University of Texas Medical Branch v. York

GAMMAGE, Justice,

joined by DOGGETT and SPECTOR, Justices, dissenting.

I respectfully dissent. The majority engages in pure legal fiction to rewrite section 101.021 of the Tort Claims Act to reach the result it desires. En route, the majority fails to recognize or distorts the application of our decisions in Texas Department of MHMR v. Petty, 848 S.W.2d 680 (Tex.1992); 1 Robinson *180 v. Central Texas MHMR, 780 S.W.2d 169 (Tex.1989); and Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976). More significantly, the majority fails to distinguish Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.1983), in any meaningful way. It would be far more honest for the majority to state openly that it is overruling Salcedo — not because that decision’s statutory construction and analysis were wrong, or because the legislature failed to acquiesce in it, but because the majority dislikes the result.

Let us start with statutory construction. The statute refers to “a condition or use of tangible personal or real property.” 2 The paper comprising York’s file is tangible — you can hold it in your hand. The statute’s language is clear and unequivocal. It requires no extensive reasoning to analyze it or construe it. Legislation has not changed it, particularly not after this court’s decisions in Lowe (approximately 18 years ago); Salcedo (11 years); Robinson (5 years); or even Petty (2 years). 3

The majority engages in the use of legal fiction to construe the language of the statute away — to say that it does not say something it does say — to modify its clear and unambiguous terms. The majority modifies it to say that a file and its contents cannot be held in your hand. The majority works this smoke- and-mirrors sleight-of-hand by rationalizing that it is not the physical file that counts, but the “mental” informational content, which it concludes is not “tangible.” To say that the utility of that file is not the substantive object of the statute is absurd. One might as well say the proper utility of a wrench, vehicle, or other machine or material item is not the real object of the statute. The worker who makes the “mental error” of loosening the wrong bolt with his wrench, causing an accident, makes no more or less use of the tangible property than the physicians and health care professionals did here. It is the proper use, or misuse, of items that is addressed in specific terms in the statute, and no amount of legal sophistry or disingenuous intellectual gymnastics can change that.

Further, at least with respect to Salcedo , a majority of those comprising the present majority have admitted there is no meaningful distinction. In the unanimous Salcedo opinion we held that misreading and misinterpreting an electrocardiogram was actionable under the Tort Claims Act as “use (misuse) of’ tangible property. Salcedo, 659 S.W.2d at 33 . It makes no sense to distinguish between diagnostic information recorded by a machine and that recorded by a human being, as the Petty plurality opinion explained at length. 4 In Petty , the dissenting opinion (joined by four of the members comprising the current majority) states: “I agree that there is no principled distinction between Ms. Petty’s treatment records and the *181 graph in Salcedo , but as in the case of all medical records, the purpose of an electrocardiogram graph is to convey information to a physician, who then uses professional judgment to make treatment decisions.” Petty, 848 S.W.2d at 688 (Cornyn, J., dissenting). The dissent in Petty exhibited more honesty by calling for Salcedo to be overruled than does the current majority 5 , which would do better to admit it overrules Salcedo despite legislative ratification of the Salcedo construction of the statute. 6

Even without Petty and Salcedo , this should be an easy case based on this court’s writings in Robinson and Lowe , especially in light of related cases. The Yorks allege the responsible hospital personnel failed to record physical information on the son’s chart which would have indicated he had broken his hip, presumably during therapy, on or about August 14, and then failed to respond appropriately to information which was on the chart. On August 17 a physical therapist made an entry on the son’s medical chart recommending that the physician order an X-ray of the hip. The physician failed to order the X-ray until August 21, and it was not taken until August 22. The Yorks introduced expert medical testimony that it was not good medical practice to delay five days before taking the recommended X-ray under the circumstances reflected in the chart. The question submitted to the jury limited the consideration of “condition or use” of tangible property to a “wheelchair” and the “keeping of files, records or other documentation.” The jury found the latter was the proximate cause of injuries to the son. In short, the Yorks alleged and the jury found the hospital negligent in the “condition or use” of the tangible property of the patient records and files because the hospital provided some, but not all, of the records necessary to prevent injury.

Under our holdings in Robinson and Lowe , this was sufficient to waive governmental immunity under the Tort Claims Act. In Lowe , a college football player was injured when he removed his knee brace at the coach’s order. This court stated that the failure to furnish proper protective items as part of the uniform was a “condition or use” waiving immunity under the Act. Lowe, 540 S.W.2d at 300 (emphasis added). In Robinson , the MHMR unit knew the patient suffered epileptic seizures that occasionally caused him to lose consciousness. The unit further supplied swimming attire to its patient. Life preservers were available, and in fact one was supplied to another, but not to the epileptic. We held that the failure to furnish all proper swimming attire necessary for his safety was a “condition or use” of the tangible property involved, waiving immunity under the Tort Claims Act. Robinson, 780 S.W.2d at 171 .

Moreover, the Robinson and Lowe holdings, that the negligent failure to furnish some item of property necessary to make safe the tangible property actually supplied invokes the “condition or use” waiver of the Tort Claims Act, are neither unique nor new. If the state furnishes something tangible, it is not excused from furnishing other complementary property to make it safe. See, e.g., Trinity River Authority v. Williams, 689 S.W.2d 883 (Tex.1985) (failure to provide warning signs or barrier across reservoir); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App. — Tyler 1974), writ ref'd n.r.e. per curiam, 518 S.W.2d 528 (Tex.1975) (failure to provide bed rails); Mokry v. University of Texas Health Science Ctr., 529 5.W.2d 802 (Tex.Civ.App. — Dallas 1975, writ ref'd n.r.e.) (failure to provide proper laboratory equipment).

The majority’s dismissal of this body of authority as “non-use” is nothing but adoption of the views of dissenting opinions spe *182 cifically rejected by our prior decisions, in which the legislature has acquiesced. I have no trouble agreeing that a pure “non-use” of property would not give rise to waiver under the Tort Claims Act. But the majority takes a microcosmic view of what is the “tangible property” to conclude there is “non-use.” The majority ignores the tangible property actually used or supplied to rationalize ignoring the duty to furnish complementary items of property necessary to make it safe.

In Lowe it was not a “non-use” of the knee brace or other protective items that prompted this court’s holding. It was the failure to furnish the protective items as complementary to or part of the uniform that was furnished. In Robinson the life preserver not furnished was not the “tangible” property, 7 but the broader swimming attire, for which the complementary life preserver was necessary to make the tangible property safe under the circumstances. In Trinity River Authority , it was not warning signs or barrier cable that the authority failed to furnish that were “non-used,” but the reservoir of the dam known to be used for swimming which was subject to dangerous back-tow when the floodgates opened, that was the relevant tangible property. In Overton Hospital it was not the “non-use” of the bed rails that preserved the state’s governmental immunity, but rather the failure to provide bed rails as a necessary safety feature of the bed provided, that was the negligent “condition or use” waiving immunity. Likewise, in Mokry, the “non-use” of laboratory equipment necessary for the proper diagnosis and treatment did not protect the health center through governmental immunity. It was a negligent “condition or use” of the laboratory equipment provided that failed to furnish what was necessary for the patient’s diagnosis and treatment that waived immunity.

After years, even decades, of legislative acquiescence in this interpretation that a condition or use of the tangible property in issue includes a failure to furnish complementary items necessary to make it safe, the majority now obliterates that established sensible construction of the statutory language. The majority declares that henceforth we look to the complementary property that was not furnished, conclude it was “non-used,” disregard the tangible property that was used, and excuse the government from its negligence. The majority adopts the approach specifically rejected by this court before, and declares that meaning to which the legislature has never even implicitly agreed as sound. This court will henceforth inflict injustice on the citizens of our state meant to be protected by the Tort Claims Act, without regard to the established purpose and meaning of section 101.021. For these reasons, I dissent.

. The majority, while conceding Petty has at least "limited precedential value," simply dismisses the decision as though it decided the one case only and has precedential value only in identical cases. Under the "classical theory of precedent," the majority view is correct. Linda No-vak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756, 756 n. 1 (1987). Under contemporary theories of precedent, however, the specific result of Petty is also required any time substantially the same material facts are presented. Id. at 760-61, 769 . I make these remarks not to overstate the value of the Petty decision, but to correct the majority’s disregard of it.

. Tex.Civ.Prac. & Rem.Code Ann. § 101.021(2) (1986).

. Each decision after Lowe specifically noted legislative acquiescence in the prior constructions of the terms in question. See Petty, 848 S.W.2d at 683-84 ; Robinson, 780 S.W.2d at 171 ; Salcedo, 659 S.W.2d at 32 .

. As our Petty lead opinion states:

Just as the electrocardiogram was useful as a diagnostic tool because of the information it contained, so are Ms. Petty's records. Just as this court recognized that the purpose of the graph in Salcedo was to develop a diagnosis following reading and interpretation, so were Ms. Petty’s records made for use by Department personnel as a diagnostic tool and prognostic device to treat her.

The distinctions the Department suggests we draw between the facts before us and those in Salcedo involve no substantive difference. The first would condition liability on whether the records were generated by a machine or documented by humans. In the latter situation, the Department contends, the intervening exercise of human judgment in determining what observations to record is distinguishable from the same observations mechanically made. Many records used in diagnosing illnesses, both physical and mental, could be generated by either means. Ms. Petty's behavior could have been preserved by videotape or other recording devices rather than by human notes. A temperature could be recorded by machine or be handwritten by a nurse. In Salcedo , we stressed not the method of generating information, but the purpose for which it was intended. There, the electrocardiogram was created for the purpose of being used to make a diagnosis. Here Ms. Petty’s records, ranging from observations to standardized tests and test results, were generated for the very purpose of making a diagnosis and recommending a course of treatment.

*181 Petty, 848 S.W.2d at 683 (footnotes omitted).

. The Petty dissenting opinion offers the following rationalization, suggesting overruling Salce-do:

In Salcedo I believe we incorrectly blurred any distinction between tangible property that is itself the instrument of harm and property such as writings or records, which are part of

a setting in which harm occurs and which merely memorialize information and ideas. We also erroneously eliminated the use of tangible property from the analysis of proximate cause, and by so doing left the state open to suit for virtually any activity.

Petty, 848 S.W.2d at 688 (footnotes omitted).

. See Petty, 848 S.W.2d at 683-84 .

. This is, however, what the Robinson dissenting opinion argued, admitting "I confess that not all the consequences of construing ‘use’ to exclude 'non-use' seem entirely sensible. For example, had the state mental health center in this case negligently supplied Robinson's grandson with a defective life preserver, resulting in his death, its liability would be beyond question.” Robinson, 780 S.W.2d at 175 (Hecht, J., dissenting). The dissent thus admitted its "non-use” construction led to inconsistent and apparently unjust results, which it blamed on the legislature and not its proposed construction. Cf. Tex.Gov’t.Code § 312.006(a) (1986) (Civil statutes “shall be liberally construed to achieve their purpose and to promote justice.”).