalez v. Heard, Goggan,

Blair & Williams, 923 S.W.2d 764, 766 (Tex.App.—Corpus Christi 1996, writ
                                         16
denied). Indeed, the statute that provides sovereign immunity to various employees

and agents of the government specifically excludes independent contractors and

their employees. See, TEX. CIV. PRAC. & REM. CODE §101.001(2). According to

TEX. CIV. PRAC. & REM. CODE §101.001(2):

      “Employee” 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 independent 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.

      Since Angela Matthews was the employee of UT Physicians, an independent

contractor, and UTHSCH did not have the right to control the details of her work

under the plain language of the Management Agreement, UT Physicians cannot

assert UTHSCH’s sovereign immunity based on her negligent conduct. Id.

      UT Physicians entered into an agreement with UTHSCH to administer

certain business operations, including but not limited to, strategic development,

marketing, billing for and collection of professional fees, contracting for

professional services, clinic operations, credentialing, and managed care

operations.   See, “Management Agreement” between The University of Texas

Health Science Center at Houston and UT Physicians, at ¶¶1.1 – 1.6. CR 88-90.

      UT Physicians is required by the Management Agreement to provide offices,

furnishings and equipment, personnel (including nursing personnel), supplies, and



                                       17
management services to UTHSCH.5 Id.                More importantly for purposes of UT

Physicians’ plea to the jurisdiction and motion to dismiss under the TTCA, the

Management Agreement required UT Physicians to provide nursing staff for use

by UTHSCH physicians, but the nursing staff, including Defendant Angela

Matthews, remained under UT Physicians’ direction and control.                             See,

Management Agreement, at ¶1.4 (B) (“Nursing and Other Clinical Personnel.”).

CR 89. UT Physicians is paid a “management fee” for the use of its medical care

facilities and services rendered. Id.at ¶3.1, (“Amount of Fee.”). CR 91.

       In its plea, UT Physicians argued that the Board of Regents of the University

of Texas authorized its creation. Even if true, such action would not transform a

private nonprofit corporation, like UT Physicians who is acting as an independent

contractor to UTHSCH, into a “governmental unit” under the TTCA. See, e.g.,

Bay, Inc. v. Ramos, 139 S.W.3d 322, 328 (Tex.App.—San Antonio 2004, pet.

denied) (“Merely because Bay engaged in an activity that is highly regulated by a

state agency does not necessarily place it under that agency’s control and direction

for purposes of the Texas Tort Claims Act.”). Further, governmental agencies are

restricted from delegating governmental functions to private entities without




5
 The Legislature has not authorized any state funds for the operation of a teaching hospital for
The University of Texas Medical School at Houston. See, TEX. EDUC. CODE §73.057


                                              18
legislative or constitutional authority. See, Texas Boll Weevil Eradication Found.

v. Lewellen, 952 S.W.2d 454, 470-72 (Tex. 1997).

      Courts should be “careful not to extend the blanket of sovereign immunity to

every entity which at first blush exhibits the characteristics of a governmental

unit.” Alamo Workforce Dev., Inc. v. Vann, 21 S.W.3d 428, 433 (Tex.App.—San

Antonio 2000, no pet.). “While sovereign immunity protects the activities of

government entities, no sovereign is entitled to extend that protection ad infinitum

through nothing more than private contracts. Pacholder is not entitled to sovereign

immunity protection unless it can demonstrate its actions were actions of the

Kansas government, executed subject to the control of KPERS.” KDF v. Rex, 878

SW 2d 589, 597 (Tex. 1994).

      UT Physicians is attempting just such an ad infinitum expansion of

UTHSCH’s sovereign immunity, first to it, then to Insperity PEO, Matthews’ co-

employer, then to Defendant Angela Matthews, by nothing more than private

contracts. Here, these private contracts include: (1) the Management Agreement

between UTHSCH and UT Physicians, [CR 88-95], (2) the “Client Services

Agreement” between UT Physicians and Insperity PEO (formerly Administaff),

[CR 96-105], and (3) the “Employment Agreement” between Administaff and

Defendant Angela Matthews. [CR 106-108].




                                        19
      The Legislature has determined that independent contractors and their

employees are not entitled to sovereign immunity, therefore, UT Physicians cannot

expand UTHSCH’s immunity through private contracts.

      In conclusion, Defendant UTP is an independent contractor to UTHSCH

hired to collect professional income generated from patient care by UTHSCH

faculty members at its facilities. Pursuant to its Management Agreement with

UTHSCH, UTP is responsible for providing and managing the nursing staff who

work at its facility. As such, Defendant UTP is not a governmental unit entitled to

raise sovereign immunity and its plea to the jurisdiction must be denied.

      The trial court erred in granting UT Physicians’ plea to the jurisdiction and

motion to dismiss because it failed to meet its burden of proof because no evidence

was offered to establish that it is a governmental unit.         Alternatively, the

Appellants raised fact issues regarding its status as an independent contractor that

must be resolved by a jury and the trial court erred in granting UTP’s plea to the

jurisdiction.

      E.        UT Physicians is an Independent Contractor as a Matter of Law
                Because it is an “Auxiliary Enterprise.”

      The Appellants also presented evidence that UT Physicians was an

independent contractor at the time of the incident because it is a statutory

“auxiliary enterprise.” CR ___. If UTP was an independent contractor or a fact



                                         20
issue exists regarding its status, then the trial court erred in granting UTP’s motion

to dismiss.

      Faculty members at UTHSCH practice medicine in a Medical Service,

Research, and Development Plan (MSRDP) where the income from their

professional services is billed and collected by UT Physicians. CR ___. Pursuant

to their Management Agreement, the professional service fees are sent by UT

Physicians to UTHSCH and deposited into the MSRDP trust fund which is then

used to pay various expenses, including UTHSCH faculty salaries and a fee to UT

Physicians for the use of its medical facilities by UTHSCH faculty members. CR

____ at G.2; CR ____ at Article I “Purpose”.

      Under Texas law, the medical services performed at UT Physicians by

UTHSCH faculty members is an “auxiliary enterprise” and UTP is a “contractor”

because it operates or performs a service of the “auxiliary enterprise.” See, TEX.

GOV’T CODE §2252.061 (1) (“auxiliary enterprise” means a business activity

that is conducted at a state agency, provides a service to the agency, and is not

paid for with appropriated money); TEX. GOV’T CODE §2252.061 (2)

(“Contractor” means an individual, association, corporation, or other

business entity that operates an auxiliary enterprise or performs a service of

the auxiliary enterprise).




                                         21
      By statute, auxiliary enterprises cannot be supported with money

appropriated by the Legislature.    Thus, the salaries of faculty members who

practice medicine at UT Physicians cannot be paid using state funds because this

business activity is an “auxiliary enterprise.” Consequently, faculty salaries for

this auxiliary enterprise are paid out of the MSRDP fund, so that it is self-

supporting to avoid violating Texas law. CR ___ at ¶7.5 “Authorized Professional

Business Expenditures,” and CR ___ at Appendix A-1, #8, (“Base Salary,

Supplemental Compensation, and Incentive Compensation.”).

      Plaintiffs also took the deposition of Kevin Dillon, Kevin Dillon,

UTHSCH’s Senior Executive Vice-President, Chief Operating Officer and Chief

Financial Officer and Defendant UT Physicians’ Treasurer. See, Deposition of

Kevin Dillon, CR 366-397. Mr. Dillon executed the Management Agreement and

its amendments between UTHSCH and UTP. CR 93; 94; 95. Mr. Dillon also

discusses the financial relationship between UTHSCH and UTP arising from the

Management Agreement and the fact that UTP is required to transfer patient care

money generated by faculty physicians working at UTP as part of an auxiliary

enterprise to UTHSCH. In 2010, this money exceeded $608 million. CR 311-320.

      The funds that UTP collects on behalf of physicians who practice there are

not transferred to UTHSCH as a matter of right, but pursuant to a written contract.

If UTHSCH and UTP were all the same entity subject to control from the UT


                                        22
System Board of Regents, then UTP would be obligated to turn over funds to

UTHSCH and there would be no need for a contractual provision requiring such a

transfer. CR 94; 95.

      A review of the UT System Board of Regents’ Rule UTS 101 confirms that

the medical practice funded by the MSRDP is an “auxiliary enterprise.” CR ___.

Rule UTS 101 defines “auxiliary enterprises” as:

      Auxiliary Enterprises - a program, activity, or fund source used to
      furnish facilities, goods, or services to students, patients, faculty,
      staff, or, incidentally, to the general public. An auxiliary enterprise
      typically charges a fee directly related to, although not necessarily
      equal to, the cost of the facilities, goods, or services. The
      distinguishing characteristic of an auxiliary enterprise is that it is
      managed on an essentially self-supporting basis. Examples are
      student housing, food services, college stores, parking, and student
      health services. Hospitals, although they may serve students,
      faculty, or staff, are classified separately because of their financial
      significance.

      Thus, the governing board of the UT System recognizes that the MSRDP

fund used to provide medical services to patients and a place for UTHSCH to

practice medicine (at the UT Physicians facility) is an “auxiliary enterprise.”

However, the UT System Board of Regents does not call the medical services

provided at hospitals by faculty members an “auxiliary enterprise” because they

generate a large amount of money.

      Instead, the Board euphemistically named the auxiliary enterprise involving

faculty-provided medical services, “Clinical Enterprise Business Operations.” CR


                                        23
___. The Board further identifies the MSRDP fund as an auxiliary enterprise by

identifying the service it provides to UTHSCH. CR ___ at ¶2, Sec. 4.

      According to Kevin Dillon, UTHSCH’s Senior Executive Vice-President,

Chief Operating Officer and Chief Financial Officer, UTHSCH follows the

accounting guidelines promulgated by NACUBO, as required by statute. CR ____

at pp.106-07. But, NACUBO does not call the auxiliary enterprise involving

faculty-provided medical services “Clinical Enterprise Business Operations.”

NACUBO has identified the funds generated through such patient care activities,

which are related to the higher education mission, as “Auxiliary Enterprise-Other.”

CR ___.

      Instead of calling the institutional funds generated from these large auxiliary

enterprises “Auxiliary Enterprises-Other”, in accordance with NACUBO

guidelines and TEX. EDUC. CODE §51.009(b), UTHSCH calls these funds

“designated funds.” CR ___.

                           104
      23    Q. Is the MSRDP managed on a self-supporting
      24    basis?
      25        A. When you say "self supporting," if you
                           105
      1    would just make -- if you would amplify that a
      2    little bit, it may help me answer your question.
      3        Q. Does it use state-appropriated dollars?
      4        A. The MSRDP -- the -- the difficulty with
      5    that is, where by definition MSRDP is a designated
      6    fund. It's not an education and general fund. So
      7    my answer is, it does not -- we do not expend what
                                         24
      8 you have been calling, I think, state-appropriated
      9 dollars through MSRDP.

     The UTHSCH Fact Book sets forth definitions of the different fund sources

used by UTHSCH and confirms that the funds generated through the MSRDP

ambulatory clinics, like UT Physicians, are called “designated funds” by

UTHSCH. CR ___.

     One primary purpose of publishing the Fact Book is to communicate
     clearly fiscal issues and terms to the members of the university
     community. Readers should note that budget tables use terms that
     collectively or individually describe organizational entities that may
     not necessarily be reflected on organization charts but that may be
     significant elements of the institution’s financial picture. Among the
     financial reporting categories are those described below.
     ***
     MSRDP Administration
     Medical Services Research and Development Plan (MSRDP)
     Physician Business Services is managed by UT Physicians, its
     affiliated non-profit, physician corporation.

     To aid in understanding types of fund groups that are included in
     many budget tables, the following definitions are included:

     Administrative Recovery
     Funds generated from reimbursements to state funds from university
     programs that are not state funded and that generate revenue. For
     example, a clinical operation that generates revenue and is intended to
     be self-supporting may use a university support department (e.g.,
     payroll) to some extent. That state-funded support department then
     minimally subsidizes the revenue-generating department. The
     Administrative Recovery formula is a tool to recoup the impact on the
     total state funds budget of providing such services.

     Auxiliary Enterprise Funds
     Funds generated from fees charged to students, faculty or staff for
     services furnished by an auxiliary enterprise (i.e., parking, university
                                       25
      housing and the recreation center). Auxiliaries may be regarded as
      being similar to private concerns in that they are self-supporting.
      ***
      Designated Funds
      Funds generated by service-providing entities that generate revenue
      from external sources (e.g., MSRDP ambulatory clinics).

      It appears one reason UTHSCH is not complying with the NACUBO

guidelines regarding the classification of “Auxiliary Enterprises-Other” is because

Mr. Dillon has not been to a NACUBO meeting in while, although the Fact Book

indicates that it is complying with NACUBO definitions. CR 1038.

                        107
      5    Q. Does the U.T. Health Science Center
      6    follow the standards or regulations promulgated by
      7    NACUBO?
      8               MR. McCLURE: Object to form.
      9        A. You know, I'm struggling a little bit.
      10    It's been a while since I've been to a NACUBO
      11    meeti2g, I confess. The -- you know, I'm

      The Appellants offered conclusive evidence that UT Physicians is an

auxiliary enterprise. As such, UTP is an independent contractor as a matter of law

because it is an auxiliary enterprise of UTHSCH.           See, TEX. GOV’T CODE

§2252.061. By definition, an independent contractor is not an employee under the

TTCA. TEX. CIV. PRAC. & REM. CODE §101.001(2). At the very least, fact issues

exist regarding UTP’s status as an independent contractor because it is an

“auxiliary enterprise” and the trial court erred in granting UTP’s motion to dismiss.




                                         26
III.      The Trial Court Erred in Granting the Plea to the Jurisdiction Because
          the Lenoirs Alleged that Shana Lenoir’s Death Was Proximately
          Caused By An Employee’s Use of Tangible Physical Property.

          Alternatively, if the Court determines that UT Physicians is a governmental

unit entitled to raise sovereign immunity, the trial court erred in granting UT

Physician’s plea to the jurisdiction because the Lenoirs pled a cause of action

against its employee, Nurse Matthews, that waived sovereign immunity.

          The Texas Tort Claims Act provides a limited waiver of sovereign

immunity. TEX. CIV. PRAC. & REM.CODE §§ 101.001-.109. The Tort Claims

Act expressly waives sovereign immunity in three areas: “‘use of publicly owned

automobiles, premises defects, and injuries arising out of conditions or use of

property.’” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

(Tex.2004); TEX. CIV. PRAC. & REM. CODE §101.021 (2). Section 101.021 (2)

states:

          Sec. 101.021. GOVERNMENTAL LIABILITY. A governmental
          unit in the state is liable for:

          (2) personal injury and death so caused by a condition or use of
          tangible personal or real property if the governmental unit would,
          were it a private person, be liable to the claimant according to Texas
          law.

          Here, the Lenoirs alleged that Shana Lenoir’s death was proximately caused

by a prescription progesterone injection that was negligently administered by

Nurse Matthews, UTP’s employee, at a UTP clinic. CR 125. Since the Lenoirs


                                           27
alleged that Shana Lenoirs’ death was caused by the negligent use of tangible

physical property by an alleged governmental employee in the scope of her

employment, their cause of action falls within the statutory waiver of sovereign

immunity found in TEX. CIV. PRAC. & REM. CODE §101.021 (2).

      Contrary to Defendant UT Physicians’ mischaracterization of Plaintiffs’

claims regarding Defendant Matthews injection of the prescription medication that

killed Shana Lenoir, a TTCA does exist for her conduct. In Wise Reg’l Health Sys.

v. Brittain, 268 SW 3d 799, 807 (Tex.App.—Ft. Worth 2008, no pet.), the court

held that a TTCA claim existed for a nurse’s administration of medication to a

patient when she should have refused to do so based on the patient’s condition. In

Brittain, the court held:

      Viewing the pleadings and evidence in the light most favorable to
      Brittain—specifically the pleading that alleges Gentry's “death [was]
      proximately caused by the condition or use of [certain medications]”
      and the testimony from Dr. Varon that the nurses administered the
      medications to Gentry when they should have refused to do so—we
      hold that the pleadings and evidence suffice to establish a “use” of
      medications in this case sufficient to waive immunity under the
      TTCA.

      Id. at 807.

      Other appellate courts have also affirmed the denial of pleas to the

jurisdiction in cases involving the negligent injection of medications. See, Univ. of

Health of Science Ctr. v. Stevens, 330 S.W.3d 335, 336-37 (Tex. App.—San

Antonio 2010, no pet.)(negligent injection of anesthesia); Angleton Danbury Hosp.
                                         28
Dist. v. Chavana, 120 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2003, no

pet.) (negligent injection of saline).

        The Lenoirs also relied upon the expert report and curriculum vita of Dr.

Frank J. Battaglia, a board-certified obstetrician and gynecologist. CR 78; CR

____. Dr. Battaglia stated his opinions that Defendant Angela Matthews

administered the injection that proximately caused Lenoir’s death when she should

not have because the injection was contraindicated since Lenoir was pregnant with

twins and the order had not been properly made by a licensed physician. CR ____.

Dr. Battaglia’s opinion that the progesterone injection was contraindicated for

Shana Lenoir because she was pregnant with twins is supported by several articles

that were published before by the progesterone injection was administered to

Shana Lenoir by UT Physician employee, Angela Matthews, on April 8, 2010. CR

____.

        The trial court erred in granting UTP’s plea to the jurisdiction because the

Lenoirs pled a waiver of sovereign immunity based upon the use of tangible

physical property by an alleged government employee and this Court should

reverse and remand the case for further proceedings.

                                   CONCLUSION

        WHEREFORE PREMISES CONSIDERED, the Appellants respectfully

request an order overruling the trial court’s order granting Appellees UT


                                         29
Physicians plea to the jurisdiction, remanding this case to the trial court for further

proceedings and awarding the Appellants their costs and any and all other general

and equitable relief to which they may justly be entitled.

                                        Respectfully submitted,

                                        THE GOURRIER LAW FIRM, PLLC
                                        By: /s/ Joseph M. Gourrier      .
                                          JOSEPH M. GOURRIER
                                          Texas State Bar No. 24007258
                                          530 Lovett Boulevard, Suite B
                                          Houston, Texas 77006
                                          Telephone: 713-533-9077
                                          Facsimile: 713-533-9376
                                          joseph@gourrierlaw.com

                                        ATTORNEY FOR APPELLANTS



                      CERTIFICATE OF COMPLIANCE

       As required by Texas Rule of Appellate Procedure 9.4(i)(3), Appellants
certify that this brief is 6,920 words which is in compliance with Texas Rule of
Appellate Procedure 9.4(i)(2).
                                       By: /s/ Joseph M. Gourrier
                                            JOSEPH M. GOURRIER
                                            Texas State Bar No. 24007258




                                          30
                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument has been
served upon all parties of record via certified mail return receipt requested and/or
facsimile on the 5th day of January, 2015.

 Greg Abbott                                 David Iler
 Daniel T. Hodge                             Jaqualine McMillan
 David C. Mattax                             Fulbright & Jaworski, LLP
 John P. Giberson                            1301 McKinney, Suite 5100
 Jason Warner                                Houston, TX 77010-3095
 OFFICE OF THE ATTORNEY GENERAL              Telephone: (713) 651-5151
 Tort Litigation Division, MC-030            Facsimile: (713) 651-5246
 P.O. Box 12548, Capitol Station             Attorneys     for    Appellee     U.T.
 Austin, Texas 78711-2548                    Physicians
 Telephone: (512) 463-2197
 Facsimile: (512) 463-2224
 Attorneys     for     Appellee   U.T.
 Physicians



                                         /s/ Joseph M. Gourrier      .
                                      Joseph M. Gourrier




                                        31
