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The Texas Supreme Court recently extended the immunity of public officials to a doctor in his residency at a private medical school. The case was Klein, et al. v. Hernandez, ___ S.W.3d ___ (Tex. 2010)(5/7/10).

In that case, a mother sued Baylor College of Medicine and a doctor in its residency program "alleging malpractice during the delivery of her daughter at Ben Taub General Hospital." Both defendants filed motions to dismiss the case. The mother responded, and then dismissed the suit against Baylor. The trial court denied both motions as to both defendants, and both appealed to the court of appeals, which ruled that it did not have jurisdiction to consider an "interlocutory" (i.e., pretrial) appeal. The Supreme Court held that it had jurisdiction to review the court of appeals' rulings, upheld the ruling (but not the reasoning) of the court of appeals as to Baylor, and overruled its ruling with regard to the resident.

"By statute, a state employee may appeal an interlocutory order denying a motion for summary judgment based on an assertion of immunity. . . . We conclude . . . that by statute a resident physician at a private medical school is to be treated like a state employee for purposes of section 5l.014(5) when the underlying litigation arises from a residency program coordinated through a supported medical school at a public hospital."

Baylor is a private school, but the Court found that it is a "supported medical school," receives public funding, and provides doctors to public hospitals, such as Ben Taub.

A "supported medical school is not liable [for its negligence], except (1) to the extent of liability of state government for the acts and omissions of a governmental unit of state government under the Tort Claims Act, and (2) up to the maximum amount of liability of state government under Section 101.023(a) of the Act. . . . Thus, a supported medical school does not need to be a governmental unit . . . to be entitled to immunity." The "Legislature intended through Chapter 312 to treat Baylor like other governmental entities providing services at public hospitals. . . ." So, "Klein was entitled to bring this interlocutory appeal like any other state employee. . . ."

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