the-university-of-texas-health-science-center-at-houston-v-rakisha ( 2014 )

Reversed and Rendered and Memorandum Opinion filed February 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00232-CV
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
HOUSTON, Appellant
V.
RAKISHA DICKERSON, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF LONDYN R’MANI
DICKERSON, DECEASED, Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2012-27667
MEMORANDUM OPINION
Rakisha Dickerson, Individually and as Personal Representative of the
Estate of Londyn R’Mani Dickerson, Deceased, sued the University of Texas
Health Science Center at Houston (UTHSCH). Dickerson alleged that UTHSCH
caused her infant daughter’s death by negligently failing to inform Dickerson of
the results of certain medical diagnostic tests performed on her daughter. UTHSCH
filed this interlocutory appeal from the trial court’s denial of its plea to the
jurisdiction, in which it asserted Dickerson failed to plead and prove a waiver of
sovereign immunity. We reverse the trial court’s order and render judgment
dismissing Dickerson’s suit against UTHSCH for lack of jurisdiction.
BACKGROUND
The underlying lawsuit arises from the alleged failure of UTHSCH’s
employees to notify Dickerson of medical test results from a blood culture showing
that her infant daughter had a streptococcus infection.
According to the facts alleged in her petition, Dickerson took her infant
daughter for treatment at the emergency department of Children’s Memorial
Hermann Hospital on February 24, 2010; while Dickerson and her daughter were
there, a physician ordered a blood culture and then discharged the infant.1
UTHSCH does not dispute the blood culture tested positive for Group B
Streptococcus; Dickerson alleges that this test result never was communicated to
her.
Dickerson alleges that she brought her daughter to the hospital again on
March 18, 2010, because she was suffering from seizures and other complications
from the streptococcus infection. Dickerson’s daughter was treated for the
infection but died on May 2, 2010.
Dickerson’s suit alleges that UTHSCH negligently failed to communicate to
her the results of the diagnostic medical test, and that this negligence caused her
1
Dickerson alleges that the attending physicians, residents, and fellows assigned to clinical
rotations in the emergency department are faculty members and graduate medical students at the
University of Texas Medical School at Houston, an academic unit of UTHSCH.
2
daughter’s death. In her First Amended Petition, Dickerson alleged that
UTHSCH’s employees:
while acting in the course and scope of their employment, were
negligent in failing to contact, notify, warn, counsel, and advise
Plaintiff that her infant daughter, Londyn Dickerson, was at extreme
risk of death or permanent neurologic impairment and instruct
Plaintiff Dickerson that Londyn needed to return to the hospital
immediately for life-saving care. The Plaintiff’s injury (the tragic and
untimely death of Londyn Dickerson due to untimely treated Group B
Streptococcus infection) was directly and proximately caused by the
negligent operation or use (including, but not limited to the non-use)
of motor driven equipment under circumstances in which the
Defendant’s employees would have been personally liable to the
plaintiff under Texas law. Additionally, the Plaintiff’s injury was
caused by a negligent “use” or mis-use of tangible personal property
(the February 25, 2010 blood culture test).
Dickerson further alleges that UTHSCH’s employees proximately caused the death
of her daughter:
1. By negligently operating, using, mis-using or failing to reasonably
and prudently use the Emergency Department telephone (motor-
driven equipment) in the following manner:
A. By negligently operating, using and/or mis-using the Emergency
Department Telephone (e.g., by obtaining and dialing the wrong
telephone number or by mis-dialing the correct telephone number and
thereby negligently calling or contacting someone other than Plaintiff
Dickerson to notify, warn, counsel, advise and instruct regarding the
potentially lethal infection in her baby);
B. By negligently operating, using and/or mis-using the Emergency
Department telephone by calling Plaintiff Dickerson or other family
member and not leaving a message, getting interrupted prior to
leaving a message and failing to call back, or not leaving an
adequately urgent and instructive warning message which conveyed
the gravity of potential harm to Londyn Dickerson if she was not
returned to the Emergency Department immediately for a course of
curative IV antibiotics;
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C. By negligently operating, using and/or mis-using the Emergency
Department telephone by instructing a nurse, unit clerk, unit secretary,
or other individual under the UTHSCH physician employee’s control
to contact Plaintiff Dickerson, resulting in a wrong number, a mis-
dialed number, not leaving a message, getting interrupted prior to
leaving a message and failing to call back, or not leaving an
adequately urgent and instructive message which conveyed the gravity
of potential harm to Londyn Dickerson if she was not returned to the
Emergency Department immediately for a course of curative IV
antibiotics;
D. By negligently failing to operate and use the Emergency
Department telephone to call Plaintiff Dickerson to notify, warn,
counsel, and advise her of Londyn Dickerson’s potentially lethal GBS
infection and instructing to return the patient to the hospital for life-
saving IV antibiotics.
2. By negligently operating, using, mis-using or failing to reasonably
or prudently use the Emergency Department computer, electric
typewriter, or dictation system (Electric motor-driven equipment) in
the following manner:
A. By negligently operating, using and/or mis-using the Emergency
Department computer, electric typewriter or dictation system by
preparing a letter intended to notify, warn, counsel, advise and/or
instruct Plaintiff Dickerson of Londyn’s life-threatening condition
which was incorrectly addressed or inadequately posted and therefore
delivered to someone other than Plaintiff Dickerson;
B. By negligently failing to use the Emergency Department computer,
electric typewriter or dictation system to prepare a letter to express
mail or deliver by overnight courier delivery to Plaintiff Dickerson to
contact, notify, warn, counsel and advise her of Londyn’s potentially
lethal condition with instructions to return the baby immediately to the
hospital for life-saving IV antibiotics;
3. By negligently failing to use one of the patrol vehicles of the
University of Texas Police Department to go to Plaintiff Dickerson’s
residence and notify her in person of the potentially lethal GBS
infection and instruct her to bring Londyn Dickerson back into the
hospital for a course of curative IV antibiotics; and,
4. By the negligent use and/or mis-use of the February 25, 2010 blood
culture test (tangible personal property), the proper and appropriate
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use of which diagnostic test encompassed and included prompt
contact and notification of the patient (or her representative) of the
positive blood culture results and their life-threatening implications,
and instructing that the patient be returned to the hospital immediately
for definitive and curative antibiotic therapy.
Dickerson also included a catch-all allegation of “other and further acts and/or
omissions of negligence as will be revealed in the course of discovery in this case.”
UTHSCH asserted a plea to the jurisdiction in its answer, and it filed a first
amended plea to the jurisdiction and motion to dismiss on September 7, 2012.
After briefing and a non-evidentiary hearing, the trial court denied UTHSCH’s
plea to the jurisdiction by order signed February 22, 2013. This interlocutory
appeal followed. See Tex. Civ. Prac. & Rem. Code § 51.014(8).
STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004). Immunity from suit defeats a trial court’s subject matter jurisdiction
and thus is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Transp. v.
Jones, 8 S.W.3d 636, 637 (Tex.1999). A plea questioning the trial court’s
jurisdiction raises a question of law that is reviewed de novo. State v. Holland, 221
S.W.3d 639, 642 (Tex. 2007).
In conducting our review, we first look to the pleadings to determine if
jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009).
We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id. If the pleadings do not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
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plaintiff should be afforded the opportunity to amend. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.
ANALYSIS
In one issue, UTHSCH asserts that the trial court erred by denying its plea to
the jurisdiction and motion to dismiss because Dickerson failed to allege a waiver
of sovereign immunity under the Texas Tort Claims Act. See Tex. Civ. Prac. &
Rem. Code §§ 101.001–.109.
In Texas, sovereign immunity deprives a trial court of subject matter
jurisdiction for lawsuits in which governmental units have been sued unless the
state consents to suit. Miranda, 133 S.W.3d at 224. UTHSCH is a “governmental
unit” for these purposes. See Univ. of Texas Health Sci. Ctr. v. Schroeder, 190
S.W.3d 102, 104 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The Tort Claims Act provides a limited waiver of sovereign immunity.
Miranda, 133 S.W.3d at 224. Immunity is waived when a claimant suing a
governmental unit for personal injury or death pleads and shows that the injury or
death arises from the operation or use of a motor-driven vehicle or motor-driven
equipment, or that the injury or death arises from a negligent condition or use of
tangible personal or real property. Tex. Civ. Prac. & Rem. Code § 101.021. 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:
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(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.
Dickerson alleged sovereign immunity was waived based on UTHSCH’s use
of the test results as personal property. Dickerson further alleged negligent use,
misuse, or non-use of the following motor-driven equipment: the emergency
department telephone for notice by phone call; the emergency department
computer, electric typewriter or dictation system for preparing a written warning;
and the University police patrol vehicles for personal notification.
UTHSCH argued that Dickerson’s claims do not fall within one of the Tort
Claims Act’s recognized waiver categories because the claims against it are
predicated on the alleged use, nonuse or misuse of information in the form of
medical diagnostic test results. UTHSCH asserts that information in the form of
medical diagnostic test results is not tangible personal property as a matter of law.
The Texas Supreme Court distinguishes between tangible property that is
itself the instrument of harm, and tangible property that merely conveys
information in a written form. See Univ. of Tex. Med. Branch at Galveston v. York,
871 S.W.2d 175, 179 (Tex. 1994). While paper itself can be touched, handled, and
seen, the court reasoned that intangible medical information recorded on paper is
not tangible personal property. Id. The court held in York that the state medical
7
entity’s alleged failure to record information in a patient’s medical records and its
failure to rely on recorded information did not involve the use of tangible personal
property so as to implicate a waiver of immunity under the Tort Claims Act. Id. at
178–79.
This court recently addressed a similar issue in University of Texas Medical
Branch v. Qi, 402 S.W.3d 374 (Tex. App.—Houston [14th Dist.] 2013, no pet.), in
which we held that the trial court lacked subject matter jurisdiction. Qi claimed
that the defendant’s jurisdiction-destroying immunity was waived because its
employees negligently read and interpreted the results of blood pressure testing
equipment and urine test strips, and thereby failed to diagnose preeclampsia. She
attributed the stillbirth of her child and her own related injuries to the alleged
failure to diagnose preeclampsia. Id. at 377–78.
In determining that the trial court lacked subject matter jurisdiction because
immunity was not waived, we recognized that “use” of property under the Tort
claims Act requires more than reading and interpreting data produced by medical
equipment. Id. at 388. We cited York’s holding that information is intangible, and
that such information is not transformed into tangible property when it is recorded
on paper or by a medical device. Id. at 387. We concluded that Qi’s claim did not
invoke the Tort Claims Act’s limited waiver of sovereign immunity. Her claim
focused on an alleged failure to timely diagnose and treat preeclampsia; these
allegations did not satisfy the Tort Claims Act’s requirement that claimed injuries
must be proximately caused by the use of tangible personal property. Id. at 381.
Dickerson contends that the circumstances here are controlled by Salcedo v.
El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983). Salcedo held that the
improper reading and interpreting of results of an electrocardiogram (EKG)
8
constituted a use of tangible personal property and a waiver of governmental
immunity. Id. at 31.
We reject Dickerson’s contention that Salcedo controls here. The Tort
Claims Act was amended after Salcedo, and the decision is now limited to its
facts.2 See Bossley, 968 S.W.2d at 342; Qi, 402 S.W.3d at 387. Moreover, Salcedo
is factually distinguishable. Dickerson has not alleged UTHSCH employees
improperly read or interpreted the blood culture results. In addition, the York court
recognized that an EKG machine is tangible personal property. York, 871 S.W.2d
at 178.
Dickerson also cites two cases relying on Salcedo and argues that we are
bound to follow them.
The first is Baston v. City of Port Isabel, 49 S.W.3d 425 (Tex. App.—
Corpus Christi 2001, pet. denied), which also held that sovereign immunity was
waived based on the alleged use or misuse of an EKG monitor leading to
inappropriate treatment resulting in the patient’s death. Id. at 429. As in Salcedo,
the claim in Baston alleged misuse of medical equipment. See Archibeque v. N.
Texas State Hosp.—Wichita Falls Campus, 115 S.W.3d 154, 159, n.6 (Tex. App.—
Fort Worth 2003, no pet.).
2
When Salcedo was decided in 1983, the Tort Claims Act provided for waiver of sovereign
immunity for death or personal injuries caused by “some condition or some use of tangible
property.” (emphasis added). See Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Tex.
Gen. Laws 3084, 3085. At that time, the Tort Claims Act also provided, “[t]he provisions of this
Act shall be liberally construed to achieve the purposes hereof.” See Act of May 14, 1969, 61st
Leg., R.S., ch. 292, § 13, 1969 Tex. Gen. Laws 874, 877. When the Legislature codified the Tort
Claims Act in 1985, the word “some” was deleted. See Act of May 17, 1985, 69th Leg., R.S., ch.
959, § 1, 1985 Tex. Gen. Laws 3242, 3303. In addition, the mandate for liberal construction of
provisions of the Tort Claims Act was repealed and not carried forward in the codification. Id. at
3322.
9
The second is The University of Texas Medical Branch at Galveston v.
Hardy, 2 S.W.3d 607 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). In
Hardy, the patient was connected to a cardiac monitor while recovering from
bypass surgery. Id. at 608–09. When the monitor sounded an alarm due to a
complete heart block and heart stoppage, resuscitation efforts were not commenced
for at least five minutes. Id. The patient never regained consciousness and was
taken off life support. Id. at 609.
This court held in Hardy that the failure to pay proper attention to the
cardiac monitor constituted a use or misuse of tangible property. Id. at 610. The
cardiac monitor was “put into service” for the purpose of monitoring the patient’s
heart and the hospital employee’s failure to pay attention to the monitor constituted
a use or misuse of the monitor. Id. Hardy relied on Salcedo, which applied a
former version of the Tort Claims Act and has been limited to its facts. Moreover,
like the EKG monitor, the cardiac monitor is tangible property, the alleged use or
misuse of which satisfies the Tort Claim Act’s waiver provision.
UTHSCH relies on another case involving an allegation that positive test
results were not communicated to the patient in a timely manner, University of
Texas Medical Branch at Galveston v. Mullins, 57 S.W.3d 653 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). In Mullins, the plaintiff asked the hospital to
perform an HIV test. Id. at 655. The test was positive, but the plaintiff alleged she
was not informed of the results until three years later. Id. The plaintiff alleged that
“UTMB staff never followed up on her test results despite statements written in her
medical chart.” Id. at 657. In finding immunity was not waived, this court reasoned
that the gravamen of the complaint was that UTMB failed to communicate the test
results to her, and information is not tangible property, even if it is transcribed in a
medical chart. Id.
10
UTHSCH also cites Brooks v. The University of Texas Medical Branch, No.
14-10-00988-CV, 2011 WL 3276249 (Tex. App.—Houston [14th Dist.] August 2,
2011, no pet.) (mem. op), which followed Mullins. In Brooks, a baby’s shoulder
was dislocated during birth resulting in neurological damage. Id. at *1. While the
dislocation appeared on an x-ray, the attending doctor did not inform the mother.
Id. The plaintiff filed suit alleging that the hospital was negligent in “failing to
inform” her of the dislocation, thereby leading to the worsening of the child’s
condition. Id. at *3. This court held that immunity was not waived for the misuse
or non-use of information, reasoning that the plaintiff had not alleged UTMB
misused the x-ray machine, but instead, she alleged a failure to communicate the
information on the x-ray. Id. (citing York, 871 S.W.2d at 179).
We follow York, as well as our own precedent in Qi, Mullins, and Brooks,
and conclude that the results of the blood culture in this case are intangible
information contained in a medical record; this information is not tangible personal
property as a matter of law. See York, 871 S.W.2d at 179; Qi, 402 S.W.3d at 387–
88; Mullins, 57 S.W.3d at 657; Brooks, 2011 WL 3276249, *3; see also
Gainesville Mem. Hosp. v. Tomlinson, 48 S.W.3d 511, 512–14 (Tex. App.—Fort
Worth 2001, pet. denied) (laboratory results are not tangible property merely
because they are recorded on paper).
In determining whether sovereign immunity has been waived, courts look to
the real substance of a plaintiff’s cause of action, not the plaintiff’s characterization
of her claims. Qi, 402 S.W.3d at 389. Dickerson’s allegation that UTHSCH failed
to “contact, notify, warn, advise or instruct” her about her daughter’s medical
condition is an allegation about a failure to communicate information. The
substance of Dickerson’s claim is that UTHSCH failed to convey information to
her. A governmental unit does not waive sovereign immunity by the use, misuse or
11
non-use of information in a medical record. York, 871 S.W.2d at 179. Dickerson’s
suit does not invoke the Tort Claim Act’s waiver of immunity under section
101.021(2).
Furthermore, for a waiver under subsection (2) of section 101.021 to apply,
the plaintiff’s injury “must be proximately caused by the condition or use of
tangible property.” Dallas Cnty. Mental Health & Mental Retardation v. Bossley,
968 S.W.2d 339, 343 (Tex. 1998). The requirement for causation must be more
than mere involvement, and “[p]roperty does not cause injury if it does no more
than furnish the condition that makes the injury possible.” Id. Instead, the property
must be the instrumentality of the harm. Tex. Tech Univ. Health Sci. Ctr. v.
Jackson, 354 S.W.3d 879, 884 (Tex. App.—El Paso 2011, no pet.). Using the
property must have actually caused the injury. Tex. Dep’t of Crim. Justice v.
Miller, 51 S.W.3d 588 (Tex. 2001). Dickerson has not alleged that the information
was the “instrumentality of the harm.” See Jackson, 354 S.W.3d 879, 884. Instead,
she claims that the cause of death was the delayed treatment of the streptococcus
infection. Accordingly, Dickerson failed to allege the required nexus between the
use or nonuse of the information and the child’s death. See Qi, 402 S.W.3d at 388.
Dickerson’s list of available communication methods (i.e., telephone,
computer, electric typewriter, dictation system, police vehicle) does not transform
her allegation into a claim involving a use of tangible personal property.
Whether information exists simply in an oral state or is recorded by or onto
tangible property, information itself remains intangible; thus, it cannot provide the
basis for a waiver of immunity under the Tort Claims Act regardless of how it was
allegedly used or misused by government employees. See York, 871 S.W.2d at
179; see also Axtell v. Univ. of Tex. at Austin, 69 S.W.3d 261, 266-67 (Tex.
12
App.—Austin 2002, no pet.) (immunity was not waived for claim academic
records were improperly faxed to several radio stations because it was the fact that
the information was released that allegedly caused the damages, not the means or
method by which the information was transmitted). “The medium used to
communicate information does not alter its intangible nature.” Sawyer v. Tex.
Dep’t of Crim. Justice, 983 S.W.2d 310, 312 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (“Information or misinformation remains information whether it
is transmitted by electronic equipment or by word of mouth.”). The use of
computers, telephones, or records to collect and communicate information is not a
use of tangible personal property under the Tort Claims Act. See Cherry v. Tex.
Dep’t of Crim. Justice, 978 S.W.2d 240, 243 (Tex. App.—Texarkana 1998, no
pet.); Thomas v. Brown, 927 S.W.2d 122 (Tex. App.—Houston [14th Dist.] 1996,
writ denied).
Dickerson also claims that immunity is waived by UTHSCH’s failure to use
motor-driven equipment to communicate the test results. See Tex. Civ. Prac. &
Rem. Code § 101.021(1) (governmental unit may be liable where “death arises
from the operation or use of a motor-driven vehicle or motor-driven equipment.”).
The term “arises from” requires “a nexus between the injury negligently caused by
a governmental employee and the operation or use of a motor-driven vehicle or
piece of equipment.” LeLeaux v. Hamshire–Fannett I.S.D., 835 S.W.2d 49, 51
(Tex. 1992). This nexus requires “more than mere involvement of property,” and is
not satisfied by an operation or use of equipment that “does no more than furnish
the condition that makes the injury possible.” Dallas Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 543 (Tex. 2003). The causation requirement is the same
whether a claim is based on use of motor-driven equipment or use of tangible
property. Id.
13
In this case, the equipment (telephone, computer, electric typewriter,
dictation system, police vehicle) is not alleged to have caused the child’s death.
Instead, Dickerson claims that the cause of death was the delayed treatment of the
streptococcus infection. Accordingly, Dickerson failed to allege a nexus between
the use or nonuse of the equipment in this case and the child’s death. In addition,
as we have noted, it is well settled that allegations of nonuse of property are
insufficient to fall within the Tort Claims Act’s waiver provision. See City of N.
Richland Hills v. Friend, 370 S.W.3d 369, 372 (Tex. 2012). Dickerson has failed
to allege a waiver of immunity under section 101.021(1) based on the failure to use
motor-driven equipment to notify her of the blood culture results.
Dickerson additionally asserts that in “certain unique factual circumstances,”
immunity is waived for claims in which the plaintiff alleges that injury or death
was caused by the property’s lack of an integral safety component, citing Robinson
v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 169, 171 (Tex. 1989); Lowe v. Tex.
Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976); Overton Mem’l Hosp. v. McGuire,
518 S.W.2d 528, 528–29 (Tex. 1975) (per curiam).3 Dickerson alleges that patient
contact was “made an integral safety component” of the blood culture result which
UTHSCH’s employees voluntarily assumed a duty to provide. The “integral safety
component” theory has been limited to claims in which a plaintiff alleges that a
state actor has provided property that lacks an integral safety component, and that
3
Dickerson also cites University of Texas M.D. Anderson Cancer Center v. King, 329 S.W.3d
876 (Tex. App.—Houston [14th Dist.] 2010, pet. denied), as an example of the waiver of
immunity based on the lack of an integral safety component. In King, this court determined that
an inadequate time for discovery had elapsed, and we remanded for the plaintiff to amend her
pleadings to clarify whether she claimed that her injuries were caused by a hospital bed with
inadequate rails or by the hospital personnel’s negligence in moving her. Id. at 883–85. After
remand, we held immunity was not waived because the complaint did not allege the use of
tangible personal property, and the hospital exercised medical judgment in raising some, but not
all, of the hospital bed’s rails. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, —S.W.3d
— (Tex. App.—Houston [14th Dist.] June 27, 2013, no pet.).
14
the lack of this integral component led to the plaintiff’s injuries. See Kerrville State
Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1992). We have determined that the
test results are not property. Therefore, the “integral safety component” theory
Dickerson alleges is inapplicable to these facts.
Dickerson asserts that this is not a generic “intangible information” case;
instead, she contends that UTHSCH breached an assumed duty to contact the
child’s mother with the positive test results after the child had been discharged.
Dickerson contends cases considering test results to be intangible information
rather than tangible property, are distinguishable because UTHSCH assumed a
duty to contact the patient in the hospital discharge instructions. Those discharge
instructions stated as follows: “If there is . . . a positive culture we will contact you.
(Make sure we have your local telephone number).” Dickerson alleges she relied
on this promise, no one contacted her, and her daughter died as a result.
The Texas Supreme Court has recognized that a common law duty to use
reasonable care may arise when a person undertakes to provide services to another.
See, e.g. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976). Such a
common law duty does not act as a waiver of immunity. The Supreme Court has
long recognized that “it is the Legislature’s sole province to waive or abrogate
sovereign immunity.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997).
Legislative waiver of sovereign immunity must be expressed in “clear and
unambiguous language.” Tex. Gov’t Code § 311.034; York, 871 S.W.2d at 177. An
agent of a governmental unit cannot waive sovereign immunity absent a legislative
act. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 858 (Tex.
2002).
While the doctrine of “undertaking” can create a duty under certain
15
circumstances, a claim against a governmental unit based on a breach of that duty
is limited to the causes of action for which immunity is waived as established in
the Tort Claims Act. See Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d
392, 394–95 (Tex. 1991); City of Haltom City v. Aurell, 380 S.W.3d 839, 854
(Tex. App.—Fort Worth 2012, no pet.) (recognizing that in a premises defect case,
a claim against governmental unit for negligent undertaking must comply with the
Tort Claims Act). A cause of action alleging a breach of common law duty must
nevertheless comply with the Tort Claims Act’s requirements for immunity to be
waived. Just as the Tort Claims Act does not create new duties, the existence of a
common law duty does not waive immunity unless the Tort Claims Act limited
waiver applies. See Sbrusch, 818 S.W.2d at 394–95. Dickerson’s allegations that
UTHSCH undertook a legal duty do not waive governmental immunity in this
case.
Lastly, we must determine whether to remand the case to give Dickerson an
opportunity to replead. See County of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002). Although a plaintiff sometimes may be afforded an opportunity to
amend pleadings, pleadings that affirmatively negate the existence of jurisdiction
are incurably defective. Id. at 555; King, 329 S.W.3d at 881. Dickerson’s
contention that a legal duty existed does not transform her allegations into a
complaint the child’s death was caused by the use of tangible personal property or
motor-driven equipment. Amendment would not cure Dickerson’s failure to plead
facts sufficient to waive immunity under the Tort Claims Act.
CONCLUSION
Dickerson alleges that that UTHSCH failed to convey intangible information
to her. Because Dickerson’s cause of action alleges a failure to act and the non-use
16
of equipment to convey information, Dickerson’s suit does not invoke the Tort
Claims Act’s waiver of immunity. We sustain UTHSCH’s sole issue. We reverse
the trial court’s order denying UTHSCH’s plea to the jurisdiction and render
judgment dismissing Dickerson’s suit against UTHSCH for lack of jurisdiction.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
17