Texas Tech Univ. Health Sci. v. Ward

• Decision Date: 06 August 2008
• Docket Number: No. 07-07-0451-CV.,07-07-0451-CV.
• Citation: 280 S.W.3d 345
• Parties: TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER and University Medical Center, Appellants, v. Carita Elizabeth WARD and Dustin Ward, Appellees.
• Court: Texas Court of Appeals

280 S.W.3d 345

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER and University Medical Center, Appellants, v.Carita Elizabeth WARD and DustinWard, Appellees.

No. 07-07-0451-CV.

Court of Appeals of Texas, Amarillo.

August 6, 2008.

Brantley David Starr, Jason Warner, Office of Attorney General, Asst. Atty. Gen.-Tort Litigation, Austin, TX, Don C. Dennis, Boerner, Dennis & Franklin, PLLC, Lubbock, for Appellants.

Charles Dunn, Law Offices of Charles Dunn, Lubbock, TX, for Appellees.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

PATRICK A. PIRTLE, Justice.

Appellants, Texas Tech University Health Sciences Center (TTUHSC) and University Medical Center (UMC) appeal from the trial court's order denying their respective pleas to the jurisdiction in a medical malpractice suit brought by Appellees, Carita and Dustin Ward, arising from the death of their stillborn child.We reverse and render.

TTUHSC and UMC contend the Texas Tort Claims Act¹ bars the Wards' claim.In response, the Wards contend that TTUHSC's and UMC's claims of sovereign immunity are inapposite because the death of their son comes within the limited waiver of immunity provided by the Act² where the death is caused by a condition or use of tangible personal property, to-wit: an external fetal heart rate monitor.³

By two issues, TTUHSC maintains the trial court lacked subject matter jurisdiction because (1) the injury was not caused by tangible personal property and (2) the information produced by a fetal heart rate monitor is not tangible personal property.Presenting three issues, UMC contends (1) the use of information from a fetal heart rate monitor operated by its nurse does not constitute a condition or use of tangible property; (2) an improper interpretation of information from a fetal heart rate monitor is not harm caused by a condition or use of tangible property; and (3) UMC's failure to continue to monitor Carita (or take other affirmative action) was not the cause of the stillbirth of her unborn child.Accordingly, both TTUHSC and UMC contend the Wards' claim does not fall within the limited waiver of immunity created by § 101.021(2) of the Act.

Background Facts

In their pleadings, the Wards allege that on January 10, 2006, Carita arrived at UMC complaining of labor pains.The initial examination revealed that her cervix was dilated and nurses attached a monitor to assess the fetal heart rate.Several hours passed until a doctor re-examined her condition.Although her labor had not progressed, Carita requested to be transferred to a labor and delivery room.At 8:10 p.m., Dr. Carol Tracy Suit, TTUHSC's resident physician, examined Carita and also determined that her labor status had not changed.As a result, Dr. Suit informed Carita that she was going to be discharged.Carita, however, requested additional time to see if there would be a change in her condition.Approximately three hours later, Dr. Suit examined Carita for a second time.Observing no change in her labor status, Dr. Suit ordered that Carita be discharged.Carita left UMC at 12:30 a.m. and went home.One day later, on January 12, Carita returned to UMC complaining of labor pains.After numerous attempts, doctors were unable to detect the fetus's heartbeat and the infant was delivered stillborn.Doctors concluded that the ultimate cause of death was a "true knot" in the fetus's umbilical cord.The Wards sued TTUHSC and UMC for negligence.

TTUHSC and UMC filed pleas to the jurisdiction alleging that the Wards' pleading failed to allege that use of tangible personal property caused the death of their unborn son and thus, their suit was barred by sovereign immunity.Following a hearing, the trial court denied the pleas to the jurisdiction.TTUHSC and UMC filed this interlocutory appeal pursuant to § 51.014(a)(8) of the Texas Civil Practice and Remedies Code.

Standards of Review

I.Plea to the jurisdiction.

When a claim is barred by sovereign immunity, the trial court lacks jurisdiction, and dismissal with prejudice is proper.City of Austin v. L.S. Ranch, Ltd.,970 S.W.2d 750, 752(Tex.App.-Austin 1998, no pet.).A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of the action.Bland Independent School Dist. v. Blue,34 S.W.3d 547, 554(Tex.2000).We review de novo the trial court's ruling on a plea to the jurisdiction.Tex. Dep't of Parks & Wildlife v. Miranda,133 S.W.3d 217, 226(Tex.2004).When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant.Miranda,133 S.W.3d at 228.

The party suing the governmental entity bears the burden of affirmatively showing that the trial court has jurisdiction to hear the cause.Tex. Dept. of Criminal Justice v. Miller,51 S.W.3d 583, 587(Tex.2001).In so doing, we are not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issue raised.Id.,citingBland Independent School Dist.,34 S.W.3d at 555.We are, however, prohibited from considering an expert report as evidence.SeeTex. Civ. Prac. & Rem.Code Ann. § 74.351(k)(1) & (2)(Vernon Supp.2007).

II.Sovereign Immunity Under the Texas Tort Claims Act

TTUHSC and UMC are institutions, the status and authority of which are derived from the Constitution of Texas or from laws passed by the Legislature under the Constitution, and as such, they are "governmental units" as defined by section 101.001(3)(D) of the Texas Civil Practices and Remedies Code.Cox v. Klug,855 S.W.2d 276, 277(Tex.App.-Amarillo 1993, no pet.);See alsoHuckabay v. Irving Hosp. Auth.,879 S.W.2d 64, 66(Tex.App.-Dallas 1993, writ dism'd by agr.).As a governmental unit, they are each entitled to the protections of sovereign immunity.⁴

Sovereign immunity protects a governmental unit from lawsuits for damages.Tex. Natural Res. Conservation Comm'n v. IT-Davy,74 S.W.3d 849, 853(Tex.2002).When a claim is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and dismissal with prejudice is the appropriate remedy.El Paso Mental Health and Mental Retardation Center v. Crissman,241 S.W.3d 578, 581(Tex.App.-El Paso 2007, no pet.).Section 101.021(2) of the Act provides a limited waiver of sovereign immunity when death is caused by a condition or use of tangible personal property, if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.See§ 1.021(2);Salas v. Wilson Memorial Hosp. Dist.,139 S.W.3d 398, 403(Tex.App.-San Antonio 2004, no pet.).Because the Act provides a limited waiver in certain, narrowly defined circumstances, to come within this exception a claimant must allege that (1) the use or misuse of tangible personal property (2) proximately caused the personal injury or death.SeeDallas County Mental Health & Mental Retardation v. Bossley,968 S.W.2d 339, 341(Tex.1998).

TTUHSC and UMC contend the Wards have failed to demonstrate that the death of their child was caused by the use or misuse of tangible personal property, thereby depriving the trial court of subject matter jurisdiction.The Wards respond with Salcedo v. El Paso Hospital District,659 S.W.2d 30(Tex.1983), noting that their facts are squarely on point (use of an electrocardiogram instead of a fetal heart rate monitor) and that it has never been overruled by the Texas Supreme Court.They also rely on several intermediate appellate court decisions in support of their position.SeeTexas Tech University Health Sciences Center v. Lucero,234 S.W.3d 158(Tex.App.-El Paso2007, pet. denied)(applyingSalcedo on misuse of an abdominal CT scan).See alsoUniversity of Texas Medical Branch at Galveston v. Estate of Blackmon,169 S.W.3d 712, 721-22(Tex.App.-Waco2005)(findingSalcedo authoritative in cases involving negligent use or misuse of diagnostic medical equipment), vacated,195 S.W.3d 98(Tex.2006);Baston v. City of Port Isabel,49 S.W.3d 425, 428-29(Tex.App.-Corpus Christi2001, pet. denied)(acknowledging Salcedo is limited to its facts but applying it to analogous case of misuse of electrocardiogram);University of Texas Medical Branch Hosp. at Galveston v. Hardy,2 S.W.3d 607, 609-10(Tex.App.-Houston [14th Dist.]1999, pet. denied)(relying onSalcedo in hospital staff's failure to properly monitor cardiac monitor).

Salcedo v. El Paso Hospital District

In Salcedo v. El Paso Hospital District,659 S.W.2d 30(Tex.1983), Mr. Salcedo was examined in the emergency room for severe chest pains.An electrocardiogram test showed a classic pattern of myocardial infarction, but Mr. Salcedo was released.Id. at 31.After returning home, he collapsed and died from myocardial infarction.Id.His widow sued and alleged that hospital employees had misused the electrocardiographic equipment by improperly reading and interpreting the graphs and charts produced by it.The hospital filed special exceptions contending that Mrs. Salcedo had failed to state a cause of action within the waiver provisions of the Act, and the trial court struck her pleadings and dismissed the case.Id.

The Supreme Court held that an allegation of defective or inadequate tangible property was not necessary to state a cause of action under the Act if some use of the property was alleged to be a contributing factor to the injury.Id. at 32.(Emphasis added).It noted, however, that "some condition," required an allegation of defective or inadequate property when it was a contributing factor to the injury.Id.It concluded that reading and interpreting are purposes for which an electrocardiogram graph is used in diagnosing myocardial infarction and held that Mrs. Salcedo had alleged her loss was proximately caused by the negligence of the hospital's...