Opinion

Safwat Kamel v. the University of Texas Health Science Center at Houston

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Oct 21, 2010
Status: Published
Cited by: 0 cases
Authority: More cited than 35.3%

requiring nexus between use of tangible property and plaintiff’s injuries

How later courts described this case

requiring nexus between use of tangible property and plaintiff’s injuries
holding that errors in medical judgment do not provide waiver of immunity under TTCA
recognizing that every use of medical equipment cannot constitute waiver because doctors almost always use medical equipment in treating patients
holding plaintiff’s election to sue entity foreclosed any possibility of adding employee in future pleadings

Written by the judges who cited it.

The opinion

Opinion issued October 21, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00163-CV

———————————

Safwat Kamel , Appellant

University

of Texas Health Science Center at Houston , Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 0635924

O P I N I O N

this medical malpractice case, appellant, Safwat Kamel, appeals from the trial

court’s grant of appellee University of Texas Health Science Center at

Houston’s (“UTHSCH’s”) plea to the jurisdiction. In four issues, Kamel argues that (1) the

trial court abused its discretion in granting UTHSCH’s plea to the jurisdiction

because no fact issue remained regarding whether Kamel’s claim was based upon

an employee of UTHSCH’s use or misuse of tangible personal property, as

required by the Texas Tort Claims Act (TTCA) [1] for waiver of a

governmental entity’s immunity; (2) he properly pleaded that UTHSCH waived its

immunity under the TTCA and no fact issue exists regarding the trial court’s

jurisdiction over UTHSCH; (3) the trial court was bound by its previous ruling

dismissing with prejudice Kamel’s claims against UTHSCH’s employee; and

(4) the trial court’s rulings violated “the Open Courts Provisions” of the

Texas Constitution.

affirm.

Background

On June 26, 2005, Kamel visited

Lyndon B. Johnson General Hospital complaining of an enlarged testicle. Dr. Run Wang and Dr. Tiffany Sotelo diagnosed

him with a hydrocele, or accumulation of fluid around the testicle, and

epididymitis, or inflammation of the epididymis, of the right testicle and

recommended surgery. On July 8, 2005,

Dr. Wang and Dr. Tiffany performed the hydrocelectomy, or removal of the

hydrocele, with Kamel’s consent. During

the surgery, Dr. Wang determined that the testicle “looked very abnormal” and

he became concerned that, given Kamel’s previous history of colon cancer, the

cancer had metastasized to the testicle. Dr. Wang removed the testicle. He used various surgical instruments to

remove Kamel’s testicle, including scissors, hemostats, and sutures. Subsequent testing revealed that Kamel did

not have cancer in his testicle.

June 9, 2006, Kamel sued Dr. Sotelo, Dr. Wang, and Lyndon B. Johnson General

Hospital for medical malpractice. Dr.

Wang moved for dismissal from the suit pursuant to section 101.106(f) of the

TTCA. Dr. Wang argued that Kamel’s

claims against him should be dismissed because Kamel “has filed this cause of

action against [Dr. Wang] alleging conduct that is within the general scope of his

employment with [UTHSCH]” and that “this case could have been brought against

[UTHSCH].”

Kamel

responded to Dr. Wang’s motion to dismiss, arguing that Dr. Wang did not

adequately establish that he was an employee of a governmental entity as

defined by the TTCA and that Dr. Wang did not meet “the second prong of his

burden for dismissal in that he has not shown how this Cause could have been

brought against his alleged government employer as required for a Motion to

Dismiss pursuant to [TTCA, section] 101.106(f).” Kamel’s response also included a request for

leave to file an amended petition “[i]n the event that the Court will Grant

[Dr. Wang’s] Amended Motion to Dismiss.”

Dr. Wang

replied, arguing, “Of note, Plaintiff’s Original Petition alleges sufficient

facts to find a waiver of immunity based on the use and misuse of tangible

personal property. The underlying basis

of Plaintiff’s claims against Dr. Wang relate to the use or misuse of tangible

real property, namely surgical instruments that were used to remove his right

testicle.” Dr. Wang argued that Kamel’s

claims all related to the removal of his testicle, that the “testicle was

removed by using a scalpel and other surgical instruments,” that “Dr. Wang’s

direct use of these surgical instruments . . . caused the

removal” of Kamel’s testicle, and that Kamel’s injury “was immediate[ly] and

directly caused by the use (or misuse) of the surgical instruments,” and, thus,

UTHSCH’s sovereign immunity was waived under section 101.021(2).

Kamel moved to dismiss Dr. Wang and

to amend his pleadings to replace Dr. Wang with UTHSCH “pursuant to [TTCA section]

101.106(f).” The trial court granted

Kamel’s motion to dismiss and Kamel subsequently filed his second amended petition

dismissing Dr. Wang from the suit and adding UTHSCH as a defendant. Accordingly, no hearing was held on Dr.

Wang’s motion to dismiss and the trial court did not sign an order addressing

that motion. Kamel also dismissed Lyndon

B. Johnson General Hospital from the suit.

On January 31, 2007, Dr. Sotelo

filed a motion to dismiss pursuant to sections 101.106(a) and (f) of the TTCA. [2] The trial court granted her motion to dismiss

without stating which ground it relied upon.

The trial court severed the claims against Dr. Wang and Dr. Sotelo and

issued final judgments. Kamel appealed

the dismissal of Dr. Sotelo to this Court, arguing that dismissal of Dr. Sotelo

was inappropriate because Dr. Sotelo was not an employee of a governmental

entity for purposes of section 101.106. Kamel v. Sotelo , No. 01-07-00366-CV,

2009 WL 793742 , at *1 (Tex. App.—Houston [1st Dist.] Mar. 26, 2009, no pet.)

(mem. op.). We affirmed the dismissal of Dr. Sotelo,

holding that she was an employee of a governmental entity for purposes of the

TTCA. [3] Id. at

*5.

UTHSCH

filed its second amended plea to the jurisdiction, arguing that it was a state

entity that is immune from suit and that Kamel’s claims did not fall within the

waiver of immunity under the TTCA.

Kamel’s third amended petition, the

live pleading, alleged that UTHSCH was liable because Dr. Wang and Dr. Sotelo

“negligently used tangible personal property, namely a scalpel, scissors,

and/or other surgical instruments to negligently injure plaintiff by injuring

and removing plaintiff’s right testicle. Such removal was negligent in that the removal

was a breach of the standard of care owed to plaintiff.” It also alleged that “Wang failed to obtain

the appropriate consent”; that Dr. Wang failed to disclose “that [Kamel] may

[lose] his testicle as a risk of the procedure”; and that “a reasonable and

prudent physician would not have removed Mr. Kamel’s testicle unless there was

a medical necessity and/or would not have removed Mr. Kamel’s testicle without

obtaining the proper informed consents and/or would not have further injured

Mr. Kamel’s testicle as a result of the intended hydrocele procedure.”

December 3, 2008, the trial court granted UTHSCH’s plea and dismissed Kamel’s

claims for lack of jurisdiction. This

appeal followed. [4]

Analysis

In his first issue, Kamel argues

that the trial court erred in granting UTHSCH’s plea to the jurisdiction.

A. Standard of Review

A plea to the jurisdiction

challenges the trial court’s subject-matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue , 34

S.W.3d 547, 554 (Tex. 2000). Subject-matter

jurisdiction is essential to the authority of a court to decide a case and is

never presumed. Tex. Ass’n of Bus. v.

Tex. Air Control Bd. , 852 S.W.2d 440 , 443–44 (Tex. 1993). The existence of subject-matter jurisdiction

is a question of law that we review de novo.

State Dep’t of Highways & Pub. Transp. v. Gonzalez , 82 S.W.3d

322, 327 (Tex. 2002).

The plaintiff has the burden to

allege facts affirmatively demonstrating that the trial court has subject-matter

jurisdiction. Tex. Ass’n of Bus. , 852 S.W.2d at 446. We must construe pleadings in favor of the

plaintiff and look to their intent, and we are required to construe the

allegations in favor of jurisdiction unless, on its face, the petition affirmatively

demonstrates a lack of jurisdiction. Arnold v. Univ. of Tex. Sw. Med. Ctr. at

Dallas , 279 S.W.3d 464, 467 (Tex. App.—Dallas 2009, no pet.). When

a plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court must consider relevant evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 227 (Tex. 2004).

If the evidence creates a fact question regarding jurisdiction, the

trial court cannot grant the plea to the jurisdiction, and the fact issue will

be resolved by the fact finder; however, if the relevant evidence is undisputed

or fails to raise a fact question on the jurisdictional issue, the trial court

rules on the plea as a matter of law. Id.

at 227–28. In deciding a plea to the

jurisdiction, a court may not consider the merits of the case, but only the

plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown , 80 S.W.3d

549, 555 (Tex. 2002). In conducting our review, we take as

true all evidence favorable to the nonmovant and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Miranda , 133 S.W.3d at 228 .

B. Waiver of UTHSCH’s Immunity Under Texas

Tort Claims Act

Sovereign

immunity deprives a trial court of subject-matter jurisdiction in lawsuits

against the state or certain governmental units unless the state consents to

suit. [5] Id.

at 224 . It is undisputed that UTHSCH is

a governmental entity. The TTCA provides

a limited waiver of governmental liability from suit. Tex.

Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005).

1. Waiver

provision of Section 101.021

Section

101.021 provides:

A governmental unit in the state

is liable for:

(1) property damage, personal injury, and death proximately caused

by the wrongful act or omission or the negligence of an employee acting within

his scope of employment if:

(A) the

property damage, personal injury, or death arises from the operation or use of

a motor-driven vehicle or motor-driven equipment; and

(B) the

employee would be personally liable to the claimant according to Texas law; and

(2) 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. Thus, to come within this limited

exception, Kamel must allege that his personal injury was proximately caused by

the use of tangible personal property. See Dallas

County Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339 ,

342–43 (Tex. 1998); see also Dallas Area

Rapid Transit v. Whitley , 104 S.W.3d 540 , 542–43 (Tex. 2003) (requiring

nexus between use of tangible property and plaintiff’s injuries).

Kamel

relies on Salcedo v. El Paso Hospital

District , 659 S.W.2d 30 (Tex. 1983) and its progeny. In Salcedo ,

the patient was examined for severe chest pains. Id.

at 31 . An electrocardiogram test

conducted in the emergency room showed a classic pattern of heart attack, but

the patient was released and later died of a heart attack. Id. His widow sued and alleged that the hospital

misused the electrocardiograph by improperly reading and interpreting the

results it produced. Id. The

Texas Supreme Court held that “an allegation of defective or inadequate

tangible property” was not necessary to state a cause of action under the TTCA

as it existed at that time “if ‘some use’ of the property, rather than ‘some

condition’ of the property, is alleged to be a contributing factor of the

injury.” Id. at 32 (noting that statute required that provisions of act be

liberally construed to achieve its purpose and stating, “To 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). The supreme court concluded that Salcedo had

alleged that her loss was proximately caused by the negligence of the emergency

room employees in using tangible personal property and thus the hospital had

waived sovereign immunity. Id. at 32–33.

Other

courts have used the reasoning in Salcedo

to find waiver of immunity under section 101.021(2). See

Robinson v. Cent. Tex. MHMR Ctr. , 780 S.W.2d 169 , 170–71 (Tex. 1989)

(applying Salcedo in determining that

plaintiff stated cause of action waiving immunity by alleging that MHMR’s

failure to provide life preserver to patient known to suffer epileptic seizures

that caused him to lose consciousness led to patient drowning at lake while

under MHMR’s care); Univ. of Tex. Med.

Branch Hosp. at Galveston v. Hardy , 2 S.W.3d 607 , 609–10 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied) (holding that hospital had waived immunity

where wrongful death plaintiff asserted that hospital staff failed to properly

oversee cardiac monitor and concluding that use of cardiac monitor, like EKG in

Salcedo , directly affected and

impacted person whose heart condition was being monitored); Tejada v. Rowe , 207 S.W.3d 920, 925 (Tex. App.—Beaumont 2006, pet.

filed) (holding that use of drug and forceps in delivery of baby who ended up

suffering from cerebral palsy was use of tangible property establishing that

claim could have been brought against hospital as governmental entity under

TTCA).

However,

the supreme court later specifically limited its holding in Salcedo to the particular facts of that

case. Bossley , 968 S.W.2d at 342 (noting that waiver of immunity in Salcedo arose from entity’s misuse of

electrocardiograph). Furthermore,

When Salcedo was decided [in] 1983, the [TTCA] provided for waiver of

sovereign immunity for “death of personal injuries so caused from some condition or some use of tangible property. . . . (Emphasis

added). At the time, the [TTCA] also

provided, “[t]he provisions of this Act shall be liberally construed to achieve

the purposes thereof.” However, when the

Legislature codified the [TTCA] and adopted the Texas Civil Practice and

Remedies Code in 1985, two years after Salcedo ,

the word “some” was deleted preceding “condition” and “use.” Additionally, the mandate for liberal

construction of provisions of the [TTCA] was repealed and not carried forward

in the codification.

Texas Tech Univ. Health Sci. Ctr. v. Ward , 280 S.W.3d 345 , 349–50 (Tex. App.—Amarillo 2008, pet.

denied) (citing Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Tex.

Gen. Laws 3084 , 3085, Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 13, 1969

Tex. Gen. Laws 874 , 877, and Act of May 17, 1985, 69th Leg., R.S., ch. 959, §

1, 1985 Tex. Gen. Laws 3242 , 3303).

recent opinions of the supreme court have limited the waiver of immunity under

101.021(2). In University of Texas Medical Branch at Galveston v. York , 871 S.W.2d

175 (Tex. 1994), the plaintiff alleged that UTMB misused tangible personal

property by failing to note the patient’s fall and other observations regarding

his care in his medical records. Id. at 176 . The supreme court noted that the codified

version of the TTCA eliminated the provision requiring liberal construction and

instead called for construction under the general rules of statutory

construction. Id. at 177 & n.3. The

court held that information recorded in a patient’s medical records was not

tangible personal property, and, thus, York failed to allege a claim that

waived immunity because he did not allege misuse of any hospital device or

equipment. Id. at 178–79 (“[I]nformation, which may or may not be recorded in

a patient’s medical records, does not constitute tangible personal property

under section 101.021(2) of the [TTCA] and [thus] the State has not waived

governmental immunity for negligence involving the use, misuse, or nonuse of

information in a patient’s medical records.”).

In Dallas

County Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339

(Tex. 1998), a mental patient escaped through unlocked doors from a mental

hospital and committed suicide by throwing himself in front of a truck, and his

parents sued, claiming that the patient’s death was caused by the unlocked doors,

and thus Dallas County MHMR waived its liability under section 101.021(2). Id. at

340–41. The supreme court held that:

Section 101.021(2) states that for

immunity to be waived, personal injury or death must be proximately caused by a

condition or use of tangible personal or real property. The requirement of causation is more than

mere involvement, although exactly how much more has been difficult for courts to

define. If only involvement were required,

the waiver of immunity would be virtually unlimited, since few injuries do not

somehow involve tangible personal or real property. Requiring only that a condition or use of the

property be involved would conflict with the [TTCA’s] basic purpose of waiving

immunity only to a limited degree.

Id. at 342–43. The court also held that “[p]roperty does not

cause injury if it does no more than furnish the condition that makes the

injury possible.” Id. at 343 . The court

concluded that while the unlocked doors permitted the patient’s escape, they

did not cause his death, and thus the nexus between the use or condition of the

doors and the patient’s death was too attenuated to constitute a waiver of

immunity. Id.

In Texas

Department of Criminal Justice v. Miller , 51 S.W.3d 583 (Tex. 2001), an inmate

was treated for nausea and severe headaches by the administration of various

medications and other treatments before he was diagnosed with meningitis and

died of that illness. Id. at 585 . His widow claimed that his death was caused

by the misuse of tangible property because the staff improperly administered

medication and misused certain medical equipment. Id. The supreme court noted:

There cannot be waiver of

sovereign immunity in every case in which medical treatment is provided by a

public facility. Doctors in state

medical facilities use some form of tangible personal property nearly every

time they treat a patient. If there is

waiver in all of those cases, the waiver of immunity is virtually unrestricted,

which is not what the Legislature intended.

Id. at 588 (internal quotations and

citations omitted). The court stated

that while TDCJ did “use” various drugs and medical equipment in treating the

inmate, it is not sufficient for waiver purposes “that some property is merely

involved. . . . Using that property must have actually

caused the injury.” Id. The court concluded that

the property used on the inmate here might have furnished the condition that

made his injury possible, but they did not hurt the inmate or make him worse in

and of themselves. Id.

Several

intermediate courts of appeals have followed these more recent cases in

limiting Salcedo and its

progeny. See Anderson v. City of San Antonio , 120 S.W.3d 5 , 6–9 (Tex.

App.—San Antonio 2003, pet. denied) (holding there was no waiver when EMTs

performed two electrocardiogram tests, determined patient did not need further

care, and patient later died of heart attack, because patient’s death was

caused by cardiac condition and EMT’s negligence, not by use of

electrocardiogram machine); Kelso v.

Gonzales Healthcare Sys. , 136 S.W.3d 377 , 380–82 (Tex. App.—Corpus Christi

2004, no pet.) (holding that allegations that injuries were caused by misuse of

EKG machine did not fall within waiver provisions of TTCA because plaintiff had

not made affirmative allegation that EKG machine was incorrectly used or that

its results were erroneous and reasoning that misuse of information produced by

EKG machine caused injuries rather than device itself); Ward , 280 S.W.3d at 356 (holding that alleged misuse of fetal heart

monitor was not sufficient to waive immunity because plaintiffs “did not allege

that the monitor was incorrectly used or that its results were erroneous” but

rather alleged that hospital employees failed to recognize and respond to

results of heart monitoring, “which are allegations of misuse of information

and negligence by medical staff”; court held that plaintiffs “failed to

establish a nexus between use of the monitor and the stillborn birth of their

child” because evidence indicated that cause of death was a knot in umbilical

cord).

Specifically,

the Dallas Court of Appeals has recently addressed waiver of immunity under

section 101.021(2) in the context of a breast implant replacement surgery. Arnold ,

279 S.W.3d at 467 . The appellants in Arnold alleged that the doctor who

performed the allegedly negligent surgery “failed to make the proper

pre-surgery investigation and arrangements,” that the doctor failed to receive

informed consent, and that the negligent use of breast implants resulted in and

proximately caused damages and injuries, including deforming the patient’s

breasts and requiring additional surgery.

Id. at 468–70. The Dallas court concluded that the

plaintiff’s claims that the doctor failed to properly investigate or respond to

post-surgery concerns were “alleged errors in medical judgment” and held that

“[e]rrors in medical judgment do not waive immunity under the TTCA.” Id.

at 469 (citing Miller , 51 S.W.3d at

589 ). It also concluded that “[f]ailure

to receive informed consent [does] not waive immunity under the TTCA.” Id. (citing

Mitcham v. Univ. of Tex. Med. Branch of

Galveston , 818 S.W.2d 523, 525 (Tex. App.—Houston [14th Dist.] 1991, writ

denied) (holding there was no waiver when plaintiff alleged that doctor

inserted arteriogram needle into her femoral artery without receiving informed

consent because plaintiff did not argue that any condition of needle was

defective or that needle was actually used in negligent manner, but allegations

instead focused on physician’s negligence in informing plaintiff of risks).

Finally,

the court in Arnold examined the

plaintiff’s specific allegations that the breast implants themselves caused her

injuries. Id. at 470 . The court

recognized that we must focus “on the true nature of disputes rather than

allowing artful pleading to gain favorable redress under the law.” Id. (citing

Baylor Univ. v. Sonnichsen , 221

S.W.3d 632, 636 (Tex. 2007) and Ambulatory

Infusion Therapy Specialists, Inc. v. N. Am. Adm’rs, Inc. , 262 S.W.3d 107,

112 (Tex. App.—Houston [1st Dist.] 2008, no pet.)). The court thus focused “on the true nature of

the dispute between the Arnolds and appellee to determine whether their claims

are a disguised attempt to plead around the TTCA.” Id. The court noted that the Arnolds made “no

allegation that the implants themselves were defective in any way or used in a

negligent manner. Rather, any alleged

negligence and resulting damages, despite their attempts to bring their cause

of action under the waiver statute, was the result of medical decisions by [the

doctor].” Id. It concluded that

because the true nature of the Arnolds’ complaint was that the doctor made an

error in medical judgment, “the fact that the pleadings also identify a piece

of tangible personal property used during the procedure” does not make their

claim one that falls within the waiver provision of 101.021(2). Id.

2. Application

of Section 101.021(2) to Kamel’s Claims

his third amended petition, Kamel alleged that, through Dr. Wang and Dr.

Sotelo, UTHSCH was negligent as follows:

Doctors “negligently used tangible

personal property, namely a scalpel, scissors, and/or other surgical

instruments” to injure and remove his testicle, and a “reasonable and prudent

physician would not have removed [Kamel’s] testicle unless there was a medical

necessity,” would have obtained consent, and would not have “further injured

[Kamel’s] testicle as a result of the intended hydrocele procedure”;

Dr. Wang failed to obtain the

appropriate consent before removing the testicle and failed to inform Kamel of

his “true physical state before and after treatment”;

Dr. Wang and Dr. Sotelo

negligently failed to completely disclose the risks and hazards posed by the

hydrocelectomy;

Dr. Wang negligently supervised

and advised Dr. Sotelo as she performed the hydrocelectomy;

Dr. Sotelo failed to perform the

medical treatment necessary;

Dr. Sotelo failed to “recognize

and/or acknowledge her recognition of [Kamel’s] symptoms that resulted from her

negligent use of personal tangible property during treatment; and

Dr. Sotelo failed to use

acceptable practices to limit the likelihood and probability of infection

following treatment.

in Arnold , Kamel’s claims regarding

failure to disclose risks and to receive informed consent do not fall within

the waiver provision of the TTCA. See id.

at 469 (“Failure to receive informed consent [does] not waive immunity under

the TTCA.” (citing Miller , 51 S.W.3d

at 589 )). Likewise, Kamel’s claims of

negligent supervision, failure to perform the necessary medical treatment, and

failure to use acceptable practices to limit infection are claims for errors in

medical judgment or general medical negligence and do not involve the use of

tangible property. Therefore, those

claims do not fall within the waiver in section 101.021(2). See id. ;