Titus Regional Medical Center v. Glenna Virginia Roach

In

The

Court

of Appeals

Sixth

Appellate District of Texas at Texarkana

______________________________

No. 06-11-00022-CV

______________________________

TITUS REGIONAL MEDICAL CENTER,

Appellant

V.

GLENNA VIRGINIA ROACH, Appellee

On Appeal from the 276th

Judicial District Court

Titus County, Texas

Trial

Court No. 34,786

Before Morriss, C.J.,

Carter and Moseley, JJ.

Opinion by Justice Moseley

O P I N I O N

This

appeal calls on us to address an oft-debated, but seldom crystal clear issue

regarding a governmental entity’s immunity from suit. Glenna Virginia Roach (Roach) underwent

surgery at Titus Regional Medical Center (Titus). After Roach’s surgery, she was taken to a

hospital room and placed in a hospital bed.

In her suit, Roach alleged that the hospital staff failed to raise the

bed’s safety rails and left her unattended while still under the influence of

anesthesia and that Titus failed to notify Roach’s family that she had been

placed in a room after the surgery was completed. Roach fell from the bed and suffered

significant injuries. This failure to

engage the bed’s safety rails or to notify her family that she was then unattended

in a room, alleged Roach, amounted to negligence and was the basis of her

lawsuit. [1] Titus, in a pretrial motion, asserted the

governmental immunity provided in Section 102.021(2) of the Texas Civil

Practice and Remedies Code, which precludes suit against a governmental entity

except in certain prescribed circumstances; Roach claimed the hospital’s

immunity was waived because the acts alleged led to

personal injury . . . caused by a condition or use

of tangible personal or real property [such that] 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) (West 2011). We concur with the determination by the trial

court that Roach’s pleadings alleged a cause of action which waived Titus’

immunity pertaining to the issue regarding the safety bed rails and we affirm

the trial court’s order as to that issue.

We reverse the determination that the issue regarding the transmission

of information was waived and remand to the trial court for further proceedings

in accord with this opinion.

Immunity and Standard of Review

Sovereign

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

which the State or certain governmental units have been sued unless the State

consents to the suit. Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 224 (Tex. 2004). In reviewing a trial court’s ruling on a plea

to the jurisdiction, we construe the pleadings in favor of the nonmovant and

look to the nonmovant’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd .,

852 S.W.2d 440, 446 (Tex. 1993). We are

not required to look solely to the pleadings when deciding a plea to the

jurisdiction; we may consider evidence relevant to jurisdiction when it is

necessary to resolve the jurisdictional issue raised. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). Whether a trial court has subject-matter

jurisdiction is a question of law which is subject to de novo review. Tex.

Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W.3d 849, 855 (Tex.

2002); Mayhew v. Town of Sunnyvale ,

964 S.W.2d 922, 928 (Tex. 1998). Whether

a pleader has alleged facts which affirmatively demonstrate a trial court’s

subject-matter jurisdiction is a question of law reviewed de novo. Likewise, whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction is also a

question of law. Miranda , 133 S.W.3d at 225–26.

“Use” of Property

The applicable governmental immunity

statute and the scope of waiver expressed therein has a “long and arduous

history.” York , 871 S.W.2d at 177. No

proper examination of the issue of interpretation and application of the

governmental immunity statute would be complete without a review of several

much-discussed Texas Supreme Court cases which deal with the issue. We begin that examination with a triumvirate

of cases, spanning the period from 1975 to 1989, in each of which the Texas Supreme

Court found the allegations of the respective plaintiffs were brought within

the statute’s contemplation of waiver of immunity.

The “Outer Bounds” of Waiver of Governmental Immunity

The

earliest of these three cases is Overton

Memorial Hospital v. McGuire , 518 S.W.2d 528 (Tex. 1975), in which the

plaintiff claimed that the hospital negligently provided a hospital bed that

possessed no safety rails; the plaintiff fell from the bed and was injured. The provision of the rail-less bed, the

plaintiff claimed, was a use or condition of tangible personal property which

waived immunity. The hospital raised

governmental immunity in its motion for summary judgment, saying that the want

of safety rails was a non-use of property, not a use of it; the trial court

granted the hospital’s motion for summary judgment on that basis. The Texas Supreme Court held that if the

hospital were found to be negligent in failing to provide a bed without safety

rails, it could not assert governmental immunity. Id. at

529 . [2]

The

second case frequently cited in discussions of the history of governmental immunity

is Lowe v. Texas Tech University , 540

S.W.2d 297, 300 (Tex. 1976). Lowe sued

Texas Tech University, alleging that the school was responsible for an injury

Lowe sustained while playing college football.

Lowe claimed that his uniform included a knee brace (Lowe had suffered a

prior injury, necessitating the brace); Lowe’s suit alleged the coaching staff

either failed to provide Lowe with the brace or required him to play without

it. As a result, Lowe suffered a second,

more serious, injury that precipitated the suit. The Texas Supreme Court found, “Both the

standard and specially designed protective devices are integral parts of the

football uniform, e.g., special taping or knee braces furnished a player with

an injured knee are as much a part of his uniform as his helmet, or shoulder

pads, or whatever.” Id . Based on that rationale,

it was determined that the use of the football uniform (which included the knee

brace) was use of tangible personal property, thus bringing about a waiver of

immunity.

In

the final one of the three cases, decided thirteen years later, the Texas Supreme

Court found a waiver of governmental immunity when the governmental agency

failed to provide a life preserver to a child (known to suffer seizures) who

was taken swimming while under the care of a governmental entity and who then

drowned. Robinson v. Cent. Tex. MHMR Ctr. , 780 S.W.2d 169 (Tex. 1989). The Texas Supreme Court found “[a] life

preserver was just as much a part of Robinson’s swimming attire as the knee

brace was part of the uniform in Lowe .” Id. at

171. Thus, the life preserver, as part

of the swimsuit, was deemed to be the use of tangible personal property as

contemplated in the statute; the allegation of liability because of the

governmental unit’s failure to provide a life preserver was not barred by the

claim of immunity. Id .

Seven

years after the holding in Robinson ,

the Texas Supreme Court described limitations on the holdings in Lowe and Robinson : “These cases

represent perhaps the outer bounds of what we have defined as use of tangible

personal property.” Kerrville State Hosp . v.

Clark , 923 S.W.2d 582, 585 (Tex. 1996). Moreover, “[t]he precedential value of these

cases is therefore limited to claims in which a plaintiff alleges that a state

actor has provided property that lacks an integral safety component and that

the lack of this integral component led to the plaintiff’s injuries.” Id . The plaintiffs in Kerrville were the parents of a woman killed by her estranged

husband, a person who had been treated for mental illnesses at the state

hospital. When the husband/patient was

discharged, he was provided with oral medications to take with him upon his

discharge. The patient murdered his wife

(daughter of the plaintiffs); the plaintiffs claimed that the hospital was

negligent in prescribing oral medications and that he should, instead, have

been medicated by injection. The Texas Supreme

Court stated that the issue was whether the hospital’s “administration of an

oral form of Thorazine, rather than an injectionable drug, constitutes use or

misuse of tangible personal property under the terms of the Texas Tort Claims

Act,” and held that “failure to administer an injectionable drug is non-use of

tangible personal property and therefore does not fall under the waiver

provisions of the Act.” Id. at 584 .

The Instant Case

Titus relies on Kerrville ’s description of a non-use of tangible property; Titus

maintains that in this case, the allegation that the hospital staff failed to

raise the safety rails equates to an allegation that the hospital did not use

the safety rails. Going further, Titus

concludes that Roach’s allegation is based on a non-use of property, rather

than a use of it. Just as the Kerrville hospital did not waive its

immunity by failing to use an injectable format of medication, reasons Titus,

it did not waive immunity by a failure to use the rails.

Roach

in turn cites us to Hampton v. University

of Texas , 6 S.W.3d 627 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The plaintiffs in Hampton , like Roach, claimed the patient fell from his hospital bed

because the hospital did not engage the bed’s safety rails. Interpreting the petition’s allegations in

the light most favorable to the plaintiffs, the Houston First Court of Appeals

found the petition did indeed allege an injury caused by a condition or use of

tangible property; therefore, the hospital’s governmental immunity had been

waived. Id. at 630 . Hampton claimed

that the hospital’s failure to implement the safety features was a misuse of

tangible property; according to the opinion, the petition also alleged

negligence in the hospital’s providing a defective bed, i.e., one that lacked

essential safety features––raised safety rails.

Id. The court of appeals construed Hampton’s

pleadings to allege that the hospital, not Hampton, retained control over the

bed’s safety features, before and during the time Hampton used the bed. Id. at

631 . The court discussed Overton , Lowe , and Robinson and

found “no significant difference in this case and those in which governmental

units provided personal property lacking some integral safety component.” Id. [3] The court pointed out the hospital supplied

Hampton with a bed with attached safety equipment, which did not function until

it was activated by the hospital. The

court rejected the hospital’s defense that failure to activate the safety

equipment in question was a non-use of the property. This is the same argument Titus makes in this

case.

Obviously,

the circumstances in Hampton were

quite similar to those in Roach’s case.

It is difficult for us to contemplate how, when a patient is placed in a

bed as part of the hospital’s treatment of that patient, the bed is not being

used in the treatment. The rails are

quite different from the knee brace in Lowe

or the life preserver in Robinson

because the rails simply cannot be used at all unless they are used as a part

of the bed. Therefore, the examination

of whether there is a use of property as contemplated in the statute, the

“property” in question is the entire bed and not its adjunctive safety

rails. Where the bed is equipped with

safety rails, it is likewise difficult to conjure how those rails were not meant

to be used: positioned so as to effectuate

their protective purposes. The safety

rails on a hospital bed are integral parts of the bed, just as the brakes on a

wheel chair would be parts of the chair, or the doors on an automobile would be

parts of the car. “[F]or ‘use’ of

tangible personal property to occur under the terms of the Act, one must ‘put

or bring [the property] into action or service; to employ for or apply to a

given purpose.’” Kerrville State Hosp. , 923 S.W.2d at 584 (citations omitted).

While

the circumstances in Hampton are all

but identical to the case before us, and that case’s holding is persuasive, we

must be bound by the Texas Supreme Court’s holdings. Titus relies on the Kerrville holding that non-use of a possible treatment method

(supplying a patient’s medication via injection, rather than merely physically

providing the medication to the patient) did not constitute use as contemplated

by the waiver statute. “The gravamen of

their complaint is that [the hospital’s] non-use of an injectionable drug was

the cause of their daughter’s death.

This failure to use a form of drug is just as much a non-use of a drug

as was the hospital’s failure to give its patient her medicine in Kassen .” [4] Id. at

585. Pointing out that almost every

instance of treatment by doctors in state medical facilities involves some form

of tangible property, the court said there could not be a waiver of immunity in

each such occurrence, lest a patient could “always complain that a different

form of treatment than the one employed would have been more effective and

still claim waiver under the Act. If

such a complaint were enough to constitute the use of tangible personal

property under the Act, the doctrine of sovereign immunity would be rendered a

nullity.” Id . at 586. Unlike Kerrville , there can be no medical

decision in our contemplation which would involve not properly positioning the

safety rails on Roach’s bed.

Situations

involving failure to give medication or give medication in a particular format

are distinguishable from situations where equipment (which would qualify as

tangible property) is used by a state actor hospital, but not used according to

the equipment’s contemplated purposes.

Roach’s allegation that she was placed in a hospital bed that was

equipped with safety rails which were not engaged or used qualifies as a use of

tangible property by the state entity.

If the hospital did not, as Roach alleges, raise or engage the bed’s

attached safety rails, that “non-raising” does not equate to “non-use” as

contemplated by the Texas Supreme Court in Kerrville .

Such a literal analysis of the situation

does not comport with the overall meaning of the statute. In Kerrville ,

the Texas Supreme Court offered the following hypothetical:

For example, if a hospital provided a patient with

a bed lacking bed rails and the lack of this protective equipment led to the

patient’s injury, the Act’s waiver provisions would be implicated.

Id. at 585 (citing Lowe ,

540 S.W.2d at 300 ). It is just as

reasonable that if a hospital supplies a patient with a bed equipped with

safety rails, but does not activate or engage those rails, coupled with the

fact that the failure to utilize the rails is the proximate cause of the

patient’s injury, the statute’s waiver provisions would be implicated. Referring to Overton , the earlier hospital bed case where the bed did not have

rails, the Texas Supreme Court pointed out, “[t]he hospital did not merely

allow the patient access to the bed; it actually put the patient in the bed as

part of his treatment.” San Antonio State Hosp. v. Cowan , 128

S.W.3d 244, 246 (Tex. 2004). [5] Roach alleged in her petition that she was

placed in the hospital’s bed immediately after being brought from the recovery

room after surgery and the rails were not raised. The rails were part of the bed; failing to

properly employ the bed qualifies as the hospital’s use of its tangible

property. Roach’s allegations were

sufficient to implicate the statute’s waiver of immunity provision. [6]

We

affirm the trial court’s denial of Titus’ claim of governmental immunity solely

on the basis that the use of the hospital bed (with its safety rails) was a use

of tangible personal property as contemplated in the statute. We reverse the determination that there has

been no waiver of governmental immunity as to Roach’s claim of negligence

pertaining to the hospital’s failure to notify Roach’s family that she had been

returned to her room after surgery and remand to the trial court for further

proceedings in accord with this opinion.

Bailey

C. Moseley

Justice

Date Submitted: June

8, 2011

Date Decided: June

24, 2011

[1] Roach

also alleged negligence by Titus in failing to alert Roach’s family that she

had been moved from surgery to her room.

Roach concedes at argument that any negligence in this failure involved

“use” of information (i.e., the knowledge that she had been moved from surgery

to her room) and thus could not constitute “use” of tangible property for

purposes of the waiver of governmental immunity, which is the sole issue on

appeal. See Univ. of Tex. Med. Branch

at Galveston v. York , 871 S.W.2d 175 (Tex. 1994).

[2] Years

later, the Texas Supreme Court described the situation in Overton : “The hospital did

not merely allow the patient access to the bed; it actually put the patient in

the bed as part of his treatment.” San Antonio State Hosp. v. Cowan , 128

S.W.3d 244, 246 (Tex. 2004).

[3] Hampton does not mention or discuss Kerrville , although released three years

after that Texas Supreme Court case.

[4] Kassen v. Hatley , 887 S.W.2d 4 (Tex.

1994). In Kassen , a mental patient admitted to a state hospital was seen taking

her medication in excessive quantities. Id. at 7 . Hospital employees therefore took the patient’s

medication away from her. Id . The hospital refused to return the medication

to the patient when she left the hospital, and she committed suicide a short

time later. Id . The patient’s parents

sued the hospital and its employees for wrongful death, claiming that the

hospital employees’ failure to provide the patient with medication when she

left the hospital caused her death. Id . The Texas Supreme Court concluded that “[t]his

sequence of events does not allege an injury arising from the ‘use’ of the

medication. It states a claim for

non-use of property that does not trigger waiver of sovereign immunity under

the Texas Tort Claims Act.” Id . at 14.

[5] In

Cowan , the hospital allowed the

patient to retain personal property, suspenders, and a walker, which he later

used to commit suicide. This was held

not to be “use” as contemplated by the statute.

[6] In

its briefing and at oral argument, Titus refers us to our opinion in Texas State Technical College v. Beavers ,

where we said,

The integral safety component

must be entirely lacking, rather than merely inadequate. . . . Stated conversely, supplying safety

components that are inadequate, but not entirely lacking, does not constitute a

use of personal property so as to waive immunity.

218 S.W.3d 258, 264 (Tex. App.––Texarkana 2007, no

pet.) (citing Tex. A & M Univ. v.

Bishop , 156 S.W.3d 580, 584 (Tex. 2005) (claim that knife used in college

drama production inherently unsafe without an adequate stab pad did not mean

integral safety component lacking for purposes of governmental immunity

waiver)). Here, even if the bed’s rails

were characterized as integral safety components, they were neither lacking nor

inadequate. They simply were not used

despite being part of the bed, which was used in Roach’s post-surgery

treatment.