Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight , Individually and as Next Friend of Nayla McKnight v. U.T. Physicians ( 2015 )

ACCEPTED
01-14-00767-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/3/2015 10:50:40 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00767-CV
In the Court of Appeals
for the First Judicial District FILED IN
1st COURT OF APPEALS
Houston, Texas HOUSTON, TEXAS
4/3/2015 10:50:40 AM
SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
CHRISTOPHER
Clerk
OFA. PRINE
THE
ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND
AS NEXT FRIEND OF NAYLA MCKNIGHT
Appellants,
VS.
U. T. PHYSICIANS
Appellee.
On Appeal From the 164th Judicial District Court of Harris County, Texas
Trial Court Cause No. 2012-35806
The Honorable Alexandra Smoots-Hogan, Judge Presiding
APPELLANTS’ REPLY BRIEF
THE GOURRIER LAW FIRM, LLP
Joseph M. Gourrier
joseph@gourrierlaw.com
Texas State Bar No. 24007258
530 Lovett Boulevard, Suite B
Houston, Texas 77006
Telephone: 713-533-9077
Facsimile: 713-533-9376
Attorney for Appellants Shirley Lenoir, Individually and as Personal
Representative of the Estate of Shana Lenoir and Christopher McKnight,
Individually and as Next Friend of Nayla McKnight
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS ............................................................................................. ii
INDEX OF AUTHORITIES........................................................................................ iii
ARGUMENT ............................................................................................................... 1
I. UT Physicians Failed to Prove that it is a Governmental Unit and the
Appellants Created Fact Issues Regarding the Court’s Jurisdiction ................. 1
A. The Lenoirs Did Not Make a Judicial Admission that UT Physicians
is a Governmental Unit ........................................................................... 1
B. The Legislature Did Not Authorize the Creation and Control of UT
Physicians by the UT System Board of Regents ..................................... 3
C. UT Physicians Cannot Indirectly Assert Sovereign Immunity as an
Independent Contractor According to KDF v. Rex, 878 S.W.2d 589
(Tex. 1994). ............................................................................................. 5
II. The Trial Court Erred in Granting the Plea to the Jurisdiction Because the
Lenoirs Alleged that Shana Lenoir’s Death Was Proximately Caused By An
Employee’s Use of Tangible Physical Property ................................................ 9
CONCLUSION ............................................................................................................ 15
CERTIFICATE OF COMPLIANCE ........................................................................... 16
CERTIFICATE OF SERVICE ................................................................................... 16
ii
INDEX OF AUTHORITIES
PAGE(S)
CASES
Adams v. Rios,
No. 14-95-00239-CV, 1996 WL 337108 (Tex. App.—Houston [14th Dist.]
June 20, 1996, no pet.) ....................................................................................... 13
Ambulatory Infusion Therapy Specialist, Inc. v. N. Amer. Adm’s, Inc.,
262 S.W.3d 107 (Tex. App.—Houston [1st Dist.] 2008, no pet.)...................... 11
Angleton Danbury Hosp. Dist. v. Chavana,
120 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ................... 13
Baylor Univ. v. Sonnichsen,
221 S.W.3d 632 (Tex.2007) .............................................................................. 11
Cnty. of Cameron v. Brown,
80 S.W.3d 549 (Tex. 2002) ............................................................................... 12
Edinburg Hosp. Auth. v. Trevino,
904 S.W.2d 831 (Tex. App.—Corpus Christi 1995), rev’d on other grounds,
941 S.W.2d 76 (Tex.1997) ................................................................................ 12
Holy Cross Church of God in Christ v. Wolf,
44 S.W.3d 562 (Tex. 2001) ............................................................................... 3
Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887 (Tex.2000) ................................................................................ 1
Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston,
333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) .............. 11
KDF v. Rex,
878 S.W.2d 589 (Tex. 1994)............................................................................. 5, 6, 7
Quinn v. Mem'l Med. Ctr.,
764 S.W.2d 915 (Tex. App.—Corpus Christi 1989, no writ)........................... 12
iii
Rusk Sate Hosp. v. Black,
392 S.W.3d 88 (Tex. 2012)................................................................................. 9
Tex. Dep’t of Criminal Justice v. Miller,
51 S.W.3d 583 (Tex. 2001)................................................................................. 9, 10
Tex. Tech. Univ. Health Sci. Ctr. v. Buford,
334 S.W.3d 334 (Tex. App.-Eastland 2010, no pet.) ........................................ 13
TRST Corpus, Inc. v. Fin. Ctr., Inc.,
9 S.W.3d 316 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ................. 5
Wise Reg’l Health Sys. v. Brittain,
268 S.W.3d 799 (Tex. App.—Fort Worth 2008, no pet.) ................................. 12
STATUTES & RULES
TEX. CIV. PRAC. & REM. CODE §101.001(3) ................................................................ 5
TEX. CIV. PRAC. & REM. CODE §101.021 (2) ............................................................... 9
TEX. EDUC. CODE §65.02 ............................................................................................. 3, 5
TEX. EDUC. CODE §65.11 ............................................................................................. 4
TEX. EDUC. CODE §65.35 (a) ........................................................................................ 4
TEX. EDUC. CODE §73.001 ........................................................................................... 3, 4, 5
TEX. EDUC. CODE §73.057 ........................................................................................... 1
iv
ARGUMENT
I. UT Physicians Failed to Prove that it is a Governmental Unit and the
Appellants Created Fact Issues Regarding the Court’s Jurisdiction.
As the movant on a plea to the jurisdiction, Appellee UT Physicians
(“UTP”) had the burden of establishing that it is a governmental unit entitled to
raise sovereign immunity. UTP failed to meet this burden and the trial court erred
in granting its plea to the jurisdiction.
A. The Lenoirs Did Not Make a Judicial Admission that UT
Physicians is a Governmental Unit.
UTP’s first argument in its response brief is that the Lenoirs made a judicial
admission that it is a governmental unit in response to a motion to dismiss filed by
Nurse Matthews. UTP is mistaken.
A judicial admission is an assertion of fact that is conclusively established in
live pleadings. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905
(Tex.2000). Further, a judicial admission “must be a clear, deliberate, and
unequivocal statement.” Id.
In its original answer filed on July 20 2012, UTP asserted that it was a
governmental unit entitled to sovereign immunity in response to the Lenoirs’
claims for respondeat superior based upon Nurse Matthews’ negligent conduct.
Second Supp. CR 6.
1
Contrary to UTP’s argument, the Lenoirs have always disputed UTP’s
contention that it is a governmental unit and did so their response to Nurse
Matthews’ motion to dismiss filed on October 29, 2013.
 “Defendant Matthews and her alleged governmental employer became
parties to the lawsuit when Plaintiffs’ Original Petition was filed on
June 20, 2012.” Second Supp. CR 637. (emphasis added)
 “Since Defendant UT Physicians alleged that it was a governmental
entity and Defendant Matthews was its alleged employee, the Office
of Attorney General was required to defend Matthews…” Second
Supp. CR 643. (emphasis added)
 “The Office of Attorney General is Defendant Matthews’ attorney as a
matter of law and fact because she was allegedly a public servant at
the time of the negligence alleged by Plaintiffs.” Second Supp. CR
646. (emphasis added)
 “Since Defendant UT Physicians claims that it is a state institution
and Defendant Matthews was its former employee…” Second Supp.
CR 647. (emphasis added)
The Lenoirs also denied that UTP was a governmental unit is other
responses filed in the trial court.
 “Defendant UT Physicians alleges that it is part of The University of
Texas Health Science – Houston. Plaintiffs deny that is a
governmental unit or part of UTHSCH, but are merely arguing in the
alternative for the purpose of this response.” Second Supp. CR 93 at
fn. 4.
Finally and most importantly for purposes of this appeal, the Lenoirs pled a
waiver claim under the TTCA, in the alternative, if the trial court determined that
UTP was a governmental unit in their Second Amended Original Petition. See,
2
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)
(“Assertions of fact, not plead in the alternative, in the live pleadings of a party are
regarded as formal judicial admissions.”).
 “54. Pleading in the alternative in the event the Court determines
that Defendant U.T. Physicians is a governmental unit…” CR 126.
The Lenoirs have not judicially admitted that UTP is a governmental unit
and their statements above are not the type of “clear, deliberate, and unequivocal
statements” sufficient under Texas law to constitute judicial admissions. See,
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000).
Therefore, the court should reject UTP’s judicial admission argument made in a
desperate attempt to bolster its governmental unit argument on appeal.
B. The Legislature Did Not Authorize the Creation and Control of
UT Physicians by the UT System Board of Regents.
In their opening brief, the Lenoirs conclusively established that UTP is a
private, non-profit corporation and not a governmental unit entitled to raise
sovereign immunity because the Legislature did not authorize its creation or
addition to the UT System in the statutes creating the UT System and its
components. See, TEX. EDUC. CODE §§65.02; 73.001. Indeed, in TEX. EDUC.
CODE 65.02 (b), the Legislature expressly reserved for itself the power to add
entities to the governance, control, jurisdiction or management of the UT System
stating:
3
(b) The University of Texas System shall also be composed of such
other institutions and entities as from time to time may be assigned by
specific legislative act to the governance, control, jurisdiction, or
management of The University of Texas System.
The Legislature did not pass a specific legislative act authorizing UTP to be
created and added to the UT System and without such a statute, UTP cannot claim
that it is part of the UT System. The same is also true under TEX. EDUC. CODE
§73.001(7), the Legislature did not authorize the creation or addition of UTP to the
University of Texas at Houston when it created the other medical institutions in
Houston.1
UTP cites TEX. EDUC. CODE §65.11 as authority for its creation, but that
statute only authorizes the UT Board of Regents to administer, organize and name
the institutions and entities in the UT System for maximum operating efficiency.
Section 65.11 does not authorize the creation of any entities, it merely identifies
that the UT System has the power to organize the entities created by the
Legislature and made part of the UT System.
Similarly, TEX. EDUC. CODE §65.35 (a) does not authorize the creation of
any entities as part of the UT System either, instead, the statute merely authorizes
1
UTP claims that TEX. EDUC. CODE §73.057 does not apply because it is not a “hospital”,
however, the term “teaching hospital” is not defined in the statutes. It is clear from the record
that medical residents, like Dr. Gonski, were being taught at the UTP facility by UTHSCH
faculty, like Dr. Huang, which is why Gonski provided medical care to Shana Lenoir at the time
of the incident. UTP is clearly a teaching hospital under the plain meaning of the term.
4
the UT Board of Regents to govern, operate and support the entities made a part of
the UT System by the Legislature in §§65.02 and 73.001.
Therefore, UTP cannot be a governmental unit, under TEX. CIV. PRAC. &
REM. CODE §101.001(3)(A) or (D), for purposes of the TTCA because it is not a
government agency and has no status or authority under either the Texas
Constitution or Texas law because its creation was not authorized by these legal
authorities. UTP has failed to meet its burden of establishing that it is a
government unit under the TTCA and the trial court erred in granting its plea to the
jurisdiction.
C. UT Physicians Cannot Indirectly Assert Sovereign Immunity as
an Independent Contractor According to KDF v. Rex, 878 S.W.2d
589 (Tex. 1994).
UTP cites TRST Corpus, Inc. v. Fin. Ctr., Inc., 9 S.W.3d 316, 320 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied), in support of its argument that it is a
government unit. However, the court determined that TRST was entitled to assert
sovereign immunity because it was created and controlled by a governmental unit,
TRS, and its sole purpose was to hold title to property for the benefit of TRS
members, not because it was a governmental unit. However, in reaching this
conclusion, the court cited KDF v. Rex, 878 S.W.2d 589, 596-97 (Tex. 1994) for
the proposition that a suit against a Kansas partnership operated by a Kansas state
5
agency was a lawsuit against the state where the two entities were not
distinguishable.
The Lenoirs relied upon KDF in the trial court and their opening brief, but
UTP made no real attempt to distinguish this controlling case. In KDF, the Texas
Supreme Court determined that KPERS was a Kansas governmental entity created
by statute, but that the Kansas Debt Fund (KDF) and Pacholder, an Ohio
corporation acting as an investment advisor to KPERS, were not. KDF, 878
S.W.2d at 596, (“Unlike KPERS, however, K.D.F. and Pacholder are not Kansas
governmental entities.”). Thus, the Court had to determine whether or not KDF
and Pacholder could assert sovereign immunity indirectly, even though they were
not governmental entities.
To begin its analysis, the Court first looked at what types of acts would
create indirect liability on the part of the state and which acts would not, stating:
Thus, in either state, indirect liability on the part of the state will arise
from the performance of ministerial functions by a state employee
under the control or direction of the state, and not from (1)
discretionary acts of the employee, (2) acts of independent
contractors, or (3) intentional, grossly negligent, fraudulent, or
malicious conduct by the employee.
Id. at 597.
Applying these principles to the facts of the case, the Court determined that
KDF, “operates solely upon the direction of KPERS, and exercises no discretion in
6
its activities.” Id. Therefore, KDF was entitled to assert immunity for performing
essentially ministerial functions under the control and direction of KPERS.
However, the Court found that, “Pacholder operates as an independent
contractor. Its activities necessarily involve considerable discretion.” Id. Thus, the
Court held that Pacholder, as an independent contractor, was not entitled to assert
immunity, stating:
While sovereign immunity protects the activities of government
entities, no sovereign is entitled to extend that protection ad infinitum
through nothing more than private contracts. Pacholder is not entitled
to sovereign immunity protection unless it can demonstrate its actions
were actions of the Kansas government, executed subject to the
control of KPERS.
Id.
Here, UTP is not a governmental unit because it was not created by law, as
set forth above. Therefore, the court must determine whether UTP is entitled to
assert sovereign immunity indirectly through either the UT System or UTHSCH
because it is subject to their direction and control, like KDF, or whether UTP
cannot assert immunity because it is an independent contractor, like Pacholder.
Further, the court must conduct this analysis within the context of this
specific case where the Lenoirs seek to hold UTP liable in respondeat superior for
the negligent conduct of its former employee, Nurse Matthews. In short, the court
must determine whether UTP is entitled to indirectly assert sovereign immunity
because either the UT System or UTHSCH directed or controlled the nursing
7
activity performed by Nurse Matthews at the UTP clinic. The evidence in this case
conclusively negates any such conclusion.
The Lenoirs offered evidence that UTP was an independent contractor to
UTHSCH because it entered into an agreement with UTHSCH to administer
certain business operations, including but not limited to, strategic development,
marketing, billing for and collection of professional fees, contracting for
professional services, clinic operations, credentialing, and managed care
operations. See, “Management Agreement” between The University of Texas
Health Science Center at Houston and UT Physicians, CR 88-95. UT Physicians is
required by the Management Agreement to provide offices, furnishings and
equipment, personnel (including nursing personnel), supplies, and management
services to UTHSCH. Id.
More importantly for purposes of UT Physicians’ plea to the jurisdiction and
motion to dismiss under the TTCA, the Management Agreement required UT
Physicians to provide nursing staff for use by UTHSCH physicians, but the nursing
staff, including Nurse Matthews, remained under UT Physicians’ direction and
control. See, Management Agreement, at ¶1.4 (B) (“Nursing and Other Clinical
Personnel.”). CR 89. UT Physicians is paid a “management fee” for the use of its
medical care facilities and services rendered. Id. at ¶3.1, (“Amount of Fee.”). CR
91.
8
Since Angela Matthews was the employee of UT Physicians, an independent
contractor, and UTHSCH did not have the right to control the details of her work
under the plain language of the Management Agreement, UT Physicians cannot
assert the UT System’s or UTHSCH’s sovereign immunity based on her negligent
conduct.
II. The Trial Court Erred in Granting the Plea to the Jurisdiction Because
the Lenoirs Alleged that Shana Lenoir’s Death Was Proximately
Caused By An Employee’s Use of Tangible Personal Property.
Alternatively, if the Court determines that UT Physicians is a governmental
unit entitled to raise sovereign immunity, the trial court erred in granting UTP’s
plea to the jurisdiction because the Lenoirs pled a waiver of sovereign immunity
based upon the use of tangible personal property by an alleged government
employee that caused Shana Lenoir’s death.
Under the TTCA, immunity is waived if injury or death is caused by a
“condition or use of tangible personal or real property.” TEX. CIV. PRAC. & REM.
CODE §101.021 (2). But, immunity is waived “only when the governmental unit
itself uses the property.” Rusk Sate Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012).
“A governmental unit does not ‘use’ property within the meaning of the [Texas
Tort Claims Act] when it merely allows someone else to use it.” Id. Further,
merely “furnish[ing] the condition that [makes] the injury possible” does not waive
immunity. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex.
9
2001). Rather, it is the use of tangible property that must have actually caused the
injury. Id.
The case at bar is not one where someone else used the medication, as in
Black, nor is it a case where the use of medication merely furnished the condition
that made injury possible, like Miller. Here, it was Nurse Matthews’ use of the
property—i.e., the progesterone injection—that allegedly caused Shana Lenoir’s
death, not her medical records or some nursing judgment. Therefore, immunity has
been waived and the trial court erred in dismissing the Lenoirs’ claims against
Matthews’ alleged governmental employer, UTP.
The Lenoirs’ live pleading at the time of the hearing on UTP’s plea to the
jurisdiction was Plaintiffs’ Second Amended Original Petition. CR 118-130. The
Lenoirs specifically alleged that the injection of progesterone by Nurse Matthews
actually caused Shana Lenoir’s death and that the administration of the injection
was negligent because: (1) it was contraindicated because of Lenoir’s twin
pregnancy, (2) medically unnecessary because Lenoir was at least eight (8) months
pregnant, (3) considered off-label use because progesterone is not approved to
prevent pre-term labor by the FDA and (4) it was not ordered by a physician. CR
121,123,127 at ¶¶17-19, 38-49 and 54-57. Therefore, the Lenoirs properly pled a
waiver of immunity against UTP under the TTCA for negligent use of tangible
10
personal property by Nurse Matthews and the trial court erred in granting its plea
to the jurisdiction.
In its appellate brief, UTP continues to mischaracterize the Lenoirs’ claims
against its former employee, Angela Matthews, in an attempt to bar any claims
under the TTCA. UTP argues that the progesterone injection administered by
Nurse Matthews that caused Shana Lenoir’s death was not use of tangible personal
property, but rather the exercise of nursing judgment or use/non-use of information
in her medical record. Not surprisingly, UTP spends several pages of its response
brief citing cases where the courts held that immunity was not waived because the
cases involved the application of medical judgment or use/non-use of information
in medical records. Resp. Br. at 46-53.
It is well established that the treatment of claims under Texas law focuses on
the true nature of disputes rather than allowing artful pleading to gain favorable
redress under the law. See, Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636
(Tex.2007); Ambulatory Infusion Therapy Specialist, Inc. v. N. Amer. Adm’s, Inc.,
262 S.W.3d 107, 112 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The court is
“required to construe the allegations in favor of jurisdiction unless, on its face, the
petition affirmatively demonstrates a lack of jurisdiction.” Kamel v. Univ. of Tex.
Health Sci. Ctr. at Houston, 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]
2010, pet. denied). Further, in deciding a plea to the jurisdiction, a court may not
11
consider the merits of the case, but only the plaintiff's pleadings and the evidence
pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549,
555 (Tex. 2002).
The cases cited by UTP are inapplicable because this is not a medical
judgment claim since the Lenoirs have alleged that the progesterone injection by
Matthews actually caused Shana Lenoir’s death, not some mental thought process
or a piece of paper. Indeed, Shana Lenoir received an injection from Nurse
Matthews and approximately 12 hours later, she and her unborn twins were dead
from an allergic reaction. First Supp. CR 21-22; 27-29.
The present case is more akin to the cases involving the dispensing of
medication which has been held to be a use of tangible personal property. See,
Quinn v. Mem'l Med. Ctr., 764 S.W.2d 915, 917 (Tex. App.—Corpus Christi 1989,
no writ) (“We hold that the dispensing of a drug by a hospital pharmacy is a use of
tangible personal property and falls within the waiver provisions of the statute.”);
Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 807 (Tex. App.—Fort Worth
2008, no pet.) (holding that the plaintiff’s allegations that a nurse administered
medications, when she should have refused to do so in light of the patient's
condition, constituted use of medication and waiver of immunity); Edinburg Hosp.
Auth. v. Trevino, 904 S.W.2d 831, 838 (Tex. App.—Corpus Christi 1995), rev’d on
other grounds, 941 S.W.2d 76 (Tex.1997) (determining that the dispensing of drug
12
by hospital pharmacy was “use”); Adams v. Rios, No. 14-95-00239-CV, 1996 WL
337108, at *4 (Tex. App.—Houston [14th Dist.] June 20, 1996, no pet.) (not
designated for publication).
In Tex. Tech. Univ. Health Sci. Ctr. v. Buford, 334 S.W.3d 334, 338 (Tex.
App.-Eastland 2010, no pet.), after the court cited the cases listed above, it stated:
The common thread running through those cases is that, in each one,
the governmental unit being sued was the entity that employed those
who used, by administering or dispensing, the drugs that were alleged
to have caused the damages.
Here, there is no dispute that the alleged governmental unit being sued,
UTP: (1) employed Nurse Matthews and (2) supplied the progesterone hormone
that Matthews injected into Shana Lenoir [CR 121, ¶18], and the injection is
alleged to have caused Shana Lenoir’s death. Thus, the Lenoirs properly pled a
waiver of immunity against UTP under Texas law and the trial court erred in
granting the plea to the jurisdiction.
In its brief, UTP admits that Angleton Danbury Hosp. Dist. v. Chavana, 120
S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2003, no pet.) presented a case
where waiver was proper because it involved the mistaken injection of the wrong
medication. Resp. Br. at 56. However, UTP claims, “[I]n this case, there is no
pleading or evidence that Ms. Lenoir’s death was caused by Nurse Matthews’
negligent injection of a medication different from the one prescribed.” Id. But, the
Lenoirs did allege that Nurse Matthews negligently injected a different medication
13
than what was ordered by Dr. Gonski and that the injection caused Shana Lenoir’s
death, as set forth below.
Dr. Gonski’s order for the progesterone injection is quoted in ¶17 of the
petition, but the order does not specify what kind of progesterone was supposed to
be administered to Shana Lenoir.
17. Plaintiffs allege that in the physician’s orders, Gonski wrote,
“Progesterone shot IM weekly” and signed her name. CR 121, ¶17.
Instead, Nurse Matthews decided on her own what progesterone to
administer and it turned out not to be the right one. CR 121, ¶19.
19. Plaintiffs allege that a 250 mg injection of progesterone was
administered to Shana Lenoir by Defendant ANGELA MATHEWS,
an LVN who signed her initials on the medical record.
Although 17-alpha hydroxyprogesterone caproate (17P) has been used
to prevent pre-term labor, this was not the drug Nurse Matthews injected
into Shana Lenoir. CR 123, ¶39. Instead, Nurse Matthews allegedly
injected 17-hydroxyprogesterone (17-OHP), which is not the same
medication. CR 123, ¶38.
39. Plaintiffs allege that although the American College of
Obstetricians and Gynecologists (ACOG) has recommended the use
of 17-alpha hydroxyprogesterone caproate (17P) for the prevention of
pre-term labor, this is not the drug that was administered to Shana
Lenoir.
Thus, the Lenoirs alleged that Nurse Matthews administered the
progesterone injection without a physician’s order. CR 124, ¶46 (A).
14
46. Plaintiffs allege that Defendant ANGELA MATHEWS
engaged in several acts and omissions constituting negligence
including:
A. Administering an injection without a physician order;
The Lenoirs pled a waiver of immunity because Matthews injected a
different medication than was ordered by Dr. Gonski and it is alleged to have
caused Shana Lenoir’s death and the trial court erred in granting the plea to the
jurisdiction.
CONCLUSION
WHEREFORE PREMISES CONSIDERED, the Appellants respectfully
request an order overruling the trial court’s order granting Appellees UT
Physicians plea to the jurisdiction, remanding this case to the trial court for further
proceedings and awarding the Appellants their costs and any and all other general
and equitable relief to which they may justly be entitled.
Respectfully submitted,
THE GOURRIER LAW FIRM, PLLC
By: /s/ Joseph M. Gourrier .
JOSEPH M. GOURRIER
Texas State Bar No. 24007258
530 Lovett Boulevard, Suite B
Houston, Texas 77006
Telephone: 713-533-9077
Facsimile: 713-533-9376
joseph@gourrierlaw.com
ATTORNEY FOR APPELLANTS
15
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4(i)(3), Appellants
certify that this brief is 3,452 words which is in compliance with Texas Rule of
Appellate Procedure 9.4(i)(2).
By: /s/ Joseph M. Gourrier
JOSEPH M. GOURRIER
Texas State Bar No. 24007258
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument has been
served upon all parties of record via certified mail return receipt requested and/or
facsimile on the 3rd day of April, 2015.
Ken Paxton David Iler
Daniel T. Hodge Jaqualine McMillan
David C. Mattax Fulbright & Jaworski, LLP
John P. Giberson 1301 McKinney, Suite 5100
Jason Warner Houston, TX 77010-3095
OFFICE OF THE ATTORNEY GENERAL Telephone: (713) 651-5151
Tort Litigation Division, MC-030 Facsimile: (713) 651-5246
P.O. Box 12548, Capitol Station Attorneys for Appellee U.T.
Austin, Texas 78711-2548 Physicians
Telephone: (512) 463-2197
Facsimile: (512) 463-2224
Attorneys for Appellee U.T.
Physicians
/s/ Joseph M. Gourrier .
Joseph M. Gourrier
16