Daisy (Dee) Marie Kelso and James Douglas Kelso v. Gonzales Healthcare Systems D/B/A Memorial Hospital

NUMBER 13-03-577-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAISY (DEE) MARIE KELSO

AND JAMES DOUGLAS KELSO, Appellants,

v.

GONZALES HEALTHCARE SYSTEMS

D/B/A MEMORIAL HOSPITAL, Appellee.

On appeal from the 25th District Court of Gonzales County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Garza

Opinion by Justice Garza

Appellants, Daisy and James Kelso, appeal the trial court’s decision to grant a plea

to the jurisdiction by appellee, Gonzales Healthcare Systems, d/b/a Memorial Hospital

(“Memorial Hospital”). In two issues, the Kelsos contend that (1) the trial court improperly

granted Memorial Hospital’s plea to the jurisdiction because sovereign immunity under the

tort claims act had been waived; and (2) the trial court granted Memorial Hospital’s plea

to the jurisdiction without giving the Kelsos the opportunity to amend their petition. We

reverse and remand to the trial court in order to give the Kelsos an opportunity to amend

their pleading.

Factual Background

The Kelsos brought suit under the Texas Tort Claims Act as a result of personal

injuries sustained by Daisy Kelso while she was a patient at Memorial Hospital. See Tex.

Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq . (Vernon 1997). Daisy came to the

emergency room at Memorial Hospital on the morning of October 25, 1999, exhibiting the

symptoms of a heart attack. Daisy’s physician, Robert Williamson, M. D., was contacted

by emergency room personnel and gave orders by telephone for blood work, a chest x-ray

and an electrocardiogram (“EKG”) to be conducted on Daisy. The EKG was performed by

hospital personnel, and its results indicated that Daisy was suffering an acute myocardial

infarction, or heart attack. For reasons unstated in the record, Daisy did not immediately

receive medical treatment following her EKG; in fact, treatment did not begin until she

received two doses of nitroglycerin almost two hours after the EKG results were known. The Kelsos then sued Memorial Hospital and Dr. Williamson for damages from

Daisy’s permanent injuries sustained by the delay in treatment. The Kelsos alleged that

Daisy’s injuries were caused by the misuse of tangible personal property, i.e., the EKG

testing machine. Memorial Hospital then filed a plea to the jurisdiction based on its

sovereign immunity as a governmental unit entitled to the protections of the tort claims act.

The trial court granted both the plea and a subsequent motion for severance, making the

issue final and subject to appeal.

Plea to the Jurisdiction

A party may submit a plea to the jurisdiction in order to assert that it enjoys

sovereign immunity from suit and therefore is not properly within the subject matter

jurisdiction of the trial court. Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999)

(per curiam). The limits of the trial court’s subject matter jurisdiction is a question of law

and subject to de novo review by the appellate court. Tex. Natural Res. Conservation

Comm’n v. IT-Daly , 74 S.W.3d 849, 855 (Tex. 2000). In a suit against a governmental unit,

the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver

of immunity. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003). To

determine if the plaintiff has met that burden, an appellate court will consider the facts

alleged by the plaintiff and, to the extent relevant to the jurisdictional issue, the evidence

submitted by the parties. Tex. Natural Res. Conservation Comm’n v. White , 46 S.W.3d

864, 868 (Tex. 2001).

A plea to the jurisdiction asserts that the factual allegations in the plaintiff’s

pleadings, even when taken as true, fail to invoke the court’s jurisdiction. Texana Cmty.

MHMR Ctr. v. Silvas , 62 S.W.3d 317, 320 (Tex. App.–Corpus Christi 2001, no pet.); see

City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex. App.–Corpus Christi

2000, no pet.). Thus, the court must construe the plaintiff’s pleadings liberally in favor of

jurisdiction. Silva , 62 S.W.3d at 320 ; see also Tex. Ass’n of Bus. v. Tex. Air Control Bd. ,

852 S.W.2d 440, 446 (Tex. 1993). Similarly, when an appellate court considers a trial

court’s order on a plea to the jurisdiction, it must construe the pleadings in the plaintiff’s

favor and look to the pleader’s intent. County of Cameron v. Brown , 80 S.W.3d 549, 555

(Tex. 2002).

When a plaintiff fails to plead facts that establish jurisdiction, but the petition does

not effectively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded an opportunity to amend. Id. ; Peek v.

Equip. Serv. Co. , 779 S.W.2d 802, 805 (Tex. 1989). However, if the pleadings affirmatively

negate the existence of jurisdiction, a plea to the jurisdiction may be granted without

allowing the plaintiff an opportunity to amend. Brown , 80 S.W.3d at 555 .

Sovereign Immunity

By their first issue on appeal, the Kelsos allege that the trial court improperly granted

Memorial Hospital’s plea to the jurisdiction based upon sovereign immunity because the

Kelsos had pled a viable cause of action under the Texas Tort Claims Act.

In Texas, under the doctrine of sovereign immunity, a governmental agency is not

liable for the torts of its officers or agents unless there is a specific legislative waiver of

immunity. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Sovereign

immunity can only be waived by clear and unambiguous language. Univ. of Tex. Med.

Branch at Galveston v. York , 871 S.W.2d 175, 177 (Tex. 1994). The Texas Legislature

enacted the tort claims act to waive sovereign immunity in limited circumstances. See

Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584 (Tex. 1996).

In their petition, the Kelsos rely on section 101.021(2) of the act, which waives

governmental liability for “personal injury and death so caused by a condition or use of

tangible personal or real property if the governmental unit would, were it a private person,

be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann . §

101.021(2) (Vernon 1997). “Use” of property is undefined in the statute but has been

characterized in case law as “to put or bring into action or service; to employ for or apply

to a given purpose.” Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983). The

Texas Supreme Court has distinguished claims involving the failure to use property, which

will not waive sovereign immunity, from claims involving a condition or use of tangible

personal property that causes injury, which will effect a waiver. Tex. Dep’t Crim. Justice

v. Miller , 51 S.W.3d 583, 587 (Tex. 2001).

All elements of section 101.021(2) must be satisfied or governmental immunity will

not be considered waived; for example, the use of the property must actually cause the

injury, see id. at 588 ; Dallas County Mental Health & Mental Retardation v. Bossley , 968

S.W.2d 339, 342-43 (Tex. 1998), and the property must be tangible, see York, 871 S.W.2d

at 179 . Information about a medical condition is not considered tangible property. York ,

871 S.W.2d at 179 (“ Salcedo does not permit claims against the State for misuse of

information.”) ; Lira , 17 S.W.3d at 304 (“Use or misuse of information does not amount to

use or misuse of tangible property so as to waive governmental immunity under section

101.021(2).”).

With regard to EKG machines specifically, “[r]eading and interpreting are [the]

purposes for which an electrocardiogram graph is used.” Salcedo , 659 S.W.2d at 33 .

Thus, when a machine’s readout is incorrectly read or interpreted, it has been incorrectly

“used” and therefore immunity is waived. See id. However, the use or misuse of an EKG

is distinguishable from the use or misuse of information. Baston v. The City of Port Isabel ,

49 S.W.3d 425, 429 (Tex. App.–Corpus Christi 2001, pet. denied). If an EKG machine is

correctly used, any subsequent misuse or nonuse of the information it reveals about a

patient’s medical condition does not waive immunity under the statute, as it was the use

of the information, not the tangible property, which was the proximate cause of injury. See

Miller , 51 S.W.3d at 588 (use of tangible property must have caused the injury); Lira , 17

S.W.3d at 304 (information is not tangible property).

In their petition to the trial court, the Kelsos made no affirmative allegations that the

EKG was incorrectly used or that its results were erroneous. Instead, according to the

facts as alleged by the Kelsos in their petition, the injury suffered by Daisy occurred only

after the EKG was correctly used and provided accurate results and was caused by the

hospital personnel’s failure to act upon the information about the heart attack once it

became known. The use of the EKG was therefore not the proximate cause of Daisy’s

injury. Although failure to use the information from the EKG results may have caused

injury to Daisy, no use of tangible property was involved. Thus, the Kelsos’ pleading fails

to affirmatively allege facts which would bring their claims under the waiver of immunity

from liability in section 101.021(2) of the tort claims act. The Kelsos could have alleged

that the EKG results, though correct, were improperly interpreted by Memorial Hospital

staff. However, they failed to clearly state such a claim. Consequently, there is no waiver

of immunity from suit, and the trial court lacks subject matter jurisdiction of the claims

against the appellees. See Snelling v. Mims , 97 S.W.3d 646, 654 (Tex. App.–Waco 2002,

no pet.) (failure to diagnose patient and report results was not misuse of tangible personal

property); Univ. of Tex. Med. Branch at Galveston v. Mullins , 57 S.W.3d 653, 657 (Tex.

App.–Houston [14th Dist.] 2001, no pet.) (failure to inform plaintiff of positive HIV test result

was not misuse of tangible property). Accordingly, the trial court did not err by granting

Memorial Hospital’s plea to the jurisdiction on the basis of these pleadings. We overrule

the Kelsos’ first issue on appeal.

Opportunity to Amend

By their second issue, the Kelsos complain that the trial court improperly granted

Memorial Hospital’s plea to the jurisdiction without giving the Kelsos the opportunity to

amend their petition. Having determined that the Kelsos failed to state a claim for which

Memorial Hospital’s sovereign immunity is waived, this Court must decide whether the

Kelsos’ petition is incurably defective or whether it may be amended to allege a cause of

action within the trial court’s jurisdiction. Brown , 80 S.W.3d at 555 ; Peek , 779 S.W.2d at

805 .

Reviewing the record before us, we note that the Kelsos’ petition is inconsistent

regarding her allegations of misuse of the EKG machine through improper reading or

interpretation of its results. The petition affirmatively states that the EKG results were

correct: “The EKG results indicated that plaintiff, [Daisy] Kelso, was suffering from an

acute myocardial infarction. . . . Plaintiffs received confirmation (at another hospital) that

plaintiff, [Daisy] Kelso suffered from an acute myocardial infarction.” However, the petition

further alleges Memorial Hospital was negligent by “misusing available tools” and that its

employees “misused and/or inadequately read cardiac and vital signal monitors.”

Additionally, the Kelsos’ response to Memorial Hospital’s plea to the jurisdiction alleges

with greater specificity that there was an “improper use of the equipment” through the

hospital staff “improperly reading and interpreting the results produced by the EKG.”

These facts, had they been included in the Kelsos’ petition, would have been sufficient to

establish jurisdiction by waiving sovereign immunity under the tort claims act. See id.

Because the Kelsos failed to amend their petition to conform to their response to the plea

to the jurisdiction by affirmatively specifying that there had been misuse, we cannot award

the relief primarily requested, i.e., reversing the judgment of the trial court and rendering

judgment that subject matter jurisdiction over Memorial Hospital has been established.

Instead, we reverse the trial court’s order granting the plea to the jurisdiction and remand

to the trial court to allow the Kelsos an opportunity to amend their pleadings to assert a

cognizable cause of action. See Brown , 80 S.W.3d at 555 ; Peek , 779 S.W.2d at 805 . _______________________

DORI CONTRERAS GARZA,

Justice

Opinion delivered and filed

this the 13th day of May, 2004.