Univ. of Tex. Sw. Med. Ctr. v. Rhoades
| Decision Date | 30 June 2020 |
| Docket Number | No. 05-19-00445-CV,05-19-00445-CV |
| Citation | 605 S.W.3d 853 |
| Parties | The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant v. Pamela RHOADES, Appellee |
| Court | Texas Court of Appeals |
605 S.W.3d 853
The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant
v.
Pamela RHOADES, Appellee
No. 05-19-00445-CV
Court of Appeals of Texas, Dallas.
Opinion Filed June 30, 2020
Opinion by Justice Partida-Kipness
In one issue, appellant University of Texas Southwestern Medical Center (UTSW) challenges the trial court's denial of its plea to the jurisdiction in this medical negligence action that is subject to the Texas Tort Claims Act (TTCA), TEX. CIV. PRAC. & REM. CODE §§ 101.001 –.109. We affirm the trial court's order.
BACKGROUND
Surgeons at UTSW conducted breast reconstruction surgery on appellee Pamela Rhoades following Rhoades's bilateral mastectomy. Dr. Sumeet Teotia and Dr. Nicholas Haddock performed a Deep Inferior Epigastric Perforator (DIEP) micro-surgical procedure in which Rhoades's breasts were reconstructed from her own tissue and blood vessels harvested from Rhoades's lower abdomen. To harvest the tissue, surgeons make two horizontal incisions in the lower abdomen and pelvic area: a horizontal longitudinal suprapubic and a horizontal supraumbilical incision. These incisions are joined to form an ellipse, which is bisected into two triangles of tissue that are used to form the reconstructed breasts. Dr. Haddock testified that surgeons typically make these incisions as low on the patient's body as possible to access the "dominant blood supply" and avoid leaving visible scars.
The surgery typically lasts six hours and involves four separate sites in the chest and lower abdomen. To facilitate closing the lower abdominal incisions, from which the patient's tissue is harvested, the patient is placed into a v-shaped position in the latter stages of the surgery by flexing the hinged surgical bed on which the surgery is conducted.
Sometime after the surgical bed had been flexed to facilitate closing of Rhoades's incisions, the surgical staff informed the surgeons that one sponge was unaccounted for. Surgical staff account for the sponges used during surgery by comparing counts taken before and after surgery. Drs. Teotia and Haddock had used Ray-tec surgical sponges to blot and absorb
blood during the surgery. These sponges have a blue, radiopaque strip that can be visualized on an x-ray. This allows surgical staff to locate sponges inside the patient's body using a mobile x-ray machine.
At the time, the surgeons had closed internal fascia incisions in Rhoades's lower abdomen, but all other incisions, including external abdominal incisions, remained open. The surgical staff searched the room while the surgeons continued with the surgery and searched with a lighted retractor inside of Rhoades's body for the missing sponge.
When the visual search did not locate the missing sponge, the surgical staff ordered x-rays taken of the surgical field. To take an x-ray, the technician must place a plate underneath the patient. When the surgical bed is in a flexed position, as it is in the latter stages of the DIEP procedure, the plate cannot be inserted low enough to capture an image of the patient's pelvic area. Despite the physical inability to x-ray Rhoades's pelvis while she was in the flexed position, Dr. Teotia ruled out the possibility that the sponge was located in Rhoades's pelvic area and focused the x-ray search to Rhoades's chest and abdomen.
Several x-rays were taken of Rhoades's chest and abdomen, but no x-rays were taken of her pelvic area. The missing Ray-tec sponge did not appear in any x-ray images taken of Rhoades.
After spending several hours searching for the missing sponge to no avail, all while Rhoades was under anesthesia, Dr. Teotia determined that the sponge was not missing and the count must have been incorrect. The surgeons closed Rhoades's incisions. In all, Rhoades's surgery lasted approximately eleven hours.
Despite the extensive search, Dr. Teotia had a "nagging" feeling regarding the sponge miscount. According to Dr. Teotia, "It was just nagging on me. I've never had a sponge count that's incorrect." He "just had a horrible feeling about it." Thus, he ordered an x-ray of Rhoades's pelvic area while she was recovering in the intensive-care unit. The Ray-tec sponge appeared in the x-ray, "deep in the [left side of the] pelvis." Dr. Teotia immediately performed a second surgery and successfully retrieved the missing sponge.
Rhoades later developed a hematoma, "wound separation," and a wound dehiscence in her abdomen. Dr. Teotia conducted four additional surgeries to resolve these issues.
Rhoades sued UTSW for medical negligence, alleging that the surgery to retrieve the missing sponge caused her post-operative complications that required four additional surgeries to alleviate. In her second amended original petition, Rhoades specifically alleges:
• Nurses and the surgeons failed to remove all of the sponges used during the procedure.
• The surgeons, radiologist and radiology technicians failed to utilize the radiology equipment to x-ray the entire surgical field.
• Postoperatively an additional film was taken which clearly demonstrated the sponge in the pelvis. [Rhoades] was subsequently taken back to the operating room for re-opening the abdominal and fascial closures and removing the retained sponge. Postoperatively [Rhoades] developed a subcutaneous hematoma. This ultimately lead [sic] to a breakdown of the wound and an organized hematoma.... The abdominal wound was non-healing and she was then readmitted to UTSW on October 7, 2015 and underwent four operative debridements and VAC
changes to ultimately close the wound.
• The minimum standard of care that reasonable, prudent plastic surgeons, radiologists and radiology technicians should have provided under similar circumstances included obtaining an appropriate intraoperative x-ray was taken delineating the entire surgical field. Dr. Teotia, Dr. Haddock, the radiology technician and the radiologists involved in ... Rhoades [sic] surgery failed to do this. The minimum standard of care that a reasonable, prudent plastic surgeon and radiologist should have provided under similar circumstances also included reviewing the x-rays, affirming that there was no sponge present and confirming that the film adequately included the entire surgical field.
• As a result of the inadequate X-rays, misuse of the X-ray equipment, delay in the procedure as a result of the use and misuse of equipment, failure to use the appropriate sponge type and retained sponge, [Rhoades] required an additional opening of both the skin and fascial incisions to remove the foreign body. This caused [Rhoades] to undergo an additional, unplanned, surgical procedure and caused postoperative wound healing complications including wound dehiscence, hematoma, and seroma formation. [Rhoades] underwent four additional operative interventions to achieve a stable, closed wound.
Rhoades contends that UTSW waived immunity under the TTCA in two ways: through the alleged misuse of the sponge by failing to remove it before closing and the misuse of the x-ray machine by failing to search the entire surgical field to locate the missing sponge.
UTSW filed a plea to the jurisdiction, arguing that the sponge and x-ray machine were not misused but were used for their respective intended purposes. Thus, UTSW argues that Rhoades has alleged errors in medical judgment, not misuse of tangible personal property, as required to waive immunity under the TTCA. Errors in medical judgment do not waive immunity. The trial court denied UTSW's plea to the jurisdiction, and this appeal followed.
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." Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie , 578 S.W.3d 506, 512 (Tex. 2019) (quoting City of Watauga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014) ). 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). Governmental immunity defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004) ; Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas , 279 S.W.3d 464, 467 (Tex. App.—Dallas 2009, no pet.). The existence of subject matter jurisdiction is a question of law we review de novo. Arnold , 279 S.W.3d at 467 ; see also State v. Holland , 221 S.W.3d 639, 642 (Tex. 2007).
The TTCA waives governmental immunity for certain negligent acts by governmental employees. See TEX. CIV. PRAC. & REM. CODE § 101.021. A party suing a governmental unit bears the burden to affirmatively show waiver of immunity. McKenzie , 578 S.W.3d at 512 ;
Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). When determining whether the party has met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted by the parties. See McKenzie , 578 S.W.3d at 512 ; Tex. Nat. Res. & Conservation Comm'n v. White , 46 S.W.3d 864, 868 (Tex. 2001). We liberally construe the plaintiff's pleadings, taking all factual assertions as true, and look to the plaintiff's intent. Heckman v. Williamson Cty. , 369 S.W.3d 137, 150 (Tex. 2012) ; Tex. Dep't of Criminal Justice v. Hawkins , 169 S.W.3d 529, 532 (Tex. App.—Dallas 2005, no pet.).
We must also consider the evidence submitted when necessary to resolve the jurisdictional issue. Heckman , 369 S.W.3d at 150. The review of such evidence is similar to a summary-judgment review. See Bland Indep. Sch. Dist. , 34 S.W.3d at 554 (indulging every reasonable inference and resolving all doubts in favor of non-movant). "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." Univ. of Tex. at Austin v. Hayes , 327...
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