                                                                                    ACCEPTED
                                                                               01-13-01034-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          2/10/2015 4:08:53 PM
                                                                           CHRISTOPHER PRINE
                                                                                        CLERK

                          NO. 01-13-01034-CV

                                                             FILED IN
                                                      1st COURT OF APPEALS
   IN THE COURT OF APPEALS FOR THE FIRST         JUDICIAL   DISTRICT
                                                          HOUSTON,   TEXAS
                    OF TEXAS AT HOUSTON               2/10/2015 4:08:53 PM
                                                      CHRISTOPHER A. PRINE
                                                              Clerk

       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 164th 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.
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 Friend

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 the 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 Brief1, as well as in support of his underlying Motion to

Dismiss Pursuant 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. Specifically, 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.
                                            2
agreement2 with U.T. Physicians (hereinafter “UTP”) (formerly known as

University Care Plus (hereinafter “UCP”)) contradicted the two sworn

affidavits submitted by Dr. Huang with his Brief, and therefore rendered

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 these two sworn affidavits, along with

Dr. Huang’s other additional evidence, 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 Clinic on

April 8, 2010.

      Appellants further argue in their Motion that Dr. Huang’s sworn

affidavits were allegedly disputed or insufficient because: (1) they did not

reference any evidence or have any evidence attached to them,

(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”).
                                            3
as UCP). Appellants’ assertions are untenable, as the evidence in the

record clearly demonstrated otherwise.

      Appellants incorrectly asserted in their Motion that Dr. Huang only

offered the two aforementioned sworn affidavits – the original Affidavit of

Dr. Huang3 and the Supplemental Affidavit of Dr. Huang4 – 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 Clinic 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 Dillon5, Dr. Huang’s Memorandum of

Appointment with UTHSCH6, the Affidavit of Brent King, M.D.7, the Affidavit

of Andrew Casas8, 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 supervised the

Department of Human Resources and had 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 Brief.
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.
                                          4
databases.10 Because of his position and access, it was within Mr. Dillon’s

personal knowledge whether someone was in the paid service of UTHSCH

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 “Decedent”)

received medical care at the UTP Clinic at issue.12

      Dr. King was formerly the Executive Vice Dean for Clinical Affairs at

UTHSCH, a position he held at the time of the preparation of his Affidavit,

and due to his position and tenure at that time, Dr. King had personal

knowledge regarding the creation, implementation, and function of the

Medical Service Research and Development Plan (“MSRDP”) trust fund

account utilized by UTHSCH.13           Dr. King’s Affidavit established, among

other things, that the MSRDP trust fund account did not have any

employees, and more specifically, it did not employ, and has never

employed, Dr. Huang.14




10
   See Tab B (C.R. 336-338) to Dr. Huang’s Brief.
11
   Id.
12
   Id.
13
   See Tab D (C.R. 809-812) to Dr. Huang’s Brief.
14
   Id.
                                          5
      Mr. Casas is a Vice President for UTHSCH, and is responsible for the

administrative and business operations of the practice plan for UTHSCH.15

In this administrative capacity for UTHSCH, Mr. Casas also served as the

Chief Operating Officer for UTP, and in his administrative capacity for

UTHSCH, as well as in his role as Chief Operating Officer for UTP,

Mr. Casas had access to UTP’s personnel databases.16 Because of his

position and access with UTP, it was within Mr. Casas’ personal knowledge

whether someone was in the paid service of UTP at 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 sponsored by UTHSCH, a position she

has held since 2006, and due to her position and tenure, Dr. Promecene

had personal knowledge regarding the role UTHSCH faculty physicians

played in the UTHSCH Obstetrics and Gynecology Residency Program.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.
                                          6
reasons why Dr. Huang was at the UTP Clinic at issue on April 8, 2010 was

to supervise residents participating in the UTHSCH Obstetrics and

Gynecology Residency Program.20

           The   aforementioned   evidence   conclusively   established   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 (formerly 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 provided medical services at any UTP clinic, 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 at any hospital …”. Interestingly; however,

Appellants omit the remaining portion of this provision from the participation

agreement at issue:



20
     Id.
                                       7
      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 participation in accordance with
             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.                     This

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 Clinic at issue.22 Rather,

this provision expressly stated 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 stated that if Dr. Huang was a

UTHSCH faculty physician before he entered into the agreement, he

remained a UTHSCH faculty physician after he entered into the agreement.

In fact, this agreement expressly stated 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
   “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. See TEX. CIV. PRAC. & REM. CODE § 101.001(2).
                                          8
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

      Despite    Appellants’     assertion    that   Dr.   Huang’s     participation

agreement with UTP contradicted the testimony contained in his sworn

affidavits; a simple reading of this document’s plain language shows that

this assertion is untenable.        Additionally, nowhere in the 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 agreed to

abide by the bylaws of UTP, when he was providing medical services at

UTP’s clinics, as a UTHSCH faculty physician. Moreover, nowhere in this

document did UTHSCH relinquish its control over the details of Dr. Huang’s

work, nor did UTP assume control over the same.25 Furthermore, although

Dr. Huang’s participation agreement with UTP may be silent as to his


23
   See C.R. 1049 at E.1. (“Termination of Participation.”).
24
   See Footnote 22, above; see also TEX. CIV. PRAC. & REM. CODE § 101.001(2).
25
   Id.
                                         9
supervision of residents at UTP’s clinics, as a part of the UTHSCH

residency program, the Affidavit of Dr. Promecene26 firmly established that

one of the main reasons why Dr. Huang was at the UTP Clinic at issue on

April 8, 2010 was to supervise residents participating in the UTHSCH

Obstetrics and Gynecology Residency Program.27

         For the reasons set forth above, this 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 Clinic, at all times in question, was the

correct ruling. It is abundantly clear that the competent and uncontroverted

evidence submitted by Dr. Huang supported this 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.
                                            10
      Ultra vires claims may be asserted against governmental employees:

(1) in their official capacity only, (2) must be based on allegations that 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 failed to state a valid

ultra vires claim and also failed to create any legal “exception” 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 governmental employee who is sued for allegedly ultra vires acts

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.
                                      11
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 explained

above, Dr. Huang’s evidence clearly established that he was. They cannot

have it both ways.

       In fact, the Texas Supreme Court’s Franka opinion expressly stated

that its construction of Section 101.106(f) forecloses suit against a

government official in their individual capacity, so long as the government

official was acting within 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 employed 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 their individual
capacity for an ultra vires act, nor have Appellants cited any other authority to support
                                            12
Heinrich notes that state officials may be sued in both their official and

individual capacities32, nothing in Heinrich supports the notion that an ultra

vires lawsuit may lie against a governmental employee in their individual

capacity, or created any exception to immunity from which a governmental

employee sued in their individual capacity would otherwise benefit.

       Appellants’ ultra vires allegations 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 Appellants’ ultra vires claim

against Dr. Huang alleges 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 failed 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. Chambers,
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.).
                                           13
follow federal and state 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 referenced, which 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 required 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 Tab G at ¶ 8 (C.R. 742) of Dr. Huang’s Brief; see also Footnote 33, above.
36
   See R.R. 63.
                                          14
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 submit the

bill at issue to Medicaid; rather, that was done by UTP.38 As a result,

Appellants fail to meet the second prong of the ultra vires claim elements

as well.

      Lastly, Appellants are seeking only monetary damages for past

events as a remedy for allegedly 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 damages

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

liability theory is medical negligence.          A party may not circumvent

37
   Id.; see also Tab G at ¶ 8 (C.R. 742) of Dr. Huang’s Brief.
38
   See 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.
                                         15
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

that he may be justly entitled.

                                      Respectfully submitted,

                                      HOLM 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 [1st Dist.] 2003, no pet.).
                                        16
                        CERTIFICATE 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-file, e-mail, U.S. First
Class Mail, certified mail, return receipt requested, 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: jstrawn@strawnpickens.com
                  vskinner@strawnpickens.com

                                    /s/ Charles B. Holm
                                    Charles B. Holm




                                      17
                     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 Appellants’ Motion for Rehearing, as well as his previously filed Brief,
comply with Texas Rule of Appellate Procedure 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




                                     18
