Rusk State Hosp. v. Black

• Decision Date: 23 June 2010
• Docket Number: No. 12–09–00206–CV.,12–09–00206–CV.
• Citation: 379 S.W.3d 283
• Parties: RUSK STATE HOSPITAL, The State of Texas and The Texas Department of State Health Services, Appellants v. Dennis BLACK and Pam Black, Individually and as Representatives of the Estate of Travis Bonham Black, Deceased, Appellees.
• Court: Texas Court of Appeals

379 S.W.3d 283

RUSK STATE HOSPITAL, The State of Texas and The Texas Department of State Health Services, Appellants

v.Dennis BLACK and Pam Black, Individually and as Representatives of the Estate of Travis Bonham Black, Deceased, Appellees.

No. 12–09–00206–CV.

Court of Appeals of Texas,

Tyler.

June 23, 2010.

Timothy E. Boughal, Gregory W. Abbott, C. Andrew Weber, David S. Morales, Nelly R. Herrera, for Rusk State Hospital, et al.

Dennis G. Black, pro se.

Dennis G. Black, for Pam Black.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired J., Twelfth Court of Appeals, sitting by assignment.

MEMORANDUM OPINION

BILL BASS, Justice.

Travis Black, a patient at Rusk State Hospital (the Hospital), died from asphyxiation caused by a plastic bag placed over his head and secured about his neck. Travis's parents brought a health care liability claim alleging the Hospital negligently allowed Travis access to the plastic bag used in his suicide or murder. The Hospital moved to dismiss contending that the Blacks' expert reports were deficient. The trial court overruled the Hospital's motion, and the Hospital brought this interlocutory appeal. In two issues, the Hospital contends that the trial court abused its discretion in denying the motion to dismiss and that the trial court lacked jurisdiction because the Blacks' pleadings did not demonstrate a waiver of sovereign immunity. We dismiss in part and reverse and remand in part. We do not determine the jurisdictional issue.

Background

Travis Black suffered from paranoid schizophrenia and was a patient at the Rusk State Hospital. On December 20, 2006, a staff member found Travis lying face up on his bed with a plastic bag over his head secured by a rubber band about his neck. Resuscitative efforts were unsuccessful. His body bore no evidence of significant trauma. One of several letters found in his pockets asked that if he should die certain letters and electronic messages be sent to President Bush. Delbert Van Dusen, M.D. performed an autopsy on the body and concluded that Travis's death resulted from asphyxia due to suffocation. The autopsy report shows the manner of death to be suicide.

The Blacks filed a health care liability suit against the Hospital. They alleged Travis's death resulted from the Hospital's negligence in providing Travis a plastic bag or allowing him access to one. This, they contended, was a violation of the Hospital's own policy defining a plastic bag as contraband because plastic bags are inherently dangerous in an inpatient psychiatric setting. The Blacks also alleged that the Hospital refused to allow Travis to sleep during the daytime or to prescribe appropriate medication to help him sleep at night. The Blacks claimed that the Hospital was deliberately indifferent to Travis's medical and psychiatric needs. The Blacks also alleged that his death resulted from a condition, use, or misuse of personal property by the Hospital. The filing of the health care liability claim required the Blacks' compliance with the expert report requirements of Texas Civil Practice and Remedies Code section 74.351.

Within 120 days of filing suit, the Blacks served on the Hospital the report of Dennis Combs, Ph.D., together with the relevant business records of Southeast Texas Forensic Center, Inc. Those records included a copy of the autopsy report of Dr. Van Dusen. The Hospital timely filed objections contending the reports filed by the Blacks were inadequate to comply with section 74.351 and moved that the claim be dismissed. The trial court overruled the Hospital's motion, and the Hospital filed this interlocutory appeal.

Jurisdiction

In its second issue, raised for the first time in its reply brief, the Hospital challenges the trial court's jurisdiction. Although the Hospital did not raise the issue in the trial court, it contends here that the Blacks have failed in their burden of demonstrating the trial court's jurisdiction because they have not alleged a valid waiver of sovereign immunity. The Blacks counter that they have alleged that Travis's death arose from a condition or use of personal property, the plastic bag that caused his suffocation. This, they argue, is a sufficient allegation of the waiver of sovereign immunity. Therefore, the Blacks insist, this court has no jurisdiction to review a claim not raised in the Hospital's motion to dismiss or ruled on by the trial court.

Waiver of Sovereign Immunity

In a suit against a governmental unit, the plaintiff bears the burden of demonstrating the court's jurisdiction by alleging a valid waiver of sovereign immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003).

The Tort Claims Act does not provide a waiver of sovereign immunity for claims arising out of assault, battery, false imprisonment, or any other intentional tort.... Tex. Civ. Prac. & Rem.Code Ann. § 101.057(2) (Vernon 2005). Nor is immunity waived when a governmental unit allows someone else to use the property and nothing more[,] even if suicide is the result. Dallas County v. Posey, 290 S.W.3d 869, 871–72 (Tex.2009). In the Dallas County case, the officers placed Posey in a holding cell where there was an inoperable corded telephone. Posey used the telephone cord to hang himself. The Texas Supreme Court held that the incident did not arise from the county's use of property. Id. Similarly, in San Antonio State Hospital v. Cowan, 128 S.W.3d 244 (Tex.2004), the supreme court held that the hospital's immunity was not waived by its providing suspenders and a walker to a patient who later used them to hang himself, because it was the patient, not the hospital, who used the property. Id. at 246.

Jurisdiction on Interlocutory Appeal

Unless there is a statute specifically authorizing an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985).

Texas Civil Practice and Remedies Code section 51.014 lists certain types of orders that are immediately appealable. SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a) (Vernon 2008). Among those are an order of the trial court that grants or denies a plea to the jurisdiction by a governmental unit and an order that denies all or part of the relief sought by a motion under Section 74.351(b).... Id. § 51.014(a)(8), (9). Section 74.351(b) provides for dismissal on motion of the defendant for failure to serve an expert report required for each health care provider. See id. § 74.351(b) (Vernon Supp.2009). Section 51.014 is a narrow exception to the general rule that only final judgments and orders are appealable; therefore we must strictly construe what can be considered in an interlocutory appeal. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686–87 (Tex.App.-Dallas 2003, pet. denied).

Discussion

It is axiomatic that subject matter jurisdiction may not be waived and may be raised for the first time on appeal from a final judgment. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993) (direct appeal of judgment in administrative matter to supreme court following bench trial). It is the Hospital's position that it may raise the trial court's jurisdiction in this interlocutory appeal, even though jurisdiction was not raised or ruled upon in the trial court, and despite the specific statutory language of subsection (a)(8).

Section 51.014(a)(8) authorizes an appeal from an interlocutory order that grants or denies a plea to the jurisdiction by a governmental unit.... Several courts interpreting this subsection have held that the courts of appeals have no jurisdiction to review any such claims not raised or ruled upon in the trial court. See, e.g., Austin Indep. Sch. Dist. v. Lowery, 212 S.W.3d 827, 834 (Tex.App.-Austin 2006, pet. denied). The court in Lowery explained as follows:

Because our jurisdiction in the interlocutory appeal is limited, we confine our review to the ruling on the plea to the jurisdiction that was actually filed and do not address whether the district court erred in denying the plea on a ground that was not argued below. Although subject matter jurisdiction cannot be waived and may be raised for the first time in an appeal from a final judgment, section 51.014(a)(8) of the civil practice and remedies code does not grant this Court jurisdiction to review claims that were neither included in the plea to the jurisdiction nor considered by the district court.

Id. (citations omitted); see also Scott v. Alphonso Crutch Life Support Ctr., No. 03–06–00003–CV, 2009 WL 1896073, at *7, 2009 Tex.App. LEXIS 5111, at *20–21 (Tex.App.-Austin July 2, 2009, no pet.) (mem. op.); Clear Lake City Water Auth. v. Friendswood Dev. Co., 256 S.W.3d 735, 747 (Tex.App.-Houston [14th Dist.] 2008, pet. dism'd); City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 404 (Tex.App.-Austin 2008, no pet.); Univ. of Tex. v. Estate of Arancibia, 244 S.W.3d 455, 461–62 (Tex.App.-Dallas 2007, no pet.); Kinney County Groundwater Conserv. Dist. v. Boulware, 238 S.W.3d 452, 461 (Tex.App.-San Antonio 2007, no pet.); Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.); City of Dallas, 133 S.W.3d at 686–87.

In this appeal, the Hospital cites section 51.014(9) as the source of this court's jurisdiction. It also urges that jurisdiction may be considered by the reviewing court if an interlocutory appeal is taken on any other ground authorized by statute. The cases cited by the Hospital do not support its argument. Unlike the case here, the cases cited by the Hospital are appeals from final judgments or interlocutory appeals wherein the trial court had granted or denied a plea to the jurisdiction raised by the governmental unit. In University of Tex. as Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351 (Tex.2004), cited extensively by the Hospital, ...