Wise Regional Health Systems v. Brittain, 2-07-171-CV.
| Decision Date | 25 September 2008 |
| Docket Number | No. 2-07-171-CV.,2-07-171-CV. |
| Citation | 268 S.W.3d 799 |
| Parties | WISE REGIONAL HEALTH SYSTEMS f/k/a Decatur Community Hospital, Kathi Singh, R.N., Shirley Bevis, R.N., Kelli Weatherly, L.V.N., Bethany Isbell, L.V.N., Betty Jean Snodgrass, R.N., Debbie Atkins, R.N., Roseann Smith, R.N. and Traci Vanschuyver, R.N., Appellants, v. Kathi BRITTAIN, Individually and as Next Friend of Brett Gentry, Deceased, and Brett Myron Gentry, individually, Appellees. |
| Court | Texas Court of Appeals |
Berry & Randall, LLP, D. Bowen Berry, Wendy H. Hermes, Dallas, for appellants.
Shamoun & Norman, LLP, C. Greg Shamoun, Howard J. Klatsky and Timothy R. George, Dallas. for appellees.
PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
This is an interlocutory appeal from the denial of Appellants' plea to the jurisdiction. Appellants Wise Regional Health Systems f/k/a Decatur Community Hospital, Kathi Singh, R.N., Shirley Bevis, R.N., Kelli Weatherly, L.R.N., Bethany Isbell, L.R.N., Betty Jean Snodgrass, R.N., Debbie Atkins, R.N., Roseann Smith, R.N. and Traci Vanschuyver, R.N., appeal the trial court's denial of their plea to the jurisdiction premised on sovereign immunity. We affirm in part and reverse in part.
Sixteen-year old Brett Gentry was evaluated at her primary care doctor's office on December 17, 2002, complaining of high temperature, cough, congestion, and chest pain. Two days later, her mother took her to Decatur Community Hospital emergency room with complaints of coughing, cramping, vomiting, weakness, and dizziness. While in the hospital, she complained of difficulty breathing and chest pain and had low blood pressure and several episodes of low oxygen saturation. Two days after being admitted and while being transported to ICU, Gentry suffered a cardiopulmonary arrest, from which she could not be resuscitated.
Kathi Brittain, acting individually and as next friend of Gentry, and Brett Myron Gentry, individually,1 filed a wrongful death and survival action under the Texas Tort Claims Act (TTCA) against Appellants, alleging that Appellants were negligent and grossly negligent in diagnosing and treating Gentry, which proximately caused Gentry's death.
Appellants filed a plea to the jurisdiction, asserting that they are a governmental unit (and its employees) and are entitled to sovereign immunity as to all of Brittain's claims. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(B) (Vernon 2005). Specifically, Appellants asserted that Brittain's allegations failed to waive sovereign immunity under the Texas Tort Claims Act because none of the claims alleged that a condition or use of tangible personal property was a proximate cause of Gentry's death. Appellants attached to and incorporated into their plea to the jurisdiction the reports of three expert witnesses retained by Brittain as well as the depositions of those three witnesses, and further asserted that there was no evidence in Brittain's experts' depositions that any such condition or use proximately caused the patient's death.
In a supplement to Brittain's third amended original petition, which the trial court granted leave to file on the day of the hearing on Appellants' plea to the jurisdiction, Brittain pleaded these potentially relevant allegations:
[T]hat [Appellants] used and misused certain tangible personal property when caring for/treating Brett Gentry, and that Brett Gentry's damages, injuries, and death were proximately caused by the condition or use of certain tangible personal property. By way of example only, the Defendant Nurses misused the following tangible personal property, among others, when caring for/treating Brett Gentry: an IV, medications (including Stadol), a pulse oxymeter, a blood pressure machine/cuff, an oxygen supply, an oxygen mask, [and] an ambu bag, and Defendant Vanschyver misused the following tangible personal property () when caring for/treating Brett Gentry: a pulse oxymeter, syringes, oxygen supply, an oxygen mask, and an ambu bag. These lists are not exhaustive.
After a hearing, the trial court denied Appellants' plea, and they filed this interlocutory appeal.
Appellants' issue is that the trial court erred in denying their plea to the jurisdiction because Brittain's pleadings and the depositions of her experts, offered by Appellants, failed to establish a condition or use of tangible personal property and further failed to establish that any such condition or use was a proximate cause of Gentry's death.
There is no dispute that Appellant Wise Regional-and its employees who are the other Appellants and were acting within their scope of employment at all times relevant to this case-constitutes a governmental entity, and as such is entitled to claim sovereign immunity. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Sovereign immunity has two components: immunity from liability and immunity from suit. Id. Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject-matter jurisdiction. Id. The TTCA creates a unique statutory scheme in which these two immunities are coextensive: "Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter." Tex. Civ. Prac. & Rem.Code Ann. § 101.025(a) (Vernon 2005); see Miranda, 133 S.W.3d at 224. Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction because, absent the State's consent to sue a governmental entity, a trial court has no basis for jurisdiction. Miranda, 133 S.W.3d at 225. Section 101.021 of the civil practices and remedies code waives the State's immunity under certain circumstances. Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005). A trial court's subject-matter jurisdiction is a question of law and reviewed de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
We focus first on the plaintiff's pleadings to determine whether the facts pleaded affirmatively demonstrate that jurisdiction exists. Id. The pleader has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). We construe the pleadings liberally in favor of a plaintiff, looking to the pleader's intent. Id. If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect in jurisdiction, the plaintiff should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, the plea to the jurisdiction may be granted without an opportunity to amend. Id. at 227.
A court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). When a plea to the jurisdiction challenges the existence of facts alleged to establish the trial court's subject matter jurisdiction, the trial court must consider relevant evidence offered by the parties. Id. Where, as here, the jurisdictional challenge implicates the merits of the pleader's cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Id.
When evidence has been submitted that implicates the merits of the suit, we take as true all evidence favorable to the nonmovant. Id. at 228. We indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Id. If the evidence is undisputed or fails to raise a fact issue on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id.
The requirements that a cause of action must meet in order to come within the TTCA's waiver of governmental immunity are found in section 101.021 of the Act, which provides that, as applied to this particular case, Brittain must establish that Gentry's death was proximately caused by the negligence of a governmental employee acting within the scope of employment, that Gentry's death was caused by a condition or use of tangible, personal, or real property, and that Wise Regional would, if it were a private person, be liable to Gentry according to Texas law. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2). Specifically, the alleged negligence of Appellants must have involved a condition or use of tangible personal property, and the condition or use of the tangible personal property must be the proximate cause of the injury. See id.; see also Tex. Tech Univ. Health Scis. Ctr. v. Lucero, 234 S.W.3d 158, 169 (Tex.App.-El Paso 2007, pet. denied).
Most of Brittain's allegations involve the failure of Appellants to act, rather than the condition or use of tangible personal property—including the failure to communicate with Gentry's physician in a timely manner, failure to promptly document vital signs, and failure to transfer Gentry to ICU once her condition deteriorated. We agree with Appellants that the allegations of these "failures to act" are not sufficient to waive sovereign immunity. See Somervell Cty. Healthcare Auth. v. Sanders, 169 S.W.3d 724, 727 (Tex.App.-Waco 2005, no pet.); see also Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996) (); Snelling v. Mims, 97 S.W.3d 646, 654 (Tex. App.-Waco 2002, no pet.) ( that plaintiff's petition alleging that the defendant nursing home failed to diagnose, treat and report injuries and supervise employees was not...
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