Opinion issued September 10, 2013.




                                       In The

                                 Court of Appeals
                                      For The

                            First District of Texas
                                ————————————
                                 NO. 01-12-00175-CV
                                ———————————
                 KIMBERLY [KIMBLEY] HAROLD, Appellant
                                         V.
    MATTHEW M. CARRICK, CAROLYN M. BERG, DOAN NGUYEN, AND
                   DAVID CHAFEY, Appellees


                     On Appeal from the 113th District Court
                              Harris County, Texas
                        Trial Court Case No. 2009-65980



                            MEMORANDUM OPINION

       In this appeal, we consider whether section 101.106(f) of the Texas Tort

Claims Act1 violates the “open courts” provision of the Texas Constitution.2   We


1
       That section provides:
also consider whether the Texas Supreme Court’s opinion in Franka v. Velasquez,

332 S.W.3d 367 (Tex. 2011) violates the “takings”3 and “due process”4 provisions

of the United States Constitution, and whether the plaintiff can maintain a claim

against the health care provider defendants under 42 U.S.C. § 1983. We affirm.

                                  BACKGROUND

      Appellant, Kimberly [Kimbley] Harold, brought a medical malpractice claim

against appellees, Matthew M. Carrick, Carolyn M. Berg, Doan Nguyen, and

David Chafey, health care providers at Ben Taub Hospital, alleging that they

negligently failed to timely diagnose and treat her for an intestinal infection. The

health care providers filed a motion to dismiss, pursuant to section 101.106(f) of

the Texas Civil Practice and Remedies Code, which the trial court granted.




      If a suit is filed against an employee of a governmental unit based on conduct
      within the general scope of that employee’s employment and if it could have been
      brought under this chapter against the governmental unit, the suit is considered to
      be against the employee in the employee’s official capacity only. On the
      employee’s motion, the suit against the employee shall be dismissed unless the
      plaintiff files amended pleadings dismissing the employee and naming the
      governmental unit as defendant on or before the 30th day after the date the motion
      is filed.

      TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (Vernon 2011).
2
      See TEX. CONST. art. I, § 13.
3
      See U.S. CONST. amend. V.
4
      See U.S. CONST. amend. XIV.
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      Harold amended her petition to “seek[] recovery under § 1983 against each

doctor (in their individual capacity only) for violating Plaintiff’s substantive and

procedural due process right through their neglect and for acting under color of

state law in doing so[.]” The health care providers moved for summary judgment

on Harold’s § 1983 claims, which the trial court granted.

      In five issues on appeal, Harold contends the trial court erred in granting the

health care providers’ motions to dismiss and summary judgment.

                                 OPEN COURTS

      In her first issue, Harold claims that the trial court erred in granting the

medical providers’ motion to dismiss, alleging that section 101.106(f) violates the

“open courts” provision. Essentially, Harold contends that the statute abrogates

her right to bring a malpractice action against the doctors by legislatively

overruling Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994), in which the supreme

court decided that government-employed personnel do not have official immunity

regarding their alleged negligence in exercising medical discretion in the treatment

of their patients. We agree that section 101.106 statutorily extends immunity to

acts of government employees acting within their official capacity. LTTS Charter

Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89–90 (Tex. 2011) (citing Franka,

332 S.W.3d at 371 n.9).      The issue we must decide is whether it does so

constitutionally.

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Standard of Review

         The proper standard of review for a motion to dismiss is abuse of discretion.

Bowers v. Matula, 943 S.W.2d 536, 538 (Tex. App.—Houston [1st Dist.] 1997, no

writ).     In determining whether a trial court abused its discretion, we must

determine whether the trial court acted with reference to guiding rules and

principles or whether the trial court’s actions were arbitrary and unreasonable. See

Miller v. Gann, 822 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1991), writ

denied, 842 S.W.2d 641 (Tex. 1992). In addition, if the ruling is contrary to the

case law, it is an abuse of discretion. See Baywood Country Club v. Estep, 929

S.W.2d 532, 535 (Tex. App.—Houston [1st Dist.] 1996, writ denied). The scope

of review is limited to those arguments raised in the motion to dismiss. Brown v.

Aetna Cas. & Sur. Co., 145 S.W.2d 171, 174 (1940).

Analysis

         The “open courts” provision states that “[a]ll courts shall be open, and every

person for an injury done him, in his lands, goods, person or reputation, shall have

remedy by due course of law.” TEX. CONST. art. I, § 13. “This provision, among

other things, prohibits the Legislature from unreasonably restricting common law

causes of action.” Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995) (citing

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex. 1993)).




                                            4
      Statutes are presumed to be constitutional. TEX. GOV’T CODE ANN. §

311.021(1) (Vernon 2011); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).

When challenging a statute as unconstitutional on the basis that it restricts a

common law cause of action, the litigant must demonstrate that (1) the statute

restricts a well-recognized common law cause of action; and (2) the restriction is

unreasonable when balanced against the statute’s purpose. Flores v. Law, 8 S.W.3d

785, 787 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (citing Thomas, 895

S.W.2d at 357).

      In Williams v. Nealon, 394 S.W.3d 9, 14 (Tex. App.—Houston [1st. Dist.],

pet. denied), this Court held that section 101.106 does not violate the “open courts”

provision, noting the supreme court’s opinion in Franka, 332 S.W.3d 367.

      While the Franka court was not presented with an “open courts” challenge

to section 101.106(f), it did opine on the outcome of such a challenge as follows:

      We recognize that the Open Courts provision of the Texas
      Constitution “prohibits the Legislature from unreasonably abrogating
      well-established common-law claims,” but restrictions on government
      employee liability have always been part of the tradeoff for the Act’s
      waiver of immunity, expanding the government’s own liability for its
      employees’ conduct, and thus “a reasonable exercise of the police
      power in the interest of the general welfare.”

Franka, 332 S.W.3d at 385 (internal citations omitted). “Thus, the supreme court

has indicated that an open courts challenge to section 101.106(f) would fail




                                         5
because the restriction is reasonable when balanced against the statute’s purpose.”

Williams, 394 S.W.3d at 12.

      We also relied on Hintz v. Lally, 305 S.W.3d 761, 772–73 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied), a pre-Franka case, in which the court

stated,

        The Texas Supreme Court has addressed an open courts challenge
      to the pre–2003 version of section 101.106. See Thomas, 895 S.W.2d
      at 357–58. The prior version of section 101.106 stated that “[a]
      judgment in an action or a settlement of a claim under this chapter
      bars any action involving the same subject matter by the claimant
      against the employee of the governmental unit whose act or omission
      gave rise to the claim.” See id. at 355. The supreme court concluded
      that, under this provision, “a judgment in an action against a
      governmental unit under the Tort Claims Act bars the simultaneous
      rendition of a judgment against the employee whose actions gave rise
      to the claim.” Id. at 357.

        The plaintiff in Thomas argued that section 101.106’s bar on
      simultaneous judgments against the governmental employee and the
      governmental employer violated the open courts provision. Id. The
      supreme court rejected this challenge because “[t]he Tort Claims Act
      broadened, rather than restricted, an injured party’s remedies.” Id. The
      statute did so by creating a limited waiver as to governmental units
      that were immune from liability at common law. Id. “Although a
      plaintiff who pursues the statutory remedy against the government
      may lose his or her common law remedy against the employee, the
      plaintiff is not required to follow this course.” Id. at 357–58. “He or
      she may still opt to pursue the full common law remedy against the
      responsible employee, foregoing or postponing any attempt to recover
      from the government.” Id. at 358 (footnote omitted); see also Flores,
      8 S.W.3d at 788 (“Law could have pursued a common-law remedy
      against Flores, foregoing or postponing any attempt to recover from
      UTHSC. As such, section 101.106 does not restrict a well-recognized
      cause of action.”).

                                         6
        Thomas’s rationale does not readily translate to the post–2003
      version of section 101.106 because newly added subsection (f) “does
      not give the plaintiff the option of continuing with a lawsuit against
      the governmental employee.” Bailey v. Sanders, 261 S.W.3d 153, 159
      (Tex. App.—San Antonio 2008, pet. granted). However, Thomas’s
      bottom-line holding rejecting an open courts challenge nonetheless
      applies here because section 101.106(f)’s restriction is reasonable
      when balanced against the statute’s purpose.

Williams, 394 S.W.3d at 12–13 (quoting Hintz, 305 S.W.3d at 772–73).

      This Court ultimately concluded that, even though, under Franka, a

defendant seeking dismissal under section 101.106(f) no longer must show that a

suit against his employer under the Tort Claim Act would not be subject to

dismissal, the Hintz’s holding—“that ‘section 101.106(f)’s restriction . . . is

reasonable when balanced against the statute’s purpose’—remains sound and in

line with the supreme court’s pronouncement in Franka.” Williams, 394 S.W.3d at

13 (quoting Hintz, 305 S.W.3d at 773). “In exchange for the Tort Claims Act’s

waiver of sovereign immunity in certain situations, the statute limits a litigant’s

cause of action against employees of the state acting in the course and scope of

their employment.” Williams, 394 S.W.3d at 13–14. The restriction serves to

“narrow the issues, reduce delay, and avoid duplicative litigation.”      Id. at 14

(quoting Hintz, 305 S.W.3d at 773). Thus, we hold that such a restriction is “a

reasonable exercise of the police power in the interest of the general welfare.” Id.

(citing Franka, 332 S.W.3d at 385 (quoting Tex. Workers’ Comp. Comm’n v.

Garcia, 893 S.W.2d 504, 520 (Tex. 1995)); see also Kamel v. Univ. of Tex. Health
                                         7
Sci. Ctr. at Houston, 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied) (holding current version of section 101.106(f) does not violate open

courts provision))

      Following this Court’s opinion in Williams, we overrule issue one.

      In a related issue, Harold argues that the supreme court’s opinion in Franka

violates the “takings” and “due process” clauses of the United States Constitution.

Specifically, Harold argues that she had a “vested interest in how her common law

rights would be eliminated by the legislature,” claiming that “there was no

constitutional amendment that authorized the Texas legislature to eliminate the

common law right to sue governmental medical providers in their individual

capacity.” Harold points out that after personal injury damage caps were held

unconstitutional in Lucas v. U.S., 757 S.W.2d 687, 692 (Tex. 1988), a

constitutional amendment was required permitting damage caps, but that such

constitutional amendment applies only to limiting damages, not eliminating causes

of action entirely.   Harold contends that, absent a constitutional amendment,

Franka’s elimination of her common law cause of action not only violates the

“open courts,” provision, it also violates both the “takings” and “due process”

clauses.

      And, therein lies the fallacy of Harold’s argument.         After Lucas, a

constitutional amendment was required before passing statutes imposing damage

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caps because the Lucas court had held that such a statute violated the “open

courts” provision. Here, the Franka court did not address the “open courts”

provision, and this Court has held that section 101.106(f) does not violate the

“open courts” provision. Williams, 394 S.W.3d at 13.

      There being no “open courts” violation, no constitutional amendment was

required, and no “taking” or “due process” violation based on the absence of a

constitutional amendment will lie.

      We overrule issue two.

                                42 U.S.C. § 1983

      In three related issues, Harold contends the trial court erred in granting the

health care providers’ motion for summary judgment on her claims under 42

U.S.C. § 1983. The health care providers respond that the trial court properly

granted their motion for summary judgment because, even taking Harold’s petition

and summary judgment evidence as true, she has failed to state a claim under that

statute as a matter of law.

Standard of Review

      The summary-judgment movant must conclusively establish its right to

judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986). Because summary judgment is a question of law, we review a trial court’s




                                         9
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

      To prevail on a “traditional” summary-judgment motion asserted under Rule

166a(c), a movant must prove that there is no genuine issue regarding any material

fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.

166a(c); Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). A

matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex. 2005).

Analysis

      To state a claim under § 1983, a plaintiff must (1) allege a violation of a

right secured by the Constitution or laws of the United States and (2) demonstrate

that the alleged deprivation was committed by a person acting under color of state

law. Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000).

      In the context of medical care, or lack of care, the Eighth Amendment

prohibits the unnecessary and wanton infliction of pain or care repugnant to the

conscience of mankind. Estelle v. Gamble, 429 U.S. 97, 104–06, 97 S. Ct. 285

(1976). Not every claim of inadequate or improper medical treatment is a violation

of the Constitution. Id. at 105. A complaint “that a physician has been negligent

in diagnosing or treating a medical condition does not state a valid claim of

                                         10
medical mistreatment under the Eighth Amendment.” Hall v. Thomas, 190 F.3d

693, 697 (5th Cir. 1999) (citing Estelle, 429 U.S. at 105). Neither “‘negligence,

neglect or medical malpractice’” gives rise to a § 1983 cause of action. Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citing Fielder v. Bosshard, 590 F.2d

105, 107 (5th Cir. 1979). “[N]egligent or mistaken medical treatment or judgment

does not implicate the eighth amendment and does not provide the basis for a civil

rights action.” Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). A negligent or

“inadvertent failure to provide adequate medical care cannot be said to constitute

‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the

conscience of mankind.’” Estelle, 429 U.S. at 105–06. Unsuccessful medical

treatment does not give rise to a § 1983 cause of action.” Varnado, 920 F.2d at

321.

       Here, Harold’s First Amended petition alleged that the health care providers

“negligently provided medical care to Kimberly Harold by, inter alia, failing to

diagnose and treat Plaintiff concerning intestinal infection all as more fully

described by Dr. Robert Jacobson in his report and first supplemental report as

Exhibit C.”

       Dr. Jacobson’s report contained the following:

       In summary, in review of the records, as well as my long experience
       in colon and rectal surgery and general surgery, in my opinion, the
       doctors at Ben Taub breached the standard of care owed to Kimbley
       Harold by failing to re-act and properly evaluate the radiographic
                                        11
      evidence of August 9th and August 11th and timely diagnose Kimbley
      Harold with a crushing injury to the blood vessels that supply blood to
      the colon. This failure to timely evaluate and diagnose the problem
      with the bowel, lead to the death of the bowel, which lead to the
      rupture of the bowel which lead to the massive infection that ensued.
      This delay in diagnosis, lead to a delay in treatment and greatly
      compromised the patient requiring her to undergo extensive surgeries
      designed to address the massive infection problem in the abdomen
      which could have been largely avoided had the Ben Taub doctors
      properly addressed the problem which should have been discovered. I
      discuss these opinions in more detail below. A trauma of this severity
      can cause many injuries some immediate and others delayed.

In her first supplemental petition, Harold alleged:

      Plaintiff seeks recovery under § 1983 against each doctor (in their
      individual capacity only) for violating Plaintiff’s substantive and
      procedural due process rights through their neglect and for acting
      under color of state law in doing so (the TTCA/Franks legal fiction
      scheme); to wit: invoking TTCA/Franks to take away all of Plaintiff’s
      common law remedies and to arbitrarily and negligently fail to act
      upon the x-ray evidence. Such violations constitutionally injured
      Plaintiff in violation of her 14th Amendment rights; to wit: deprivation
      of liberty without due process of law both procedurally and
      substantively.

      Finally, in her second supplemental petition, Harold asserted:

      Defendants unnecessarily and wantonly inflicted harm on Plaintiff by
      providing inadequate medical care. Defendant exhibited deliberate
      indifference to Plaintiff’s serious medical needs. Defendants violated
      Plaintiff’s so stated constitutional rights as follows:

      First: Defendant displayed deliberate indifference to the free air
      findings which were documents in the radiological films and reports .
      . .;

      Second: That the plaintiff’s illness or injury was serious because the
      free air evidence demonstrated that the Plaintiff suffered from a
      ruptured intestine . . .; and
                                         12
      Third: That the plaintiff was severely injured as a result of
      Defendants [sic] acts or omissions regarding Plaintiff’s serious illness
      or injury was revealed by the radiographic evidence demonstrating
      free air in the abdomen.


      Despite Harold’s insistence that this cause is one of constitutional

proportions, she is attempting to turn a medical malpractice tort case into a section

1983 claim. Godinet v. Thomas, 824 S.W.2d 632, 633 (Tex. App.—Houston [14th

Dist.] 1991, writ denied). Her pleadings and summary judgment evidence are

clearly based on the assertion that the medical providers were negligent in failing

to timely diagnose the damage to her colon caused by her injury.

      As such, Harold has failed to allege the deprivation of a right, privilege or

immunity secured by the Constitution or the laws of the United States, and her

petition and summary judgment evidence, even when taken as true, do not support

a cause of action under 42 U.S.C. § 1983 as a matter of law.

      Accordingly, the trial court did not err in granting the medical providers’

motion for summary judgment on her § 1983 claims. We overrule Harold’s third

through fifth issues on appeal.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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