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Click here for the full text of this decision FACTS:Stacey Velasquez and Saragosa Alaniz (the Alaniz family) filed suit against Drs. John Franka and Nagakrishna Reddy, seeking damages for injuries sustained by their minor son Saragosa during his delivery. Franka and Reddy moved to require the plaintiffs to substitute the University of Texas Health Science Center (UTHSC) as the defendant and to dismiss the suit against them under �101.106(f) of the Texas Civil Practice & Remedies Code, which provides for dismissal of suits against government employees if the suit is based on conduct within the general scope of that employee’s employment. Governmental agencies, however, are generally immune from medical negligence complaints. Franka and Reddy argued that an exception to this rule applies and the suit could have been brought against UTHSC because the injuries were caused by the use of tangible personal property during the delivery, specifically a vacuum extractor. However, the trial court denied their motion for summary judgment of substitution or dismissal. HOLDING:Affirmed. Upon a review of the petition and the evidence presented, the court held that the claim asserted against Franka and Reddy is, “quite simply, a claim of medical negligence and is not encompassed by the Texas Tort Claim Act’s limited waiver of sovereign immunity.” The court noted that “a claim based in part on the use of a vacuum extractor for child delivery rather than a surgical cesarean procedure is a claim based on the use of tangible personal property and thus is within the Tort Claim Act’s waiver of immunity.” But the court found that “only the bruise to Allen’s head was arguably caused by the vacuum extractor” and not Saragosa’s more serious shoulder injury, so the exception advanced by Franka and Reddy did not apply. Governmental immunity, the court stated, is not waived every time a government employee and a piece of tangible personal property are combined. As a result, the court upheld the trial court’s order declining to dismiss the employees from a suit under �101.106(f) on grounds that a fact issue exists with regard to whether the governmental unit’s immunity is waived. Because such a fact issue existed, the court found that the employees failed to establish that the suit could have been against the governmental unit. OPINION:Lopez , C.J.; L�pez , C.J., Angelini and Marion, J.J.

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