In a court filing on August 16, the El Paso Children’s Hospital argues that it cannot be sued for medical malpractice because “EPCH is a governmental unit and entitled to the protections from suit.” In making this argument, the children’s hospital is directly contradicting what they told the Texas Attorney General in 2021.
In 2020, David Saucedo and his wife filed a malpractice lawsuit against the El Paso Children’s Hospital alleging medical malpractice. The case has stalled in court over whether an affidavit filed with the suit should remain in the public record.
In its latest filing, the children’s hospital has argued that it cannot be sued because it “is a government unit and entitled to the protections from suit.”
However, in 2021, we were seeking information from the El Paso Children’s Hospital under the Texas Public Information Act. The public information law allows the public to inspect government records.
On April 19, 2021, we submitted an open records request to the El Paso Children’s Hospital requesting “any correspondence between Estela Casas, Executive Director of El Paso Children’s Hospital Foundation and Cindy Stout, CEO of El Paso Children’s Hospital between March 28, 2021 and April 2021.”
Three days later, the children’s hospital sent us a letter telling us that the “El Paso Children’s Hospital is not a governmental body.” They therefore denied our open records request.
The Texas open records law requires that an entity “that believes it is not a governmental body” under the public information law, the “entity should seek a ruling” from the Texas Attorney General to determine to what extent they may be subject to the open records law.
The El Paso Children’s Hospital did not seek an opinion from the Texas AG and instead denied our request arguing they are not a government body.
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On April 26, 2021, we asked County Attorney Jo Anne Bernal to request an opinion from the Attorney General’s office to issue an opinion on whether the children’s hospital is subject to the open records law. We argued that we believed they are because they are owned by the El Paso Hospital District dba University Medical Center of El Paso (UMC).
County Attorney Jo Anne Bernal responded to our request on May 7, 2021. In her response, she refused to submit our request for an opinion from the Texas Attorney General and instead referred us to her analysis that the children’s hospital was not a government entity because “EPCH has its own legal formation documents,” and “adopts a budget distinct from UMC,” among three other facts she recited.” The county attorney is the only entity, other than El Paso Children’s Hospital, that can ask the Texas Attorney General to issue an opinion on whether the El Paso Children’s Hospital is subject to the open records law.
However, we persisted and wrote a letter to the Texas Attorney General asking for their assistance. In a letter dated June 22, 2021, the Texas Attorney General wrote us that “the hospital informs this office it is not a governmental body subject” to the open records laws.
Nonetheless, in their recent court filing, the children’s hospital is arguing they cannot be sued because they are a public entity. Interestingly in arguing their immunity from the lawsuit, the children’s attorneys cites case law (Tex.Occ.Code § 151.002(a)(8)(B)) that states that entities “owned or operated by governmental entities” it makes sense “that they are public entities subject to greater public disclosure and accountability than private hospitals.” The case law cited is about hospital districts and although the malpractice case is about the children’s hospital which is a nonprofit, its sole owner is UMC, a hospital district.
Nonetheless, the El Paso Children’s Hospital is in court arguing that they are immune from lawsuits because they are a public entity while insisting, they are not subject to public scrutiny because they are not a public entity.
We asked David Saucedo about his thoughts on the children’s hospital arguing they cannot be sued. In an email, Saucedo responded, “EPCH is seeking to dismiss all claims by asserting governmental immunity under the Texas Tort Claims Act (TTCA).” Saucedo added that this “448-page defense pleading is nothing short of alarming,” because “a hospital that claims to protect children is now hiding behind legal technicalities to dodge accountability, which is a betrayal of the trust we place in institutions meant to safeguard our most vulnerable.”
Saucedo concluded that “we will continue to fight and will not be deterred by these tactics,” because “EPCH may think they can escape responsibility, but we are committed to shining sunlight on their actions and ensuring the truth comes to light for every parent and family who trusts these institutions.”