Opinion
NO. 03-19-00465-CV
11-04-2020
The University of Texas at Austin, Appellant v. Meagan A. Moses, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-17-005359 , THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING MEMORANDUM OPINION
In this interlocutory appeal, the University of Texas at Austin (the "University") challenges the trial court's order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). In one issue on appeal, the University asserts that the trial court erred in denying its plea because it is immune from suit and because the plaintiff, Megan Moses, has failed to assert a claim for which sovereign immunity is waived. Because we conclude that Moses's allegations and the evidence are sufficient to support a waiver of immunity under section 101.021 of the Texas Tort Claims Act, we affirm. See id. § 101.021(2).
BACKGROUND
On November 16, 2015, Moses, a student at the University, went to University Health Services at the University for a follow-up appointment with Dr. James Tai to discuss treatment options for fatigue. While there, Moses decided to request a flu shot.
University Health Services provides non-emergency medical services to the University's student population.
After checking in and filling out a Primary Care Questionnaire, where she noted her desire to get a flu shot, Moses was led to an exam room and sat on an exam table. The exam table was a standard one, without guardrails or straps. During the examination, Dr. Tai and Moses discussed multiple possibilities for treating her fatigue, including the possibility of further blood work. Moses told Dr. Tai that she hates blood draws and that she frequently gets lightheaded, near syncopal. While discussing the potential need for blood work, Moses became lightheaded, and she lay back on the exam table.
Syncope, commonly called fainting, is a temporary loss of consciousness caused by a sudden drop in blood pressure that decreases blood flow to the brain.
At the end of the examination for Moses's fatigue, Dr. Tai ordered a flu shot for Moses. He alerted the nursing staff, including a nursing assistant, that Moses had become lightheaded during the exam and needed fluids. The nursing assistant brought Moses water as instructed and prepared to give her the flu shot. The nursing assistant also reviewed Moses's completed Flu Shot Consent Form, which included a checked "Yes" next to the question, "Do you have a history of fainting or getting light-headed or dizzy when you get a shot?" After giving Moses the flu shot, the nursing assistant instructed Moses to "remain laying [sic] down as long as [she] needed" and then left the exam room, leaving Moses unattended.
A few minutes later, Dr. Tai was called back to the exam room, where according to his clinic notes, he discovered Moses on the floor "with approximately 12-inch pool of blood present with a dislodged tooth present in center." Moses was transported to a nearby hospital, where she underwent surgery to repair a broken jaw.
Moses later filed suit under section 101.021(2) of the Texas Tort Claims Act, alleging that she sustained personal injury as a result of the University medical staff's negligent use of the exam table. The University filed a plea to the jurisdiction, asserting that Moses's suit is barred by sovereign immunity. In support of its plea, the University attached, among other things, the expert reports of three medical professionals—two nurses and a doctor—who had been designated as experts by Moses. In summation, the expert reports state that the standard of care for giving an injection to a patient with a known history of syncope is to take all necessary precautions to ensure that the patient does not fall and injure herself. According to the experts, medical staff breached this standard of care by failing to use an exam table with guardrails (or some other device with fall protection) and, alternatively, by failing to have medical staff attend to Moses until she recovered from the shot. Moses's experts also opined that had medical staff used an exam table with guardrails or attended to Moses, she would not have fallen and sustained her injuries. The University argued that the expert reports and other evidence establish that Moses's injuries did not arise from the medical staff's use of the exam table because the exam table did not cause direct injury to Moses. According to the University, Moses's "true negligence claims concern strictly the medical decisions and judgments made by the [University] medical staff and physicians," and therefore, her claims do not fall within the scope of the Act.
The trial court denied the University's plea to the jurisdiction. This interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
STANDARD OF REVIEW
Absent a legislative waiver of immunity, the State and its various divisions, like the University, generally retain sovereign immunity from suit. University of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010). Because immunity implicates a court's subject-matter jurisdiction, a claim of sovereign immunity is properly raised by a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The purpose of a plea to the jurisdiction is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject-matter jurisdiction is a question of law; therefore, we review a trial court's ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226.
The burden is on the plaintiff to present facts that affirmatively demonstrate a trial court's subject-matter jurisdiction over the dispute. See Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). Therefore, in reviewing a trial court's ruling on a plea to the jurisdiction, we begin with the plaintiff's live pleadings and determine if the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In determining whether the plaintiff has met this burden, we construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent. Heckman, 369 S.W.3d at 150.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, the court should also consider the evidence submitted by the parties and must do so when necessary to the resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 226 (citing Bland Indep. Sch. Dist., 34 S.W.3d at 547). When, as in this case, the jurisdictional facts implicate the merits of the case, our review of the evidence mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at 228. "If the evidence raises a fact question on jurisdiction," we cannot grant the plea, "and the issue must be resolved by the trier of fact." Hayes, 327 S.W.3d at 116. However, "if the evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law." Id.
TEXAS TORT CLAIMS ACT
The Texas Tort Claims Act provides a limited waiver of immunity for certain negligent acts by governmental employees acting within the scope of their employment. University of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2019). In relevant part, the Act waives immunity for claims against governmental units for "personal injury . . . so caused by . . . use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(2).
The Texas Supreme Court has clarified that to "use" property in the context of section 101.021(2) means "to put or bring the property into action or service; to employ for or apply to a given purpose." McKenzie, 578 S.W.3d at 513 (quoting San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)). Allegations of non-use are insufficient to bring the claim within the scope of the Act's waiver of immunity; actual use is required. Id.; see Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (holding that failure to use injectable form of drug is not "use" and plaintiff neither alleged nor presented evidence that oral form of medication caused any harm). Generally, immunity is waived based on the "use of tangible personal property" when an employee either furnishes property in a defective or inadequate condition causing injury, or improperly uses otherwise non-defective property to cause injury. McKenzie, 578 S.W.3d at 513.
In addition, the government's use of the property "must have actually caused the injury." Texas Dep't of Crim. Justice v. Rangel, 595 S.W.3d 198, 206 (Tex. 2020) (concluding that unlocked doors of treatment facility did not cause respondent's suicide). That is, under section 101.021(2), the government employee's use of the tangible property must be the proximate cause of the plaintiff's injury. City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016). Causation requires more than mere involvement, and property does not cause injury if it does no more than furnish a condition "that makes the injury possible." Id.; see Kerrville State Hosp., 923 S.W.2d at 585-86 (plaintiff's complaint was that "a different form of treatment . . . would have been more effective," not that use of property caused any harm).
ANALYSIS
In one issue on appeal, the University argues the trial court erred in denying its plea to the jurisdiction because the allegations in Moses's pleadings and the relevant evidence fail to raise a fact question on the jurisdictional issue of whether Moses's injuries were caused by the "use of tangible personal property." In making this argument, the University does not dispute that the exam table constitutes "tangible personal property" or that medical staff, generally, "used" the exam table in treating Moses, as those terms are used in the Act. That is, the University does not dispute that the exam table was "put into service and employed for the purpose of" fall prevention by medical staff. See Cowan, 128 S.W.3d at 246. Instead, the University contends that Moses's negligence claims fail to come within the scope of the Act because her injuries were not "caused by" the medical staff's "use" of the exam table.
Specifically, the University argues that Moses has failed to raise a fact issue on whether her injuries were "caused by" the "use" of the exam table because, according to the University, the allegations and the evidence establish that Moses's injuries were, instead, caused by errors in medical judgment committed by University medical staff. In the University's view, the "gravamen of [Moses's] allegations as delineated by the undisputed jurisdictional evidence" is that medical staff committed errors in medical judgment in deciding to use the exam table without guardrails and in deciding whether to leave Moses unattended, and the exam table was merely involved in the incident and did not cause direct harm to Moses. The University reasons that because the Act does not encompass claims for injuries caused by errors in medical judgment, the trial court erred in denying its plea to the jurisdiction based on sovereign immunity.
In response, Moses contends that her claims are within the scope of the Act because the allegations in her pleadings along with the pertinent jurisdictional evidence show that her that injuries were caused by the medical staff's improper use of the exam table, namely the use of an exam table without guardrails, despite her known history of syncope. In addition, Moses asserts that when an exam table without guardrails is used to administer a shot to a patient with a history of syncope, medical staff must remain with patient to prevent falling and that the medical staff's "misuse" of the exam table in this manner proximately caused her injuries. Moses contends that her claims center on the medical staff's improper use of the exam table and that the University's characterization of her suit as a claim for injuries caused solely by medical judgment is incorrect.
It is well established that claims for error in medical judgment or general medical negligence that do not involve the use of tangible property are not claims that fall within the waiver of immunity under section 101.021(2) of the Act. See, e.g., Kamel v. University of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also University of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994) (concluding that misuse of medical information, even if recorded on paper, is not use of tangible personal property). In practice, however, medical treatment often involves both the exercise of medical judgment and the use of tangible personal property, and in these types of cases, courts have struggled in determining whether a plaintiff has stated a claim for which immunity is waived under the Act. See, e.g., University of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 147-49 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (claim was not based solely on negligent medical judgment where hospital failed to adequately screen patient and, consequently, dispensed anti-smoking drug that caused injury to patient). In support of her argument on appeal, Moses relies on a case recently decided by the Texas Supreme Court, University of Tex. M.D. Anderson Cancer Center v. McKenzie, 578 S.W.3d at 517, in which the court confronted this struggle in the context of a wrongful-death suit.
In McKenzie, the plaintiffs sued M.D. Anderson Cancer Center after their daughter died from complications linked to the use of a certain chemotherapy carrier during her treatment for cancer at the hospital. Id. at 510. The hospital filed a plea to the jurisdiction asserting sovereign immunity, which the trial court denied. Id. at 511. On appeal, the Texas Supreme Court considered whether the hospital's administration of a certain chemotherapy carrier agent, which the plaintiffs alleged "posed a significant risk of serious harm to the patient," constituted a "use of tangible personal property" under the Act. Id. at 510, 514. Like the University in this case, the hospital in McKenzie argued that the plaintiffs' negligence claims did not fall within the scope of Act because the claims were premised on errors in medical judgment. Id. at 511, 513. Although there was no dispute that the chemotherapy carrier agent was "tangible personal property," the hospital asserted there was no waiver of immunity for the plaintiffs' claims under the Act because the "the gravamen of the [plaintiffs'] complaint" was that the hospital was negligent in deciding to use the carrier agent in the first place, and not that it was negligent in the manner in which it used the carrier agent. Id. at 513.
While the Texas Supreme Court agreed that a complaint about medical judgment, without more, is insufficient to waive immunity, the court disagreed with the hospital's characterization of the plaintiffs' suit as a complaint about medical judgment. See id. at 515-16. In the supreme court's view, the negligence complained of was that the hospital had used tangible property (i.e., a specific carrier agent) that should not have been used under the circumstances and that the use of that tangible property harmed the patient; "absent the use of that particular carrier agent, the injury would not have occurred." Id. at 515. "In other words, it was the use [of the carrier agent] itself that caused the injury, and the fact that the property was administered properly or that use of [the property] was preceded by medical judgment does not affect the analysis." Id.
In this case, Moses's pleadings allege that University medical staff used a specific type of exam table—an exam table without guardrails—to support her as she received a flu injection and that this specific type of exam table should not have been used given her known history of fainting when receiving shots. In addition, Moses's allegations and the jurisdictional evidence, viewed in the light most favorable to Moses, suggest that had medical staff instead used an exam table with guardrails while giving Moses her flu shot, she would not have fallen from the table and her injury would not have occurred. Under the Texas Supreme Court's decision in McKenzie, Moses's claim that the University was negligent, under the circumstances, in using an exam table without guardrails is sufficient to establish a waiver of immunity under the Act. The fact that the use of the exam table was preceded by an exercise of medical judgment to use this particular type of exam table does not transform Moses's complaint into a claim based solely on medical judgment. See Kerrville State Hosp., 923 S.W.2d at 585 (noting that "if a hospital provided a patient with a bed lacking bed rails and the lack of this protective equipment led to the patient's injury, the Act's waiver provisions would be implicated"); Overton Mem'l Hosp. v. McGuire, 518 S.W.2d 528 (Tex. 1975) (providing hospital bed without bed rails constituted use of tangible personal property under Act).
Moses's complaint, however, is not limited to the University medical staff's initial use of an exam table without guardrails. As previously discussed, Moses's experts state that even if medical staff did not initially commit a negligent act by placing her on an exam table without rails, they did so later when they left her alone on the table after giving her the flu shot and knowing her history of fainting. The jurisdictional evidence suggests that she would not have fallen from the table and sustained injury if medical staff had attended to her for some period time after she received the shot. In Moses's view, medical staff used the exam table in an improper manner by leaving her on the table unattended and this improper use caused her injuries.
We agree that the medical staff's subsequent misuse of the exam table, as demonstrated by the jurisdictional evidence, also qualifies as "use of tangible personal property" within the meaning of the Act. See University of Tex. Med. Branch Hosp. at Galveston v. Hardy, 2 S.W.3d 607, 610 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (hospital employee's alleged failure to timely respond to cardiac monitor constituted use of tangible personal property under Act); see also University of Tex. Sw. Med. Ctr. v. Rhoads, 605 S.W.3d 853, 864-65 (Tex. App.—Dallas 2020, pet. filed) (concluding that immunity waived under Act for claim based on misuse of x-ray equipment and noting precedent holding that "immunity may be waived even though the property at issue did not malfunction and was used as designed"). The crux of this alternative theory is that medical staff used the exam table in a negligent manner when after giving Moses a flu shot, staff left her on the exam table unattended. Although the decision to leave Moses unattended on the exam table represents an exercise of medical judgment that preceded her fall, her injuries were immediately and directly related to medical staff's use of an exam table without guardrails. In other words, we cannot conclude that this is a case where the government's use of the property is "merely involved" or is "geographically, temporally, or causally attenuated from the alleged effect." Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929-30 (Tex. 2015). Instead, this is a case where the allegations and the undisputed evidence suggest that the government employees "improperly use[d] otherwise non-defective property to cause injury." See McKenzie, 578 S.W.3d at 513. Moses's claim that the manner in which medical staff used the exam table—i.e., without an attendant present—was improper under the circumstances and that this improper use caused her injury is sufficient to waive immunity under the Act.
The undisputed factual allegations in Moses's pleadings and the pertinent jurisdictional evidence, viewed in the light most favorable to Moses, affirmatively demonstrate that Moses's claims are for personal injury caused by the University medical staff's "use of tangible property," within the meaning of the Act. See Tex. Civ. Prac. & Rem. Code § 101.021(2); Bacon v. Texas Historical Comm'n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.) ("Our ultimate inquiry is whether the particular facts presented, as determined by the foregoing review of the pleadings and any evidence, affirmatively demonstrate a claim within the trial court's subject-matter jurisdiction."). Accordingly, the trial court did not err in denying the University's plea to the jurisdiction.
CONCLUSION
Having overruled the University's sole issue on appeal, we affirm the trial court's order denying the University's plea to the jurisdiction.
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Baker, and Kelly
Concurring and Dissenting Opinion by Justice Goodwin Affirmed Filed: November 4, 2020