                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                        No. 07-16-00214-CV
                                    ________________________


                              KYLE ANDERSON, M.D., APPELLANT

                                                    V.

  SUZANNE STINIKER, AS ADMINISTRATOR OF THE ESTATE OF MIKEL STONE
           AND AS GUARDIAN OF THE PERSON AND ESTATE OF
      WHITLEY TAYLOR STONE, AND EREK MIKEL STONE, APPELLEES



                            On Appeal from the 72nd District Court
                                     Lubbock County, Texas
               Trial Court No. 2015-517,304; Honorable Ruben G. Reyes, Presiding


                                              July 26, 2017

                                              OPINION

                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.1


      By this permissive appeal,2 we are asked to determine, as a case of first

impression, whether a licensed physician who provides emergency or postemergency


      1
          Justice Mackey K. Hancock, retired, not participating.
      2
          TEX. R. APP. P. 28.3.
services in a hospital owned or operated by a local government unit, but who is not

employed by that hospital, is a “public servant” whose personal liability under certain

circumstances is capped at $100,000 pursuant to section 108.003 of the Texas Civil

Practice and Remedies Code.3 Following the filing of a wrongful death and health care

liability suit by Appellees, Suzanne Stiniker, as Administrator of the Estate of Mikel

Stone and as Guardian of the Person and Estate of Whitley Taylor Stone and Erek

Mikel Stone (collectively Stiniker), Appellant, Kyle Anderson, M.D., moved for partial

summary judgment on the ground that he is a “public servant” covered under section

108.002(a) of the Texas Civil Practice and Remedies Code which limited his personal

liability. Stiniker responded that Dr. Anderson’s liability is not capped because he is an

independent contractor and an employee of a privately-owned professional association

and is, therefore, excepted from the definition of a “public servant.” The trial court

denied Dr. Anderson’s motion and he filed for a permissive appeal which this court

granted. Finding that a physician under those circumstances is a public servant for

purposes of that section, we reverse the order of the trial court and remand this cause

to the trial court for further proceedings.


       FACTUAL AND PROCEDURAL BACKGROUND

       Mikel Stone underwent surgery for rectal bleeding and hemorrhoid disease at

University Medical Center (UMC), a local government hospital on February 5, 2015.

According to the surgical physician, Mr. Stone “tolerated the procedure well” and was

discharged from UMC and taken home by private vehicle at approximately 2:30 p.m.

While convalescing at home, Mr. Stone began to experience pain and other symptoms

       3
         TEX. CIV. PRAC. & REM. CODE ANN. § 108.003 (West 2011). All future references are to the
Texas Civil Practice and Remedies Code unless otherwise designated.

                                               2
and was transported back to UMC by ambulance around 7:41 p.m. At UMC, he was

evaluated by a triage nurse and Dr. Anderson, an emergency room physician who did

not perform the original surgery. Dr. Anderson ordered a CT scan with IV contrast, and

at approximately 10:11 p.m., Dr. Anderson reviewed the results of those tests with the

surgeon who performed the original surgery and then diagnosed Mr. Stone with urinary

retention followed by abdominal pain, renal impairment, nausea and vomiting, intra-

abdominal hemorrhage, and hyponatremia.                 Mr. Stone was re-admitted and the

following morning, while awaiting a nasogastric tube placement, experienced cardio-

pulmonary arrest and died.            An autopsy revealed a transmural rectum defect,

hemoperitoneum, and pulmonary edema.


      Stiniker filed a wrongful death and survival health care liability claim against Dr.

Anderson and others, seeking compensation for damages arising from Mr. Stone’s

death. Stiniker sought recovery of compensatory and exemplary damages based on

allegations of negligent medical care and treatment rendered to Mr. Stone by Dr.

Anderson during his time at the UMC emergency department.


      Dr. Anderson subsequently filed his Motion for Partial Summary Judgment

seeking a legal declaration that his liability, if any, was capped at $100,000 under the

provisions of section 108.002. On May 19, 2016, the trial court signed an order denying

his motion. Dr. Anderson then sought to invoke the jurisdiction of this court, pursuant to

the permissive appeal provisions of section 51.014(d),4 contending the issue of his

status as a “public servant” for purposes of section 108.002 was a controlling question

of law as to which there was a substantial ground for a difference of opinion and an

      4
          See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2016).

                                                  3
immediate resolution of that issue would materially advance the ultimate resolution of

the pending litigation. The trial court signed an order permitting an interlocutory appeal

and staying all further proceedings pending a resolution of that issue via an interlocutory

appeal, if granted. See TEX. R. CIV. P. 168. We subsequently granted Dr. Anderson the

right to file a permissive appeal of the trial court’s interlocutory order of May 19, 2016.


       CONTROLLING ISSUE

       By a single issue, Dr. Anderson contends the trial court erred by denying his

motion for partial summary judgment because his liability, if any, is capped under

section 108.002(a) since he is a “public servant” as defined by section 108.001(3).

Stiniker contends those liability limitations do not apply because Dr. Anderson is an

independent contractor, excepted from the definition of “public servant” by section

108.001(2). Through various shades and phases of that single issue, Dr. Anderson

contends the trial court incorrectly resolved the internal definitional conflict, as applied in

this case, between the exclusionary provisions of section 108.001(2) and the

inclusionary provisions of section 108.001(3).


       APPLICABLE LAW

       As applicable to the facts of this case, section 108.001 of the Texas Civil Practice

and Remedies Code provides the following definitions:

   In this chapter:

       (1) “Public servant” means a person who is:

          (A) a public official elected or appointed to serve a governmental unit
              and acting in that capacity when the act or omission on which the
              damages were based occurred; or

          (B) covered by Section 104.001 or Section 102.001.

                                              4
      (2) “Public servant” does not include an independent contractor, an agent
          or employee of an independent contractor, or another person who
          performs a contract for a unit of government.

      (3) “Public servant” includes a licensed physician who provides
         emergency or postemergency stabilization services to patients in a
         hospital owned or operated by a unit of local government.


      Likewise, the limitation of liability provisions of Section 108.002 of the Texas Civil

Practice and Remedies Code provide as follows:

      (a) Except in an action arising under the constitution or laws of the United
      States, a public servant is not personally liable for damages in excess of
      $100,000 arising from personal injury, death, or deprivation of a right,
      privilege, or immunity if:

         (1) the damages are the result of an act or omission by the public
             servant in the course and scope of the public servant’s office,
             employment, or contractual performance for or service on behalf of
             a state agency, institution, department, or local government; and

         (2) for the amount not in excess of $100,000, the public servant is
             covered:

             (A) by the state’s obligation to indemnify under Chapter 104;

             (B) by a local government’s authorization to indemnify under
                 Chapter 102;

             (C) by liability or errors and omissions insurance; or

             (D) by liability or errors and omissions coverage under an interlocal
                  agreement.

      (b) Except in an action arising under the constitution or laws of the United
          States, a public servant is not liable for damages in excess of
          $100,000 for property damage if:

         (1) the damages are the result of an act or omission by the public
              servant in the course and scope of the public servant’s office,
              employment, or contractual performance for or service on behalf of
              a state agency, institution, department, or local government; and

         (2) for the amount not in excess of $100,000, the public servant is
             covered:


                                            5
             (A) by the state’s obligation to indemnify under Chapter 104;

             (B) by a local government’s authorization to indemnify under
                 Chapter 102;

             (C) by liability or errors and omissions insurance; or

             (D) by liability or errors and omissions coverage under an interlocal
                agreement.


TEX. CIV. PRAC. & REM. CODE ANN. §§ 108.001, 108.002 (West 2011).


      STATUTORY CONSTRUCTION

      This case implicates a review of the trial court’s construction of the above-

referenced statutory provisions, which appellate courts review de novo.              City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).            The primary objective in

construing a statute is to give effect to the Legislature’s intent. TEX. GOV’T CODE ANN. §

311.021 (West 2013); Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000).

“The plain meaning of the text is the best expression of legislative intent unless a

different meaning is apparent from the context or the plain meaning leads to absurd or

nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). When the

Legislature’s intent is not apparent from the plain meaning of a statute’s language, we

may resort to other construction aids, including legislative history. TEX. GOV’T CODE

ANN. § 311.023(3) (West 2013). In determining legislative intent, courts must consider

the statute as a whole, reading all of its provisions in context rather than reading

individual provisions in isolation. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496,

501 (Tex. 2015). In doing so, we presume that the Legislature is aware of existing law

when it enacts legislation. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 877-78 (Tex. 2001). A reviewing court should always seek to enforce the

                                            6
statute “as written” and “refrain from rewriting text that lawmakers chose.” Entergy Gulf

States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)


      ANALYSIS

      Dr. Anderson asserts the trial court erred in interpreting the meaning of “public

servant” because the legislative history of section 108.001 demonstrates a clear intent

that the inclusionary provisions of section 108.001(3) apply to a licensed physician who

acts as an independent contractor; otherwise, paragraph (3) would be rendered

meaningless. We agree.


      UMC is a public hospital owned and operated by the Lubbock County Hospital

District, a hospital district organized under the Texas Constitution and statutory

enactments pursuant thereto.5 As such, it is an institution, the status and authority of

which is derived from the Constitution of Texas or from laws passed by the Legislature

under the constitution, and it is, therefore, a “governmental unit” as defined by section

101.001(3)(D).6 Tex. Tech University v. Ward, 280 S.W.3d 345, 348 (Tex. App.—

Amarillo 2008, pet. denied).


      UMC contracts with UMC Physician Network Services (“PNS”) to provide

physician staffing of the emergency department at UMC.                      To meet this staffing

obligation, PNS contracts directly with individual physicians or their professional

associations.      At all times relevant to Stiniker’s claims, Dr. Anderson provided

professional medical services to patients in the emergency department at UMC


      5
          See TEX. CONST. art. IX, § 9; TEX. SPEC. DIST. CODE ANN. §§ 1053.001-1053.303 (West 2016).
      6
          See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(D) (West Supp. 2016).

                                                   7
pursuant to a contract between PNS and Dr. Anderson’s employer, C&A Medical, P.A.

Therefore, it is undisputed that Dr. Anderson provided “emergency or postemergency

stabilization services to patients [including Mr. Stone] in a hospital owned or operated

by a unit of local government.” As such, Dr. Anderson falls squarely within the definition

of a “public servant” provided by section 108.001(3). The question is, how does a court

square the inclusive language of section 108.001(3) with the specifically exclusive

language of section 108.001(2)?


       Stiniker contends the limitation provisions of 108.002 do not apply to independent

contractors, like Dr. Anderson, because they were adopted pursuant to a legislative

scheme (Chapter 108 of the Texas Civil Practice and Remedies Code) designed to limit

the liability of governmental employees acting within the course and scope of their

employment with a governmental unit. Stiniker contends the Tort Claims Act was never

intended to limit liability of independent contractors, physicians or otherwise, because

suits against them do not implicate public resources.


       A brief review of the legislative history of Chapter 108 will shed light on our

inquiry. What is today Chapter 108 was originally adopted by the Texas Legislature in

1987 as Chapter 107, entitled Limitation of Liability for Public Servants. See Act of June

3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.12, 1987 Tex. Gen. Laws 37, 50, effective Sept.

2, 1987. Chapter 107 was adopted pursuant to S.B. 5, “relating to revising the Civil

Practice and Remedies Code to reform procedures and remedies in civil actions for

personal injury, property damage, or death and civil actions based on tortious conduct,

including revisions and additions to laws governing the determination of and limitations

on liability and damages.” Id. at 37.

                                            8
       Relevant to this dispute, as originally adopted, the definitional provisions of

section 107.001 defined a “public servant” as “a person covered by Section 104.001.”

At that time, section 104.001 defined persons entitled to state indemnity as follows:7


       (1) an employee, a member of a governing board, or any other officer of a
       state agency, institution, or department . . . (3) a physician or psychiatrist
       licensed by this state who was performing services under contract with
       [four named state entities (not including a “local governmental unit”)] . . . .


See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.08, 1987 Tex. Gen. Laws 37, 49,

effective Sept. 2, 1987. Accordingly, at that time, the Texas Legislature recognized a

difference between employees of a state agency and contract medical professionals.

Furthermore, the Legislature clearly expressed intent to include contract medical

professionals only to the extent that they were performing services for the four specified

state entities.


       Chapter 107, and its corresponding sections, was renumbered as Chapter 108

pursuant to an act of the 71st Legislature in 1989. See Act of Feb. 2, 1989, 71st Leg.,

R.S., ch. 2, § 16.01(3), 1989 Tex. Gen. Laws 123, 197, effective Aug. 28, 1987. At that

time, no substantive changes were made to what was now section 108.001.


       In 1995, the Chapter 108 definition of “public servant” was amended by the 74th

Legislature to provide as follows:


       Section 108.001 DEFINIITONS. In this chapter:

       (1) “Public servant” means a person who is:


       7
         Any italicized words in the cited statutory provisions are as they appear in the Texas General
and Special Laws to reflect additions to the statutes.

                                                  9
              (A) a public official elected or appointed to serve a governmental
              unit and acting in that capacity when the act or omission on which
              the damages were based occurred: or

              (B) covered by Section 104.001 or Section 102.001.

     (2) “Public servant” does not include an independent contractor, an agent or
       employee of an independent contractor, or another person who performs a
       contract for a unit of government.


See Act of May 9, 1995, 74th Leg., ch. 139, § 4, 1995 Tex. Gen. Laws 982, 983,

effective Sept. 1, 1995. At the time, section 102.001 defined “employee” as including

“an officer, volunteer, or employee, a former officer, volunteer, or employee, and the

estate of an officer, volunteer, or employee or former officer, volunteer, or employee of a

local government.”    Accordingly, section 102.001, expanded the scope of the term

“employee” found in section 104.001, while section 108.001(2) clearly restricted the

scope by specifically excluding independent contractors, their agents, and employees.


       In 2003, the Texas Legislature once again amended the section 108.001

definition of “public servant” by adding paragraph (3), which provided as follows:


       (3) “Public servant” includes a licensed physician who provides
       emergency or postemergency stabilization services to patients at a
       hospital owned or operated by a unit of local government.


See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.06, 2003 Tex. Gen. Laws 847,

886, effective Sept. 1, 2003. By adding a provision not theretofore included in the

definition of “public servant,” the Legislature expressed a clear intent to include licensed

physicians who provide emergency or postemergency stabilization services to patients

at a hospital owned by a unit of local government in that category of individuals

protected by the limitations of liability provisions found in section 108.002.

                                             10
       Although the exclusive language of section 108.001(2) appears to conflict with

the inclusive provisions of section 108.001(3), the two sections can be reconciled by

simply recognizing that they are not mutually exclusive.         In that context, the later

enacted, specific provisions of 108.001(3) trump the earlier enacted, general provisions

of 108.001(2). Dr. Anderson’s issue is sustained.


       CONCLUSION

       The order of the trial court denying Dr. Anderson’s motion for partial summary

judgment is reversed. As this was a permissive interlocutory appeal, we remand the

cause to the trial court for further proceedings consistent with this opinion.




                                                  Patrick A. Pirtle
                                                      Justice




                                             11
