holding that because plaintiffs did not object to trial court or request opportunity to amend their petition in wake of governmental entities’ summary judgment, they waived any complaint
How later courts described this case
- holding that because plaintiffs did not object to trial court or request opportunity to amend their petition in wake of governmental entities’ summary judgment, they waived any complaint
- stating defendant should have pursued sovereign immunity attack by special exception rather than by motion for summary judgment, but because the plaintiffs did not present an objection to trial court or request opportunity to amend petition in wake of summary judgment, they waived complaint
- holding that failure to provide medication claim did not allege an injury arising from the “use” of the medication, but stated a claim for non-use of property that did not trigger waiver of sovereign immunity
- holding that employees of state hospital did not have official immunity for their alleged negligence in treating and releasing patient because they exercised medical discretion under Kassen
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Franka v. Velasquez
38-39 (10th Cir.1977); Henderson v. Bluemink, 511 F.2d 399, 402-03 (D.C.Cir.1974); Ex parte Cranman, 792 So.2d 392, 403-06 (Ala.2000); Jinkins v. Lee, 209 Ill.2d 320, 282 Ill.Dec. 787, 807 N.E.2d 411, 420-21 (2004); Gould v. O’Bannon, 770 S.W.2d 220, 221-22 (Ky.1989); Kelley v. Rossi, 395 Mass. 659, 481 N.E.2d 1340, 1344 n.6 (1985); Terwilliger v. Hennepin Cnty., 561 N.W.2d 909, 913-14 (Minn.1997); Kassen v. Hatley,…
Distinguished
Distinguished by Texas a & M University v. Bishop, Paul A. (2003)
Because I believe Kassen is inapplicable to the facts of this
The opinion
PHILLIPS, Chief Justice,
concurs and dissents.
I join in parts I, II, and III of the Court’s opinion. Because Dr. Kalra and Nurse Kas-sen did not establish that they exercised *15 governmental discretion in their treatment of Pennie Johnson, I agree that the claims against them should be remanded for further proceedings. I do not join, however, in part IV of the Court’s opinion. I believe that respondents alleged an injury arising from use of tangible personal property by Parkland Hospital and Southwestern Medical Center. I would therefore also remand the claims against those defendants for further proceedings.
I agree with the Court that plaintiffs have not stated a claim of misuse of tangible personal property under the Tort Claims Act regarding either Pennie Johnson’s medical records, the difficult patient file or the emergency room procedures manual. See University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175 (Tex.1994). I conclude, however, that plaintiffs’ allegations relating to Johnson’s medication do state such a claim.
There can be little doubt that prescription drugs are tangible personal property. Although not statutorily defined, “tangible personal property refers to something that has a corporeal, concrete, and palpable existence.” York, 871 S.W.2d at 178 . Unlike medical records, which are useful because they memorialize intangible information, the utility of a prescription drug is in the physical properties of the drug itself.
I further conclude that plaintiffs adequately pled a use of Johnson’s medication, causing injury, by their allegation that Parkland’s and Southwestern’s agents negligently allowed Johnson to leave the hospital without returning her previously confiscated medication. I agree with the Court that a “non-use” of property is insufficient to state a claim under the Tort Claims Act, and that the failure to prescribe or administer a particular drug would not support a waiver of sovereign immunity. This case, however, does not involve the mere failure to provide necessary medicine. Rather it concerns the actual confiscation of medicine, prescribed elsewhere, which Johnson already had in her possession. This states a claim of misuse, not merely nonuse, of the pills. If defendants had really “not used” the medication, it would have remained in Johnson’s possession, not theirs.
Accordingly, I join in the Court’s judgment affirming the judgment of the court of appeals as to Kalra and Kassen. Because I would also affirm the judgment of the court of appeals as to Parkland Hospital and Southwestern Medical Center, I dissent from the remainder of the Court’s judgment.