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Click here for the full text of this decision FACTS:Ida Rose Trevi�o Bustillos and Isauro Bustillos challenge the take-nothing judgment rendered in their medical malpractice action against Jennifer Jacobs, M.D., Roxanna Doucet, M.D. and Ana Beceiro, M.D. HOLDING:Affirmed. The Bustilloses argue that the doctors are not entitled to summary judgment because a prior take-nothing judgment granted in favor of UTHSC, which was based on the Bustilloses’ failure to give UTHSC the required notice, is not a “judgment” for purposes of Texas Civil Practice and Remedies Code �101.106. They contend that in order for the doctors to merit summary judgment as a result of a prior judgment for UTHSC, the prior judgment had to be on the merits. The court is unpersuaded by this argument because a judgment granted in favor of a governmental unit based on the absence of statutory notice is a judgment for purposes of �101.106. The Bustilloses’ argue that �101.106 nevertheless does not apply because the doctors were not employees of UTHSC at the time of their negligent conduct. Section 101.106 provides that “[a] judgment in an action . . . under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Thus, the judgment in favor of UTHSC would bar an action against the doctors if they were employees of UTHSC at the time they treated Ida Bustillos. Section 101.001(2) defines “employee” as “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” The summary judgment record demonstrates that Jacobs was an employee of UTHSC, and the trial court correctly granted summary judgment for Jacobs. As for Doucet and Beceiro, they presented no evidence in support of their summary judgment motion demonstrating that they were UTHSC’s employees. The only evidence Doucet and Beceiro presented were affidavits providing, “[a]t all times during the medical treatment made the basis of this suit, I was a resident, and any medical care or treatment I gave to Ida Rose Trevi�o Bustillos occurred while I was a resident.” Because the record contains no evidence that Dr. Doucet and Dr. Beceiro were in UTHSC’s “paid service,” summary judgment for Doucet and Beceiro based on �101.106 would have been improper. In their third issue, the Bustilloses, for the first time on appeal, claim summary judgment was improper for Doucet and Beceiro because Texas Health and Safety Code �312.007 does not apply in this case. The Bustilloses assert that the record does not establish the applicability of �312.007 because there is no evidence of the agreement that �312.003 makes a prerequisite to the applicability of Chapter 312. The Bustilloses may present their contention for review because a challenge to the legal sufficiency of the movant’s summary judgment proof is challengeable regardless of whether the nonmovant answers or responds to the movant’s motion for summary judgment. The Bustilloses argue that �312.007 does not apply in the present case because there is no evidence of an agreement between a medical and dental unit and a supported medical or dental school to train in a public hospital as required by �312.003. They argue that absent evidence of an agreement that specifically includes both the University of Texas and Baylor University, �312.007 does not apply. The doctors respond that �312.003 requires only an agreement by either a “medical and dental unit” or a “supported medical or dental school” to provide medical training and patient care in a public hospital because the “and” in �312.003 should be construed as an “or.” The court holds that this is an instance in which the word “and” should be construed as a disjunctive instead of a conjunctive. The record reflects that UTHSC, a medical unit, received a judgment in its favor pursuant to �101.101(a) of the Civil Practice and Remedies Code. This judgment thus barred any subsequent action against the medical faculty and residents of UTHSC, including Doucet and Beceiro, involving the same subject matter as the prior judgment. The trial court correctly granted summary judgment for Doucet and Beceiro, the court holds. OPINION:Stone, J.; Alma L. Lopez, CJ, Stone and Simmons, JJ.

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