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Superseded by statute, as recognized in Franka v. Velasquez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
GAMMAGE, Justice,
concurs and dissents, joined by DOGGETT, Justice.
I concur in the judgment of the court to the extent it remands to the trial court the cause involving the doctor and nurse. I concur with the majority opinion that official immunity was not established as a matter of law, though I disagree with the standard the court adopts. In my view, if non-governmental discretion is involved in the decision at all, the employee should not be able to claim official immunity.
I further agree that the special suicide defense is not established as a matter of law, Tex.Civ.PRAC. & Rem.Code § 93.001(a)(1), (2), and with the conclusion that other special defenses were not raised or established as a matter of law.
I join in Chief Justice Phillips’ conclusion in his concurring and dissenting opinion that confiscation of medication is a use of tangible property. I am incredulous that the majority call it a “non-use” of tangible physical property to confiscate medication prescribed by other physicians from the owner for whom it was prescribed, and then knowingly and consciously withhold it from her. As the majority even admits, there was expert medical testimony that it was negligent to discharge Johnson from the hospital without her medication, and such action could have proximately caused her death.
Although “use” of the medication is all we really must address to conclude the Tort Claims Act applies in this case, I believe the dissenting portion of Chief Justice Phillips’ opinion falls short in two instances. First, although I understand we are now bound by York and what I view as its erroneous holding, I still believe the use of Johnson’s medical records and difficult patient file do state a *16 claim for misuse of tangible personal property. University of Texas Medical Branch v. York, 871 S.W.2d 175, 180-81 (Tex.1994) (Gammage, J., dissenting). Second, by properly distinguishing York , I would hold that a “non-use” of property is not in all instances insufficient to state a claim under the Tort Claims Act. As I have explained before, the non-use of some item of property necessary to make safe the use of property supplied has properly been held actionable. Id. at 181-82 . Today’s opinion makes reconciling our prior decisions all the more difficult, if not impossible. Because I cannot join in the holding that the Tort Claims Act does not reach these facts, I respectfully dissent.