                             NUMBER 13-08-00590-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


WILMA REEDY, R.N.,                                                           Appellant,

                                            v.

ELIZABETH POMPA AND NICHOLAS POMPA, III,
AS PARENTS AND NEXT FRIENDS OF
ANNICA POMPA, A MINOR,                                                       Appellees.


                  On appeal from the 135th District Court of
                           DeWitt County, Texas.



                                   OPINION
             Before Justices Yañez, Rodriguez, and Benavides
                      Opinion by Justice Benavides

      In this interlocutory appeal, appellant, Wilma Reedy, R.N., appeals from the trial

court’s denial of her motion to dismiss under Texas Civil Practice and Remedies Code

section 101.106(f) in favor of appellees, Elizabeth Pompa and Nicholas Pompa, III, as

parents and next friends of Annica Pompa, a minor (collectively “the Pompas”). See TEX .

CIV. PRAC . & REM . CODE ANN . § 101.106(f) (Vernon 2005); id. § 51.014(a)(5) (Vernon 2008)
(authorizing an interlocutory appeal from an order that denies "a motion for summary

judgment that is based on an assertion of immunity by an individual who is an officer or

employee of the state or a political subdivision of the state").1 Under section 101.106(f),

a trial court must dismiss a suit against an employee of a governmental unit if the

employee shows that the suit was based on conduct within the general scope of his or her

employment and that the suit “could have been brought under [the Tort Claims Act] against

the governmental unit.” Id. § 101.106(f). On appeal, Reedy argues by two issues that (1)

she proved the suit was based on conduct within the scope of her employment with a

hospital, for which the hospital could have been liable, and she was not required to prove

that sovereign immunity would be waived in a suit against her employer; and (2) if she was

required to prove a waiver of sovereign immunity, she did so. For the reasons that follow,

we disagree and affirm the trial court’s order denying Reedy’s motion to dismiss.

                                              I. BACKGROUND

        The Pompas brought healthcare liability claims against Timothy Spradlin, M.D. and

Reedy on May 30, 2008, and concurrently filed the expert report and a curriculum vitae of

John Spurlock, M.D. The original petition alleged that on February 1, 2004, Elizabeth


        1
           Although section 51.014(a)(5) provides for an appeal of an order denying a m otion for sum m ary
judgm ent, m ost courts of appeals have allowed an interlocutory appeal from rulings on other types of m otions
raising im m unity issues, such as m otions to dism iss. See Leonard v. Glenn, 293 S.W .3d 669, 681 n.11 (Tex.
App.–San Antonio 2009, pet. filed); Escalante v. Rowan, 251 S.W .3d 720, 727 (Tex. App.–Houston [14th Dist.]
2008, pet. filed); Lanphier v. Avis, 244 S.W .3d 596, 598-99 (Tex. App.–Texarkana 2008, pet. dism ’d); Kanlic
v. Meyer, 230 S.W .3d 889, 892 (Tex. App.–El Paso 2007, pet. denied); see also Poland v. W illerson, No.
01-07-00198-CV, 2008 W L 660334, at *7 (Tex. App.–Houston [1st Dist.] Mar. 13, 2008, pet. denied) (m em .
op.); Karnes County v. Thomas, No. 04-06-00613-CV, 2007 W L 2261694, at *3 (Tex. App.–San Antonio Aug.
8, 2007, no pet.) (m em . op.). The Dallas Court of Appeals, however, has held that only rulings on m otions
for sum m ary judgm ent m ay be appealed under section 51.014(a)(5). See Hudak v. Campbell, 232 S.W .3d
930, 931 (Tex. App.–Dallas 2007, no pet.). W e agree with the m ajority of courts that hold that section
51.014(a)(5) allows an interlocutory appeal from an order denying a m otion to dism iss based on im m unity.
See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W .3d 338, 349 (Tex. 2004) (interpreting section
510.04(a)(8) and concluding that “[t]he reference to ‘plea to the jurisdiction’ is not to a particular procedural
vehicle but to the substance of the issue raised. Thus, an interlocutory appeal m ay be taken from a refusal
to dism iss for want of jurisdiction whether the jurisdictional argum ent is presented by plea to the jurisdiction
or som e other vehicle, such as a m otion for sum m ary judgm ent.”).

                                                        2
Pompa was a maternity patient at Cuero Community Hospital, where she gave birth to her

daughter Annica Pompa. Annica was delivered by Spradlin and Reedy.

        The petition alleges that Spradlin and Reedy "failed to exercise ordinary care as

required by law in the medical care and treatment of" Elizabeth before, during, and after

Annica's birth. Specifically, the Pompas alleged that during delivery, Annica suffered from

shoulder dystocia and that Reedy "negligently utilized fundal pressure during the shoulder

dystocia," causing a permanent left "brachial plexus injury" requiring extensive medical and

rehabilitative expenses in the past and in the future.

        Spurlock's expert report provides the factual detail for the claims. It states that

Elizabeth was admitted to the hospital at thirty-eight weeks’ gestation and that Pitocin, a

drug, was administered. After approximately eight hours of labor, Elizabeth began pushing

to deliver Annica. Spradlin's delivery notes show that when Annica's head became visible,

a "turtle sign" was noted, which is where the baby's head retracts back into the birth canal,

indicating a shoulder dystocia. Spurlock explains that a shoulder dystocia occurs when

"the baby's shoulder gets stuck behind the mother's pubic bone after the head has been

delivered." Spradlin attempted a few maneuvers to dislodge the shoulder, including the

"McRoberts maneuver”2 and "suprapubic pressure."3

        According to Spurlock, Reedy's notes indicate that she applied "fundal pressure,"

along with assisting Spradlin's attempt of the McRoberts maneuver, while Annica’s

shoulder was still impacted against Elizabeth's pubic bone. Fundal pressure is, Spurlock


         2
           Spurlock’s report explains that the “McRoberts m aneuver” is the “flexing of the patient’s hips” that
“allows a sharp ventral rotation of both m aternal hips and brings the pelvic inlet and outlet into a m ore vertical
alignm ent allowing rotation of the [baby’s] shoulders and facilitating the delivery of the shoulders.”

        3
          Spurlock also explained that “suprapubic pressure, alone or with the McRoberts m aneuver, places
pressure on the area of the pubic bone and pushes the im pacted shoulder under the pubic bone thereby
delivering the im pacted shoulder.”

                                                         3
explains, "the application of force with the hands on the fundus [upper abdomen] of the

mother to push the fetus down the birth canal in an effort to accomplish delivery."

       After birth, Spradlin and Reedy noticed that Annica was not moving her left arm and

that there was minimal movement of her left fingers. Spradlin immediately diagnosed

Annica as having left "Erb's Palsy," which is "paralysis of the left arm, wrist, and hand due

to injury to the brachial plexus nerves.”

       Spurlock opined that Reedy violated the standard of care for a nurse by applying

fundal pressure while the baby suffered shoulder dystocia:

       Once a shoulder dystocia occurs, the nurses should not apply fundal
       pressure. The inappropriate use of fundal pressure by the nurse during a
       shoulder dystocia and the force involved in such a maneuver causes the
       shoulder to be further impacted against the mother's pubic bone. This
       greater impaction actually stretches the brachial plexus nerves as the
       shoulder has nowhere to go. This fundal pressure risks stretching, tearing
       or avulsing the nerves which come from the spinal cord and causing
       impaired function of the arm, shoulder and hand as occurred in this case.
       The medical literature also associates more brachial plexus nerve injuries
       with the use of fundal pressure during shoulder dystocia. Given that Baby
       Pompa experienced a severe shoulder dystocia during delivery with several
       maneuvers used to deliver the baby along with simultaneous inappropriate
       use of fundal pressure, more likely than not, in reasonable medical
       probability, the use of fundal pressure during the shoulder dystocia caused
       the baby's brachial plexus injuries as noted above.

       On July 3, 2008, Reedy filed a plea to the jurisdiction arguing that the trial court

lacked jurisdiction because Reedy was entitled to sovereign immunity under the Texas Tort

Claims Act. See id. §§ 101.001-101.109 (Vernon 2005 & Supp. 2009). Specifically, she

argued that the Pompas' petition failed to allege the use or condition of tangible personal

property as required by section 101.021. See id. § 101.021 (Vernon 2005). Reedy also

filed an answer containing a general denial and an affirmative defense, in which she

asserted that she was an employee of Cuero Community Hospital, a governmental unit that

retained its sovereign immunity from suit.

                                             4
          On August 29, 2008, Reedy filed a motion to dismiss, arguing that because she was

an employee of a governmental unit, the suit against her should be dismissed under Texas

Civil Practice and Remedies code section 101.106(f). Id. § 101.106(f). That provision

states:

          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 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 motion is filed.

Id.

          In this motion, Reedy argued that she was entitled to a dismissal of the claims

against her because she was an employee of a governmental unit, acting in the general

scope of her employment, and the suit could have been brought against her employer.

Reedy argued that she did not have to prove that a waiver of sovereign immunity existed

to obtain dismissal; rather, she argued that she only had to prove that the governmental

unit could theoretically be liable for her conduct as her employer under agency theories.

          In the alternative, however, Reedy argued that the Pompas "could have argued" that

sovereign immunity was waived and sued her employer under the Tort Claims Act. Reedy

argued that nurses and physicians necessarily rely on medical equipment during the

course of a delivery. Reedy argued that she did not apply fundal pressure as alleged by

the Pompas, and even if she did, she did not use merely her hands during the shoulder

dystocia. Rather, she relied upon and used various medical equipment.

          The motion to dismiss attached an affidavit from Reedy. In it, she stated that she

was a salaried employee at the hospital, and that she cared for Elizabeth while she was


                                               5
a patient at the hospital. She then stated that "[a]ny birthing maneuvers applied during the

course of Annica Pompa's birth were done with the assistance of reading and interpreting

the fetal monitoring strip and other medical equipment, as well as positioning the hospital

bed to allow for proper application of the maneuvers."

       The Pompas filed a response to the motion to dismiss, arguing that Reedy was, in

fact, required to prove that sovereign immunity was waived as to her employer before she

could obtain a dismissal under section 101.106(f). The trial court held a hearing on

October 1, 2008, and it denied the motion the same day. This interlocutory appeal

followed.

                         II. INTERPRETATION OF SECTION 101.106(F )

       Reedy argues in her first issue that the trial court erroneously interpreted section

101.106(f) to require her to prove that sovereign immunity under the Tort Claims Act would

be waived if the Pompas filed suit against her employer, a governmental unit. See id. We

disagree.

       We review questions of statutory interpretation de novo. See Johnson v. City of Fort

Worth, 774 S.W.2d 653, 655-56 (Tex. 1989). When construing a statute, we must

determine and give effect to the legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen,

15 S.W.3d 525, 527 (Tex. 2000). If possible, we ascertain the legislature’s intent from the

language used in the statute. Id. If the statutory language is unambiguous, we adopt the

interpretation supported by the statute’s plain meaning. St. Luke's Episcopal Hosp. v.

Agbor, 952 S.W.2d 503, 505 (Tex.1997).

       The parties dispute the meaning of the phrase “if [the suit] could have been brought

under this Chapter against the governmental unit . . . .” TEX . CIV. PRAC . & REM . CODE ANN .

§ 101.106(f). Most courts interpreting section 101.106(f)’s language have held that, in

                                               6
order to prove that suit “could have been brought under this Chapter” against a

governmental entity, the employee-defendant must prove that the plaintiff’s claims satisfied

section 101.021's requirements to obtain a limited waiver of sovereign immunity from suit

and from liability. Id. § 101.021;4 see Lanphier v. Avis, 244 S.W.3d 596, 600 (Tex.

App.–Texarkana 2008, pet. dism'd); Hall v. Provost, 232 S.W.3d 926, 928 (Tex.

App.–Dallas 2007, no pet.); Kanlic v. Meyer, 230 S.W.3d 889, 893-94 (Tex. App.–El Paso

2007, pet. denied); Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 874-75 (Tex. App.–Amarillo

2007, pet. filed); Franka v. Velasquez, 216 S.W.3d 409, 413 (Tex. App.–San Antonio 2006,

pet. granted); Tejada v. Rowe, 207 S.W.3d 920, 925 (Tex. App.–Beaumont 2006, pet.

filed); Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex. App.–Houston [14th Dist.] 2006, no

pet.). In this case, that would require Reedy to show that Annica’s personal injury was

“caused by a condition or use of tangible or real property.” TEX . CIV. PRAC . & REM . CODE

ANN . § 101.021(2).

          Reedy conceded below that the case law is contrary to her position. However, she

argued that the Texas Supreme Court’s recent decision in Mission Independent School


          4
              Section 101.021 provides:

          A governm ental unit in the state is liable for:

          (1)       property dam age, personal injury, and death proxim ately caused by the wrongful act
                    or om ission or the negligence of an em ployee acting within his scope of em ploym ent
                    if:

                    (A)       the property dam age, personal injury, or death arises from the operation or
                              use of a m otor-driven vehicle or m otor-driven equipm ent; and

                    (B)       the em ployee would be personally liable to the claim ant according to Texas
                              law; and

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

T EX . C IV . P RAC . & R EM . C OD E A N N . § 101.021(b).

                                                              7
District v. Garcia mandates a different result. See 253 S.W.3d 653, 655-57 (Tex. 2008).

In that case, the Texas Supreme Court interpreted section 101.106(e), which provides:

       (e)    If a suit is filed under this chapter against both a governmental unit
              and any of its employees, the employees shall immediately be
              dismissed on the filing of a motion by the governmental unit.

TEX . CIV. PRAC . & REM . CODE ANN . § 101.106(e) (emphasis added). Garcia sued both

Mission Independent School District and its employee, alleging claims against the school

district under the Texas Commission on Human Rights Act and for intentional infliction of

emotional distress. Garcia, 253 S.W.3d at 655. The school district moved to dismiss

under section 101.106; the trial court denied the motion, and we affirmed. Id. On appeal

to the Texas Supreme Court, Garcia argued that the trial court properly denied the motion

to dismiss because her claims were not filed “under this chapter,” i.e., under the Texas Tort

Claims Act, reasoning that the discrimination claims were governed by a separate statute

and the tort claim was excluded from the Tort Claims Act because it was an intentional tort.

Id. at 658. The supreme court held that Garcia’s tort claims were not excluded from

section 101.106(e)’s application:

       The court of appeals reasoned that none of Garcia's claims were brought
       “under this chapter” because they did not fit within the Tort Claims Act's
       waiver, and therefore section 101.106(e) did not apply. However, we have
       never interpreted “under this chapter” to only encompass tort claims for
       which the Tort Claims Act waives immunity. To the contrary, in Newman v.
       Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997), we held that former
       section 101.106's limiting phrase “under this chapter” operated to bar an
       intentional tort claim against an employee after a final judgment on a claim
       involving the same subject matter had been rendered against the
       governmental unit, even though the Act by its terms expressly excluded
       intentional torts from the scope of the Act's immunity waiver. Although these
       cases construed the prior version of section 101.106, there is nothing in the
       amended version that would indicate a narrower application of the phrase
       “under this chapter” was intended. Because the Tort Claims Act is the only,
       albeit limited, avenue for common-law recovery against the government, all
       tort theories alleged against a governmental unit, whether it is sued alone or


                                             8
      together with its employees, are assumed to be “under [the Tort Claims Act]”
      for purposes of section 101.106.

Id. at 658-59 (citations omitted). The First Court of Appeals, which originally construed

section 101.106(f) to require the employee to prove a waiver of immunity, has now applied

the supreme court’s language in Garcia to eliminate that requirement. Compare Williams

v. Nealon, 199 S.W.3d 462, 466 (Tex. App.–Houston [1st Dist.] 2006, pet. filed) (requiring

proof of a waiver), with Keleman v. Elliott, 260 S.W.3d 518, 524 (Tex. App.–Houston [1st

Dist.] 2008, no pet.) (holding that section 101.106(f) applied to intentional torts, even

though these are excluded from the Tort Claims Act’s coverage); cf. Castro v. McNabb, No.

08-07-00074-CV, 2009 WL 3462982, at *7 (Tex. App.–El Paso Oct. 29, 2009, no pet.)

(holding that Garcia applies to section 101.106(f) but holding that a declaratory judgment

action is not brought under the Texas Tort Claims Act).

      What Reedy and the First Court of Appeals do not address in their analysis,

however, is that the Garcia court also expressly noted that it was not construing section

101.106(f), which contains different language:

      Section 101.106(f) contains a slightly different phrase. It states that the suit
      against the employee is to be dismissed when the suit “could have been
      brought under this chapter against the governmental unit.” The interpretation
      of section 101.106(f) is not before us here and neither party argues that it
      applies to this case.


Garcia, 253 S.W.3d at 660 n.5. Specifically, the phrase “could have been brought”

modifies the phrase “under this chapter.” Id. We conclude the phrase “could have been

brought” unambiguously invokes the Tort Claims Act’s limited waiver of immunity from suit

and liability, and the Texas Supreme Court did not intend to undo the scores of opinions

holding otherwise. See id.; see also Lieberman v. Romero, No. 05-08-01636-CV, 2009 WL


                                             9
3595128, at *2 (Tex. App.–Dallas Nov. 3, 2009, no pet. h.) (memo. op.) (rejecting argument

that Garcia eliminated the requirement to show that the plaintiff’s claims fall within a waiver

of immunity). Accordingly, we hold that Reedy was required to show that the Pompas’ suit

invoked a waiver of immunity from suit and liability under the Tort Claims Act in order to

prevail on her motion to dismiss under section 101.106(f), and we overrule her first issue.

                      III. REEDY’S PROOF UNDER SECTION 101.106(F )

       In the alternative, by her second issue, Reedy argues that she demonstrated that

she was employed by a governmental unit and acted within the general scope of her duties

and that suit could have been brought against her employer because the Pompas’ suit

involves the use of tangible personal property. See TEX . CIV. PRAC . & REM . CODE ANN . §

101.021(2). It is undisputed that Reedy was employed by Cuero Community Hospital,

which is a governmental unit, and that she was acting within the scope of her employment

at the time she provided care to Elizabeth and Annica. Thus, the only issue is whether she

established a waiver of immunity through the use of tangible personal property. We hold

she did not.

       “As the movant on the motion to dismiss, it is [Reedy’s] burden to point to the facts

evidencing that [the Pompas’] suit could have been brought against [the hospital].” Sheth

v. Dearen, 225 S.W.3d 828, 830 (Tex. App.–Houston [14 Dist.], 2007, no pet.) (citing

Phillips, 187 S.W.3d at 677; Tejada, 207 S.W.3d at 923). A movant will typically rely on

the plaintiff’s pleadings to show a waiver of immunity, but “other evidence is proper if

relevant to the issue of waiver of sovereign immunity.” Id. (citing Tex. Natural Res.

Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001) (“We must examine the

plaintiff's pleadings and, to the extent relevant to the jurisdictional issue, the evidence


                                              10
submitted by the parties in order to determine if the government waived sovereign

immunity.”)); see also Franka, 216 S.W.3d at 412; Tejada, 207 S.W.3d at 922-23; Phillips,

187 S.W.3d at 676-77. When looking at the plaintiff’s pleadings to determine if the facts

alleged support a waiver of sovereign immunity, “we look at the substance of the plaintiff's

pleadings rather than his characterizations of them.” Sheth, 225 S.W.3d at 830 (citing

Phillips, 187 S.W.3d at 676-77). “Where the facts taken from the plaintiff's pleadings are

undisputed, the question of whether those pleadings support a jurisdictional finding of

waiver of sovereign immunity is one of law and is thus reviewed de novo.” Id. at 831 (citing

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

       Reedy argues that the Pompas’ pleadings, Spurlock’s expert report, and her own

evidence demonstrate the use of tangible personal property in two respects: (1) Spurlock’s

report notes that the drug Pitocin was administered to Elizabeth during delivery; and (2)

Reedy alleged in her motion and testified in her affidavit that she relied on medical devices,

fetal monitor strips, and other medical equipment during the shoulder dystocia. Reedy,

however, does not point to any allegation in the Pompas’ petition or any evidence that the

administration of Pitocin or the use or misuse of medical devices, fetal monitor strips, and

other medical equipment caused the injuries that Annica suffered.

       To demonstrate a waiver of immunity, a plaintiff may not merely plead that tangible

personal property was involved in the events giving rise to the claim—rather, the plaintiff

must plead a causal nexus between the tangible personal property and the injury. Dallas

County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).

For example, in Franka v. Velasquez, the San Antonio Court of Appeals addressed a

shoulder dystocia case very similar to this case. See 216 S.W.3d at 410-11. In that case,


                                             11
the plaintiff’s expert report noted that the doctors used a vacuum extractor during delivery;

thus, the doctors moved to dismiss under section 101.106(f) arguing that suit could have

been brought against their governmental entity employer because a vacuum extractor

constituted tangible personal property. Id. at 411. The court of appeals disagreed, holding

that there was no evidence that the vacuum extractor caused the shoulder injuries. Id. at

412-13.

       The same is true here. There is nothing in the record to indicate that the use of any

tangible personal property caused Annica’s brachial plexus injury. Although Reedy alleges

that she performed birthing maneuvers “with the assistance of reading and interpreting the

fetal monitor strip and other medical equipment, as well as positioning the hospital bed to

allow for proper application of the maneuver(s),” she does not point to anything in the

Pompas’ pleadings or point to any evidence that the equipment contributed to Annica’s

injury in any way. Moreover, Spurlock’s expert report does not indicate that the use of

Pitocin or any other piece of tangible personal property caused Annica’s injury—rather, he

unequivocally states that Reedy’s application of fundal pressure caused Annica’s injury.

Thus, there is no allegation or evidence that would support a finding that suit could have

been brought against Reedy’s employer, and we overrule her second issue. See id.

                                     IV. CONCLUSION

       Having overruled both of Reedy’s issues, we affirm the trial court’s order denying

Reedy’s motion to dismiss.

                                                    _______________________________
                                                    GINA M. BENAVIDES,
                                                    Justice
Delivered and filed the
18th day of March, 2010.


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