University Med. Branch v. Estate of Blackmon

• Decision Date: 22 June 2005
• Docket Number: No. 10-03-00093-CV.,10-03-00093-CV.
• Citation: 169 S.W.3d 712
• Parties: The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. The ESTATE OF Darla BLACKMON, By Its Beneficiary Sheila SHULTZ, and Sheila Shultz, Individually, Appellees.
• Court: Texas Supreme Court

169 S.W.3d 712

The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. The ESTATE OF Darla BLACKMON, By Its Beneficiary Sheila SHULTZ, and Sheila Shultz, Individually, Appellees.

No. 10-03-00093-CV.

Court of Appeals of Texas, Waco.

June 22, 2005.

COPYRIGHT MATERIAL OMITTED

Harry Deckard, Asst. Atty. General-Tort Litigation Div., Austin, for appellant.

Stephen A. Khoury, Dallas, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Introduction

This is an interlocutory appeal of the trial court's denial of a plea to the jurisdiction by the University of Texas Medical Branch at Galveston (UTMB).

UTMB provides medical services to inmates in Texas Department of Criminal Justice (TDCJ) facilities in Coryell County. An inmate's daughter seeks wrongful-death and survival damages following her mother's death from pneumonia while incarcerated at a TDCJ facility. The issue is whether the plaintiff has alleged a waiver of sovereign immunity from suit under the Texas Tort Claims Act (TTCA) by pleading that the death was proximately caused by negligent use of tangible personal property. TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 2005). Because we conclude that the plaintiff alleged a claim within the statutory waiver, we affirm the trial court's denial of the plea to the jurisdiction.

I.

Plaintiff's Second Amended Original Petition alleged:

In July 2000, Darla Blackmon entered the TDCJ's Substance Abuse Felony Punishment Facility (SAFPF) in Gatesville, Texas for a mandatory stay of approximately nine months for alcoholism treatment. The SAFPF program required Blackmon to remain on site, and Blackmon was dependent on the program for her sustenance and health care needs.

In December 2000, Blackmon became ill with cold/flu symptoms, including cough, respiratory difficulties, nasal discharge, fever, intestinal tract problems, headache, earache, sore throat, hoarseness, nasal stuffiness, and tearing. On January 10, 2001, Blackmon, who was 37 years old, went to the TDCJ/SAFPF medical clinic—operated by UTMB—as an emergency walk-in patient, complaining that the above symptoms had existed for at least four days. The medical records reveal that Blackmon had suffered from similar symptoms for more than a month. Blackmon was seen by Sheila Ringer, a nurse, who administered only cold medications. Blackmon was not referred to a physician, and Ringer did not order diagnostic tests such as a blood test or x-ray. Also, no antibiotics were prescribed or given to Blackmon.

On January 12, 2001, Blackmon requested medical attention again because of her persisting symptoms. She was seen by Donald Baker, a physician's assistant, who performed an office examination and prescribed cold medications and Tylenol. Baker did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics.

Because of her persisting and worsening symptoms, Blackmon sought additional medical attention on January 13, 2001 at 11:30 a.m. She was seen by Bonnie Roach, a nurse, who performed an office examination using a thermometer and a stethoscope. Roach recorded a temperature of 103.5 degrees for Blackmon but did not refer Blackmon to a physician, order diagnostic tests, or prescribe antibiotics.

Blackmon's symptoms became acute and she experienced a significant inability to breathe, and she again sought medical attention on January 13, 2001 at 11:00 p.m. On this occasion, she was seen by John Lancaster, a nurse, who performed an office examination. In his examination, Lancaster used: a pulse oxymeter, which is used to determine oxygen saturation in the lungs; a stethoscope, which is used to detect adverse lung sounds; and a thermometer, which is used to detect fever. Lancaster dispensed cold medications and Tylenol but did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics for Blackmon.

Blackmon was ordered back to her room, and upon returning, her symptoms became even more severe, as her inability to breathe caused her face and skin to turn blue. Crying and hysterical, she begged TDCJ guards for medical attention, but her pleas were refused. Other inmates who knew of Blackmon's condition began requesting—sometimes shouting—at the guards for medical attention for Blackmon, but the guards ordered these and other inmates who were attempting to help Blackmon to leave her alone and to return to their rooms.

The following morning, January 14, 2002, at approximately 10:00 a.m., Blackmon died in her dorm room by asphyxiation. A UTMB physician performed an autopsy and found bacterial pneumonia to be the cause of Blackmon's death.

II.

Plaintiff Sheila Shultz, Blackmon's daughter, individually and on behalf of Blackmon's estate, brought a negligence action to recover for wrongful-death and survival damages against the following: UTMB, Baker, Roach, Lancaster, Ringer, and James M. West, M.D. UTMB filed a plea to the jurisdiction, asserting that Shultz's claims did not satisfy the TTCA's use-of-property requirement. The trial court denied UTMB's plea to the jurisdiction.

In one issue, UTMB asserts that Shultz did not adequately plead or show that the use of tangible property proximately caused Blackmon's death and that the trial court erred in denying its plea to the jurisdiction. We will overrule the issue and affirm the trial court's order.

III.

A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Texas Dep't Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Texas Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction. Texas Ass'n Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them liberally in favor of the plaintiff. Texas Dep't Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); Texas Ass'n Bus., 852 S.W.2d at 446.

The TTCA provides a limited waiver of sovereign immunity and allows suits against governmental units only in certain narrow circumstances. Texas Dep't Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). We look to the terms of the TTCA to determine the scope of waiver and then consider the particular facts of the case before us to determine whether the case comes within that scope. Id.; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996).

The specific TTCA provision under which Shultz alleges waiver provides that "[a] governmental unit in the state is liable for . . . personal injury and death so caused by a condition or use of tangible personal property 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 ANN. § 101.021(2).

We turn to an examination of Shultz's pleadings to decide whether she asserts a claim for which sovereign immunity has been waived. Miller, 51 S.W.3d at 587; Jones, 8 S.W.3d at 639.

IV.

In her petition, Shultz alleges that Nurse Roach failed to properly use or misused a diagnostic medical tool—a stethoscope—in assessing Blackmon's condition, that she negligently interpreted the medical data or information reflected by the stethoscope, that had she properly used the stethoscope, she would have detected Blackmon's severe pneumonia, and had pneumonia been detected, Blackmon's life could have been saved. Shultz also alleges that Nurse Lancaster failed to properly use or misused diagnostic medical tools—a stethoscope to detect adverse lung sounds and a pulse oxymeter to determine oxygen saturation in the lungs—in assessing Blackmon's condition, that he negligently read or interpreted the medical data or information reflected by the stethoscope and pulse oxymeter, that had he not negligently used the stethoscope and pulse oxymeter but had correctly used them, he would have detected Blackmon's severe oxygen deprivation and life-threatening lung sounds and her advanced pneumonia, and Blackmon's life could have been saved.

A.

Texas courts have struggled for over two decades with the TTCA's use-of-property requirement. See Miller, 51 S.W.3d at 589; id. at 589-91 (Hecht, J., concurring); id. at 593-95 (Enoch, J., dissenting); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) ("The requirement of causation is more than mere involvement, although exactly how much more has been difficult for the courts to define."); University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994) (referring to the courts' "long and arduous history" in construing section 101.021(2)). For the "use" of tangible personal property to occur, the actor must put or bring the property into action or service, or employ the property for or apply it to a given purpose. Miller, 51 S.W.3d at 588. Because health care providers in state medical facilities use tangible personal property nearly every time they treat a patient, the use alone of the property is insufficient to establish a waiver of sovereign immunity. Id.; Clark, 923 S.W.2d at 585-86. The property must do more than furnish the condition that makes the injury or death possible, and the use or condition of the property must not be too attenuated geographically, temporally, and causally from the injury or death. Bossley, 968 S.W.2d at 343. The personal injury or death must be proximately caused by the use of tangible property. TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2); Bossley, 968 S.W.2d at 343.

The use-of-property causation requirement "is more than mere involvement." Bossley, 968 S.W.2d at 343. Using the property must have "actually caused" the injury. Miller, 51...