Employees failed to establish they were acting within course and scope of employment in defamation case so trial court properly denied motion to dismiss

Cordelia Moscrip, Michelle Stewart and Tracy Romero v. Maura Kraus 04-15-00734-CV (Tex.App.–San Antonio, April 27, 2016)

This is a defamation case where the Fourth Court of Appeals denied an election of remedies dismissal for employees of the University of Texas Health Science Center San Antonio (“UTHSCSA”) under Tex. Civ. Prac. & Rem. Code §101.106(f).

While employed by UTHSCSA, Kraus suffered a cardiac episode at work and subsequently received treatment from Moscrip (a physician). Based on alleged actions that were taken while Kraus was a patient of Moscrip, Kraus filed a lawsuit against Moscrip, Stewart, Romero, and others alleging causes of action for invasion of privacy, intentional infliction of emotional distress, and defamation.  Specifically, Kraus alleges Moscrip discussed/gossiped about her and discussed her medical condition with people who “had no business knowing” that information, including stating her condition was only “in her head” and that she was “nuts.”  Stewart and Romero allegedly accessed her medical information but for personal reasons, not for any legitimate medical purposes. Moscrip, Stewart, and Romero filed a motion to dismiss pursuant to §101.106(f), asserting they were employees of UTHSCSA, a governmental unit, the alleged actions were within the general scope of their employment with UTHSCSA, and Kraus’s lawsuit could have been brought against UTHSCSA.  Kraus asserted they were not acting within the scope of their employment. The trial court denied the motion and they appealed.

The only issue in dispute is whether Moscrip, Stewart, and Romero were acting within their scope of employment, thereby entitling them to dismissal under §101.106(f). The court went through statutory and case law precedent on “scope of employment” and held “… when an employee engages in conduct ‘for the sole purpose’ of furthering [his own or] someone else’s interests and not his employer’s, the conduct is outside the employee’s scope of employment.” “Conduct that serves any purpose of the employer is within the scope of employment even if the conduct escalates beyond that assigned or permitted.”  However, Kraus asserted Moscrip made statements to people who had no business or purpose knowing the information.  Moscrip’s affidavit does not describe how her discussions of Kraus’s medical condition were within the scope of her employment or assert she only spoke with people to whom she needed to disclose such information in furtherance of her duties.  Next, the court held “that although each of the affidavits globally contends each employee was authorized to access medical records, none of the affidavits states the employee’s access to Kraus’s medical records was for the purpose of fulfilling their responsibilities.”  In other words, the evidence merely established the employees were medical professionals or administrators and not that they were performing those functions when dealing with Kraus. It was “the appellants’ burden to conclusively establish they were acting within the scope of their employment when they committed the alleged acts.”  Since they did not present sufficient evidence in relation to the Plaintiff, the motion was properly denied.

If you want to read this opinion click here.  Panel: Justices Barnard, Alvarez and  Chapa. Memorandum opinion by Justice Barnard. Attorneys listed for Kraus are Lisa A Vance and Beth Watkins. Attorney listed for Moscrip, Stewart and Romero is Anne Marie Mackin.


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