Kerrville State Hospital v. Clark ( 1996 )

GONZALEZ, Justice,

delivered the opinion of the Court in

which HECHT, ENOCH, OWEN and BAKER, Justices, join.

This is a wrongful death action brought by James and Genevie Clark to recover damages for the death of their daughter, Rebecca Clark Ligón, who was murdered by her husband, Gary Ligón. The Clarks sued Kerr-ville State Hospital (KSH) for negligently releasing Gary, a mental patient, from its care. They also sued the Texas Department of Mental Health and Mental Retardation (MHMR) for failure to adequately ensure KSH’s compliance with MHMR standards. A jury awarded the Clarks damages in excess of two million dollars. The trial court, however, entered judgment n.o.v. for MHMR and rendered judgment against KSH for $250,000, the maximum amount allowable under the Texas Tort Claims Act. See Tex.Civ. PRAC. & Rem.Code § 101.023(a). The court of appeals affirmed. 900 S.W.2d 425. For the reasons stated below, we reverse the judgment of the court of appeals and render judgment for KSH.

I.

The Clarks’ daughter, Rebecca, was married to Gary Ligón, who had a history of mental problems. In April 1989, after threatening his wife and resisting arrest, Li-gón was taken to KSH for treatment. The Institutional Review Board determined that Ligón was “manifestly dangerous” and therefore recommended that he be transferred to a maximum security unit at Vernon State Hospital. However, because Vernon State Hospital had no vacancy, Ligón remained at KSH for about one month. The Institutional Review Board then met again and determined that Ligón was no longer manifestly dangerous. Ligón began an outpatient commitment with KSH, pursuant to a court order, so that KSH could monitor his medication. Ligon’s medication regimen included Antabuse to control his alcohol intake, lithium carbonate, Tegretol, and Thorazine, an antipsychotic medicine that was given to Li-gón in an oral form.

On May 22, 1990, Ligón voluntarily checked into KSH for treatment. It appeared that Ligón had been drinking and had not been taking his medication at proper levels. On May 24, KSH released Ligón at his request, reinstating the outpatient commitment. On June 1, Ligón brutally murdered his estranged wife, decapitating, dismembering, and burning her body. He then attempted to hide her remains in a field.¹

As stated earlier, the trial court rendered judgment for the Clarks against KSH, and the court of appeals affirmed. KSH now petitions this Court to reverse the judgment of the court of appeals, claiming that: (1) the Clarks’ suit is barred by sovereign immunity; (2) KSH owed no duty to the Clarks; (3) the actions of KSH were not the proximate cause of Rebecca Clark’s death; and (4) venue was not proper in Travis County. Because we conclude that the Clarks’ action was barred by sovereign immunity, we reverse the judgment of the court of appeals and render judgment for KSH.²

II.

KSH is a governmental entity entitled to sovereign immunity. However, under the Texas Tort Claims Act, a state entity can waive its sovereign immunity under limited circumstances. The Act did not abolish sovereign immunity, and we must look to the terms of the Act to determine the scope of its waiver. University of Texas Medical Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). Specifically, the Act waives sovereign immunity for “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(2). The Clarks claim that KSH, by giving Ligón an oral form of Thorazine when he left the hospital, rather than an available injectiona-ble drug such as Prolixin or Haldol, used or misused tangible personal property under the terms of the Act. They claim that KSH should have administered an injectionable drug because KSH knew that Ligón had not been taking his oral Thorazine and that he became violent when not medicated.³ Thus, the issue is whether KSH’s administration of an oral form of Thorazine, rather than an injectionable drug, constitutes use or misuse of tangible personal property under the terms of the Texas Tort Claims Act. We hold that KSH’s failure to administer an injectionable drug is non-use of tangible personal property and therefore does not fall under the waiver provisions of the Act.

This Court has never held that mere non-use of property can support a claim under the Texas Tort Claims Act. Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994). We have recognized that for “use” of tangible personal property to occur under the terms of the Act, one must “ ‘put or bring [the property] into action or service; to employ for or apply to a given purpose.’” Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex.1989) (quoting Beggs v. Texas Dept. of Mental Health & Mental Retardation, 496 S.W.2d 252, 254 (Tex.Civ.App.— San Antonio 1973, writ refd)). The decisions of this Court, however, have not always fallen neatly within this definition when applying the terms of the Act. The difficulty of interpreting the Act’s waiver provisions has led this Court on several occasions to request guidance from the Legislature in interpreting these provisions. See, e.g., Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 303 (Tex.1976) (Greenhill, C.J., concurring). The Legislature, however, has remained silent on this issue. As a result, our attempts to construe the Act’s waiver provisions have resulted in a “long and arduous history” of cases. University of Texas Medical Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). Two of these cases, in particular, illustrate the difficulty of interpreting these provisions.

In Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976), Lowe alleged that he injured his knee while playing football for the university. The injury allegedly occurred when a coach ordered him to remove his knee brace, worn because of a previous knee injury, and reenter a game without it. Id. at 302 (Greenhill, C.J., concurring). This Court concluded that the knee brace was as integral a part of Lowe’s uniform as his helmet or shoulder pads. Id. at 300. The Court therefore held that the State waived immunity by providing Lowe with a football uniform that was defective due to its lack of a knee brace. Id.

This rationale was also applied to invoke the Act’s waiver provisions in Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 171 (Tex.1989). In Robinson, MHMR took several patients, including Robinson, swimming. Id. at 169. The employees of MHMR knew that Robinson was epileptic and occasionally suffered seizures, causing him to lose consciousness. Id. MHMR and its employees, however, failed to provide Robinson with a life preserver, and he subsequently drowned. Id. This Court concluded that “[a] life preserver was just as much a part of Robinson’s swimming attire as the knee brace was part of the uniform in Lowe." Id. at 171. The Court therefore held that MHMR waived its immunity. Id.

These cases represent perhaps the outer bounds of what we have defined as use of tangible personal property. We did not intend, in deciding these eases, to allow both use and non-use of property to result in waiver of immunity under the Act. Such a result would be tantamount to abolishing governmental immunity, contrary to the limited waiver the Legislature clearly intended. The precedential value of these cases is therefore 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 plaintiffs injuries. For example, if a hospital provided a patient with a bed lacking bed rails and the lack of this protective equipment led to the patient’s injury, the Act’s waiver provisions would be implicated. Lowe, 540 S.W.2d at 300.

The facts of the present case, however, are distinguishable from Lowe and Robinson. The Clarks have not alleged that KSH failed to provide Ligón with property lacking an integral safety component. In fact, they acknowledge that KSH prescribed to and gave Ligón Thorazine, an anti-psychotic medication. To the contrary, the Clarks argue that the treatment prescribed to Ligón was not as effective as an alternative method of treatment would have been. For Lowe to apply to the Clarks’ claims, we must assume that the university would have waived its immunity even if it had provided Lowe with a knee brace as long as Lowe could show that another type of knee brace would have better protected him. Likewise, for Robinson to apply, we must assume that MHMR would have waived its sovereign immunity even if it had provided Robinson a life preserver if Robinson could show that MHMR should have provided him with a better one. Thus, the facts of this case are different than those in Lowe and Robinson.

III.

The factual scenario of this cáse parallels Kassen v. Hatley, 887 S.W.2d 4 (Tex.1994). In Kassen, a mental patient admitted to a state hospital was seen taking her medication in excessive quantities. Id. at 7. Hospital employees therefore took the patient’s medication away from her. Id. The hospital refused to return the medication to the patient when she left the hospital, and she committed suicide a short time later. Id. The patient’s parents sued the hospital and its employees for wrongful death, claiming that the hospital employees’ failure to provide the patient with medication when she left the hospital caused her death. Id. We concluded that “[t]his sequence of events does not allege an injury arising from the ‘use’ of the medication. It states a claim for non-use of property that does not trigger waiver of sovereign immunity under the Texas Tort Claims Act.” Id. at 14. Here, KSH’s employees gave Ligón an oral form of Thorazine when he left the hospital, just as they had done since the beginning of Ligon’s outpatient commitment order. The Clarks allege that KSH should have administered an injectionable drug to ensure Ligon’s compliance, rather than the oral form given. They claim that if an injectionable medication had been used, Ligón would not have murdered his wife. The Clark’s pleadings and evidence do not show that oral Thorazine caused any harm. The gravamen of their complaint is that KSH’s non-use of an injectionable drug was the cause of their daughter’s death. This failure to use a form of drug is just as much a non-use of a drug as was the hospital’s failure to give its patient her medicine in Kassen.

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. “It is difficult to imagine a tort case which does not involve the use, or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.” Lowe v. Texas Tech Univ., 540 S.W.2d 297, 302 (Tex.1976) (Greenhill, C.J., concurring). Abolition of immunity is not what the Legislature intended in enacting the Texas Tort Claims Act.

Because the failure to prescribe a certain form of drug simply does not fall within .the definition of use under the Act, KSH did not waive its sovereign immunity. For the foregoing reasons, we reverse the judgment of the court of appeals and render judgment for KSH.

ABBOTT, J., filed a dissenting opinion in which PHILLIPS, C. J., and CORNYN and SPECTOR, JJ„ join.

1 . Ligón was charged with murder, but was declared incompetent to stand trial and was transferred to the maximum security unit at Vernon State Hospital.

2 . Because we hold that the Clarks’ claims are barred by sovereign immunity, we need not consider KSH’s other alleged grounds for reversal.

3 . The Clarks presented expert testimony that in-jectionable Prolixin and Haldol can be effective for up to one month after the initial injection.