Opinion issued January 5,=20
2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-00213-CV
N.P.,=20
Appellant
V.
THE =
METHODIST=20
HOSPITAL AND
THE =
METHODIST=20
HEALTH CARE SYSTEM, Appellees
On =
Appeal from the=20
165th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2002-53670
O P I =
N I O=20
N
<=
/SPAN>Appellant,=20
N.P., appeals from a traditional summary judgment granted in favor =
of=20
appellees, The Methodist Hospital (Methodist Hospital) and The =
Methodist=20
Health Care System (collectively Methodist). In two issues on =
appeal, N.P.=20
contends that under section 81.003(a) of the Civil Practice and =
Remedies=20
Code, Methodist is liable for damages caused by its failure to =
take=20
necessary action to prevent or stop the sexual exploitation of her =
by its=20
employee, Mark Kennerson, who was her mental-health-services =
provider and=20
who was known by Methodist to have exploited another patient. In =
her reply=20
issue, N.P. further contends that, because the trial court granted =
summary=20
judgment under section 81.003 only, she still has a viable claim =
for=20
relief for respondeat superior. We hold that the plain language of =
section=20
81.003 imposes liability on an employer a of =
mental-health-services=20
provider for failure to take necessary action to prevent or stop =
the=20
sexual exploitation of a patient by a mental-health-services =
provider only=20
when the employer of that provider knew or had reason to know of =
the=20
sexual exploitation of the same patient by its provider-employee. =
We=20
further hold that any liability imposed on an employer on the =
basis of=20
respondeat superior under chapter 81 is set forth within the =
express=20
parameters of the act and that, by rendering summary judgment =
pursuant to=20
chapter 81, the trial court therefore disposed of all of =
N.P.=E2=80=99s claims.=20
Accordingly, we affirm the judgment of the trial =
court.
Background
<=
/SPAN>On=20
June 1, 1999, Kennerson was hired as a psychiatric technician to =
care for=20
psychiatric patients hospitalized at Methodist Hospital. About =
three=20
months later, a patient at Methodist Hospital, D.R., reported that =
she had=20
consensual sexual intercourse while she was in a =E2=80=9Cmanic =
state=E2=80=9D with a=20
person who met Kennerson=E2=80=99s physical description. As a =
result of D.R.=E2=80=99s=20
allegation, Methodist began an investigation that included an =
interview of=20
Kennerson, who denied that he knew D.R. and denied that he had=20
inappropriate contact with any patient. No restrictions were =
placed on=20
Kennerson=E2=80=99s job duties or his access to female =
patients.
<=
/SPAN>While=20
the investigation was still underway, N.P. was admitted to the =
psychiatric=20
unit at Methodist Hospital on October 11, 1999. On October 22, =
1999,=20
Kennerson was assigned to monitor N.P. for suicide watch. N.P. was =
lying=20
in bed on her stomach because a nurse had administered rash =
medication to=20
her buttocks. According to N.P., when Kennerson came into her room =
at=20
various times that evening, he engaged in a sexually explicit =
conversation=20
with her, kissed her, rubbed her lower back, ran his hand down =
toward her=20
female sexual organ, and exposed his erect male sexual organ near =
her=20
mouth. N.P. reported Kennerson=E2=80=99s conduct to Methodist the =
next day, and=20
Methodist began an internal investigation. Despite N.P.=E2=80=99s =
allegations,=20
Kennerson was again assigned to 15-minute observations of N.P. on =
October=20
25, 1999. N.P., however, did not assert any inappropriate physical =
contact=20
at any time after the initial contact on October 22, 1999. As a =
result of=20
its investigation and an investigation by the Texas Department of =
Health,=20
Methodist terminated Kennerson=E2=80=99s employment on November 5, =
1999.=20
<=
/SPAN>N.P.=20
filed this lawsuit on October 17, 2002, a date outside the =
two-year=20
limitations period for her common law causes of action, but within =
the=20
three-year limitations period for a cause of action under chapter =
81 of=20
the Civil Practice and Remedies Code. The trial court granted =
Methodist=E2=80=99s=20
partial motion for summary judgment for N.P.=E2=80=99s common law =
causes of action=20
because they were outside the statute of limitations for those =
claims, and=20
N.P. does not challenge that ruling on appeal. The sole complaint=20
presented in this appeal concerns summary judgment rendered in =
favor of=20
Methodist on the grounds that section 81.003 of the Civil Practice =
and=20
Remedies Code was inapplicable to the facts presented here.
Standard of=20
Review=E2=80=94Traditional Motion for Summary =
Judgment
<=
/SPAN>We=20
review summary judgments de novo. Valence Operating Co. v. =
Dorsett,=20
164 S.W.3d 656, 661 (Tex. 2005). Traditional summary judgment is =
proper=20
only when the movant establishes that there is no genuine issue of =
material fact and that the movant is entitled to judgment as a =
matter of=20
law. Tex. R. Civ. P.=20
166a(c). In reviewing a traditional summary judgment, we =
must=20
indulge every reasonable inference in favor of the nonmovant, take =
all=20
evidence favorable to the nonmovant as true, and resolve any =
doubts in=20
favor of the nonmovant. Valence, 164 S.W.3d at 661. A =
defendant who=20
moves for traditional summary judgment on the plaintiff=E2=80=99s =
claims must=20
conclusively disprove at least one element of each of the =
plaintiff=E2=80=99s=20
causes of action. Little v. Tex. Dep=E2=80=99t of Criminal =
Justice, 148=20
S.W.3d 374, 381 (Tex. 2004).
Liability for=20
Employer of Mental-Health-Services =
Provider
<=
/SPAN>The=20
parties dispute whether the liability of an employer under section =
81.003=20
of the Civil Practice and Remedies Code is triggered when a=20
mental-health-service provider exploits only the same patient or =
when the=20
provider also exploits different patients. Section 81.003 of the =
Civil=20
Practice and Remedies Code states the following:
[A]n employer of a mental health =
services provider=20
is liable to a patient or former patient of the mental health =
services=20
provider for damages if the patient or former patient is injured =
as=20
described by section 81.002 and the employer: . . . knows or has =
reason to=20
know that the mental health services provider engaged in sexual=20
exploitation of the patient or former patient and the employer =
failed to=20
(A) report the suspected sexual exploitation . . . ; or (B) take =
necessary=20
action to prevent or stop the sexual exploitation by the mental =
health=20
services provider. ![3DFootnote](3D"")
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 81.003 (Vernon 2005). The =
pertinent=20
portion of Section=20
81.002 states that
[a] mental health =
services=20
provider is liable to a patient or former patient of the mental =
health=20
services provider for damages for sexual exploitation if the =
patient or=20
former patient suffers, directly or indirectly, a physical, =
mental, or=20
emotional injury caused by, resulting from, or arising out of . . =
. sexual=20
contact between the patient or former patient and the mental =
health=20
services provider.
Id. =C2=A7 81.002. Under the act, =
an employer is=20
only liable to the extent that the failure to take action was a =
proximate=20
and actual cause of damages sustained. Id. at =C2=A7 =
81.003.=20
=
<=
/SPAN>In=20
its motion for summary judgment, Methodist asserted that section =
81.003=20
provides that an employer of a mental-health-services provider is =
liable=20
only when the mental-health-services provider=E2=80=99s sexual=20
exploitation
of the patient bringing suit continues =
after the=20
employer knew or reasonably should have known of the sexual =
exploitation=20
of the same patient. Methodist argued that because the Legislature =
used=20
the word =E2=80=9Cthe=E2=80=9D in section 81.003(a), rather than =
the word =E2=80=9Ca,=E2=80=9D to refer to=20
=E2=80=9Cthe sexual exploitation of the =
patient,=E2=80=9D the cause of=20
action created by section 81.003 does not apply if the initial =
sexual=20
exploitation by the mental-health-services provider was of a =
patient other=20
than the one bringing suit. In response, N.P. argued that the =
statutory=20
construction urged by Methodist =E2=80=9Cis contrary to the =
legislative intent,=20
the plain wording of the statute, rules of construction, and =
common sense=E2=80=9D=20
because the act was enacted to provide redress for all victims who =
suffered sexual exploitation from a mental-health-services =
provider.
&nbs=
p;No=20
court has directly addressed whether employers of =
mental-health-services=20
providers are subject to the act when they knew or should have =
known that=20
an employee sexually exploited one patient and subsequently failed =
to take=20
necessary action to =
prevent or=20
stop the sexual exploitation of another patient. The issue thus =
presents a=20
matter of first impression in Texas.
=
Statutory=20
construction is a question of law. Harris County v. =
Williams, 981=20
S.W.2d 936, 938 (Tex. App.=E2=80=94Houston [1st Dist.] 1998, pet. =
denied). The=20
cardinal rule of statutory construction is to ascertain the =
Legislature=E2=80=99s=20
intent and to give effect to that intent. Id. If the =
statute=E2=80=99s=20
language is not ambiguous, we must seek the Legislature=E2=80=99s =
intent in the=20
plain meaning of the words and terms used and not look to =
extraneous=20
matters for an intent the statute does not state. Nat=E2=80=99l =
Liab. &=20
Fire Ins. Co. v. Allen, 15 S.W. 3d 525, 527 (Tex. 2000);=20
Williams, 981 S.W.2d at 938. N.P. correctly =
contends that=20
even when the statute is unambiguous, we may consider, among other =
things,=20
the statute=E2=80=99s objectives, its legislative history, and the =
consequences of=20
a particular construction. In re Canales, 52 S.W.3d 698, =
702 (Tex.=20
2001). However, we may not rely on these considerations to =
contradict the=20
plain meaning of the statute. See id. (holding that plain =
meaning=20
of statute was supported by legislative history and objectives).=20
N.P. =
further=20
correctly contends that statutes =E2=80=9Cshall be liberally =
construed to achieve=20
their purpose and to promote justice.=E2=80=9D Tex. Gov=E2=80=99t Code =
Ann. =C2=A7 312.006=20
(Vernon 2005). Nevertheless, if a statute creates liability =
unknown at=20
common law, as here, the statute will be strictly construed in the =
sense=20
that it will not be extended beyond its plain meaning or applied =
to cases=20
not clearly within its purview. Smith v. Sewell, 858 S.W.2d =
350,=20
354 (Tex. 1993).
=
We=20
begin with the plain language of the statute before resorting to =
the rules=20
of construction because we assume that the Legislature attempted =
to say=20
what it meant; therefore, the statute=E2=80=99s words should be =
the surest guide=20
to the Legislature=E2=80=99s intent. Segal v. Emmes Capital, =
L.L.C., 155=20
S.W.3d 267, 286 (Tex. App.=E2=80=94Houston [1st Dist.] 2004, pet. =
abated).=20
Moreover, we do not confine our review to statutory words, =
phrases, or=20
clauses in isolation but instead examine the entire act. =
Id. We=20
must give effect to every word and phrase if it is reasonable to =
do so=20
because we presume the Legislature used every word or phrase=20
intentionally, with a meaning and a purpose. Abrams v. =
Jones, 35=20
S.W.3d 620, 625 (Tex. 2000); Univ. of Tex. Med. Branch at =
Galveston v.=20
Hohman, 6 S.W.3d 767, 776 (Tex App.=E2=80=94Houston [1st =
Dist.] 1999, pet.=20
dism=E2=80=99d w.o.j.). Generally, we will accept the words used =
according to=20
their ordinary meaning, unless given a specific statutory =
definition.=20
Cities of Austin, Dallas, Fort Worth & Hereford v. S.W. =
Bell Tel.=20
Co., 92 S.W.3d 434, 442 (Tex. 2002). We will not give words an =
exaggerated, forced or constrained meaning. Id.=20
=
No=20
one disputes that Kennerson was a mental-health-services provider =
or that=20
Methodist was his employer. Additionally, N.P. has not asserted =
that=20
Methodist knew or had reason to know that Kennerson exploited her =
and then=20
did not prevent or stop continued exploitation of her. =
N.P.=E2=80=99s complaint=20
asserts that Methodist knew or had reason to know that Kennerson =
exploited=20
D.R. and did not prevent or stop Kennerson from exploiting=20
N.P. The sole dispute, therefore, concerns =
whether the=20
exploitation must concern the same patient to trigger liability =
against=20
Methodist under section 81.003(a).
&nbs=
p;We=20
start with the plain language of section =
81.003(a). See =
Segal, 155=20
S.W.3d at 286. Only if we find that its plain language is =
susceptible of=20
two or more reasonable interpretations will we hold that section =
81.003(a)=20
is ambiguous. See id. The relevant =
language of the=20
act is found in section 81.003(a), which states, =E2=80=9CAn =
employer of a=20
mental-health-services provider is liable to a patient or former =
patient .=20
. . if the patient or former patient is injured=E2=80=9D =
resulting from=20
sexual exploitation by the mental-health-services provider. =
(Emphasis=20
added). Considering each =
section and=20
word in connection with chapter 81, we conclude that the statute =
is=20
unambiguous on its face. Therefore, we must construe the statute =
in light=20
of its plain meaning. Because we must give effect to every word in =
the=20
statute, we=20
conclude that the Legislature used the word =E2=80=9Cthe=E2=80=9D =
intentionally to refer=20
to one patient. We reach this conclusion because the article =
=E2=80=9Cthe=E2=80=9D before=20
=E2=80=9Cpatient or former patient=E2=80=9D relates back to =
=E2=80=9Ca patient or former patient=E2=80=9D=20
in the first part of the sentence and the Legislature therefore =
intended=20
that =E2=80=9Cthe patient or former=E2=80=9D patient be the same =
one specified at the=20
beginning of the sentence.
=
Had=20
the Legislature intended the contrary result, it could have easily =
repeated the article =E2=80=9Ca=E2=80=9D in the statute, as =
follows: an employer of a=20
mental-health-services provider is liable to a patient or former =
patient=20
if a patient or former patient is injured resulting from =
sexual=20
exploitation by the mental-health-services provider. Because we presume =
that the=20
Legislature used every word of the act for a purpose, we cannot =
conclude=20
that the Legislature intended to use a word other than that which =
it chose=20
to incorporate throughout the act.
=
Throughout=20
chapter 81, the act consistently refers to =E2=80=9Cthe=E2=80=9D =
sexual exploitation of=20
=E2=80=9Cthe=E2=80=9D patient or former patient. See =
generally Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7=C2=A7 81.002, 81.003(a)=E2=80=93(b), (d), =
81.005. The use of the word=20
=E2=80=9Cthe=E2=80=9D throughout the=20
act recognizes that the act applies to only one patient and to =
only one=20
sexual exploitation. See Segal, 155 S.W.3d at 287 =
(stating,=20
=E2=80=9Cthe use of =E2=80=98the sale=E2=80=99 throughout the =
section [at issue] seems to=20
recognize that only one sale need take place=E2=80=9D). Although =
=E2=80=9Cthe=E2=80=9D sexual=20
exploitation refers to more than one act, our analysis is =
consistent with=20
the statute=E2=80=99s reference to =E2=80=9Cthe=E2=80=9D sexual =
exploitation because =E2=80=9Csexual=20
exploitation=E2=80=9D is defined as =E2=80=9Ca pattern, practice, =
or scheme of conduct.=E2=80=9D=20
Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7=20
81.001(5). Therefore, the Legislature specifically created a cause =
of=20
action for one patient who is a victim of a pattern, practice or =
scheme of=20
conduct constituting sexual exploitation.
=
Although=20
we conclude that, by its plain meaning, the act applies to the =
sexual=20
exploitation of one patient, we may also refer to the =
act=E2=80=99s legislative=20
history in support of our conclusion. See =
Nat=E2=80=99l Liability,=20
15 S.W.3d at 527. The legislative history suggests that the =
purpose of the=20
act was to prevent inappropriate sexual relationships between =
mental=20
health providers and patients. Pursuant to the Background section of the =
Senate=20
Report, one of the =
complaints by=20
supporters of the act addressed =E2=80=9Cinappropriate =
relationships between=20
mental health professionals and their patients.=E2=80=9D =
Senate Health & Human =
Servs.=20
Comm., Bill =
Analysis,=20
Tex. S.B. 210, 73rd Leg., R.S. (1993). The Senate Report states =
that=20
=E2=80=9Canonymous surveys of [mental health] professionals =
indicate that a=20
disturbing number of inappropriate physical and emotional =
relationships do=20
occur=E2=80=9D between mental-health-services providers and their =
patients.=20
Id.
&=
nbsp;The=20
House Daily Floor Report likewise states the=20
following:
Sexual =
relationships=20
between mental health providers and the patients who entrust =
themselves in=20
their care is prohibited by codes of ethics adopted by most mental =
health=20
care professionals. Yet the number of incidences are [sic] =
growing, and=20
most go unreported. National studies indicate that about 65 =
percent of=20
therapists surveyed reported that they had treated patients who =
were=20
sexually involved with their previous therapist. Other studies =
have shown=20
between five and 17 percent of all male therapists have had sex =
with their=20
client. SB 210 would ensure that mental health professionals, and =
anyone=20
who employs mental health professionals, would be responsible for =
rendered=20
patient care and treatment.
House Res. Org., Bill Analysis, Tex. S.B. =
210, 73rd=20
Leg., R.S. (1993). As set forth =
above, sexual=20
exploitation under the act is =E2=80=9Ca pattern, practice, or =
scheme of conduct.=E2=80=9D=20
Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7=20
81.001(5). We conclude that the legislative =
history, which=20
recognizes problematic sexual relationships between mental health=20
providers and their patients, in conjunction with the definition of =
sexual=20
exploitation, suggest that the =
Legislature enacted the statute to prevent ongoing sexual =
relationships=20
between a mental-health-services provider and a particular =
patient. We=20
further conclude that the act does not apply to a situation, as =
here,=20
where there was no ongoing sexual exploitation of one=20
patient.
=
Although=20
N.P. has no cause of action against Methodist under chapter 81, we =
emphasize that she had common law causes of action that she could =
have=20
properly brought against Methodist had she filed them before =
limitations=20
expired.
&nbs=
p;We=20
conclude that the act does not apply to impose liability upon =
Methodist=20
under the circumstances presented here.
&nbs=
p;We=20
overrule N.P. first two issues.
Applicability of=20
Respondeat Superior
&nbs=
p;In=20
her reply brief, N.P. contends that, despite the trial =
court=E2=80=99s order on=20
Methodist=E2=80=99s motion for summary judgment pursuant to =
section 81.003, she=20
nonetheless has a viable cause of action for vicarious liability =
under=20
principles of respondeat superior. N.P. reasons that =
Methodist=E2=80=99s motion=20
was granted only as to N.P.=E2=80=99s claims brought pursuant to =
section 81.003=20
and that the summary judgment denied all other grounds asserted in =
the=20
motion for summary judgment. Appellees contend that N.P. waived =
her=20
respondeat superior claim by failing to address it in her brief, =
and, in=20
the alternative, that section 81.003 provides no respondeat =
superior=20
liability. In her seventh amended petition, N.P. alleges causes of =
action=20
under chapter 81 and respondeat superior or vicarious liability. =
Summary=20
judgment had been previously granted in this case on all of =
N.P.=E2=80=99s common=20
law causes of action based on limitations. Therefore, the only =
claims on=20
which N.P. could base respondeat superior or vicarious liability =
were=20
those under chapter 81. In rendering summary judgment pursuant to =
section=20
81.003, the trial court stated in its=20
judgment, =E2=80=9CThis is a final and appealable judgment =
disposing of all claims=20
and all parties.=E2=80=9D
&nbs=
p;An=20
issue raised for the first time in a reply brief is ordinarily =
waived.=20
Hutchison v. Pharris, 158 S.W.3d 554, 564 (Tex. =
App.=E2=80=94Fort Worth=20
2005, no pet. h.) (citing Anderson Producing Inc. v. Koch Oil =
Co.,=20
929 S.W.2d 416, 424 (Tex. 1996)). It is well established, however, =
that an=20
appeal may generally be taken only from a final judgment that =
disposes of=20
all pending parties and claims. Fresh Coat, Inc. v. Life Forms, =
Inc., 125 S.W.3d 765, 767 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2003, no=20
pet.). For the judgment to be final and appealable, the intent to =
finally=20
dispose of the case must be, as here, unequivocally expressed in =
the words=20
of the judgment itself. Id. We must actually look to the =
record to=20
determine whether a judgment disposes of all pending claims and =
parties.=20
Id. Because N.P.=E2=80=99s issue relates to the finality of =
the judgment=20
and thus our jurisdiction to hear the appeal, we will address =
whether N.P.=20
has a viable cause of action for vicarious liability, although =
N.P. raised=20
the issue for the first time in her reply brief.
&nbs=
p;The=20
theory of vicarious liability is a judicially created vehicle for=20
enforcing remedies for wrongs committed. St. Joseph Hosp. v. =
Wolff,=20
94 S.W.3d 513, 541 (Tex. 2002). Justified on public policy =
grounds, the=20
theory represents a deliberate allocation of risk. Id. The =
scope=20
and extent of vicarious liability under the common law is clearly =
a policy=20
determination. Id. The most important factor in determining =
whether=20
vicarious liability is appropriate is whether the person being =
held=20
responsible can be said to have had a right of control. Id. =
This is=20
best illustrated by the imposition of vicarious liability in the =
context=20
of the employer-employee relationship under the doctrine of =
respondeat=20
superior. Id.
&=
nbsp;As=20
set forth above, chapter 81 is a statutorily created cause of =
action that=20
creates liability for mental-health-services providers in section =
81.002=20
and for employers of mental-health-services providers in section =
81.003.=20
The Legislature expressly set forth the specific parameters for =
chapter 81=20
causes of action in the plain language of the statute. A statute =
is=20
presumed to have been enacted by the Legislature with complete =
knowledge=20
of the existing law and with reference to it. Acker v. Tex. =
Water=20
Comm=E2=80=99n, 790 S.W.2d 299, 301 (Tex. 1990). The exclusive =
remedy against=20
employers under chapter 81 is set forth expressly in section =
81.003.=20
Because we presume that the Legislature had complete knowledge of =
the=20
theories of vicarious liability and respondeat superior when it =
enacted=20
chapter 81, we may not extend liability beyond its parameters. As =
written,=20
the act does not encompass vicarious liability beyond any =
expressly=20
created under section 81.003. Therefore, we conclude that the =
summary=20
judgment that disposed of N.P.=E2=80=99s chapter 81 claims also =
disposed of her=20
respondeat-superior claims pursuant to chapter 81.=20
&nbs=
p;We=20
overrule N.P=E2=80=99s reply issue.
Conclusion
&nbs=
p;We=20
affirm the judgment of the trial court.
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; Elsa=20
Alcala
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; Justice
Panel =
consists of=20
Chief Justice Radack and Justices Taft and=20
=
Alcala. |