Nealon, et al. v. Williams

Respondent Harry Williams sued petitioners Dr. William H. Nealon and Dr. Eric M. Walser, faculty members at the University of Texas Medical Branch at Galveston (UTMB), on health-care liability claims after his pancreas was injured during a diagnostic procedure of his bile ducts. Nealon and Walser moved to dismiss the suit under Texas Tort Claims Act �101.106(f), claiming that the suit was based on conduct within the general scope of their employment and that the cause of action could have been brought against UTMB. Williams responded and argued that the statute violates the open courts provision of Texas Constitution Article I, �13. The trial court dismissed the action, and Williams appealed The court of appeals reversed the trial court's judgment because the doctors did not show that Williams' claim could have been brought against UTMB under �101.106(f). While this case has been pending on appeal, the Texas Supreme Court decided Franka v. Velasquez (2011), holding that, for purposes of �101.106(f), a tort action is brought "under" the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. In light of Franka , Nealon's and Walser's petition for review is granted, and without hearing oral argument, the court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 06-0752, 01-21-2011