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Click here for the full text of this decision FACTS:On April 24, 2003, Charla Hall entered Parkland Health & Hospital System for gastrointestinal bypass surgery, which Dr. David Provost performed. She remained in the hospital until April 29, 2003. On May 7, 2003, she began experiencing extreme abdominal pain and was transported back to Parkland by her husband Kenneth Hall. Charla was then diagnosed with peritonitis caused by a leak in the bypass. She underwent emergency surgery for the leak and then had another surgery on May 15, 2003. On May 29, 2003, Charla was again taken into surgery to perform a tracheostomy. She remained in the surgical intensive care unit for 275 days and was discharged on March 18, 2004. The Halls filed suit against Provost alleging several negligent acts or omissions: 1. failing to properly evaluate the postsurgical condition of plaintiff; 2. failing to identify the cause of plaintiff’s enlarged abdomen following the surgical procedure; 3. discharging plaintiff following the surgical procedure despite plaintiff’s condition; and 4. failing to properly identify the leak in the bypass caused during the abdominal surgical procedure. Provost filed a motion to dismiss under the Texas Tort Claims Act, Texas Civil Practice & Remedies Code �101.106(f). Provost relied on �101.106(f) for his motion to dismiss, which specifically provides the following: “If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” The trial court granted Provost’s motion. This appeal followed. HOLDING:Reversed and remanded. In two issues, the Halls asserted: 1. the trial court erred in dismissing the suit, because their claims could not have been brought under the Texas Tort Claims Act; and 2. the trial court’s dismissal under �101.106(f) violated the Open Courts provision of the Texas Constitution. To be entitled to dismissal under �101.106(f), a defendant must show the plaintiff’s suit: 1. was based on conduct within the general scope of the defendant’s employment with a governmental unit; and 2. could have been brought under the Texas Tort Claims Act against the governmental unit. The Halls did not dispute that Provost met the first requirement of �101.106(f). The court stated, however, that Provost’s motion to dismiss made no showing that Charla’s claims could have been brought against a governmental unit under the Texas Tort Claims Act. Charla’s claims, the court stated, were simply medical malpractice claims and not encompassed by the Texas Tort Claims Act’s limited waiver of sovereign immunity. In addition, there was no evidence that a condition or use of any tangible property by a governmental unit caused Charla’s injury. Courts have concluded in such situations that dismissal of the doctor is inappropriate, the court stated. The court explained that if a doctor cannot establish that he or she used tangible property belonging to a government-owned hospital to cause a patient’s injury, then a suit based on the incident cannot be brought against the hospital under the Texas Tort Claims Act. Thus, in such circumstances, a trial court does not err in denying a motion to dismiss. The Halls’ petition, the court stated, alleged medical malpractice claims that essentially encompassed Provost’s failure to properly diagnosis Carla’s condition before dismissing her from the hospital. Such allegations, the court stated, did not assert that her injuries were caused by use of tangible personal or real property such that her claims could have been brought against a governmental unit or entity under the Texas Tort Claims Act. Based on these facts, the court found that Provost did not show the Halls’ claims could have been brought against a governmental unit under the Texas Tort Claims Act. Thus, the trial court erred in dismissing their claims against Provost pursuant to �101.106(f). OPINION:O’Neill, J.; Moseley, O’Neill and FitzGerald, JJ.

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