Summary
In McKenzie, the plaintiffs sued M.D. Anderson Cancer Center after their daughter died from complications linked to the use of a certain chemotherapy carrier during her treatment for cancer at the hospital.
Summary of this case from Univ. of Tex. at Austin v. MosesOpinion
No. 17-0730
06-28-2019
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
John C. Sullivan, Brantley David Starr, Jeffrey C. Mateer, Kara Lynne Kennedy, Kevin Desiderio Molina, Kyle D. Hawkins, W. Kenneth Paxton Jr., Office of the Attorney General, James Edward Davis, The University of Texas at Austin, Scott Keller, Baker Botts LLP, Austin, for Petitioner. Kirk L. Pittard, Dana Brooke Levy, Durham, Pittard & Spalding, L.L.P., Dallas, Allan R. Brain, Susan Leigh Vanostrand Fuller, Brain & Fuller, Attorneys at Law, Peter Michael Kelly, First Court of Appeals, Houston, for Respondents.
John C. Sullivan, Brantley David Starr, Jeffrey C. Mateer, Kara Lynne Kennedy, Kevin Desiderio Molina, Kyle D. Hawkins, W. Kenneth Paxton Jr., Office of the Attorney General, James Edward Davis, The University of Texas at Austin, Scott Keller, Baker Botts LLP, Austin, for Petitioner.
Kirk L. Pittard, Dana Brooke Levy, Durham, Pittard & Spalding, L.L.P., Dallas, Allan R. Brain, Susan Leigh Vanostrand Fuller, Brain & Fuller, Attorneys at Law, Peter Michael Kelly, First Court of Appeals, Houston, for Respondents.
Justice Lehrmann delivered the opinion of the Court, in which Justice Guzman, Justice Boyd, Justice Devine, and Justice Blacklock joined.
Debra H. Lehrmann, Justice
The Texas Tort Claims Act waives governmental immunity for personal injury and death proximately caused by a condition or use of tangible personal property. In this case, before us on the defendant hospital's plea to the jurisdiction, we are asked whether the hospital's use of an allegedly improper carrier agent during surgery constitutes negligent "use" of tangible personal property and, if so, whether sufficient evidence was presented that this use proximately caused the patient's death. The trial court found that the plaintiffs sufficiently demonstrated both use and proximate cause and accordingly denied the plea. The court of appeals agreed, affirmed the trial court's order, and remanded the case to the trial court for further proceedings.
In this Court the hospital argues that because the carrier agent was administered properly during surgery, the plaintiffs complain only of negligent medical judgment for which immunity is not waived. However, when, as here, the claim is premised on the hospital's use of property that was improper under the circumstances and caused harm, this is sufficient to establish negligent "use" under the Act, regardless of the manner in which the property was administered. We therefore affirm the court of appeals' judgment.
I. Background
In 2011, Courtney McKenzie-Thue, then thirty-three years old, began treatment at M.D. Anderson Cancer Center (the "Hospital") for a rare cancer of the appendix. As part of this treatment, Courtney agreed to undergo a two-part procedure called a HIPEC (short for hyperthermic intraperitoneal chemotherapy ). The Hospital performed the procedure pursuant to a clinical trial protocol designed by Wake Forest Medical School (the Wake Forest protocol). The purpose of the protocol was to test the efficacy of two chemotherapy drugs: oxaliplatin and mitomycin C.
The procedure is also referenced in various parts of the record and the parties' briefing as intraperitoneal hyperthermic chemotherapy, or IPHC, as well as hyperthermic intraperitoneal chemoperfusion and intraperitoneal hyperthermic chemoperfusion. The names appear to be interchangeable.
The first part of the HIPEC procedure involves the surgical removal of all visible cancer from the patient's peritoneal cavity. The second part of the procedure involves flushing out, or perfusing, the patient with a chemotherapy drug mixed with another fluid. This second fluid serves as a carrier agent, helping to disperse the chemotherapy drug throughout the patient's peritoneal cavity. When the perfusion is complete, the patient is washed out with the carrier agent alone to remove any trace of the chemotherapy drug.
The peritoneal cavity is the space within a person's abdomen that contains the intestines, stomach, and liver. Peritoneal Cavity , National Cancer Institute Dictionary of Cancer Terms, https://www.cancer.gov/publications/dictionaries/cancer-terms/def/peritoneal-cavity.
Courtney was randomly selected to receive the chemotherapy drug oxaliplatin. Pursuant to the Wake Forest protocol, the Hospital used a sugar water solution, called D5W, as the carrier agent. Dr. Paul Mansfield, an M.D. Anderson surgical oncologist, oversaw the procedure.
The Hospital hired a medical technician called a perfusionist to operate the pump during the second part of Courtney's procedure. However, the perfusionist worked under Dr. Mansfield's direction.
As the Hospital acknowledges, D5W can cause hyponatremia, a condition that occurs when the body's blood sodium level becomes too low. This drop in sodium levels causes the body's water level to rise, which leads to swelling of the cells. To counteract this electrolyte imbalance, the Hospital administered an insulin and saline IV drip during surgery. Despite these efforts, Courtney developed hyponatremia following completion of the procedure. As a result, she experienced swelling in her brain, which in turn caused brain herniation. Courtney died from these injuries two days after her surgery.
After Courtney's death, her family sued the Hospital for negligence. Specifically, the McKenzies alleged that the Hospital was negligent in
The plaintiffs include Courtney's father, Lance McKenzie, and her mother Deborah Diver, individually and on behalf of Courtney's minor son.
The McKenzies also sued Wake Forest and the two physicians responsible for publishing the Wake Forest protocol. The claims against these defendants are not at issue here.
misusing a fluid, tangible physical property, for chemotherapy under circumstances where it was reasonably obvious that it was not the appropriate fluid and posed a significant risk of serious harm to the patient, including the exact condition from which Courtney died.
The McKenzies further alleged that the "conduct of MD Anderson's employees that proximately caused Courtney's death was misuse of tangible personal property ... for which the State of Texas has waived sovereign immunity."
To support these claims, the McKenzies timely filed an expert report prepared by Dr. David Miller, a board-certified internal medicine specialist. See TEX. CIV. PRAC. & REM. CODE § 74.351 (requiring a health care liability claimant to serve an expert report on each defendant no later than 120 days after the date the defendant's original answer is filed). Dr. Miller opined that Courtney's death was caused, in reasonable medical probability, by the "misuse of fluid that was perfused into [her] body." He explained:
Use of a large dose of D5W in perfusion of a patient in any condition exposes the patient to the danger of hyponatremia and death because this creates a situation where the patient's body is subjected to an imbalance of sodium in relation to blood, resulting in low sodium and too much water in the bloodstream, diluting the sodium in the bloodstream, causing edema that is critical in the area of the brain and causes death as what happened in this case.
He further opined:
[I]t is clear and in reasonable medical probability, that this patient would not have died from brain herniation secondary to hyponatremia secondary to intra-operative complications as explained above had she not been perfused with the wrong substance that led to hyponatremia and brain herniation .... [T]he perfusion of a large volume of D5W solution into a patient's abdominal cavity, regardless of other circumstances and regardless of the reason for the perfusion, exposes the patient to a risk of developing hyponatremia and death from brain herniation.
The Hospital filed a plea to the jurisdiction, asserting that the Hospital is immune from suit. It argued that the McKenzies failed to show waiver of immunity under the Tort Claims Act because (1) the D5W was used by an independent contractor (the perfusionist), not the Hospital, and (2) Courtney's death was not foreseeable under the circumstances, so the McKenzies could not show proximate cause. In support of its plea, the Hospital attached the protocol documents promulgated by Wake Forest, as well as the deposition testimony of Dr. Miller and Dr. Mansfield.
The depositions of Dr. Crawford, the perfusionist, and Dr. Fournier, an M.D. Anderson surgical oncologist, were also attached to the plea. However, the Hospital does not rely on that testimony to support the issues presented in this Court.
Following a hearing, the trial court denied the Hospital's plea to the jurisdiction. The Hospital then timely filed an interlocutory appeal. See id. § 51.014(a)(8) (authorizing an interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a governmental unit). At the court of appeals, the Hospital again argued that the D5W was used only by the third-party perfusionist and not by Hospital employees. However, the Hospital alternatively argued that the McKenzies' claims are not for negligent use of property (for which immunity would be waived), but rather are premised on errors in medical judgment disguised as use of tangible personal property. The court of appeals affirmed, holding that the "crux of [the McKenzies'] allegations against [the Hospital] involves more than complaints about medical judgment" and that the McKenzies "alleged, and presented some evidence, that [the Hospital] used D5W when it should not have been used." 529 S.W.3d 177, 187 (Tex. App.—Houston [14th Dist.] 2017). Regarding proximate cause, the court of appeals held that the record "contains evidence that D5W caused [Courtney's] hyponatremia, which in turn caused her death." Id. at 188. Specifically, the court of appeals cited Dr. Mansfield's testimony that he knew D5W could cause a patient's blood sodium level to decrease, and that he expected such a drop to occur. Id. The court thus concluded that a genuine issue of material fact exists as to whether the use of the D5W proximately caused Courtney's death. Id.
The court of appeals also held that the Hospital, not the third-party perfusionist, used the D5W because (1) the Hospital provided the D5W to the perfusionist, (2) Dr. Mansfield used the D5W during the final washout portion of the procedure, and (3) the Hospital "used" the D5W when it manipulated Courtney's body to better distribute the drug throughout her peritoneal cavity. 529 S.W.3d at 185–86. The Hospital does not challenge this holding here.
In this Court, the Hospital argues its immunity was not waived because (1) the McKenzies failed to show that the Hospital negligently "used" tangible personal property and (2) Courtney's death as a result of the D5W's use was unforeseeable. We will address each issue in turn.
II. Standard of Review
"Governmental immunity generally protects municipalities and other state subdivisions from suit unless the immunity has been waived by the constitution or state law." City of Watauga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014). A claim of immunity is properly raised by a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). The purpose of a plea to the jurisdiction is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). We review an appellate court's ruling on a plea to the jurisdiction de novo. Miranda , 133 S.W.3d at 226.
The Tort Claims Act waives the state's immunity for certain negligent acts by governmental employees. See TEX. CIV. PRAC. & REM. CODE § 101.021. A party suing the governmental unit bears the burden of affirmatively showing waiver of immunity. See Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). To determine whether the party has met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted by the parties. Tex. Nat. Res. & Conservation Comm'n v. White , 46 S.W.3d 864, 868 (Tex. 2001). In doing so, we "construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent." Heckman v. Williamson County , 369 S.W.3d 137, 150 (Tex. 2012). "If the evidence raises a fact question on jurisdiction," we cannot grant the plea, "and the issue must be resolved by the trier of fact." Univ. of Tex. at Austin v. Hayes , 327 S.W.3d 113, 116 (Tex. 2010). However, "if the evidence is undisputed or fails to raise a fact question, the plea must be granted." Id.
The parties do not dispute that the Hospital is a governmental unit.
III. Analysis
A. Use of Tangible Personal Property
The Tort Claims Act waives immunity 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.
TEX. CIV. PRAC. & REM. CODE § 101.021. Construing section 101.021's substantively similar predecessor statute, we have explained that waiver of immunity under subsection (2) requires negligence or a wrongful act or omission of an officer or employee acting within the scope of his employment, where the negligent conduct "involve[s] ‘some condition or some use’ of tangible personal property under circumstances where there would be private liability." Salcedo v. El Paso Hosp. Dist. , 659 S.W.2d 30, 33 (Tex. 1983).
Generally speaking, then, immunity may be waived when an employee (1) furnishes property in a defective or inadequate condition causing injury or (2) improperly uses otherwise non-defective property to cause injury. See id. at 32. To "use" property in this context means "to put or bring [the property] into action or service; to employ for or apply to a given purpose." San Antonio State Hosp. v. Cowan , 128 S.W.3d 244, 246 (Tex. 2004). A claim of "mere non-use" is insufficient to waive immunity; actual use is required. See Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584 (Tex. 1996). Here, the Hospital does not dispute that it actually used tangible personal property. Rather, the issue presented in this case is whether actual use of non-defective property is sufficient to establish waiver where the complaint is not that the property was administered incorrectly, but that it should not have been used in the first place.
In determining whether a plaintiff has stated a claim for use of tangible personal property, we look to the true nature of the dispute—a plaintiff may not expand the Act's limited waiver through artful pleading. See Dallas Cty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998) (holding that the "real substance of plaintiffs' complaint [was] that [the patient's] death was caused, not by the condition or use of property, but by the failure of [the hospital's] staff to restrain him" and thus was a claim of non-use for which immunity was not waived); see also Kerrville , 923 S.W.2d at 585–86 (holding that the claim involved non-use because the "gravamen" of the plaintiff's complaint was that "a different form of treatment ... would have been more effective," not that the property that was actually used caused any harm).
In the instant case, the McKenzies claim that the Hospital's actual use of tangible personal property caused harm. However, the Hospital argues that the gravamen of the McKenzies' complaint is that the Hospital negligently exercised its medical judgment , not that it negligently used property. That is, because the McKenzies do not complain about the manner in which the Hospital administered the D5W—but instead allege that the decision to use the D5W in the first place was improper—this is a claim regarding medical judgment, and the Tort Claims Act does not waive immunity for such claims. The dissent similarly opines that "[b]ecause the McKenzies' negligence claim centers on [the Hospital's] decision to use D5W ... [and] not the manner in which [the Hospital] administered the D5W," the alleged error is one of medical judgment for which immunity is not waived. Post at 527–28.
However, neither the dissent nor the Hospital offers an explanation grounded in the Tort Claims Act's language to support this assertion. The Act does not narrow the definition of use to encompass only the manner of administration, nor does it limit the scope of the waiver to "use" that is not preceded by medical judgment. See Cowan , 128 S.W.3d at 246 (explaining that the ordinary meaning of "use" is "to put or bring into action or service; to employ for or apply to a given purpose"). The suggestion that "use" of property transforms into medical judgment so long as the property is administered correctly simply is not supported either by the statute's plain language or, as discussed below, by our precedent.
As such, we disagree with the Hospital's characterization of the McKenzies' claims as being unrelated to its use of property. While the McKenzies do not allege the D5W was administered incorrectly during surgery, they do allege that the Hospital was negligent in using the D5W in the first instance "under circumstances where it was reasonably obvious that it was not the appropriate fluid and posed a significant risk of serious harm." In other words, the McKenzies complain about the Hospital's use of property under circumstances where it (1) should not have been used at all and (2) caused harm. This is as much a claim for negligent use of property as a claim that the D5W was improperly administered would have been. That the subsequent administration followed protocol does not somehow negate any negligence in using the property in the first place.
While we have never addressed the issue directly, we have indicated that the use of medication that is improper under the circumstances and causes harm constitutes negligent "use" under the Tort Claims Act. See Kerrville State Hosp. , 923 S.W.2d at 584. Although Kerrville involved the distinction between use and non-use of property, we nevertheless find it instructive. In that case, we were asked to determine whether immunity was waived for a claim involving the hospital's dispensing an oral, rather than injectable, form of medication to a patient. Id. In holding that immunity was not waived, we focused on the fact that the plaintiffs had neither alleged nor presented evidence that the oral form of medication provided caused any harm. Id. at 585. We concluded that "the gravamen of their complaint [was] that [the hospital's] non-use of an injectionable drug was the cause of" the harm. Id. 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. See id.
The dissent (as it must) ignores this critical piece of our reasoning in Kerrville in erroneously asserting that it is "irreconcilable" with today's holding. Post at 527.
By contrast, here the McKenzies allege and have presented evidence that the Hospital used property (the D5W) that should not have been used and that the D5W is what harmed Courtney. Under our reasoning in Kerrville , this is sufficient to waive immunity. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones , 485 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that immunity was waived for a claim that the hospital negligently prescribed and dispensed a drug that should not have been provided to the patient due to her history with depression); see also Wise Reg'l Health Sys. v. Brittain , 268 S.W.3d 799, 805–07 (Tex. App.—Fort Worth 2008, no pet.) (holding that immunity was waived for a patient's claims that nurses administered medication when they should not have done so).
The Hospital relies extensively on Kamel v. University of Texas Health Science Center at Houston for the proposition that this case concerns only a medical decision that is insulated from suit. 333 S.W.3d 676, 679 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). In Kamel , a patient underwent surgery to remove an accumulation of fluid around his testicle. Id. However, during the surgery, the doctor decided to remove the testicle altogether because he believed it was cancerous. Id. Tests later revealed that the doctor was wrong; the testicle was not cancerous. Id. The patient sued and alleged that immunity was waived because the doctor "negligently used tangible personal property, namely a scalpel, scissors, and/or other surgical instruments to negligently ... remov[e] plaintiff's right testicle." Id. at 680. The court of appeals held that the true nature of the patient's claim was not that the surgical instruments were defective or used improperly, but that the doctor made an erroneous medical judgment in removing the testicle. Id. at 686. Importantly, the injury would have occurred regardless of the method used—i.e., whether the surgeon used "a scalpel, scissors ... or other surgical instrument" to remove the testicle. Id. at 680, 686. Accordingly, the patient's claims did not fall within section 101.021(2)'s limited waiver. Id. at 686.
While we agree that a complaint about medical judgment, without more, is insufficient to waive immunity, the negligence alleged here does not involve only medical judgment. In this regard Kamel is distinguishable. There, the negligence complained of was the surgeon's decision to remove the testicle, not his choice of property to accomplish that task. Indeed, as stated above, the injury—removal of the non-cancerous testicle—would have occurred regardless of the method or instrument used to carry out that decision. That is, the fact that some form of tangible personal property had to be used to effectuate the improper medical decision is simply not relevant; it was the decision itself, regardless of whether property was used or whether it was administered properly, that caused the injury. See id. ; see also Univ. of Tex. Health Sci. Ctr. at Tyler v. Smith , No. 12-18-00270-CV, 2019 WL 1960251, at *4 (Tex. App.—Tyler Apr. 30, 2019, no pet.) (mem. op.) (finding no waiver where the patient's complaint was not that the surgical instrument was used incorrectly, but that removal of her gallbladder was unnecessary).
By contrast, the negligence complained of in this case is that the Hospital's use of a specific carrier agent was improper under the circumstances and caused harm; absent the use of that particular carrier agent, the injury would not have occurred. See Hopkins v. Spring Indep. Sch. Dist. , 706 S.W.2d 325, 327 (Tex. App.—Houston [14th Dist.] 1986) (noting that waiver has been found "when the injuries are alleged to have proximately resulted from the negligent use of property in some respect deficient or inappropriate for the purpose for which it was used"), aff'd , 736 S.W.2d 617 (Tex. 1987). In other words, it was the use itself that caused the injury, and the fact that the property was administered properly or that the use of the D5W was preceded by medical judgment does not affect the analysis.
This distinction is further illustrated in University of Texas M.D. Anderson Cancer Center v. Jones , 485 S.W.3d at 147–49. In that case, a patient participated in a hospital's smoking cessation study designed to test the efficacy of two medications, Chantix and Zyban, to help people quit smoking. Id. at 147. Both medications carried possible side effects, including depression and suicidal ideation. Id. Before participating in the study, the patient disclosed that she had previously struggled with depression. Id. The hospital nonetheless accepted the patient into the study and instructed her to take the drug Chantix. Id. After a few weeks of taking the drug as directed, the patient attempted suicide and suffered permanent nerve and renal damage as a result. Id.
The patient filed suit against the hospital and alleged that her injuries were caused by the hospital's "negligently screening her, admitting her into the study, and prescribing and dispensing Chantix when it knew or should have known that she should not be given the drug due to her history of depression." Id. at 148. In response, the hospital claimed the patient failed to establish waiver under section 101.021(2) because the true nature of her allegations was that the hospital negligently exercised its medical judgment when it allowed her to participate in the study. Id. at 148–49. The court of appeals disagreed, holding that although the patient "include[d] allegations of negligent medical judgment ... in her pleadings, she also allege[d] that the consequence of those errors was the negligent prescribing and dispensing of a drug that caused her injuries." Id. In other words, the Jones patient did not merely challenge the hospital's judgment in screening her; she challenged the hospital's dispensing of medication that allegedly should not have been provided to her at all and caused her injury. See id.
Similarly here, the McKenzies allege that the Hospital should never have used the D5W as a carrier agent given the large doses required for the HIPEC procedure. The fact that the use of the agent was preceded by a medical professional's decision to do so is of no consequence given that virtually every action (or inaction) taken by a medical professional is preceded by medical judgment. The key is that while medical judgment was involved, it led to the use of property that was allegedly improper under the circumstances and caused harm. This is sufficient to establish waiver under the Tort Claims Act, as any other reading would effectively write the use-of-property waiver out of the statute.
The Hospital further insists that because the McKenzies do not complain about how the D5W was administered—only that is was used at all—this is a case of "mere involvement" of tangible personal property that is insufficient to waive immunity. See Bossley , 968 S.W.2d at 343. However, in the cases from which the Hospital extracts this language we were explaining that the "requirement of causation is more than mere involvement." See id. (emphasis added) (holding that a patient's death "was caused, not by the condition or use of property" but by the hospital's failure to restrain the patient); see also Miller , 51 S.W.3d at 588 (holding that while the governmental unit used various drugs while treating a patient, the use of these drugs did not cause his injury). In other words, a plaintiff cannot invoke waiver merely by alleging use of tangible personal property; the use of the property must also cause his injury. However, this well-settled proposition does not affect our analysis here. No one contends that the Hospital's use of a stethoscope during Courtney's treatment waived its immunity, because no one contends that the use of this instrument was causally related to Courtney's death. Rather, the carrier agent allegedly caused the injury.
Finally, the Hospital argues that allowing waiver for the McKenzies' claims would "effectively eliminate the State's sovereign immunity in claims challenging medical judgment" and thus "expose the State to considerable liability, given the countless medical decisions that take place every day involving non-negligent use of tangible property." The dissent echoes this assertion, contending that our decision renders the sovereign immunity doctrine a "nullity." Post at 527 (quoting Kerrville , 923 S.W.2d at 586 ). This floodgate argument is unsupported and paints our holding in overly broad strokes. As our jurisprudence demonstrates, not every tort claim involving medical providers will arise from the improper use of tangible personal property that causes harm. See, e.g. , Univ. of Tex. Med. Branch at Galveston v. York , 871 S.W.2d 175, 179 (Tex. 1994) (holding that immunity is not waived for negligence involving the use, misuse, or nonuse of information in a patient's medical record); see also Kerrville , 923 S.W.2d at 586 (holding that the alleged failure to prescribe a specific form of medication is not "use"). 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. See Miller , 51 S.W.3d at 588 (holding that immunity was not waived because "[n]either the drugs nor the treatment afforded" to the inmate "actually cause[d] his death," as the inmate's condition became fatal due to the doctor's incorrect diagnosis); Kamel , 333 S.W.3d at 686 (finding no waiver for negligent removal of a testicle where the negligent conduct—the decision to remove the non-cancerous testicle—was unrelated to the property used to carry out that decision). Causation is key because it forecloses the flood of liability the dissent fears will ensue.
To the contrary, it is the dissent's interpretation that has overly broad implications and renders section 101.021(2) largely useless. The dissent agrees with the Hospital that for immunity purposes, we must separate the decision to use particular property from the subsequent physical manipulation of the property. That is, the 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. Post at ––––. We fail to see the textual basis for that distinction.
Indeed, we recently rejected a similar categorical analysis in Tarrant Regional Water District v. Johnson . 572 S.W.3d 658 (Tex. 2019). In that case, we applied the Tort Claims Act's discretionary function exception, under which the government retains immunity for claims involving discretionary decisions. Id. at 664–65 ; TEX. CIV. PRAC. & REM. CODE § 101.056. The court of appeals applied a strict "design versus maintenance" approach that had developed in our jurisprudence with respect to the exception, wherein anything on the "design" side of the line would be covered by the exception and anything on the "maintenance" side would not. Johnson , 572 S.W.3d at 665. While we recognized that "[those] labels provide useful conceptual frameworks that aid courts and litigants in the application of the rather obscure text" of the Tort Claims Act, we ultimately concluded that this "design versus maintenance" framework was "not an element of the statute"; accordingly, the court of appeals' "[n]arrow consideration of whether the claim involve[d] a design function or a maintenance function" could not displace the statute's "textual touchstone: ‘discretion.’ " Id. at 665, 667–68. Similarly here, the Hospital's and the dissent's proposal—that "use" transforms into medical judgment when the property is administered properly but nevertheless causes harm—adds language to section 101.021 that does not appear anywhere in its text. Our analysis must be driven not by the Hospital's creative labeling, but by the provision's "textual touchstone": use.
Insofar as there may or may not be policy reasons to further restrict the scope of the immunity waiver, that is not our decision to make. The Legislature drew the line by waiving immunity for injuries proximately caused by negligent "use" of tangible personal property and makes no exception when the "use" is precipitated by the exercise of medical judgment.
Finally, we reiterate that the issue before us today is immunity, not liability. The Hospital's compliance with the applicable standard of care has no bearing on our analysis. We are called upon only to determine whether, looking at the gravamen of the plaintiffs' complaint, a fact issue exists regarding whether Courtney's injury was proximately caused by the Hospital's "use" of tangible personal property. For the reasons discussed, we hold that the McKenzies' claim against the Hospital is not premised solely on the exercise of medical judgment for which immunity would not be waived. Rather, the McKenzies adequately alleged that the Hospital used property that was improper under the circumstances and that such use caused harm. This constitutes a claim for which section 101.021(2) waives immunity.
B. Proximate Cause: Foreseeability
The Hospital next argues that, even if the McKenzies have adequately alleged negligent use of property, the Hospital retains its immunity because the record evidence establishes as a matter of law that the use of D5W did not proximately cause Courtney's death. City of Dallas v. Sanchez , 494 S.W.3d 722, 726 (Tex. 2016) (explaining that to establish waiver under section 101.021(2), the condition or use of the property must be a proximate cause of the injury). Proximate cause has two components: cause in fact and foreseeability. Id. Because proximate cause is ultimately a question for the factfinder, on a plea to the jurisdiction we need only determine whether the evidence creates a fact question regarding the causal relationship between the use of property and the resulting injury. Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 929 (Tex. 2015).
The Hospital does not dispute that the D5W was a cause in fact of Courtney's death, arguing only that proximate cause is lacking because Courtney's death was not a foreseeable result of using the D5W. The Hospital advances two arguments that it claims foreclose foreseeability: (1) Courtney's death was a "possibility" but was not "predictable" and (2) the precautions taken to prevent Courtney from developing hyponatremia rendered any risk of death unforeseeable. Essentially, the Hospital contends that Courtney's death was unforeseeable because it was unlikely. We disagree.
While the Hospital addressed the cause-in-fact component in its brief, it conceded the issue at oral argument and confirmed that it disputed only foreseeability.
In making its argument, the Hospital relies almost exclusively on an excerpt from the deposition of the McKenzies' expert, Dr. Miller, in which he stated that he did not think Courtney's death was foreseeable. However, this answer is divorced from its context. The entirety of Dr. Miller's testimony on this issue is as follows:
Q: Based on that statement [in the Hospital's expert witness designation], 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.
Dr. Miller's testimony is consistent with his expert report, in which he repeatedly explained how and why death can result from hyponatremia. First, Dr. Miller opined that the Hospital's use of the D5W breached the relevant standard of care because it "expose[d] the patient to the danger of developing hyponatremia and death [by] creat [ing] a situation where the patient's body is subjected to an imbalance of sodium ... causing edema that is critical in the area of the brain and causes death." Dr. Miller then opined that this breach caused Courtney's death because "the perfusion of a large volume of D5W solution into a patient's abdominal cavity, regardless of other circumstances ... exposes the patient to a risk of developing hyponatremia and death from brain herniation." Thus, it is clear that, in Dr. Miller's expert opinion, a recognized consequence of hyponatremia is serious neurological damage or death, and that Courtney's death was in fact caused as a result of her developing this condition.
Indeed, the testimony of Dr. Mansfield, the surgical oncologist who performed the procedure, draws the same causal link as the McKenzies' expert:
Q: What condition did [Courtney] have that led to her brain herniation ?
A: She had cerebral edema.
Q: Okay. What caused [that]?
....
A: It was a result of her hyponatremia.
At a later point in his deposition, Dr. Mansfield again confirmed that there was "no question" that Courtney died of a brain herniation secondary to hyponatremia. He also admitted that the D5W caused her hyponatremia and that D5W is known to create electrolyte abnormalities—abnormalities that would not have resulted had a saline solution been used.
Foreseeability 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. Travis v. City of Mesquite , 830 S.W.2d 94, 98 (Tex. 1992) ; see also Ryder , 453 S.W.3d at 929. It "does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence." Travis , 830 S.W.2d at 98. It requires only that "the general danger, not the exact sequence of events that produced the harm, be foreseeable." Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996) ; see also Ryder , 453 S.W.3d at 929 (holding that the "injury [must] be of such a general character as might reasonably have been anticipated"). Accordingly, the plaintiff need not always show that his particular injury has occurred before in order to create a fact question on foreseeability. See Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 551 (Tex. 1985) (holding that evidence of previous sexual assaults was not necessary to create a fact issue on foreseeability and that a history of other violent crimes in the area was sufficient).
Here, while the McKenzies' expert stated that he did not think Courtney's death was predictable, he also testified that the risks associated with using the D5W were "basic medicine":
Q: In your opinion, should M.D. Anderson have known that the D5W was a mistake?
A: Oh, yes.
....
Q: And why is that? Is it because of what you told us earlier, that –
A: Yes, because of the large ... volume of sugar water being placed in the abdominal cavity, which you just don't do.
....
Q: And is that basic medicine?
A: That's basic medicine.
Moreover, the Hospital concedes that it knew the use of D5W could cause hyponatremia. Indeed, it implemented a saline and insulin drip precisely because it expected such a condition to result. It is therefore 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.
The dissent focuses on the fewer than fourteen instances in which Dr. Mansfield had previously performed the HIPEC procedure using oxaliplatin and D5W, none of which resulted in the patient's death. See post at ––––. But the question of foreseeability asks only whether the actor should have "anticipated the dangers that his negligent act created for others." Travis , 830 S.W.2d at 98. "The test is not what the [defendant] believed would occur," nor does it "require that he anticipate just how injuries will grow out of that dangerous situation." Clark v. Waggoner , 452 S.W.2d 437, 440 (Tex. 1970). Again, no one disputes that the hyponatremia was foreseeable, and that this condition carried serious risks, including brain herniation and death. The fact that the ultimate outcome (death) was unexpected is therefore not dispositive given that the dangerous condition leading to this outcome (hyponatremia ) was not.
And the precautionary measures taken to prevent hyponatremia do not negate foreseeability. The Hospital insists that, because Courtney's doctors administered a saline and insulin drip during surgery, her injuries were unforeseeable. The dissent similarly argues that because the Hospital took steps to minimize the risks associated with injecting sugar water into Courtney's body, her death was unforeseeable. See post at ––––. But reducing risk is not the same as eliminating it.
The dissent further opines that our conclusion that a fact issue exists on proximate cause amounts to "strict liability" for healthcare providers whose patients suffer injury despite the efforts made to minimize the risks of treatment. This assertion mischaracterizes not only our analysis, but the fundamentals of tort law. Specifically, the dissent has overlooked the fact that the Hospital will not be held liable on the McKenzies' negligence claim unless and until a factfinder determines that the Hospital breached the applicable standard of care and that the breach proximately caused the injury. See Rourke v. Garza , 530 S.W.2d 794, 800 (Tex. 1975) (explaining that under a strict liability theory, "[a] finding of negligence is not required," and one may be liable "even though he has exercised all possible care"). As noted, whether the Hospital was or was not negligent is well beyond the scope of the immunity issue before us. And we certainly recognize that the actions taken by the Hospital to address the risk inherent in using the D5W are relevant to both negligence and causation. Addressing the issue at hand, we hold only that these actions do not conclusively negate foreseeability on this record.
In sum, after considering the evidence in the light most favorable to the McKenzies, Miranda , 133 S.W.3d at 228, we hold that a fact issue exists on foreseeability. As such, the Hospital's plea to the jurisdiction was properly denied. Id.
IV. Conclusion
The court of appeals correctly held that the Tort Claims Act waives the Hospital's sovereign immunity. We accordingly affirm the court's judgment.
Chief Justice Hecht filed a dissenting opinion, in which Justice Green and Justice Brown joined.
Justice Busby did not participate in the decision.
Nathan L. Hecht Chief Justice, 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") because plaintiffs, the McKenzies, 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.
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)").
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.
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 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. 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.
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. , 133 Tex. 31, 124 S.W.2d 847, 849 (1939) ).
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—IPHC —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 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 procedure is also sometimes referred to with the acronyms HIPEC and HYPEC. Wake Forest has referred to the procedure as IPHC.
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." 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.
The Court mischaracterizes these mandates as suggestions. Ante at ––––.
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 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.
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.
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 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. 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, for failing to provide a college football player a brace for his injured knee, for failing to diagnose a heart attack from the results of an electrocardiogram, and for taking an epileptic mental-health patient swimming while failing to provide him a life preserver. During this period, we described the statutory language as "difficult to understand" and "troublesome" and made repeated, unanswered pleas for legislative clarification. The Court eventually opined that the Legislature's silence amounted to approval of our having "interpreted the Act broadly" —an inference belied by the fact that "waiver of governmental immunity is a controversial political issue" and by the legislative compromises necessary to get the Act passed in the first place. 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. "[T]he bus [was] only the setting for the injury". 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. But the lead opinion for the Court attracted only a plurality. 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.
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).
Overton Mem'l Hosp. v. McGuire , 518 S.W.2d 528, 529 (Tex. 1975) (per curiam).
Lowe v. Tex. Tech Univ. , 540 S.W.2d 297, 300 (Tex. 1976).
Salcedo v. El Paso Hosp. Dist. , 659 S.W.2d 30, 33 (Tex. 1983).
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. Civ. 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).
Lowe , 540 S.W.2d at 301 (Greenhill, C.J., concurring).
Salcedo , 659 S.W.2d at 32.
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).
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 ]").
Id. at 173 (Hecht, J., dissenting).
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).
835 S.W.2d 49, 52 (Tex. 1992).
Id.
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.").
See id. at 688–689 (Cornyn, J., dissenting).
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." 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". 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", and we reasoned that "the Legislature [had] not, by clear and unambiguous language, eliminated governmental immunity for injuries resulting from the misuse of information". Later, we implicitly overruled our earlier decisions involving the football player 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.
871 S.W.2d 175, 176 (Tex. 1994).
Id. at 176–177.
Id. at 177 (citing Duhart v. State , 610 S.W.2d 740, 742 (Tex. 1980) ).
Id. at 179.
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").
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." Two other principles are equally fundamental.
One, as Justice Cornyn reminded in Petty , is that the Act's waiver is limited. 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." 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 Kerrville State Hospital. 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. 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." 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." To conclude otherwise, we said, would be "contrary to the limited waiver the Legislature clearly intended."
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)).
Id. at 584.
Id. at 585.
Id. at 584.
Id. at 585.
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." The Court's argument runs like this:
Ante at 514.
• Kerrville holds that non-use of property is not use for waiver of immunity.
"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 514.
• The McKenzies do not allege non-use, but rather, the non-negligent use of property that should not have been used.
"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 514.
• Kerrville 's holding does not preclude the McKenzies' claim.
• Therefore, Kerrville allows the McKenzies' claim.
"Under our reasoning in Kerrville , this is sufficient to waive immunity." Ante at 514.
The Court charges that "[t]he dissent ... ignores" Kerrville 's reasoning that non-use is not use. To the contrary, I embrace it. Here is Kerrville 's reasoning, which the Court ignores:
Ante at 512 n.8.
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.
Kerrville , 923 S.W.2d at 585–586.
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. 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 illness. 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 ." Quoting the passage from Kerrville above, we explained that our holding comported with the Legislature's intent that the immunity waiver be limited.
51 S.W.3d 583, 585 (Tex. 2001).
See id.
Id. at 588 (emphasis added).
Id. (quoting and paraphrasing Kerrville , 923 S.W.2d at 585–586 ).
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. 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 . 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. None of our subsequent decisions have backed away from this principle or even muddied the waters. Because the McKenzies' negligence claim 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.
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.").
Univ. of Tex. Med. Branch at Galveston v. York , 871 S.W.2d 175, 176–177 (Tex. 1994).
Kerrville State Hosp. v. Clark , 923 S.W.2d 582, 584 (Tex. 1996).
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". 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." 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.
Ante at 514.
Ante at 515.
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." That's true, of course, but following protocol involves the use of property; deciding to follow protocol does not.
Ante at 514.
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.
Ante at 517 (internal citations omitted).
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 tangible personal property under the Act, the doctrine of sovereign immunity would be rendered a nullity.
See supra note 527.
The Court attempts to distinguish Kamel v. University of Texas Health Science Center at Houston , 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. But during the surgery, the surgeon decided the testicle looked cancerous and removed it altogether. Later tests showed that there was no cancer in the testicle. The patient sued, claiming that his injury was caused by the use of property—a scalpel and other surgical instruments. 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." 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.
333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Id. at 679.
Id.
Id.
Id. at 680.
Ante at 515.
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. As in this case, there was no evidence or even a claim that the use of the instrument was itself negligent. 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."
No. 12-18-00270-CV, 2019 WL 1960251, at *3 (Tex. App.—Tyler Apr. 30, 2019, no pet. h.) (mem. op.).
Id.
Id.
The Court relies on University of Texas M.D. Anderson Cancer Center v. Jones . There, the plaintiff volunteered to participate in a blind study to determine which of two drugs better helped people quit smoking. The drug randomly chosen for the plaintiff was one she had taken before. 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. The court of appeals held that the use of the drug waived immunity. Regardless of whether the case was decided correctly, the present case is different. In Jones , M.D. Anderson knew that the plaintiff 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.
485 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
Id. at 147.
Id.
See id.
Id.
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." 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.
Ante at 516 (emphasis omitted).
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." 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.
Ante at 517.
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.
Snellenberger v. Rodriguez , 760 S.W.2d 237, 238 (Tex. 1988) (quoting Carey v. Pure Distrib. Corp. , 133 Tex. 31, 124 S.W.2d 847, 849 (1939) ).
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." Here is the context, as set out by the Court:
Ante at 518.
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.
Ante at 518–19 (second and third alterations in original).
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." 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, it took steps, which Miller testified were proper, to avoid the risks. Those steps were, for reasons he could not explain, sadly ineffective.
Ante at 519.
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.
Ante at 520.
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. 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 are relevant to both negligence and causation" and "hold only that these actions do not conclusively negate foreseeability". 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."
Ante at 520.
Ante at 520.
* * * * *
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.