the University of Texas M.D. Anderson Cancer Center v. Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-thue (Deceased), and Deborah Diver, Individually and as Next Friend of J.O., a Minor

IN THE SUPREME COURT OF TEXAS

444444444444

NO. 17-0730

444444444444

THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, PETITIONER,

v.

LANCE MCKENZIE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF

COURTNEY MCKENZIE-THUE (DECEASED), AND DEBORAH DIVER, INDIVIDUALLY

AND AS NEXT FRIEND OF J.O., A MINOR, RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

CHIEF JUSTICE HECHT, joined by JUSTICE GREEN and JUSTICE BROWN, dissenting.

Suffering from rare, Stage IV appendiceal cancer, Courtney McKenzie-Thue elected to

undergo a complex, clinical-trial procedure detailed in a protocol developed by the Wake Forest

University School of Medicine. The procedure began with extensive surgery to remove tumors

growing throughout her peritoneal cavity, followed by a perfusion of the cavity with a chemotherapy

drug mixed with D5W—sugar water—to kill remaining cancer cells. The ten-hour procedure was

performed flawlessly at the University of Texas M.D. Anderson Cancer Center, but two days later,

unexpectedly and tragically, McKenzie-Thue died of unlikely complications from the use of the

sugar water prescribed by the protocol, a risk M.D. Anderson had recognized—though it never

before had resulted in death—and took steps to prevent.

The Court holds that M.D. Anderson’s immunity from this wrongful-death suit is waived by

the Texas Tort Claims Act (“the Act”)1 because plaintiffs, the McKenzies,2 claim that death was

proximately caused by the negligent use of the sugar water—not in the manner of use, which was

perfect, but in the use of the sugar water at all. But the use of the sugar water was prescribed by the

surgical protocol and was an integral part of the procedure. If sugar water could not be used, the

procedure could not have been performed, and whether to perform the procedure was a medical

judgment for which, the Court acknowledges, immunity is not waived. The involvement of sugar

water cannot change that. If sugar water should not have been used, neither should a scalpel have

been, or the surgical apparatus, or for that matter, the building. Surgery cannot be performed without

the use of real and personal property, and if that use and a bad result are sufficient to waive

immunity, the Act’s waiver is very broad. Today’s decision runs counter to the Court’s decisions

that the Act’s waiver of immunity is limited.

The Court also holds that McKenzie-Thue’s death was foreseeable, a requirement of

proximate causation, because hyponatremia was a known risk of the use of sugar water. But death

from the procedure had never previously occurred and was unlikely; M.D. Anderson took all proper

1

TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109. M.D. Anderson is a governmental unit with immunity under

the Act. See TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D) (defining governmental unit to include “any . . . institution

. . . the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature

under the constitution”); see also TEX. CONST. art. VII, § 10 (“The Legislature shall as soon as practicable establish,

organize and provide for the maintenance, support and direction of a University of the first class . . . styled, ‘The

University of Texas’ . . . .”); TEX. EDUC. CODE § 65.02(a) (“The University of Texas System is composed of the

following institutions and entities: . . . (11) The University of Texas M.D. Anderson Cancer Center . . . .”); LTTS Charter

Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 86 (Tex. 2011) (stating that “public universities . . . satisfy the precise

standards articulated by section 101.001(3)(D)”).

2

Plaintiffs are McKenzie-Thue’s father, Lance McKenzie, individually and on behalf of McKenzie-Thue’s

estate, and her mother, Deborah Diver, individually and on behalf of McKenzie-Thue’s minor son.

2

precautions to prevent it; and the McKenzies’ only medical expert, Dr. David H. Miller, testified

squarely that McKenzie-Thue’s death, though “a possibility,” was neither “predictable” nor

“foreseeable.” The Court’s conclusion directly contradicts settled law that injury is foreseeable only

if it is the “natural and probable” consequence of an action.3 There are risks to any surgery.

Healthcare providers should know what they are and try to prevent them. That is exactly what

M.D. Anderson did here. The effect of the Court’s decision is to impose strict liability for any bad

result from surgery.

Today’s decision departs from the Act and our caselaw and strikes all healthcare providers,

government and private alike, a heavy blow. I respectfully dissent.

I

Courtney McKenzie-Thue, 33, suffered from advanced Stage IV cancer of the appendix, a

rare disease that manifests in tumors growing on the organs and tissues in and around the peritoneal

cavity. Dr. Paul Mansfield, a surgical oncologist at M.D. Anderson, recommended that McKenzie-

Thue undergo an experimental intraperitoneal hyperthermic chemotherapy procedure—IPHC4—

developed by the Wake Forest University School of Medicine. The protocol calls for the surgeon

to open the peritoneal cavity, resect all tumors and visible signs of cancer, and close the incision.

A perfusionist then pumps several liters of a chemotherapy drug mixed with a heated carrier solution

into the cavity through a circuit of tubes and filters, bathing the organs and tissues. The patient’s

3

See, e.g., Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995) (emphasis added)

(quoting Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939)).

4

The procedure is also sometimes referred to with the acronyms HIPEC and HYPEC. Wake Forest has referred

to the procedure as IPHC.

3

abdomen is massaged to assure complete perfusion of the fluid throughout the cavity to kill all

cancer cells. The cavity is then washed with fresh carrier solution to flush out the chemotherapeutic

agent.

The Wake Forest IPHC protocol called for the use of one of two chemotherapy drugs, either

Mitomycin C or Oxaliplatin. The carrier solution specified for Mitomycin C was a normal saline

solution and for Oxaliplatin it was D5W, a solution of 5% dextrose—a form of sugar—in water.

D5W was required because the drug manufacturer’s insert accompanying the Oxaliplatin warned

that “[a] final dilution must never be performed with a sodium chloride solution or other chloride-

containing solutions”, such as saline, because the drug is “incompatible” with them. Accordingly,

the Wake Forest protocol specified that with Oxaliplatin, “[r]econstitution or final dilution must

never be performed with a sodium chloride solution or other chloride-containing solutions.”5 The

IPHC clinical-trial protocol was designed as a double-blind study to test the relative toxicity of the

two drugs. Oxaliplatin was randomly selected for McKenzie-Thue’s procedure at M.D. Anderson.

Thus, the required carrier solution was D5W.

McKenzie-Thue’s procedure lasted ten hours. During the first eight hours, Mansfield

removed her spleen, her omentum, the lining of her left and right diaphragm, her gallbladder, and

the ends of her small intestine and colon. Another surgeon performed a complete hysterectomy,

removing her uterus, fallopian tubes, and ovaries, as well as a peritonectomy, stripping the lining

of her pelvis. Then the chemotherapeutic perfusion began. The heated Oxaliplatin–D5W solution

was pumped through McKenzie-Thue’s peritoneal cavity for two hours, then flushed with the pure

5

The Court mischaracterizes these mandates as suggestions. Ante at ___.

4

sugar water. The entire procedure went without a hitch, and Mansfield was hopeful that all had gone

well. The McKenzies do not complain that any aspect of the procedure was performed below the

standard of care.

But introducing so large a volume of D5W into the peritoneal cavity can lower sodium levels

in the body, a condition called hyponatremia. Hyponatremia, in turn, can lead to edema—swelling

from excess fluid trapped in the body. The anesthesiologist was aware of this risk and, consistent

with the standard of care, took precautions to counteract it by starting saline and insulin IV drips

prior to the introduction of the D5W. Nevertheless, McKenzie-Thue developed hyponatremia,

resulting in an increased water level in her body, swelling of her brain stem, brain herniation, and

death two days later.

Mansfield was shocked. He had treated 14 patients using the Wake Forest IPHC protocol,

several using Oxaliplatin and D5W, without incident. There is no evidence that the IPHC procedure

using Oxaliplatin and D5W ever caused the death of any patient other than McKenzie-Thue. When

McKenzie-Thue’s expert Miller was asked why McKenzie-Thue had such a tragic result, he testified

only:

[T]here’s no way . . . I can know why Courtney died and other people don’t other

than her risk factors in that she had multiple hours of surgery debulking the tumor,

multiple hours of anesthesia, then the . . . sugar water in her abdominal cavity at the

end to . . . give her the chemotherapy.

So, she is a unique person. I do not know what other people in other studies have had

in terms of their experience around the time the chemotherapy is put into the

abdominal cavity.

5

Other evidence suggests that McKenzie-Thue may have been more susceptible to cerebral edema

because of her age and smaller size. The record does not reflect a more definite explanation.

M.D. Anderson had itself reviewed the Wake Forest IPHC protocol before approving it for

use. Following McKenzie-Thue’s death, M.D. Anderson and Wake Forest re-examined the protocol,

and after discussions with the manufacturer of Oxaliplatin, concluded that the drug could be

perfused using a normal saline solution rather than D5W.

II

A

The Texas Tort Claims Act waives governmental immunity in stated circumstances. 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.6

This case involves subdivision (2). The phrase “so caused” clearly refers back to “proximately

caused” in subdivision (1), but it also incorporates the requirement of subdivision (1) that injury be

6

TEX. CIV. PRAC. & REM. CODE § 101.021.

6

caused “by” a wrongful or negligent act or omission of the governmental unit, especially since the

unit would not be liable, were it a private person, absent negligence or other wrong. The requirement

also applies directly to the condition or use of property. It is not enough for liability that injury be

caused by a use of property and, separately, an act of negligence. Subdivision (2) waives immunity

from suit for an injury proximately caused by a negligent or wrongful use of property.

B

As easy as that rule is to say, it has been maddeningly difficult to apply.7 In the first two

decades of the Act’s existence, we concluded that immunity had been waived in virtually every case

that came before us whenever property was present. We held to be actionable claims of negligence

for providing a post-operative patient a bed without rails,8 for failing to provide a college football

player a brace for his injured knee,9 for failing to diagnose a heart attack from the results of an

electrocardiogram,10 and for taking an epileptic mental-health patient swimming while failing to

provide him a life preserver.11 During this period, we described the statutory language as “difficult

7

Our efforts to apply Section 101.021 have had a “long and arduous history”. Kerrville State Hosp. v. Clark,

923 S.W.2d 582, 584 (Tex. 1996) (quoting Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)).

Eighteen years ago I expressed the view “that it is simply impossible for the courts to meaningfully construe and

consistently apply the use-of-property standard” in the statute. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,

591 (Tex. 2001) (Hecht, J., concurring).

8

Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (per curiam).

9

Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976).

10

Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983).

11

Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989). In the only claim we found not to be

actionable, the plaintiff alleged use of tangible personal property by a third party, not by the government. See Beggs v.

Tex. Dep’t of Mental Health and Mental Retardation, 496 S.W.2d 252, 253–254 (Tex. App.—San Antonio 1973, writ

ref’d) (after another patient doused the plaintiff with lighter fluid and ignited it, the plaintiff alleged that the defendant

state agencies were negligent in transferring a dangerous patient to the nursing home where the plaintiff resided).

7

to understand”12 and “troublesome”13 and made repeated, unanswered pleas for legislative

clarification.14 The Court eventually opined that the Legislature’s silence amounted to approval of

our having “interpreted the Act broadly”15—an inference belied by the fact that “waiver of

governmental immunity is a controversial political issue”16 and by the legislative compromises

necessary to get the Act passed in the first place.17

The jurisprudential tide began turning in 1992. In LeLeaux v. Hamshire–Fannett Independent

School District, we held that an injury that occurred on a parked school bus did not arise out of the

use of the bus.18 “[T]he bus [was] only the setting for the injury”.19 Several months later, in Texas

Department of Mental Health and Mental Retardation v. Petty, five members of the Court concluded

that the Act waives immunity for a claim based on the state’s having continually misdiagnosed a

mental patient over the course of several decades.20 But the lead opinion for the Court attracted only

12

Lowe, 540 S.W.2d at 301 (Greenhill, C.J., concurring).

13

Salcedo, 659 S.W.2d at 32.

14

See Robinson, 780 S.W.2d at 170; Salcedo, 659 S.W.2d at 32; Lowe, 540 S.W.2d at 303 (Greenhill, C.J.,

concurring).

15

Robinson, 780 S.W.2d at 170; see id. at 170–171 (opining that the Legislature’s having amended and codified

the waiver provision without addressing the Court’s concerns “indicates a legislative adoption of the construction given

in [Lowe and Salcedo]”).

16

Id. at 173 (Hecht, J., dissenting).

17

See Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 686 (Tex. 1992) (Cornyn,

J., dissenting); Robinson, 780 S.W.2d at 175 (Hecht, J., dissenting) (both recounting the legislative history of the Act).

18

835 S.W.2d 49, 52 (Tex. 1992).

19

Id.

20

848 S.W.2d at 681.

8

a plurality.21 In dissent, Justice Cornyn warned that the Court’s interpretation of the use-of-property

standard had veered off course, was undermining the Legislature’s intent to enact only a limited

waiver of immunity, and had spawned “patently inconsistent results” in the lower courts.22

Within a few years, the Court had fully retreated from its initial, broad construction of the

Act. In University of Texas Medical Branch at Galveston v. York, we held that immunity was not

waived for a claim of negligence in failing to diagnose a broken hip—or, put another way, “for

negligence involving the use, misuse, or nonuse of medical information.”23 We acknowledged our

departure from Petty but explained that because Petty was a plurality opinion, it had “very limited

precedential value”, and “we [were] not bound by the result in that case”.24 We based our decision

on the bedrock principle that “for the Legislature to waive sovereign immunity, it must do so by

clear and unambiguous language”,25 and we reasoned that “the Legislature [had] not, by clear and

unambiguous language, eliminated governmental immunity for injuries resulting from the misuse

of information”.26 Later, we implicitly overruled our earlier decisions involving the football player

21

Justice Cook concurred in the Court’s judgment only, without providing any explanation. Id. at 685; id. at

685 (Cornyn, J., dissenting) (“The result [of the plurality opinion] is that no opinion speaks for the court.”).

22

See id. at 688–689 (Cornyn, J., dissenting).

23

871 S.W.2d 175, 176 (Tex. 1994).

24

Id. at 176–177.

25

Id. at 177 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980)).

26

Id. at 179.

9

who was not provided a knee brace, the epileptic swimmer who was not provided a life preserver,

and the undiagnosed heart attack, stating that each was limited to its facts.27

C

York’s precept—that a waiver of sovereign immunity must be by clear and unambiguous

language—has been codified by the Legislature: “[A] statute shall not be construed as a waiver of

sovereign immunity unless the waiver is effected by clear and unambiguous language.”28 Two other

principles are equally fundamental.

One, as Justice Cornyn reminded in Petty, is that the Act’s waiver is limited.29 In Dallas

County Mental Health & Mental Retardation v. Bossley, we stated, “[O]ne thing is clear: the waiver

of immunity in the Tort Claims Act is not, and was not intended to be, complete. Arguments for

applications of the Act that would essentially result in its waiver becoming absolute must therefore

be rejected as contrary to the Act’s fundamental purpose.”30 We applied this principle in the medical

context in Kerrville State Hospital v. Clark. There, the plaintiffs’ daughter was murdered by her

estranged husband while he was undergoing a course of outpatient mental-health treatment at the

27

See Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998) (“The

decision in Salcedo [the undiagnosed heart attack case] is limited to its facts.”); Kerrville State Hosp. v. Clark, 923

S.W.2d 582, 585 (Tex. 1996) (explaining that Lowe, the football player case, and Robinson, the epileptic swimmer case,

“represent perhaps the outer bounds of what we have defined as use of tangible personal property” and that their

“precedential value . . . is . . . 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”).

28

TEX. GOV’T CODE § 311.034.

29

Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 688 (Tex. 1992) (Cornyn, J.,

dissenting) (quoting Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 301–302 (Tex. 1976) (Greenhill, C.J., concurring)).

30

968 S.W.2d at 342.

10

Kerrville State Hospital.31 The plaintiffs alleged that the hospital was negligent in giving the

husband an oral form of medication to take on his own outside the hospital—which he failed to

do—rather than administering to him an available injectionable form on site.32 In sum, the plaintiffs’

claim was “that the treatment prescribed to [the husband] was not as effective as an alternative

method of treatment would have been.”33 We “[held] that [the hospital’s] failure to administer an

injectionable drug [was] non-use of tangible personal property and therefore [did] not fall under the

waiver provisions of the Act.”34 To conclude otherwise, we said, would be “contrary to the limited

waiver the Legislature clearly intended.”35

The Court today states that “[u]nder our reasoning in Kerrville,” the McKenzies’ allegation

that M.D. Anderson should have used a different carrier solution than D5W “is sufficient to waive

immunity.”36 The Court’s argument runs like this:

• Kerrville holds that non-use of property is not use for waiver of immunity.37

31

923 S.W.2d at 583.

32

Id. at 584.

33

Id. at 585.

34

Id. at 584.

35

Id. at 585.

36

Ante at __.

37

“Kerrville involved the distinction between use and non-use of property . . . . This distinction—that the

property actually used (the oral form of the drug) did not cause the injury at issue—is what rendered the waiver for

injuries caused by the use of tangible personal property inapplicable.” Ante at ___.

11

• The McKenzies do not allege non-use, but rather, the non-negligent use of property that

should not have been used.38

• Kerrville’s holding does not preclude the McKenzies’ claim.

• Therefore, Kerrville allows the McKenzies’ claim.39

The Court charges that “[t]he dissent . . . ignores” Kerrville’s reasoning that non-use is not use.40 To

the contrary, I embrace it. Here is Kerrville’s reasoning, which the Court ignores:

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. Because of

this fact, a patient suing for negligence 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.41

Kerrville’s fundamental rationale and today’s holding are irreconcilable.

Another fundamental principle for construing the Act follows from Kerrville: the Act does

not waive immunity for an exercise of judgment—in the healthcare context, for medical judgment.

In Texas Department of Criminal Justice v. Miller, the defendant failed to diagnose an inmate with

meningitis, from which he died.42 The plaintiff alleged that the defendant had been negligent in

administering to the inmate medications that treated his symptoms but masked the true nature of his

38

“By contrast, here the McKenzies allege and have presented evidence that [M.D. Anderson] used property

(the D5W) that should not have been used and that the D5W is what harmed Courtney.” Ante at ___.

39

“Under our reasoning in Kerrville, this is sufficient to waive immunity.” Ante at ___.

40

Ante at ___ n.8.

41

Kerrville, 923 S.W.2d at 585–586.

42

51 S.W.3d 583, 585 (Tex. 2001).

12

illness.43 We agreed with the defendant’s argument that the plaintiff “alleged only the non-use of

tangible personal property and an error in medical judgment, neither of which are within the

statutory waiver.”44 Quoting the passage from Kerrville above, we explained that our holding

comported with the Legislature’s intent that the immunity waiver be limited.45

The rule that an error in medical judgment, alone, is not within the Act’s waiver is traceable

to one of our earliest decisions, where Chief Justice Greenhill opined in a concurring opinion that

a claim based on a doctor’s removing the wrong kidney would not fall within the statutory waiver

of immunity.46 We adopted it expressly in York when we held that the Act does not waive immunity

“from liability for negligence involving the use, misuse, or nonuse of medical information” and

simultaneously disavowed our prior decision in Petty.47 And it is consistent with our decision in

Kerrville that a hospital’s prescribing one form of medication over another potentially more effective

form is not actionable under the Tort Claims Act.48 None of our subsequent decisions have backed

away from this principle or even muddied the waters. Because the McKenzies’ negligence claim

43

See id.

44

Id. at 588 (emphasis added).

45

Id. (quoting and paraphrasing Kerrville, 923 S.W.2d at 585–586).

46

Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 303 (Tex. 1976) (Greenhill, C.J., concurring); see Kamel v. Univ.

of Tex. Health Science Ctr. at Hous., 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding

that a claim against a doctor for removing the plaintiff’s testicle during surgery, when the testicle later turned out to be

healthy, did not fall within the statutory waiver of immunity in Section 101.021(2)) (“Kamel has made no claim that the

surgical instruments themselves were defective in any way or that they were used in a negligent manner. Rather, the crux

of Kamel’s argument is that Dr. Wang made an erroneous medical judgment in determining that Kamel’s testicle needed

to be removed.”).

47

Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 176–177 (Tex. 1994).

48

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

13

centers on M.D. Anderson’s decision to use D5W rather than a different carrier solution during the

clinical-trial protocol—not the manner in which M.D. Anderson administered the D5W—the

medical-judgment limitation established in our caselaw is fatal to the McKenzies’ case.

D

In the case before us, Section 101.021(2) must be applied in light of these three principles:

there is no waiver except by clear and unambiguous language, any waiver must be limited, and

immunity from suit for medical judgments is not waived.

The McKenzies admit, and the Court agrees, that there was nothing improper in the way

sugar water was used in the IPHC procedure. The McKenzies’ claim is that sugar water “should not

have been used at all”.49 And as the Court states, “absent the use of that particular carrier agent”—

i.e., sugar water—McKenzie-Thue’s “injury would not have occurred.”50 That is probably true.

Although the surgical procedure was long and invasive, nothing in the evidence suggests McKenzie-

Thue would not have fully recovered and, perhaps, been freed of cancer. There is evidence to

support the claim that the surgical protocol need not have called for the use of sugar water as the

carrier solution to the extent it did. After McKenzie-Thue’s death, M.D. Anderson’s and Wake

Forest’s re-examination of the IPHC protocol concluded that a saline solution could be used with

Oxaliplatin, at least in part, and the drug manufacturer changed its requirement that only sugar water

be used. But all of this is information, not property.

49

Ante at ___.

50

Ante at ___.

14

But it is absolutely true that, absent the use of sugar water, McKenzie-Thue could not have

had the IPHC procedure. At the time of McKenzie-Thue’s procedure, the IPHC protocol prescribed

that Oxaliplatin be perfused in solution with sugar water. Sugar water was no more a cause of

McKenzie-Thue’s death than was the use of Oxaliplatin, which was determined by random selection

in the double-blind clinical trial. The McKenzies’ complaint—that sugar water should not have been

used at all—is tantamount to a complaint that the procedure should never have been performed at

all. But that was clearly a medical judgment, for which the Court acknowledges immunity was not

waived. The Court argues that following surgical protocol “does not somehow negate any

negligence in using the property in the first instance.”51 That’s true, of course, but following protocol

involves the use of property; deciding to follow protocol does not.

The Court explains that its decision is really narrow:

[N]ot every tort claim involving medical providers will arise from the improper use

of tangible personal property that causes harm. As discussed, a patient cannot merely

allege that a medical provider used tangible personal property during treatment; the

patient must also demonstrate that the use of the particular property at issue was both

improper under the circumstances and caused injury.52

But not to be repetitive, the Court ignores what it said in Kerrville:

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. Because of

this fact, a patient suing for negligence 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

51

Ante at ___.

52

Ante at ___ (internal citations omitted).

15

tangible personal property under the Act, the doctrine of sovereign immunity would

be rendered a nullity.53

The Court attempts to distinguish Kamel v. University of Texas Health Science Center at

Houston,54 a case the McKenzies more candidly acknowledge is contrary to their position. There,

a surgeon performed a hydrocelectomy—a removal of fluid around the testicle.55 But during the

surgery, the surgeon decided the testicle looked cancerous and removed it altogether.56 Later tests

showed that there was no cancer in the testicle.57 The patient sued, claiming that his injury was

caused by the use of property—a scalpel and other surgical instruments.58 The Court rejects that

argument: “[T]he negligence complained of”, it says, “was the surgeon’s decision to remove the

testicle, not his choice of property to accomplish that task.”59 So in the present case, the decision was

not whether to use sugar water; its use was prescribed by the IPHC surgical protocol. The decision

was whether to perform the IPHC procedure. That decision involved the use of a scalpel and sugar

water. In the Court’s view, M.D. Anderson’s immunity was waived by the second but not the first.

Under Kamel’s reasoning, immunity was waived by neither.

53

See supra note __.

54

333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

55

Id. at 679.

56

Id.

57

Id.

58

Id. at 680.

59

Ante at ___.

16

Similarly, in University of Texas Health Science Center at Tyler v. Smith, the court of

appeals rejected a claim that a bile leak following gallbladder surgery was caused by the use of the

electrocautery instrument used in the surgery.60 As in this case, there was no evidence or even a

claim that the use of the instrument was itself negligent.61 The court concluded that the plaintiff’s

injury was the result of the medical judgment to perform surgery, for which immunity was not

waived, and “use of the electrocautery instrument to remove the gallbladder did nothing more than

furnish the condition that made the bile leak possible.”62

The Court relies on University of Texas M.D. Anderson Cancer Center v. Jones.63 There, the

plaintiff volunteered to participate in a blind study to determine which of two drugs better helped

people quit smoking.64 The drug randomly chosen for the plaintiff was one she had taken before.65

She told the study’s candidate screener she had suffered an adverse reaction from the drug, but she

nevertheless was instructed to take the drug, and she suffered the same adverse reaction as before.66

The court of appeals held that the use of the drug waived immunity.67 Regardless of whether the case

was decided correctly, the present case is different. In Jones, M.D. Anderson knew that the plaintiff

60

No. 12-18-00270-CV, 2019 WL 1960251, at *3 (Tex. App.—Tyler Apr. 30, 2019, no pet. h.) (mem. op.).

61

Id.

62

Id.

63

485 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

64

Id. at 147.

65

Id.

66

See id.

67

Id.

17

had suffered an adverse reaction to a drug but prescribed it for her anyway, and she developed the

same reaction. The clinical study was about the drug itself. In the present case, M.D. Anderson knew

of the risk of hyponatremia from using sugar water, but also knew those risks could be managed and

that no one had ever died from its use in the procedure. The decision whether to perform the IPHC

procedure—a lengthy, very invasive surgery involving a complete cleansing of cancer from the

peritoneal cavity—was not about whether to use sugar water but rather about whether the procedure

could cure McKenzie-Thue of cancer.

The Court argues that its conclusion is unavoidable. To treat the claim here as complaining

of a medical judgment, the Court says, would nullify the waiver of immunity altogether. To

“separate the decision to use particular property from the subsequent physical manipulation of the

property”, the Court asserts, “would effectively write the use-of-property waiver out of the statute.”68

This is simply untrue. Had the sugar water been used in a negligent manner, no one argues that

immunity would not be waived. The reality is that no healthcare provider makes a medical judgment

to use property negligently in treating a patient. The medical judgment is to treat; negligence is a

misstep. One would hope that such missteps are indeed rare and that the statutory waiver need only

be narrow. By objecting to the dissent’s narrow waiver, the Court implicitly concedes that its waiver

is broad, and that directly conflicts with our cases. Even if the Court’s analysis were reasonable, it

is not required by any clear and unambiguous language of Section 101.021(2). The statutory text

does not require so broad a waiver of immunity in conflict with the rule that immunity is not waived

for medical judgments.

68

Ante at ___ (emphasis omitted).

18

The Court gets one thing exactly right: “[T]he dissent would hold that causing harm by

improperly administering the right property does not involve medical judgment and thus constitutes

negligent or wrongful use of property under the Act’s use waiver, while causing harm by properly

administering the wrong property does involve medical judgment and thus cannot be negligent use

under the Act.”69 That is true. And the reason is that using property in treatment improperly is a

negligent use for which the Act waives immunity, while choosing an improper treatment that

involves the use of property is not within the Act’s waiver.

I would hold that the McKenzies’ claim does not assert a use of property for which Section

101.021(2) waives immunity.

III

Section 101.021(2) waives immunity only for a negligent or wrongful use of property that

proximately causes injury.

In order for it to be said that an injury proximately resulted from an act of

negligence, the evidence must justify the conclusion that such injury was the natural

and probable result thereof. In order to justify such a conclusion, the evidence must

justify a finding that the party committing the negligent act ought to have foreseen

the consequences thereof in the light of the attendant circumstances.70

The McKenzies’ expert, Dr. Miller, clearly testified that McKenzie-Thue’s death was not

foreseeable. The Court explains that his statement must not be “divorced from its context.”71 Here

is the context, as set out by the Court:

69

Ante at ___.

70

Snellenberger v. Rodriguez, 760 S.W.2d 237, 238 (Tex. 1988) (quoting Carey v. Pure Distrib. Corp., 124

S.W.2d 847, 849 (Tex. 1939)).

71

Ante at ___.

19

Q: [Do] you believe that Courtney’s death at M.D. Anderson was

foreseeable to the doctors there?

A: Oh I don’t think [it was] foreseeable. I think that with her—the use

of that amount of sugar water, that it was a possibility; but I don’t think it was

predictable.

Q: They didn’t expect her to die?

A: No. Not—

Q: But it was definitely a risk?

A: It was a risk, yes, or severe neurological damage, permanent—

permanent damage.

Q: And according to [the expert witness designation], they were well

aware of that risk?

A: Yes.72

Read in context, Miller clearly, affirmatively testified that McKenzie-Thue’s death was merely a

possibility and was not predictable or foreseeable.

The Court states that “[f]oreseeability does not necessarily equate to predictability. Rather,

‘foreseeability’ means that the actor should have reasonably anticipated the dangers that his

negligent conduct created for others.”73 But by “dangers” the Court means risks, not injuries. Miller

testified that M.D. Anderson could not have reasonably anticipated McKenzie-Thue’s death, but it

knew very well the risks associated with injecting sugar water into McKenzie-Thue’s body. Indeed,

72

Ante at ___ (second and third alterations in original).

73

Ante at ___.

20

it took steps, which Miller testified were proper, to avoid the risks. Those steps were, for reasons

he could not explain, sadly ineffective.

So the Court reasons that if a healthcare provider knows the risks of treatment—as it always

should—and takes steps to minimize those risks—again, as it always should—but injury occurs, the

provider’s administration of the treatment proximately caused the injury. This is nothing less than

strict liability for any injury that occurs. The Court makes no bones about it:

It is . . . clear that, at a minimum, the general dangers associated with the use of the

D5W were known to Courtney’s doctors. This evidence is sufficient to raise a fact

issue on foreseeability.74

There are always risks to surgery. They may be so great that a procedure cannot be justified.

That was not true for McKenzie-Thue. Mansfield thought she was a good candidate for the IPHC

procedure. Miller testified that Mansfield’s treatment of her was completely within the standard of

care. He had successfully performed the procedure many times, several using Oxaliplatin and sugar

water. M.D. Anderson should have foreseen the risks, and it did. Miller is right: it could not have

foreseen her death.

The Court chides that the dissent “mischaracterizes not only our analysis, but the

fundamentals of tort law” because it “has overlooked the fact” that the issue here is immunity not

liability.75 What the Court does not acknowledge is that the standard for proximate cause is the same

in any context, whether determining immunity or liability. Of course, the Court offers, “we certainly

recognize that the actions taken by [M.D. Anderson] to address the risk inherent in using the D5W

74

Ante at ___.

75

Ante at ___.

21

are relevant to both negligence and causation” and “hold only that these actions do not conclusively

negate foreseeability”.76 That is precisely the point. The Court holds that if treatment involves risks

(as it almost always does), and a healthcare provider recognizes them and does everything within

the standard of care to avoid injury (as it certainly should and did here), yet injury still occurs (which

had never happened before and was therefore highly improbable), and the unchallenged evidence

from the plaintiffs’ own expert is that the injury was not foreseeable (as Dr. Miller testified), then

that evidence is sufficient for liability. I disagree. As far-reaching as today’s decision on immunity

will be, the Court’s proximate cause analysis will affect, in its words, “the fundamentals of tort law.”

* * * * *

I would reverse and render. Today’s decision greatly expands the Tort Claims Act’s waiver

of immunity, contrary to our caselaw. And it fundamentally alters the concept of proximate

causation. I respectfully dissent.

Nathan L. Hecht

Chief Justice

Opinion delivered: June 28, 2019

76

Ante at ___.

22