Since 2020 we have been closely following a malpractice lawsuit filed by David and Mariana Saucedo against the El Paso Children’s Hospital and two doctors over the death of their three-year-old daughter. The lawsuit alleges that the medical staff and the children’s hospital were negligent and caused the death of their daughter. Over the course of our extensive coverage of the case, we have reported several other malpractice lawsuits. Our coverage has included firsthand testimony and court filings by several litigants and the hospital’s responses. We also published an affidavit that the court has now removed from the public record because El Paso Children’s Hospital lawyers successfully argued that the affidavit contained “issues that do not belong in the public view.”
The affidavit was made by Thomas Mayes, a doctor with firsthand knowledge of the hospital’s operations and how doctors are credentialed to provide medical services at the facility. Mayes, in his affidavit, wrote that one of the doctors who provided medical care to the Saucedo daughter “presents a real danger to his patients and should be removed from the practice of medicine.”
Last week, the Saucedo’s attorneys filed a response to the hospital’s latest attempt to have the lawsuit dismissed.
This latest court filing exposes the duplicity of the El Paso Children’s Hospital of trying to be both a governmental body and not one depending on the circumstances.
Since the El Paso Children’s Hospital filed for bankruptcy in early 2015, we have been filing open records requests with the University Medical Center of El Paso (UMC) and the El Paso Children’s Hospital seeking information from both. The El Paso Children’s Hospital has rejected our numerous public information records requests arguing that it is not a government body and thus not subject to the Texas Public Information Act.
In essence, the children’s hospital was arguing that it wasn’t part of the government and thus not subject to our open records requests.
We did not believe their argument to be valid and asked the Texas Attorney General to intervene. We had first asked the County Attorney, Jo Anne Bernal, to request an opinion from the Texas AG to ascertain whether, in fact, the children’s hospital was not subject to the open records laws. Bernal declined our request. We then asked the Texas AG to intervene. They wrote to us that El Paso Children’s Hospital told them that they “are not a governmental body.”
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Immunity From Lawsuits
Since opening its doors, the El Paso Children’s Hospital has operated as “an independent, self-operating, private children’s hospital that is not part of” UMC, the public hospital, according to testimony from several officials included in the Saucedo’s latest court filings.
As a stand-alone hospital, their arguments denying our various open records requests were valid. Specifically, their argument was that UMC “is taxpayer supported,” while the children’s hospital “is a separate, nonprofit hospital.”
If their argument were to be accepted, then the privately held facility kept the El Paso Children’s Hospital from having to respond to open records requests.
But it also opened them up to legal liability that government bodies are generally shielded from.
According to the Saucedo’s court filing, El Paso Children’s Hospital “was repeatedly sued for medical malpractice by El Paso families for years and never asserted this defense [immunity] prior to the Saucedos’ lawsuit.” [emphasis in original]
About a year after the Saucedo lawsuit was filed, around January 2021, the El Paso Children’s Hospital began asserting that they were a “hospital district management contractor,” in essence a governmental entity. The reason was that as a governmental entity it allows them to have sovereign immunity, or protection from lawsuits as an extension of a governmental body.
This argument argues that the children’s hospital is an employee of the government body while performing services.
The Saucedo filing argues that the hospital’s assertion of immunity from lawsuits, by virtue of being a contractor to UMC, is not valid because the contracts between UMC and the El Paso Children’s Hospital is one of “landlord and tenant.”
Should the children’s hospital prevail in their argument that they are a contractor, they would then be immune or have caps imposed on monetary damages for most lawsuits alleging wrongdoing in their medical practices.
But their immunity could come at the cost of their protection against open records requests if the court accepts that they are a government entity.
Governmental Entity Or Not?
Looking closer at the legal argument made by the children’s hospital, as laid out in the Saucedo filing, is whether El Paso Children’s Hospital is operating “under a contract with a hospital district.”
The key to both the immunity shield and access to records that the children’s hospital has refused to release for years is whether El Paso Children’s Hospital – the non-profit – is operating as a hospital for UMC.
If the court finds that it is, then immunity from the malpractice lawsuit can be asserted. However, as a contractor operating the hospital for UMC, the El Paso Children’s Hospital would then be subject to open records requests, which they routinely have denied citing that they are not a governmental body. As a contractor for a public hospital, they become subject to the Texas Public Information Act.
On one hand, the El Paso Children’s Hospital argues that it is not subject to the Texas Public Information Act because they are not a governmental body while now arguing that they cannot be sued because they are a governmental body.
In the Saucedo court filing, one of the examples the plaintiffs offer to the court to prove that the children’s hospital is not a governmental body are examples of open record requests denial letters where they have asserted that they are not subject to the Texas Public Information Act because “El Paso Children’s Hospital is not a governmental body…as such, the Public Information Act does not apply to El Paso Children’s Hospital.”
Faced with a malpractice lawsuit from the Saucedo family, who are seeking justice for their daughter and are unwillingly to quietly drop the lawsuit with a stipend for their loss, El Paso Children’s Hospital wants the court to agree that they are a governmental body for the immunity it affords them.
Should the court agree with their argument and declare them a governmental body, it would then force them to release public records they have refused over the years.