Escalante, et al., v. Donita Rowan, et al.

Respondents Donita Rowan and her husband filed suit against petitioners Dr. Carmelita P. Escalante, Dr. E. Edmund Kim, Dr. Edgardo Rivera and Dr. Franklin C. Wong, physicians at University of Texas M.D. Anderson Cancer Center, alleging the doctors were negligent in failing to diagnose and treat the recurrence of Rowan's cancer. The doctors 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 M.D. Anderson. The trial court denied the doctors' motion to dismiss, and they filed an interlocutory appeal. While the appeal was pending, the doctors filed a motion for summary judgment on other grounds, which the trial court granted. The court of appeals affirmed the denial of the motion to dismiss and reversed the summary judgment. 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 , the doctors' petition for review is granted, and without hearing oral argument, the court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 10-0134, 01-21-2011