University of Texas Medical Branch at Galveston v. York, 01-89-00937-CV

• Decision Date: 14 February 1991
• Docket Number: No. 01-89-00937-CV,01-89-00937-CV
• Citation: 808 S.W.2d 106
• Parties: 67 Ed. Law Rep. 830 UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. Robert YORK, as Guardian of Richard Allen York, N.C.M., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 106

808 S.W.2d 106

67 Ed. Law Rep. 830

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. Robert YORK, as Guardian of Richard Allen York, N.C.M., Appellee.

No. 01-89-00937-CV.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 14, 1991.

Rehearing Denied May 2, 1991.

Mark J. Holbrook, Austin, for appellant.

John A. Buckley, Galveston, Andrew Mytelka, Austin, for appellee.

Before PRICE, ¹ COHEN and DUGGAN, JJ.

OPINION

PRICE, Justice.

The University of Texas Medical Branch of Galveston (UTMB) appeals a judgment awarding Robert York, as guardian for Richard York, $200,000 for UTMB's negligent use of its tangible personal property. The trial court added prejudgment interest of $50,000, increasing Richard York's damage award to $250,000, the statutory maximum for which a governmental unit can be held liable under the provisions of the Texas Tort Claims Act. TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986). The Yorks cross-appeal seeking, among other relief, postjudgment interest.

In 1982, Richard was involved in an accident that caused severe brain damage leaving him partially paralyzed and functionally impaired. He began and continued a course of rehabilitation, through therapy, that eventually took him to UTMB as an inpatient in its special care unit for adults. Previously, Richard had been treated by the therapists at UTMB on an outpatient basis. He responded so well to the therapy that the physicians and therapists thought that the more intensive program offered to the UTMB's inpatients would hasten his recovery, and they believed that eventually he would be able to reside in a group home. Richard was admitted into the hospital on August 13, 1984.

Shortly after arriving at the hospital, Richard broke his right hip. It is unknown when or how this occurred; however, Dr. Cierny, the doctor in charge of Richard, admitted in a letter to CNA Insurance Companies that it occurred after Richard entered the special care unit at the hospital. The first indication that something was wrong was observed by Richard's parents during a visit on August 14, 1984. They noticed scratches on Richard's right arm and a missing support from the right side of his wheelchair. These observations were reported to the duty nurse but were never recorded in the progress notes of Richard's medical chart.

As the days progressed, Richard's problem with his right hip became more noticeable to Ms. York. His hip became red and swollen. The pain he suffered was so intense that he would cry and scream when touched or moved. He began to withdraw from being the happy, eager person he once was to one who refused to communicate or respond to his parents' care. His eating habits were also affected; at times he refused to eat. The nurses became concerned with his abrupt change in attitude. Ms. York requested of the nurses that these observations of Richard, reflecting his severe change in condition, be noted in Richard's charts, but the entries were never made. Some of Richard's changed conditions, however, were noted in his medical chart.

When the staff became concerned enough with Richard's condition, Dr. Milner, a psychiatrist completing her neurology residency, was called in to examine Richard's hip. She diagnosed his problem as a muscle strain caused by therapy. She was called back to examine the hip on four subsequent occasions and never changed her opinion.

According to the records, as time went on Richard's condition worsened. He was not responding to therapy. He was retrogressing in his rehabilitation efforts instead of progressing. On August 17, Richard's physical therapist made a note on his chart recommending that the doctors order an x-ray of Richard's right hip. The x-ray was not ordered until August 21, and not taken until August 22.

Testimony from two physicians, Evans and Longsjoen, established that a physician cannot make a reliable diagnosis of an injury merely by reading the medical records but the records will tend to infer or suggest a particular problem. Evans testified that it was not good medical practice to wait five days after an x-ray has been recommended before it is taken.

At the close of the evidence, the trial court submitted, over UTMB's objection, the first special issue as follows:

Do you find from a preponderance of the evidence that the UTMB was negligent, and that such negligence, if any, was caused by the use or condition of tangible personal property which was the proximate cause of the damages to Richard York?

The term "use" as used herein means to put or bring into action or service; to employ for or apply to a given purpose.

In answering this question you are limited to the following tangible personal property and none other.

Answer "yes" or "no" yes no

a) wheelchair ___ ___

b) keeping of files, records or other documentation ___ ___

The jury answered "no" to the wheelchair and "yes" to the keeping of files, records, or other documentation.

In two points of error, UTMB challenges the quality of the evidence to support the jury's finding. The first point of error asserts that the trial court erred in submitting question 1(b) because there was no evidence to support an affirmative answer by the jury that the keeping of files, records, or other documentation was a proximate cause of Richard's damage. The second point of error claims the evidence was insufficient to support an affirmative finding to question 1(b).

UTMB maintains that a finding of no evidence necessarily means there is insufficient evidence. We are not directed to any reference in the record where UTMB claims the evidence is insufficient to support the verdict, nor does UTMB make any argument to suggest they are predicating any part of its appeal on this sufficiency ground. Without an adequate discussion of the record, UTMB cannot maintain its second point of error. TEX.R.APP.P. 74(d). Therefore, we will direct our attention only to the no evidence issue asserted in the first point of error.

In reviewing a "no evidence" point, we will consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding, and will disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If there is more than a scintilla of evidence of probative force to support the finding, the point must be overruled and the finding upheld. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988).

UTMB makes a two-pronged attack in urging its no evidence issue. First, it claims that the failure to record an essential entry into one's medical chart is not a "use" of tangible personal property, and thus, will not support a cause of action under the provisions of the Texas Tort Claims Act. Secondly, it maintains there is no evidence that the keeping of files, records, and other documentation was the proximate cause of Richard York's injuries.

The Texas Tort Claims Act provides: "A governmental unit in the state is liable for ... personal injury and death so caused by a condition or use of tangible personal 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 (Vernon 1986). "Use" in the context of the Act has been defined as "to put or bring into action or service; to employ for or apply to a given purpose." Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex.1983).

Richard's damages were predicated on UTMB's negligent use of medical records that resulted in a failure of the doctor to timely diagnose Richard's fractured hip. The Yorks put great emphasis on the claim that the hospital and its staff were negligent in not recording on Richard's chart, the events of August 14, the date the Yorks maintain the injury occurred, as well as the observations made by the Yorks on various other occasions. According to the Yorks, if these events had been recorded it would have been a simple matter for a physician to diagnose the problem with Richard's hip and order an x-ray.

UTMB counters Richard's claim by arguing that the failure to record information in a medical chart is tantamount to a "nonuse" of property and cannot bring this case within the statutory waiver of immunity arising from some condition or "use" of personal property. To support its claim, UTMB relies on Montoya v. John Peter Smith Hospital, 760 S.W.2d 361 (Tex.App.--Fort Worth 1988, writ denied). In Montoya, an admitting nurse was required to fill out a triage slip reflecting an incoming patient's medical status so that the emergency room can prioritize its patients on a need for treatment basis. Id. at 363. The nurse failed to fill out such a slip and Montoya died. Id. The court held that the definition of "use" in the Texas Tort Claims Act excludes "nonuse" or failure to use property and that such an allegation would not state a cause of action. Id.

In the present case, we are not concerned with a chart that has no entries, but one that has incomplete entries. Some entries were recorded and some were not. The Yorks claim that without the additional entries, the failure to make timely, accurate diagnosis was a negligent use of the medical charts. To support this position, the Yorks cite Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex.1989).

In Robinson, recovery was allowed when death by drowning occurred after employees at a state mental health center failed to provide a patient with a life preserver as part of the issued swimming attire. 780 S.W.2d at 171. The court in Robinson based its decision on the previously decided supreme court case of Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976). In Lowe, the plaintiff's knee was injured when he was playing football without wearing knee braces. Lowe, 540 S.W.2d at 300. The Lowe court characterized the football uniform as defective due to the failure to furnish protective equipment as part...