Summary
concluding that immunity waived under Act for claim based on misuse of x-ray equipment and noting precedent holding that "immunity may be waived even though the property at issue did not malfunction and was used as designed"
Summary of this case from Univ. of Tex. at Austin v. MosesOpinion
No. 05-19-00445-CV
06-30-2020
The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant v. Pamela RHOADES, Appellee
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 S.W.3d 113, 116 (Tex. 2010). However, "if the evidence is undisputed or fails to raise a fact question, the plea must be granted." Id.
ANALYSIS
In one issue, UTSW contends the trial court erred in denying its plea to the jurisdiction because there was no negligent use of any tangible personal property that caused Rhoades's injuries, as required to waive UTSW's immunity. Construing the pleadings in Rhoades's favor and looking to her intent, we must determine whether Rhoades has pleaded sufficient facts to bring her claim under the TTCA's waiver of immunity.
The TTCA provides a limited waiver of governmental immunity when the "use" of property is involved. TEX. CIV. PRAC. & REM. CODE §§ 101.001 –.109. The "use" provision states:
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.
Id. § 101.021(2). Thus, immunity is waived if injury or death is caused by a "condition or use of tangible personal or real property." Id. Mere involvement of the property is not enough. Miller , 51 S.W.3d at 588 ; Arnold , 279 S.W.3d at 467. Likewise, a use that merely furnishes the condition that makes the injury possible is not sufficient to waive immunity. Miller , 51 S.W.3d at 588 ; Arnold , 279 S.W.3d at 467–68. A claim of non-use is also insufficient to waive immunity; actual use is required. McKenzie , 578 S.W.3d at 513. And the use of the property must have actually caused the injury. Id. at 517 ; Arnold , 279 S.W.3d at 468.
UTSW does not dispute that it actually used tangible personal property. Rather, UTSW contends that Rhoades has pleaded claims arising from Dr. Teotia's medical judgment, not the negligent use of personal property. We look to the true nature of the dispute to determine whether a plaintiff has stated a claim for use of tangible personal property. McKenzie , 578 S.W.3d at 513 ; Dallas Cty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998).
Rhoades claims that UTSW's actual use of the surgical sponge and x-ray machine caused harm. UTSW contends, however, that both the sponge and x-ray machine were properly used for their intended purposes, and that the x-ray machine was not defective, did not malfunction, and did not produce inaccurate images, as would be required to support Rhoades's claims. Accordingly, UTSW argues that the gravamen of Rhoades's complaint is that her injury was caused by the surgeons' negligent exercise of medical judgment in searching for the missing sponge, not any negligent use of personal property. Essentially, UTSW argues that Dr. Teotia's medical judgment in calling off the search rendered the use of the sponge and x-ray machine inconsequential to Rhoades's claims. Waiver of immunity under the TTCA, however, is not limited to only those "uses" that do not follow or involve a medical judgment. See McKenzie , 578 S.W.3d at 513–14 ("The suggestion that ‘use’ of property transforms into medical judgment so long as the property is administered correctly simply is not supported either by the statute's plain language or ... by our precedent."). Thus, we disagree with UTSW's characterization of Rhoades's claims.
Although Rhoades does not contend that UTSW used the sponge or x-ray machine in a manner for which they were not designed or intended, Rhoades does allege that UTSW negligently failed to remove the sponge at the end of the surgery and ensure "an appropriate intraoperative x-ray was taken delineating the entire surgical field." In other words, Rhoades complains that UTSW negligently used tangible personal property in such a way that it failed to prevent retention of the sponge in her body and caused harm.
A. UTSW's use of the surgical sponge.
UTSW argues that because the sponge was used as designed, was not defective, and did not malfunction, there was no negligent use to waive immunity. Thus, according to UTSW, Rhoades's claims actually arise from the surgeons' allegedly negligent medical judgment, for which immunity is not waived. In so arguing, UTSW relies on a number of cases involving the non-use of property, the use of intangible information, or medical decisions that preceded and prompted non-negligent use of property. These cases are inapplicable to the facts at issue here.
For the proposition that a failure to act (i.e., the non-use of property) does not waive immunity, UTSW cites Miller , 51 S.W.3d 583, and Somervell County Healthcare Authority v. Sanders , 169 S.W.3d 724, 727 (Tex. App.—Waco 2005, no pet.). UTSW also cites University of Texas Medical Branch at Galveston v. Tatum , 389 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2012, no pet.), but provides no explanation. Tatum involved a claim that the defendant failed to develop adequate procedures for tissue storage, which resulted in the loss of a bone flap taken from the plaintiff's skull. Id. at 460. The "true nature of this allegation is actually one of failure to use or non-use." Id. at 463. Rhoades has not alleged, however, that UTSW failed to use tangible personal property but that it used the property at issue negligently.
For the proposition that misuse of information produced by tangible personal property does not waive immunity, UTSW cites Redden v. Denton County , 335 S.W.3d 743, 751 (Tex. App.—Fort Worth 2011, no pet.), and Kelso v. Gonzales Healthcare Systems , 136 S.W.3d 377, 383–84 (Tex. App.—Corpus Christi 2004, no pet.). Similarly, UTSW cites University of Texas Medical Branch at Galveston v. Kai Hui Qi , 402 S.W.3d 374, 388 (Tex. App.—Houston [14th Dist.] 2013, no pet.), and Kidd v. Brenham State School Texas Department of Mental Health & Mental Retardation , 93 S.W.3d 204, 206 (Tex. App.—Houston [14th Dist.] 2002, pet. denied), for the proposition that misdiagnosis does not waive immunity. However, Rhoades has not alleged that UTSW misinterpreted information generated by the x-ray machine—the only property at issue capable of producing information—or misdiagnosed her condition. Rather, Rhoades has alleged that UTSW misused the x-ray machine by failing to scan the entire surgical field, thus creating the condition that harmed her. No similar allegation was made in Redden, Kelso, Kai Hui Qi , or Kidd.
For the proposition that erroneous judgments made after the non-negligent use of property does not waive immunity, UTSW cites University of Texas Health Science Center at Houston v. DeSoto , 401 S.W.3d 319, 326 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The question in DeSoto , however, was whether the plaintiff could rely solely on the "but for" relationship between the non-negligent use of the property and her injuries. Id. at 324. The DeSoto plaintiffs attempted to tease out a difference between "use or misuse" of tangible personal property, as that phrase was used in case precedent. Id. at 324–25. Rhoades makes no such argument, but alleges UTSW negligently used (i.e., misused) the property at issue.
Closer to the mark, UTSW cites Kamel v. University of Texas Health Science Center at Houston , 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied), Miers v. Texas A & M University System Health Science Center , 311 S.W.3d 577, 579–80 (Tex. App.—Waco 2009, no pet.), and Arnold , 279 S.W.3d at 468–69, for the proposition that immunity is not waived for negligent medical decisions. In each of these cases, the decision at issue preceded and prompted the use of property. See Kamel , 333 S.W.3d at 680 (while performing unrelated procedure, surgeon wrongly determined plaintiff's testicle was cancerous and removed it); Miers , 311 S.W.3d at 579–80 (surgeon decided to remove additional teeth from plaintiff); Arnold , 279 S.W.3d at 466 (surgeon improperly calculated size of replacement breast implants ). Additionally, none of the plaintiffs alleged the property at issue was defective or used negligently. See Kamel , 333 S.W.3d at 686 ("Kamel has made no claim that the surgical instruments themselves were defective in any way or that they were used in a negligent manner."); Miers , 311 S.W.3d at 580 ("[T]here is evidence that Phillips correctly used the equipment and dental instruments when he removed the teeth."); Arnold , 279 S.W.3d at 470 ("Arnolds have made no allegations that the implants themselves were defective in any way or used in a negligent manner."). Thus, the court in each case held that the plaintiff's claims were not derived from alleged negligent use of property but from negligent medical decisions that prompted non-negligent use of property.
In contrast, Rhoades has alleged that UTSW's negligent use of the property at issue preceded and prompted Dr. Teotia's flawed medical determination that the sponge count was incorrect. In other words, the true nature of Rhoades's allegations is that her injury was proximately caused by UTSW's negligent use of the sponge and x-ray machine, which prompted Dr. Teotia's flawed determination and resulted in the second surgery.
In support of her allegation that UTSW misused the sponge, Rhoades cites University Medical Center v. Harris , 302 S.W.3d 456, 458 (Tex. App.—Amarillo 2009, pet. denied), which dealt with an immunity claim on facts similar to those at issue here. Surgeons at University Medical Center (UMC) conducted a hysterectomy on Mary Beth Harris. Id. During the surgery, the primary surgeon packed Harris's intestines with a surgical towel. Id. Surgical staff—UMC employees—handled and tracked items used in the surgery by keeping count on a dry erase board. Id. at 459–60. As the incisions were closed, the staff conducted a physical count to verify that all items brought into the surgical field were accounted for. Id. at 460. Apparently, the staff failed to determine the towel was not returned from the surgical field. Id. Harris began experiencing pain and swelling after the surgery, resulting in a trip to the emergency room. Id. at 458. One month after the hysterectomy, she underwent surgery, and the towel was removed. Id.
Harris and her husband sued UMC, alleging that it failed to inventory and count all towels used, failed to double-check all counts for accuracy, and failed to confirm all towels were removed from the surgical field. Id. at 459. On appeal from the trial court's denial of its plea to the jurisdiction, UMC argued that the failure to properly account for the towels used was a non-use of tangible property or misuse of information, which does not waive immunity. Id. at 460. The court disagreed, holding that handling the towel and sharing responsibility with the surgeons for ensuring it was removed constituted use of the towel such that immunity was waived. Id. at 461. We find Harris persuasive.
As in Harris , the record here reflects that Drs. Teotia and Haddock and the surgical staff were responsible for ensuring that all items used in Rhoades's surgery were accounted for and removed from the surgical field. Evidence in the record reflecting that UTSW's surgeons and staff conducted an extensive search for the missing sponge demonstrates this fact.
UTSW argues that the search distinguishes this case from Harris , which makes no mention of a search for the missing towel. However, the question before this Court as to the sponge is the same as that before the Harris court as to the towel: did the actions of the hospital's employees, which included the failure to remove the item from the surgical field, constitute the use of tangible personal property for purposes of the TTCA? The fact of the search does not affect the answer to this question. At most, the search would serve only to mitigate negligence liability by showing efforts taken to locate the sponge. That is a fact question for the trier of fact. See, e.g., Birchfield v. Texarkana Mem'l Hosp. , 747 S.W.2d 361, 366 (Tex. 1987). At this stage of the litigation, the only question is whether Rhoades has pleaded and the jurisdictional evidence demonstrates that UTSW has waived immunity to Rhoades's claims.
UTSW essentially argues that the search transforms any misuse of the sponge, by failing to remove it from the surgical field, into an issue of medical judgment, in calling off the search and deciding the count must have been incorrect. In so arguing, UTSW inadvertently distinguishes this case from Kamel , Miers , and Arnold , in which the erroneous medical judgment preceded and prompted the non-negligent use of tangible personal property, thus rendering the use of property in those cases immune to suit. See Kamel , 333 S.W.3d at 680 ; Miers , 311 S.W.3d at 579–80 ; Arnold , 279 S.W.3d at 466.
Rhoades has pleaded, and the jurisdictional evidence demonstrates, that Dr. Teotia's erroneous decision to call off the search and close the remaining incisions followed the allegedly negligent use of the sponge. We are aware of no case in which a medical decision based on a prior negligent use of tangible personal property insulated that prior use from suit. Consequently, we affirm the trial court's denial of the plea to the jurisdiction as to UTSW's use of the sponge.
B. UTSW's use of the x-ray machine.
UTSW argues that Rhoades's claim regarding use of the x-ray machine is actually about the use of intangible information and not any defect, malfunction, or negligent use of the machine. According to UTSW, the jurisdictional evidence shows the machine functioned correctly and produced accurate images of the areas x-rayed. Consequently, Rhoades's claim actually arises from Dr. Teotia's interpretation of the x-ray films, for which immunity is not waived. See Univ. of Tex. Med. Branch at Galveston v. York , 871 S.W.2d 175, 178–79 (Tex. 1994). Although we agree with the legal premise that use of intangible property does not waive immunity, we disagree with UTSW's interpretation of Rhoades's allegations.
It is true that Rhoades does not contend the x-ray machine was defective, malfunctioned, or produced incorrect information. However, she need not make such an allegation to support her claim that the machine was used in a negligent manner. See Arnold , 279 S.W.3d at 469–70. Rhoades contends that it was proper to use the x-ray machine to locate the radiopaque sponge, but that UTSW used the machine negligently by failing to x-ray the entire surgical field.
UTSW argues that waiver under the TTCA for use of medical diagnostic equipment is limited to circumstances in which the equipment malfunctions or is not used as designed. The decisions UTSW cites in support of this contention, however, address claims for non-use of property or pre-use medical judgments, which do not waive immunity. More importantly, they do not hold that any use must be inconsistent with the property's design to waive immunity under the TTCA, as UTSW proposes. Rather, these decisions hold merely that the property must be "used in a negligent manner," Arnold , 279 S.W.3d at 470 ; Kamel , 333 S.W.3d at 686, and that the use must proximately cause an injury. See Tatum , 389 S.W.3d at 463 ; Redden , 335 S.W.3d at 751 ; Ward , 280 S.W.3d at 355 ; Bossley , 968 S.W.2d at 342–43.
UTSW cites Bossley , 968 S.W.2d at 343, Kassen v. Hatley , 887 S.W.2d 4, 14 (Tex. 1994), Tatum , 389 S.W.3d at 462, Redden , 335 S.W.3d at 751, Kamel , 333 S.W.3d at 686, Texas Tech University Health Sciences Center v. Ward , 280 S.W.3d 345, 356 (Tex. App.—Amarillo 2008, pet. denied), Arnold , 279 S.W.3d at 468–69, University of Texas Medical Branch at Galveston v. Mullins , 57 S.W.3d 653, 657 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
The dissent incorrectly claims that we distinguish Arnold as to the use of the x-ray machine by citing our observation in section A above that immunity is not waived for an erroneous medical judgment that preceded and prompted the non-negligent use of tangible personal property. We made this distinction only as to UTSW's use of the sponge. We cite Arnold here for the proposition that waiver requires only that the property at issue be "used in a negligent manner" to address UTSW's citing the same for the proposition that the x-ray machine must have malfunctioned or been used contrary to its design to find waiver.
To support her claim that misuse of the x-ray machine can support waiver even if the machine did not malfunction or produce incorrect information, Rhoades relies on the decisions in Salcedo v. El Paso Hospital District , 659 S.W.2d 30 (Tex. 1983), University of Texas Medical Branch Hospital at Galveston v. Hardy , 2 S.W.3d 607 (Tex. App.—Houston [14th Dist.] 1999, pet. denied), and Green v. City of Dallas , 665 S.W.2d 567, 568-70 (Tex. App.—El Paso 1984, no writ). UTSW attempts to distinguish these cases by arguing that they addressed the prior version of the TTCA, under which immunity was waived for a defendant's negligent use of information generated by medical equipment or mere involvement of personal property. However, as noted, Rhoades has not alleged that UTSW misused information or that the x-ray machine was merely involved, but that UTSW misused the x-ray machine itself by failing to scan the entire surgical field. The jurisdictional evidence supports Rhoades's allegation. Specifically, the record reflects that Dr. Teotia did not solely interpret or rely on the x-ray machine's results to conclude that the sponge count was incorrect. Dr. Teotia testified that the surgeons, including himself, directed the x-ray technician as to the areas of Rhoades's body to x-ray, but that he did not think that a sponge was in Rhoades's pelvic area. Dr. Teotia testified that he "never thought [the sponge] was in the ... pelvis," despite the fact that he used sponges there, and that he "thought [they] had adequate films." He also testified that the x-ray could not reach Rhoades's pelvic area due to the flexed surgical table, but that he did not know of this physical limitation until after the surgery. Although he expressed concern about complications that could arise from reopening the partially closed incisions and flattening the surgical table to allow the x-ray machine to scan Rhoades's pelvic area, the evidence shows this was an option. Consequently, Salcedo and Green are distinguishable, not because they address a prior version of the TTCA, but because they address waiver for use of information, see Salcedo , 659 S.W.2d at 33 (holding alleged "improper ‘reading and interpreting’ of the electrocardiogram graphs" waived immunity), and the failure to use proper equipment, see Green , 665 S.W.2d at 569–70 (relying on Salcedo and holding alleged failure to use proper equipment waived immunity for misdiagnosing a heart condition). Neither of these claims is at issue here.
According to the dissent, our treatment of Salcedo and Green constitutes reliance on the same. To the contrary, we have distinguished these cases as addressing facts not at issue here, which is consistent with the supreme court's guidance. See Bossley , 968 S.W.2d at 342 ("The decision in Salcedo is limited to its facts.").
Hardy , however, does not rely on the prior version of the TTCA, as UTSW contends, and is helpful to our analysis. See Hardy , 2 S.W.3d at 607. The dissent contends that our reliance on Hardy is misplaced because the Fourteenth Court of Appeals has subsequently rejected it. The Fourteenth Court's subsequent precedent shows, however, that Hardy , like Salcedo , is merely limited to its facts. See Kai Hui Qi , 402 S.W.3d at 389 (noting that Salcedo is limited to its facts, there is no waiver for use of information, and Hardy 's cardiac monitor alarm required "no other reading, interpretation, or action" to diagnose the patient's condition, in contrast to "the blood pressure equipment and urine test strips" at issue that required interpretation and analysis); Univ. of Tex. Med. Branch of Galveston v. Crawford , No. 14-18-00758-CV, 2019 WL 7372163 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019, no pet.) (mem. op.) ("[T]he [supreme] court removed the foundation on which Hardy was based, and we have repeatedly refused to apply Salcedo or Hardy to cases with different facts."). As discussed below, the facts in Hardy are analogous to those at issue here. Thus, Hardy is still helpful to our analysis.
Hardy concerned a suit against The University of Texas Medical Branch Hospital in Galveston (Hospital) for a patient's death arising from the Hospital's delayed response to a cardiac monitor alert. Id. at 608–09. Hardy alleged the patient was connected to a cardiac monitor while in the Hospital's cardiothoracic care unit after coronary artery bypass surgery. Id. at 608. The monitor sounded an alarm due to a complete heart block and heart stoppage. Id. At least five minutes passed before Hospital staff attempted to resuscitate the patient. Id. Although resuscitation efforts were successful, lack of oxygen caused severe brain damage. Id. at 609. The patient never regained consciousness and was taken off life support. Id. On appeal from the trial court's denial of the Hospital's plea to the jurisdiction, the Fourteenth Court of Appeals held that the failure to monitor the cardiac monitor was "a use or misuse of tangible personal property" under the TTCA. Id. at 610. Relevant to our analysis here, the Hardy court noted that "[t]he cardiac monitor could only be effective ... if it was properly monitored at all times." Id. The failure to monitor the cardiac monitor resulted in the decedent's death "from the very condition that the proper use of the cardiac monitor was intended to avoid." Id. Thus, the court affirmed denial of the Hospital's plea to the jurisdiction. Id.
UTSW argues that Hardy has a "fatal flaw" in its reliance on a prior version of the TTCA. Admittedly, the Hardy court relies on the Texas Supreme Court's opinion in Salcedo that analyzes the prior version of the TTCA, which, unlike the current version of the TTCA, mandated a liberal interpretation and required only "some condition or some use of tangible property" to waive immunity. See id. at 609–10 ; Salcedo , 659 S.W.2d at 31–32. Although the Hardy court relied on the supreme court's analysis of analogous facts in Salcedo , it interpreted and applied the current version of the TTCA, which applies here. See Hardy , 2 S.W.3d at 609. Moreover, the Hardy court did not conclude that misreading or misinterpreting results or information generated from the monitor constituted use of tangible property. See id. at 610 ; see also Kai Hui Qi , 402 S.W.3d at 389 (analyzing the Hardy decision). Rather, "the cardiac monitor sounded an alarm due to heart stoppage, and no other reading, interpretation, or action was necessary for the patient's diagnosis." Kai Hui Qi , 402 S.W.3d at 389 (distinguishing Hardy on evidence showing that physicians had to further analyze information at issue to obtain a diagnosis and determine proper treatment).
Dr. Haddock testified that the x-ray machine at issue here is mobile, stored near the operating room, and brought in when surgeons need to scan the patient for foreign objects. When asked whether it is important to x-ray the entire surgical field, Dr. Haddock testified, "If we think something is missing, we want to see the entire area." Addressing the post-operative x-ray of Rhoades's pelvic area, Dr. Teotia testified that he knew with certainty as soon as he saw the x-ray film that the object displayed in the film was the missing sponge. Rhoades testified that Dr. Teotia told her while she was recovering in ICU that he needed to take an additional x-ray. She stated that hospital staff lifted her up and placed "something under [her]," in apparent reference to the x-ray "slab." The x-ray was taken, and Dr. Teotia declared, "[T]here it is," referring to the missing sponge located "deep in the groin or even lower." Thus, the record reflects that the x-ray machine, just as the cardiac monitor in Hardy , was designed for the very purpose to which it was employed. Likewise, just as the cardiac monitor in Hardy was effective only if monitored by medical staff, the x-ray machine was effective to locate foreign objects only if used on the entire surgical field. Finally, just as the cardiac monitor alert required no interpretation or action for diagnosis, the missing sponge was immediately apparent in the x-ray film.
The dissent promotes a narrow rule under which immunity is waived only when the property at issue malfunctions or is used contrary to its design, regardless of whether its use was inadequate or negligent under the circumstances. Thus, the dissent would hold that immunity is not waived because UTSW used the x-ray machine to produce films, as it was designed to do. This view disregards precedent, including our own, holding that immunity may be waived even though the property at issue did not malfunction and was used as designed. See Dallas Cty. Hosp. Dist. v. Moon , No. 05-17-00538-CV, 2017 WL 4546121, at *4 (Tex. App.—Dallas Oct. 12, 2017, no pet.) (mem. op.); see also Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones , 485 S.W.3d 145, 152 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding immunity waived on allegation of negligent medication prescription with no indication the medication failed to perform as expected).
In Moon , we held that negligent use of a wheelchair waived immunity. Id. at *4. Moon sued for injuries sustained by a patient while Parkland Hospital staff were removing her from a wheelchair. Id. at *1. Moon pleaded that the hospital staff removed the arms from the wheelchair before attempting to remove the patient, and the removal of the arms caused staff to drop the patient, resulting in a fractured ankle. Id. Relying on Bossley , the hospital argued that the gravamen of Moon's complaint was a failure of medical judgment, and the wheelchair was merely "involved," just as the unlocked doors in Bossley merely provided the condition that made injury possible. Id. ; see Bossley , 968 S.W.2d at 343 ("Property does not cause injury if it does no more than furnish the condition that makes the injury possible."). The dissent posits the same view here. We held in Moon , however, that Moon had pleaded that the manner in which the wheelchair was used, not its mere existence, caused the injury. Id. Likewise, Rhoades has pleaded that the "misuse of the X-ray equipment," not its mere existence, prevented removal of the sponge, thus causing post-operative complications from the second surgery.
Contrary to the dissent's view, the record reflects that this x-ray machine was not only intended to produce films but to scan the entire surgical field for foreign objects. Rhoades alleges and the jurisdictional evidence establishes that it was not used for this purpose, even though it did produce accurate films. Specifically, the record reflects that the surgeons knew the surgical field extended below the fold in the surgical table, but that Dr. Teotia did not think the sponge would be there. Thus, Rhoades has pleaded, and the jurisdictional evidence supports, an allegation that UTSW negligently failed to use the x-ray machine for its intended purpose. Accordingly, we overrule UTSW's issue as to the use of the x-ray machine.
C. Non-use of radio-frequency sponges
Rhoades alleged in her second amended original petition that her injuries could have been avoided if UTSW had used sponges containing radio-frequency identification tags. UTSW argues on appeal that this is an allegation of non-use of tangible personal property for which immunity is not waived. We do not address this argument because Rhoades withdrew this allegation in her response to UTSW's plea to the jurisdiction, and our resolution of this argument would not change the disposition of this appeal. See Tex. R. App. P. 47.1.
CONCLUSION
Based on the record before the Court, we conclude that Rhoades has pleaded, and the jurisdictional evidence supports, claims arising from UTSW's allegedly negligent use of tangible personal property, thus waiving immunity under the TTCA.
Accordingly, we affirm the trial court's denial of UTSW's plea to the jurisdiction.
Bridges, J., dissenting in part
CONCURRING AND DISSENTING OPINION
Opinion by Justice Bridges
Use or nonuse of the x-ray machine involved medical judgment, not use or nonuse of tangible property waiving immunity under the Texas Torts Claims Act (TTCA). The majority expands the recent holding in University of Texas M.D. Anderson Cancer Center v. McKenzie , 578 S.W.3d 506 (Tex. 2019), thereby misapplying statutory and legal authority to the underlying pleading to waive sovereign immunity and create jurisdiction where none exists. Accordingly, I dissent from the majority's conclusion to the contrary.
I join in the majority to the extent it concludes UTSW waived immunity under the TTCA for negligent use of the sponge during the operation.
Standard of Review
The TTCA waives the state's immunity for certain negligent acts by governmental employees. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 ; McKenzie , 578 S.W.3d at 512. A party suing the governmental unit bears the burden of affirmatively showing waiver of immunity. McKenzie , 578 S.W.3d at 512. To determine whether the party met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted by the parties. Id. In doing so, we "construe the pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent." Id. (citing Heckman v. Williamson Cty. , 369 S.W.3d 137, 150 (Tex. 2012) ).
However, we focus on the true nature of the dispute rather than allowing artful pleading to gain favorable redress under the law. Id. at 513 ; Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas , 279 S.W.3d 464, 470 (Tex. App.—Dallas 2009, no pet). We focus on the nature of the dispute between the parties and determine whether the claims are disguised attempts to plead around the TTCA. Id.
Rhoades's Second Amended Petition
In her second amended petition, Rhoades alleged the surgeons, radiologists, and radiologist technicians failed to utilize the radiology equipment to x-ray the entire surgical field. She further alleged the following relevant facts:
• The minimum standard of care that reasonable, prudent plastic surgeons, radiologist and radiology technicians should have provided under similar circumstances included obtaining an appropriate intraoperative x-ray was taken [sic] delineating the entire surgical field. Dr. Teotia, Dr. Haddock, the radiology technician and the radiologists involved in Pamela Rhoades's [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.
• [I]f the appropriate intraoperative x-rays had been obtained, the second procedure to remove a retained foreign body would have been avoided for Pamela.... 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 ... Pamela required an additional opening of both the skin and fascial incisions to remove the foreign body.
• The injuries caused to Plaintiff were also caused by "use and misuse of the x-ray machines in the operating room by the surgeon and radiologist" during her procedure.
Waiver of Immunity Under the TTCA and Application of Section 101.021(2)
Section 101.021 provides, in relevant part, that "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 government 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). Thus, to come within this limited exception, Rhoades must allege that her personal injury was proximately caused by the use of tangible personal property. Id. § 101.021(2) ; McKenzie , 578 S.W.3d at 519.
To "use" property in this context means "to put or bring [the property] into action or service; to employ for or apply to a given purpose." McKenzie. 578 S.W.3d at 513. A claim of "mere non-use" is insufficient to waive immunity; actual use is required. Id.
Here, UTSW does not dispute that it actually used tangible personal property. Rather, the issue is whether Rhoades's injuries were caused by "use and misuse of the x-ray machines in the operating room by the surgeon and radiologist" during her procedure. Stated differently, did Rhoades allege a misuse of the x-ray machine by UTSW that proximately caused her injury despite making no allegations that the x-ray machine itself was defective?
The majority, like Rhoades, relies on Salcedo v. El Paso Hospital District , 659 S.W.2d 30 (Tex. 1983), Green v. City of Dallas , 665 S.W.2d 567, 568–70 (Tex. App.—El Paso 1984, no writ), and University of Texas Medical Branch Hospital at Galveston v. Hardy , 2 S.W.3d 607 (Tex. App.—Houston [14th Dist.] 1999, pet. denied), to support waiver of immunity. These cases, however, rely on a prior version of the TTCA in which "an allegation of defective or inadequate tangible property" was not necessary to state a cause of action under the TTCA "if ‘some use’ of the property, rather than ‘some condition’ of the property, is alleged to be a contributing factor of the injury." See Salcedo , 659 S.W.2d at 32 (noting liberal construction of TTCA required to achieve its purpose and "[t]o hold that the Act requires an allegation of defective or inadequate property when such an allegation is neither expressly nor impliedly required by section 3 would place a restrictive interpretation on the ‘condition or use’ language," which would violate legislative mandate to liberally construe act's provisions).
Two years after Salcedo , the legislature deleted the word "some" preceding "condition" and "use." See Tex. Tech Univ. Health Sci. Ctr. v. Ward , 280 S.W.3d 345, 349–40 (Tex. App.—Amarillo 2008, pet. denied). Further, the mandate for liberal construction of the TTCA was repealed and not carried forward. Id.
See Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Gen. Laws 3084, 3085; Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 13, 1969 Tex. Gen. Laws 874, 877; Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3303.
Although intermediate courts have differed in their application of Salcedo since the amendments, the Texas Supreme Court specifically limited its holding to the particular facts of that case. See Dallas Cty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 342–43 (Tex. 1998). The majority ignores the statutory revision and the limitation of Salcedo and its progeny claiming "[ Salcedo and Green ] address waiver for use of information, which is not solely at issue here." (emphasis added.)
While I agree Rhoades's pleading encompasses allegations other than use or misuse of information, which does not provide waiver under the TTCA, the majority contorts case law and Rhoades's allegations to reach its flawed conclusion that UTSW negligently used an x-ray machine. Recognizing the limited applicability of Salcedo , the majority contends Hardy is "helpful to our analysis" because although Hardy relied on the analysis of the Salcedo court, "[ Hardy ] interpreted and applied the current version of the TTCA, which applies here." However, the Fourteenth Court of Appeals has disavowed its own analysis in Hardy. In University of Texas Medical Branch at Galveston v. Kai Hui Qi , 402 S.W.3d 374, 387 (Tex. App.—Houston [14th Dist.] 2013, no pet.), the court explained Hardy relied on Salcedo and Salcedo was based on a prior version of the TTCA. More recently, the court acknowledged, "We relied on Salcedo in deciding Hardy ... but the law has changed ... Given this change, the Texas Supreme Court has limited Salcedo to its facts. In doing so, the court removed the foundation on which Hardy was based." See Crawford , 2019 WL 7372163, at *4–5 (citation omitted). Importantly, the Crawford court acknowledged that although it cited Salcedo in Hardy , "we failed to note that Bossley limited Salcedo to its facts." Id. at *5 n.12.
Rhoades's allegations of "reviewing," "affirming," and "confirming" x-ray films involves the use or misuse of information, which does not waive immunity under the TTCA. See, e.g., Univ. of Tex. Med. Branch at Galveston v. York , 871 S.W.2d 175, 179 (Tex. 1994) (medical information recorded on paper is not tangible personal property and "Salcedo does not permit claims against the State for misuse of information"); Univ. of Tex. Med. Branch of Galveston v. Crawford , No. 14-18-00758-CV, 2019 WL 7372163, at *3 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019, no pet.) (mem. op.) (true foundation of complaint was that UTMB failed to obtain the information that a timely second troponin test would have revealed). Doctors allegedly delaying the procedure because of the misuse of the x-ray machine is artfully pleading a failure to perform a diagnostic test, which is not a "use" of tangible personal property. See Crawford , 2019 WL 7372163, at *4 ; see also Univ. of Tex. Med. Branch v. Thompson , No. 14-06-00014-CV, 2006 WL 1675401, at *3–4 (Tex. App.—Houston [14th Dist.] June 20, 2006, no pet.) (mem. op.) (failure to perform ultrasound or CT considered a failure to act by state entity, which did not waive immunity under TTCA).
Regardless, even setting aside the defunct legal underpinnings of Hardy , its underlying facts do not support the majority's conclusion. In that case, a patient was connected to a heart monitor, and although the monitor's alarm sounded when the patient's heart stopped, hospital staff allowed five minutes to pass before attempting resuscitation efforts. Hardy , 2 S.W.3d at 608–09. The court noted the cardiac monitor could be effective only if properly monitored at all times and the person responsible for monitoring it failed to do so, resulting in death "from the very condition that the proper use of the cardiac monitor was intended to avoid." Id. at 610.
The majority asserts "just as the cardiac monitor in Hardy was effective only if monitored by medical staff, the x-ray machine was only effective to locate foreign objects only if used on the entire surgical field." The majority then focuses on the evidence, which in hindsight, revealed the sponge was in fact in Rhoades's lower pelvic area, a part of the surgical field not x-rayed during the initial search in the operating room. However, Rhoades alleged her injuries were caused by "use and misuse of the x-ray machines in the operating room by the surgeon and radiologist" during her procedure.
The evidence reveals the following facts concerning the doctors' actions and use of the x-ray machine in the operating room. Dr. Sumeet Teotia and Dr. Nicholas Haddock performed a bilateral Deep Interior Epigastric Perforator (DIEP) flap reconstruction on Rhoades following a previous bilateral mastectomy at UTSW facilities. It is undisputed that at the conclusion of the surgery, there was an incorrect sponge count. Doctors and nurses spent several additional hours after completion of the procedure trying to locate and confirm the original sponge count. Dr. Teotia said he visually looked at both breasts and the abdomen that was open for the sponge. They used their fingers to feel around for it and used a lighter retractor to look inside her. Dr. Haddock could not recall who was leading the search, but "we were all looking through all of the various sites for a sponge and we did not find one."
Dr. Teotia did not have any independent recollection of ordering the x-ray but testified his team ordered "the chest and abdominal x-ray." Dr. Haddock testified there was no problem with getting the appropriate x-ray; rather, "[t]hey had the best x-ray that we could." The x-ray machine was positioned as low as it could possibly go in the flex position to cover the entire surgical field. Dr. Haddock testified "to our knowledge" the entire surgical field was x-rayed.
The radiologist did not report any problems obtaining the x-rays based on Dr. Teotia's orders or any problems positioning Rhoades while trying to find the sponge. Dr. Teotia admitted he would not have known where and how to place the plates to perform the x-ray, so he relied on the radiology technicians to perform the appropriate x-ray of the surgical fields in an attempt to locate the missing sponge. He expected them to do it professionally and competently.
The radiology report indicates the chest and upper abdomen were included in the field of view. Dr. Haddock noted two parts in the report indicating the lower abdomen was included in the field of view: (1) the L1 vertebra, located right above the sacrum, was visualized; and (2) "Two scissors are noted, one in the right lumbar region and the other in the lower abdomen and mid-line likely over the surface of the patient."
Dr. Teotia testified, "We believe that the entire operative field was x-rayed.... We looked at the entire surgical field and did appropriate x-rays we thought necessary." Although Dr. Teotia repeatedly testified it was a "team effort," he admitted that as the attending surgeons, he and Dr. Haddock had the responsibility to ultimately determine what x-rays were appropriate and necessary. Dr. Teotia testified, "We let them know that we needed an x-ray of a certain part, and they do the x-ray."
Dr. Teotia believed they had adequate films and did not consider there was an area that could not be filmed. He thought "[he] had the entire operative field."
Dr. Teotia explained that he tried his best "to make operative decisions that [were] best for the patient and at the time, I did what was best for her, weighing the risks and benefits, looked for additional three-some hours, did all the x-rays that were necessary when it was low in the abdomen and extubated her and took care of her as compassionate as I could."
Dr. Teotia spoke directly with the radiologist who read the x-rays and did not observe a sponge. When the radiologist reported the films did not identify a missing sponge, Dr. Teotia, relying on the x-ray results, concluded the sponge was not inside Rhoades.
Considering these facts against Rhoades's pleading of misuse of the x-ray machine for failing to capture the entire surgical field, it becomes clear she is artfully trying to plead around the TTCA. The x-ray machine did not cause her injury; instead, Dr. Teotia used medical judgment in ordering the x-ray and determining the scope of the operative field. Based on his medical judgment, the radiology technician took x-rays in the flexed position, which only in hindsight revealed the error in the decision regarding the scope of the surgical field. At the time the x-ray machine was used, it was used exactly as intended—it captured films of the entire surgical area designated by the attending surgeon.
We employed analogous reasoning in Arnold v. University of Texas Southwestern Medical Center of Dallas , 279 S.W.3d 464 (Tex. App.—Dallas 2009, no pet.). In that case, Arnold sued UTSW for negligent use of property when her doctor used larger breast implants than allegedly discussed prior to surgery. Id. at 466. Arnold alleged (1) use of the implants deformed her breasts; (2) use of the larger size increased her probability for experiencing sagging earlier than normal; and (3) use of the larger size required additional surgery to correct the deformity. Id. at 470. She made no allegations that the implants themselves were defective. Id.
Focusing on the true substance of Arnold's pleadings, we concluded, "Any damages from the larger implants were caused by the alleged negligence of Dr. Chao in using his medical judgment to calculate the size of the implant he believed both parties had agreed upon." Id. Thus, Dr. Chao's errors in medical judgment did not waive immunity under the TTCA despite Arnold's pleadings identifying a piece of tangible personal property used during the procedure. Id.
The majority attempts to distinguish Arnold because the erroneous medical judgment in that case preceded and prompted the non-negligent use of the tangible personal property, thus rendering the use of property immune from suit. Its attempts are unavailing and ignore the evidence that at the time UTSW staff used the x-ray machine in the operating room (where Rhoades alleged the negligence occurred), Dr. Teotia and the radiology staff used medical judgment to determine the surgical field and such medical judgment preceded and prompted the x-rays. Based on their medical judgment, they believed the x-rays encompassed the entire surgical field. As such, without an allegation that the x-ray malfunctioned or performed defectively, Rhoades has not pleaded a cause of action waiving immunity under the TTCA. See, e.g., Thompson , 2006 WL 1675401, at *2–3 (concluding allegations of improperly using medical diagnostic tools, including an x-ray, did not waive immunity because none of the property involved in treatment actually caused harm).
To the extent the majority claims my view disregards this Court's precedent in Dallas County Hospital District v. Moon , No. 05-17-00538-CV, 2017 WL 4546121, at *4 (Tex. App.—Dallas Oct. 12, 2017, no pet.) (mem. op.), the use of tangible personal property in that case is distinguishable from the present facts. In Moon , the patient was injured when hospital staff dropped the patient while transferring her from a wheelchair to the hospital bed. Id. at *1. Moon argued the hospital negligently used the wheelchair by removing its arms before attempting to lift her, which caused her injury. Id. We concluded Moon pleaded the use of tangible personal property caused her injury and upheld the trial court's order denying the hospital's plea to the jurisdiction. Id. at 4. Unlike the wheelchair, whose arms hospital staff removed altering the condition of the property at issue (the very alteration Moon claimed caused her injury), Rhoades has not alleged the UTSW staff altered or changed the x-ray machine in any way.
Moon did not specifically plead that removal of the arms was a negligent use of property; however, she made the argument at the plea to the jurisdiction hearing. Id. at *3. Liberally construing Moon's pleadings, we determined she alleged negligent use of the wheelchair. Id.
Moreover, Moon does not change my conclusion regarding medical judgment in this case. Although Moon states the hospital argued the gravamen of the complainant was a failure in medical judgment, we dismissed the argument with little analysis. Id. at *4.
The Texas Supreme Court has "recognize[d] that the distinctions we draw [are] problematic" in these cases. See Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 588–89 (Tex. 2001). The court recently revisited application of the TTCA in University of Texas M.D. Anderson Cancer Center v. McKenzie , 578 S.W.3d 506 (Tex. 2019).
In McKenzie , the court decided whether the hospital's use of an allegedly improper carrier agent during surgery constituted negligent "use" of tangible property and, if so, whether sufficient evidence was presented that its use proximately caused the patient's death. Id. at 509, 513 ("whether actual use of non-defective property is sufficient to establish waiver where the complaint is not that the property was administered incorrectly, but that it should not have been used in the first place"). The McKenzies alleged 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." Id. at 510. The hospital argued that because the carrier agent was administered properly during surgery, the plaintiffs complained only of negligent medical judgment for which immunity is not waived. Id. at 509.
The court observed that immunity may be waived when an employee (1) furnishes property in a defective or inadequate condition causing injury or (2) improperly uses otherwise non-defective property to cause injury. Id. at 513. It was undisputed no one alleged the carrier agent was used improperly but instead, that it should have never been used at all. Id. at 515.
While recognizing a complaint about medical judgment, without more, is insufficient to waive immunity, the court emphasized the negligence alleged by McKenzie did not involve only medical judgment. Id. "In other words, it was the use itself that caused the injury, and the fact that the property was administered properly or that the use of the [carrier agent] was preceded by medical judgment does not affect the analysis." Id. The "key" is that while medical judgment is necessarily involved in almost all actions or inactions taken by medical professionals, "it led to the use of property that was allegedly improper under the circumstances and caused harm." Id. at 516.
The McKenzie holding does not alter my conclusion in this case. Unlike the plaintiffs in McKenzie , who alleged that without the use of the particular property (the carrier agent) the injury would not have occurred at all, Rhoades has not alleged the x-ray machine should have never been used in the first place or without its use, her injury would not have occurred. Id. at 513 ("[T]he issue presented in this case is whether actual use of non-defective property is sufficient to establish waiver where the complaint is not that the property was administered incorrectly, but that it should not have been used in the first place."). As such, Dr. Teotia's medical decisions defining the scope of the surgical field did not lead to an improper use of the x-ray machine under these circumstances causing harm. Id. at 517 (recognizing plaintiff must demonstrate use of particular property at issue was both improper under circumstances and caused injury); see also Bossley , 968 S.W.2d at 342 (mere involvement of tangible property leading to circumstances resulting in injury insufficient to meet causation requirement under TTCA). This conclusion comports with the legislative intent of limiting waiver of governmental immunity. See Miller , 51 S.W.3d at 585 (recognizing the TTCA allows suits against governmental units "only in certain, narrowly defined circumstances"); see also McKenzie , 578 S.W.3d at 517 (noting holding should not be painted "in overly broad strokes").
Conclusion
Rhoades's allegations regarding UTSW's use of the x-ray machine do not support waiver of its sovereign immunity under the TTCA. Her negligence claims alleging misuse of the x-ray machine are artfully pleaded complaints about UTSW surgeons' and radiology staff's medical judgments, rather than use or misuse of tangible personal property. Accordingly, the district court lacked jurisdiction over Rhoades's health care liability claims involving the x-ray machine, and such claims should have been dismissed. In all other aspects, the judgment should be affirmed.