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Click here for the full text of this decision FACTS:Frank Mussemann, M.D., Amy Plummer, M.D., and Daniel Hersh, M.D. (the doctors) were Baylor College of Medicine residents working rotations at Ben Taub General Hospital, when Mercedes Villarreal developed complications late in pregnancy. The doctors assisted Villarreal with the management of these complications and with the eventual caesarean birth of her son. Villarreal’s son was born in distress and suffers from severe birth defects. Villarreal, as next friend of her son, Juan Pablo Elizondo, sued the doctors, alleging that they negligently performed their duties. The doctors disputed that they were negligent, but moved for summary judgment based on the affirmative defense of official immunity, because Ben Taub is a public hospital operated by the Harris County Hospital District, which provides acute-care medical services to the indigent and low-income population of Harris County. The trial court denied the motion, and the doctors filed an interlocutory appeal, arguing that the summary-judgment evidence conclusively established their entitlement to official immunity as a matter of law. HOLDING:Affirmed. Ordinarily, public officials must show the following elements to establish a defense of official immunity: 1. the performance of a discretionary function; 2. in good faith; and 3. within the scope of the employee’s authority. But in Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994), the Texas Supreme Court adopted the rule of official immunity from other states that requires government-employed medical personnel who seek official immunity to prove that they are being sued for the exercise of “governmental discretion” rather than “medical discretion.” Under Kassen, the court states that discretion exercised in the treatment of individual patients is medical discretion not entitled to immunity. The Kassen court indicated that government employed medical personnel exercise governmental discretion when they exercise policymaking or administrative responsibilities not shared by private-sector providers and when they decide how to allocate a scarce pool of state resources among possible recipients. On the other hand, discretion exercised by government-employed medical personnel in their treatment of patients is medical discretion not subject to immunity. Consequently, the court states, if governmental factors and concerns colored the discretion of government-employed medical personnel, policy considerations may call for immunity, even though these personnel have duties and responsibilities that coincide with private-sector providers. Villarreal alleges negligence based on the need for a third-trimester amniocentesis, the performance of the amniocentesis itself and the need for monitoring afterwards. The court finds that all of these acts or omissions relate to a doctor’s specialized knowledge, judgment and discretion in treating a specific patient. The court finds that the same is true for the decisions involving Villarreal’s labor and delivery, reasoning that what sort of tests to perform and the interpretation of the test results each required a physician to assess the situation and decide the appropriate course of action. Therefore, under the legal standard set forth in Kassen, the court concludes that Villarreal is suing the doctors based on their exercise of medical discretion rather than governmental discretion. The doctors argue that they exercised governmental discretion in treating Villarreal because they provided health care to the indigent, caring for government patients with government resources in a government facility. The doctors introduced evidence regarding what sort of patient Villarreal was, claiming that the following facts were governmental factors or concerns that colored their discretion: Villarreal had gaps in prenatal care and limited availability of records, her prenatal care was provided by different providers at different locations, her limited ability to speak English may have created a language barrier, and she was a noncompliant patient who had a high risk for a poor outcome. The court holds that, although these issues may have influenced how the doctors treated Villarreal, none of the factors is governmental in nature. The court concludes that government doctors are not entitled to immunity simply because they practice medicine in the setting of a government hospital, under more adverse conditions than private doctors. But, citing certain language from Kassen, the doctors further argue that they still may be entitled to immunity if they can show that their medical discretion was colored by governmental factors and concerns. The court disagrees and concludes that the language upon which the doctors rely does not prescribe a second inquiry into whether governmental factors and concerns colored their medical discretion. Rather, the court finds, this language describes the determination of whether the discretion at issue was medical or governmental and states that, if governmental factors and concerns colored this discretion, policy considerations may call for a determination that the discretion was governmental, even though the personnel in question have duties and responsibilities that coincide with private-sector providers. OPINION:Frost, J.; Anderson, Frost, and Seymore, JJ.

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