Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie

• Decision Date: 28 June 2019
• Docket Number: No. 17-0730,17-0730
• Citation: 578 S.W.3d 506
• Parties: The UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Petitioner, v. Lance MCKENZIE, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), and Deborah Diver, Individually and as Next Friend of J.O., a Minor, Respondents
• Court: Texas Supreme Court

578 S.W.3d 506

The UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Petitioner,

v.Lance MCKENZIE, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), and Deborah Diver, Individually and as Next Friend of J.O., a Minor, Respondents

No. 17-0730

Supreme Court of Texas.

Argued February 19, 2019

OPINION DELIVERED: June 28, 2019

John C. Sullivan, Brantley David Starr, Jeffrey C. Mateer, Kara Lynne Kennedy, Kevin Desiderio Molina, Kyle D. Hawkins, W. Kenneth Paxton Jr., Office of the Attorney General, James Edward Davis, The University of Texas at Austin, Scott Keller, Baker Botts LLP, Austin, for Petitioner.

Kirk L. Pittard, Dana Brooke Levy, Durham, Pittard & Spalding, L.L.P., Dallas, Allan R. Brain, Susan Leigh Vanostrand Fuller, Brain & Fuller, Attorneys at Law, Peter Michael Kelly, First Court of Appeals, Houston, for Respondents.

Justice Lehrmann delivered the opinion of the Court, in which Justice Guzman, Justice Boyd, Justice Devine, and Justice Blacklock joined.

Debra H. Lehrmann, Justice

The Texas Tort Claims Act waives governmental immunity for personal injury and death proximately caused by a condition or use of tangible personal property. In this case, before us on the defendant hospital's plea to the jurisdiction, we are asked whether the hospital's use of an allegedly improper carrier agent during surgery constitutes negligent "use" of tangible personal property and, if so, whether sufficient evidence was presented that this use proximately caused the patient's death. The trial court found that the plaintiffs sufficiently demonstrated both use and proximate cause and accordingly denied the plea. The court of appeals agreed, affirmed the trial court's order, and remanded the case to the trial court for further proceedings.

In this Court the hospital argues that because the carrier agent was administered properly during surgery, the plaintiffs complain only of negligent medical judgment for which immunity is not waived. However, when, as here, the claim is premised on the hospital's use of property that was improper under the circumstances and caused harm, this is sufficient to establish negligent "use" under the Act, regardless of the manner in which the property was administered. We therefore affirm the court of appeals' judgment.

I. Background

In 2011, Courtney McKenzie-Thue, then thirty-three years old, began treatment at M.D. Anderson Cancer Center (the "Hospital") for a rare cancer of the appendix

. As part of this treatment, Courtney agreed to undergo a two-part procedure called a HIPEC (short for hyperthermic intraperitoneal chemotherapy

).¹ The Hospital performed the procedure pursuant to a clinical trial protocol designed by Wake Forest Medical School (the Wake Forest protocol). The purpose of the protocol was to test the efficacy of two chemotherapy drugs: oxaliplatin and mitomycin C.

The first part of the HIPEC procedure involves the surgical removal of all visible cancer

from the patient's peritoneal cavity.² The second part of the procedure involves flushing out, or perfusing, the patient with a chemotherapy drug mixed with another fluid. This second fluid serves as a carrier agent, helping to disperse the chemotherapy drug throughout the patient's peritoneal cavity. When the perfusion is complete, the patient is washed out with the carrier agent alone to remove any trace of the chemotherapy drug.

Courtney was randomly selected to receive the chemotherapy drug oxaliplatin

. Pursuant to the Wake Forest protocol, the Hospital used a sugar water solution, called D5W, as the carrier agent. Dr. Paul Mansfield, an M.D. Anderson surgical oncologist, oversaw the procedure.³

As the Hospital acknowledges, D5W can cause hyponatremia

, a condition that occurs when the body's blood sodium level becomes too low. This drop in sodium levels causes the body's water level to rise, which leads to swelling of the cells. To counteract this electrolyte imbalance, the Hospital administered an insulin and saline IV drip during surgery. Despite these efforts, Courtney developed hyponatremia following completion of the procedure. As a result, she experienced swelling in her brain, which in turn caused brain herniation. Courtney died from these injuries two days after her surgery.

After Courtney's death, her family⁴ sued the Hospital for negligence.⁵ Specifically, the McKenzies alleged that the Hospital was negligent in

misusing a fluid, tangible physical property, for chemotherapy under circumstances where it was reasonably obvious that it was not the appropriate fluid and posed a significant risk of serious harm to the patient, including the exact condition from which Courtney died.

The McKenzies further alleged that the "conduct of MD Anderson's employees that proximately caused Courtney's death was misuse of tangible personal property ... for which the State of Texas has waived sovereign immunity."

To support these claims, the McKenzies timely filed an expert report prepared by Dr. David Miller, a board-certified internal medicine specialist. See TEX. CIV. PRAC. & REM. CODE § 74.351 (requiring a health care liability claimant to serve an expert report on each defendant no later than 120 days after the date the defendant's original answer is filed). Dr. Miller opined that Courtney's death was caused, in reasonable medical probability, by the "misuse of fluid that was perfused into [her] body." He explained:

Use of a large dose of D5W in perfusion of a patient in any condition exposes the patient to the danger of hyponatremia

and death because this creates a situation where the patient's body is subjected to an imbalance of sodium in relation to blood, resulting in low sodium and too much water in the bloodstream, diluting the sodium in the bloodstream, causing edema that is critical in the area of the brain and causes death as what happened in this case.

He further opined:

[I]t is clear and in reasonable medical probability, that this patient would not have died from brain herniation

secondary to hyponatremia secondary to intra-operative complications as explained above had she not been perfused with the wrong substance that led to hyponatremia and brain herniation .... [T]he perfusion of a large volume of D5W solution into a patient's abdominal cavity, regardless of other circumstances and regardless of the reason for the perfusion, exposes the patient to a risk of developing hyponatremia and death from brain herniation.

The Hospital filed a plea to the jurisdiction, asserting that the Hospital is immune from suit. It argued that the McKenzies failed to show waiver of immunity under the Tort Claims Act because (1) the D5W was used by an independent contractor (the perfusionist), not the Hospital, and (2) Courtney's death was not foreseeable under the circumstances, so the McKenzies could not show proximate cause. In support of its plea, the Hospital attached the protocol documents promulgated by Wake Forest, as well as the deposition testimony of Dr. Miller and Dr. Mansfield.⁶

Following a hearing, the trial court denied the Hospital's plea to the jurisdiction. The Hospital then timely filed an interlocutory appeal. See id. § 51.014(a)(8) (authorizing an interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a governmental unit). At the court of appeals, the Hospital again argued that the D5W was used only by the third-party perfusionist and not by Hospital employees. However, the Hospital alternatively argued that the McKenzies' claims are not for negligent use of property (for which immunity would be waived), but rather are premised on errors in medical judgment disguised as use of tangible personal property. The court of appeals affirmed, holding that the "crux of [the McKenzies'] allegations against [the Hospital] involves more than complaints about medical judgment" and that the McKenzies "alleged, and presented some evidence, that [the Hospital] used D5W when it should not have been used." 529 S.W.3d 177, 187 (Tex. App.—Houston [14th Dist.] 2017).⁷

Regarding proximate cause, the court of appeals held that the record "contains evidence that D5W caused [Courtney's] hyponatremia, which in turn caused her death." Id. at 188. Specifically, the court of appeals cited Dr. Mansfield's testimony that he knew D5W could cause a patient's blood sodium level to decrease, and that he expected such a drop to occur. Id. The court thus concluded that a genuine issue of material fact exists as to whether the use of the D5W proximately caused Courtney's death. Id.

In this Court, the Hospital argues its immunity was not waived because (1) the McKenzies failed to show that the Hospital negligently "used" tangible personal property and (2) Courtney's death as a result of the D5W's use was unforeseeable. We will address each issue in turn.

II. Standard of Review

"Governmental immunity generally protects municipalities and other state subdivisions from suit unless the immunity has been waived by the constitution or state law." City of Watauga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014). A claim of immunity is properly raised by a plea to the jurisdiction. Tex. 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). We review an appellate court's ruling on a plea to the jurisdiction de novo. Miranda , 133 S.W.3d at 226.

The Tort Claims Act waives the state's immunity for certain negligent acts by governmental employees.⁸ See TEX. CIV. PRAC. & REM. CODE § 101.021. A party suing the governmental unit bears the burden of affirmatively showing waiver of immunity. See Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). To determine whether the party has met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted by the...