HOUSTON – The 1st District Court of Appeals affirmed a decision by the 80th District Court of Harris County to dismiss a sexual assault lawsuit against Baylor College of Medicine resident Shafeeq Sheikh, M.D. filed by a former patient, Laura Perilla-Vargas.
The court argued April 10 that "Perilla-Vargas’s election to sue both the governmental unit and the individual employee compels the dismissal of Sheikh," thereby warranting the affirmation of the trial court's judgment.
Perilla-Vargas brought the suit for damages against Baylor, Sheikh and Ben Taub, alleging that all three negligently failed to protect her from Sheikh's actions under the theory of respondeat superior.
Baylor filed the motion to dismiss Perilla-Vargas’ claims against Sheikh pursuant to the election-of-remedies provision of the Texas Tort Claims Act. Under this provision, a lawsuit filed against “both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit,” the opinion states.
Perilla-Vargas argued that Sheikh's actions were not undertaken while he was a Baylor employee but in his professional capacity as a medical practitioner.
The court argued that this argument rests on the "incorrect assumption that, to obtain Sheikh’s dismissal, the state must show that he was acting in the course and scope of his employment."
In her appeal, Perilla-Vargas argued that the trial court erred in granting Baylor's motion to dismiss Sheikh "because his actions were not undertaken in the course and scope of his employment," the opinion states.
Furthermore, the court argued that Perilla-Vargas' second claim questions whether the trial court "erred in granting Baylor’s plea to the jurisdiction—not whether it erred in granting the section 101.106(e) motion in the first instance."
The panel of justices on the case were Terry Jennings, Michael Massengale and Jennifer Caughey.