Linell Redden, Individually and as Representative of the Estate of Robert Jones Redden, Sabre Marie Redden And Sean Michael Redden v. Denton County ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00111-CV
LINELL REDDEN, INDIVIDUALLY APPELLANTS
AND AS REPRESENTATIVE OF
THE ESTATE OF ROBERT JONES
REDDEN, DECEASED; SABRE
MARIE REDDEN; AND SEAN
MICHAEL REDDEN
V.
DENTON COUNTY APPELLEE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
In one issue, Appellants Linell Redden, individually and as representative
of the estate of Robert Jones Redden, deceased; Sabre Marie Redden; and
Sean Michael Redden (collectively, ―Appellants‖) complain that the trial court
erred by granting Appellee Denton County‘s plea to the jurisdiction. We affirm.
II. Background
Appellants sued Denton County under the Texas Tort Claims Act (TTCA)
after Redden died while incarcerated in the Denton County Jail, alleging misuse
of the county‘s electrocardiogram (EKG) machine by misinterpreting the data
derived from it that led to his improper treatment and death, among other
allegations not at issue here.1 See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.001–.109 (Vernon 2005).
In support of their claim, Appellants alleged that Redden, who was
incarcerated from May 1, 2006, until his death on July 9, 2006, informed jail
personnel of his history of coronary artery disease. On at least three occasions,
Redden complained of chest pains ―and other signs and symptoms of cardiac
ischemia for which EKG testing was performed but for which no EKG
assessment was made by qualified medical personnel,‖ and facility employees
―misused [the county‘s] EKG and the data derived from the EKG by failing to
properly assess‖ Redden‘s cardiac problems pursuant to the county‘s protocols.
On July 9, Redden‘s symptoms worsened and he had a heart attack in the jail
infirmary.
Denton County filed a plea to the jurisdiction, adding these additional facts:
Redden reported to jail medical staff that he had had a heart attack eleven
years before but that he was not currently seeing any doctor for his past heart
1
In their response to Denton County‘s plea to the jurisdiction, Appellants
stated that they chose ―to continue on only their causes of action alleging misuse
of the EKG machine.‖
2
attack, had not taken any prescription medicine for a heart condition in the last
eight years, and was just taking aspirin;
Redden was evaluated and treated in the jail infirmary on at least six
occasions: June 10, June 18, June 19, June 30, July 5, and July 9, involving
a variety of matters, including discharge from his left ear, chest pain, left
elbow pain, throat pain, acid reflux, and ―ultimately [a] heart attack‖;
EKG tests were performed on June 10, June 19, and June 30 before Redden
reported to the infirmary on July 9, complaining of ―sweating, arms tingling,
chest hurting,‖ and received another EKG test.
Redden suffered sudden cardiac arrest while in the infirmary;
The medical examiner determined that Redden had experienced a sudden
blood clot, and the medical cause of death was ―Coronary Artery Thrombosis
Due to Atherosclerosis Cardiovascular Disease‖;
Medical Officer Day testified that if the EKG machine is not operating properly,
it will not run a ―strip,‖ and the machine will let the operator know that there is
a problem. A ―strip‖ was printed each time the EKG machine was used on
Redden.
In its plea, Denton County argued that it was protected by sovereign immunity,
that ―[t]he sole and very narrow issue . . . is whether tangible property was
misused and such misuse caused‖ Redden to have a heart attack, and that, even
though the EKG machine is tangible county property, there was no actionable
misuse because the machine was working properly and the only machine-related
complaint brought by Appellants pertained to the misinterpretation of the
printouts by infirmary personnel.2
2
Denton County argued that, ―[a]t best, the [Appellants‘] concerns go to
alleged errors in medical judgment and not the misuse of any tangible property
which caused Mr. Redden to have a heart attack.‖
3
In their response to Denton County‘s plea to the jurisdiction, Appellants
specifically alleged that Denton County employees ―found the [EKG] graphs
revealed normal activity instead of ischemic changes and, based on that
misinterpretation, treated Redden with antacids for heartburn rather than
providing him with immediate cardiac care.‖ They stated, ―Simply put, if Denton
County staff had not misinterpreted the EKG readings as acid reflux, Redden
would have received the immediate medical treatment he needed for his heart
and probably lived.‖ Appellants never alleged that the EKG machine itself was
not properly working. After a hearing, the trial court granted Denton County‘s
plea to the jurisdiction, and this appeal followed.
III. Plea to the Jurisdiction
The issue presented to this court can be distilled to a single question: Is
Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 32 (Tex. 1983), which held
that an allegation of misuse of tangible property by improper reading and
interpretation of EKG graphs stated a claim under the TTCA, still good law
regarding the ―use‖ of an EKG machine, or has it been implicitly overruled by
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003)?
A. Standard of Review
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action
without regard to whether the claims asserted have merit. Tarrant County v.
McQuary, 310 S.W.3d 170, 172 (Tex. App.—Fort Worth 2010, pet. denied) (citing
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). The plea
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challenges the trial court‘s subject matter jurisdiction. Id. Whether the trial court
had subject matter jurisdiction is a question of law that we review de novo. Id.
(citing Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002)).
The plaintiff has the burden of alleging facts that affirmatively establish the
trial court‘s subject matter jurisdiction. Id. at 173 (citing Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings
liberally in the plaintiff‘s favor, look to the pleader‘s intent, and accept the
pleadings‘ factual allegations as true. Id. (citing Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
B. Texas Tort Claims Act
A governmental entity is immune from suit except to the extent waived by
the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001(3)(B), 101.021.
Under the current version of the TTCA, a governmental unit‘s sovereign immunity
is waived 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.‖ Id. § 101.021(2). That
is, to state a claim under section 101.021(2), the plaintiff must allege that (1)
property was used or misused by a governmental employee and (2) the use
proximately caused personal injury or death. Archibeque v. N. Tex. State Hosp.-
Wichita Falls Campus, 115 S.W.3d 154, 158 (Tex. App.—Fort Worth 2003, no
pet.). The supreme court has defined ―use‖ as ―to put or bring into action or
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service; to employ for or apply to a given purpose.‖ Whitley, 104 S.W.3d at 542
(citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208,
211 (Tex. 1989)). Neither party disputes that the phrase ―tangible personal
property‖ includes EKG machines or that the EKG machine in question belonged
to Denton County.
C. “Use” of an EKG Machine
There is currently a split in authority with regard to ―use‖ of an EKG
machine. Some courts of appeals have held, implicitly or explicitly, that Salcedo
is still the applicable law. See, e.g., Tex. Tech Univ. Health Sci. Ctr. v. Lucero,
234 S.W.3d 158 (Tex. App.—El Paso 2007, pet. denied); Univ. of Tex. Med.
Branch Hosp. at Galveston v. Estate of Blackmon, 169 S.W.3d 712 (Tex. App.—
Waco 2005, pet. granted) (op. on reh‘g), vacated on jurisdictional grounds, 195
S.W.3d 98 (Tex. 2006). Other courts have followed Whitley‘s reasoning and treat
Whitley as though it has overruled Salcedo. See, e.g., Tex. Tech Univ. Health
Sci. Ctr. v. Ward, 280 S.W.3d 345 (Tex. App.—Amarillo 2008, pet. denied);
Lanphier v. Avis, 244 S.W.3d 596 (Tex. App.—Texarkana 2008, pet. dism‘d as
moot); Kelso v. Gonzales Health Sys., 136 S.W.3d 377 (Tex. App.—Corpus
Christi 2004, no pet.); Anderson v. City of San Antonio, 120 S.W.3d 5 (Tex.
App.—San Antonio 2003, pet. denied). We must decide which path to follow.
1. Salcedo v. El Paso Hospital District
Everedo Salcedo died from a heart attack after he was given an EKG test
in the emergency room—the results of which allegedly showed a classic pattern
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for a heart attack—and then was released without treatment. Salcedo, 659
S.W.2d at 31. Salcedo‘s widow alleged that the hospital district was liable for his
death under the TTCA based on misuse of the EKG equipment ―by improperly
reading and interpreting the electrocardiogram graphs and charts produced by
the equipment.‖ Id. at 32. The trial court dismissed her case for failure to state a
claim under the TTCA, and the court of appeals affirmed. Id. at 31.
The supreme court reversed, first holding that ―an allegation of defective or
inadequate tangible property is not necessary to state a cause of action under
the Act if ‗some use‘ of the property, rather than ‗some condition‘ of the property,
is alleged to be a contributing factor to the injury.‖ Id. at 32. It then determined
that the widow‘s allegation that the hospital district was liable under the TTCA for
misuse in improperly reading and interpreting the EKG graphs stated a claim. Id.
at 31, 33 (stating, ―[r]eading and interpreting are purposes for which an
electrocardiogram graph is used or employed in diagnosing myocardial
infarction‖).
To reach this holding, the supreme court construed language in an earlier
version of the TTCA—specifically, the word ―some‖ before ―condition‖ and ―use,‖3
3
The prior version of the TTCA states,
Each unit of government in the state shall be liable for money
damages for property damage or personal injuries or death when
proximately caused by the negligence or wrongful act or omission of
any officer or employee acting within the scope of his employment or
office arising from the operation or use of a motor-driven vehicle and
motor-driven equipment, other than motor-vehicle equipment used in
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and the provision requiring liberal construction. Id. at 32, 33. It relied on Chief
Justice Greenhill‘s concurring opinion in Lowe v. Texas Tech University, in which
he noted that the statutory language—some ―condition or use‖ of property—
―implies that such property was furnished, was in bad or defective condition or
was wrongly used‖ and in which he encouraged the legislature to express its
intent to waive immunity more clearly. Id. at 32 (citing Lowe v. Texas Tech Univ.,
540 S.W.2d 297, 301 (Tex. 1976) (Greenhill, C.J., concurring)). And the court
noted that a senate report to the 62nd legislature recognized the difficulty that the
language would cause courts4 and expressed frustration that the language
connection with the operation of floodgates or water release
equipment by river authorities created under the laws of this state,
under circumstances where such officer or employee would be
personally liable to the claimant in accordance with the law of this
state, or death or personal injuries so caused from some condition or
some use of tangible property, real or personal, under circumstances
where such unit of government, if a private person would be liable to
the claimant in accordance with the law of this state.
Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Tex. Gen. Laws
3084, 3085, repealed, recodified, and amended by Act of May 17, 1985,
69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (current
version at Tex. Civ. Prac. & Rem. Code Ann. § 101.021) (emphasis
added).
4
That is, the report by Dean Keeton to the legislature stated,
Most negligent conduct that results in personal injury involves either
the use of tangible property or the creation or maintenance of a
dangerous condition on tangible property. So it seems to me that
whereas this might appear to be a somewhat restrictive waiver of
immunity it is not so in fact. It is a very general one but productive of
undesirable litigation over its meaning.
Salcedo, 659 S.W.2d at 32.
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continued to cause difficulty. Id. (―Seven years have passed since our opinion in
Lowe, yet the legislature has not changed the troublesome waiver provision.‖).
The court then held that because reading and interpreting information are
the purposes for which the EKG graphs are used in diagnosing a heart attack,
this constituted use of tangible property and stated a claim under the TTCA. Id.;
see also Baston v. City of Port Isabel, 49 S.W.3d 425, 429 (Tex. App.—Corpus
Christi 2001, pet. denied) (holding that negligence in the use or misuse of an
EKG machine that causes inappropriate treatment resulting in injury or death
constitutes a permissible cause of action under the TTCA); Univ. of Tex. Med.
Branch Hosp. at Galveston v. Hardy, 2 S.W.3d 607, 610 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied) (stating that the failure to monitor a cardiac monitor
is indistinguishable from Salcedo as far as the use or misuse of tangible personal
property is concerned); Montoya v. John Peter Smith Hosp., 760 S.W.2d 361,
364 (Tex. App.—Fort Worth 1988, writ denied) (indicating a written record like the
print out from an EKG machine may be tangible personal property ―when it
records a tangible situation, as in Salcedo‖). However, the court has since
limited Salcedo to its facts. Dallas Cnty. Mental Health & Mental Retardation v.
Bossley, 968 S.W.2d 339, 342 (Tex. 1998), cert. denied, 525 U.S. 1017 (1998).
2. Revision and Recodification of the TTCA
When Salcedo was decided on October 26, 1983, the TTCA provided for a
waiver of sovereign immunity for death or personal injuries caused from ―some‖
condition or ―some‖ use of tangible property. See Act of May 28, 1983, 68th
9
Leg., R.S., ch. 530, § 1, 1983 Tex. Gen. Laws 3084, 3085 (repealed, recodified,
and amended 1985). At that time, the TTCA 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,
repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen.
Laws 3242, 3322. When the legislature recodified the TTCA, two years after
Salcedo, it deleted the word ―some‖ and repealed the provision mandating liberal
construction, even though it also included a legislative comment that the ―Act
[was] intended as a recodification only,‖ with no substantive change in the law
intended. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9–10, 1985
Tex. Gen. Laws 3242, 3303, 3322.
Prior to Whitley, but after this amendment, the supreme court began to
narrow Salcedo. See Univ. of Tex. Med. Branch at Galveston v. York, 871
S.W.2d 175, 178–79 (Tex. 1994). In York, a patient sued for negligence under
the TTCA after he broke his hip during in-patient physical therapy and the
hospital failed to diagnose the broken hip for nine days. Id. at 176. He alleged
that the hospital misused tangible personal property by failing to note in his
medical records about the broken hip or to follow a recommendation noted in the
record for an x-ray of the hip to determine whether it was broken. Id. The court
stated that information is intangible and ―the fact that information is recorded in
writing does not render the information tangible property.‖ Id. at 179. It held that
Salcedo did not permit claims against the State for misuse of information and that
10
―[w]hile paper itself can be touched, handled, and seen, medical information
recorded on paper is not tangible personal property.‖ Id. at 176, 179. Therefore,
York failed to state a claim under the TTCA because there is no waiver of
immunity for negligence involving the use, misuse, or nonuse of medical
information. Id. at 176
3. Dallas Area Rapid Transit v. Whitley
Whitley, a cerebral palsy sufferer, sued the Dallas Area Rapid Transit
Authority (DART) under the TTCA after a fellow bus passenger, Burkley, severely
beat him and put him in the hospital for ten days. 104 S.W.3d at 542. Whitley
had been verbally harassed and threatened by Burkley, and the bus driver
resolved the dispute by depositing Whitley in a bad neighborhood and telling him
he would return for him in a few minutes. Id. at 541–42. The bus did not return,
and Burkley disembarked at the next stop, recruited her son and his friends to
join her vendetta, and attacked Whitley. Id. at 542. Whitley sued DART for
negligence, arguing that ―his injuries ar[o]se from a use of the bus because the
bus driver wrongfully ejected him in a remote and dangerous area of Dallas,
allowed Burkley to deboard after she assaulted and threatened him in the driver‘s
presence, and then failed to pick him up as promised.‖ Id.
Noting first that it had consistently required ―a nexus between the operation
or use of a motor-driven vehicle or equipment and a plaintiff‘s injuries‖ that was
more than mere involvement of the property, the court ultimately held that
Whitley‘s injuries did not arise from the use of the bus but rather ―from the bus
11
driver‘s failure to supervise the public, which is insufficient to waive immunity
under the Tort Claims Act.‖ Id. at 542–43. The court reasoned that, in this case,
the use of the motor vehicle did no more than furnish the condition that made the
injury possible because ―Burkley and her accomplices caused Whitley‘s injuries[;]
. . . the driver‘s failure to supervise Burkley may have contributed, but the
operation or use of the bus did not.‖ Id. at 543. Hence, there exists an argument
that an EKG machine‘s readings furnish only a condition—information—that
makes an injury possible and that, if the EKG machine is operated properly, it is
not ―misused‖ if its readings are improperly interpreted. See id.
4. Recent Case Law
As previously stated, some courts have taken Whitley‘s reasoning and
reached a result that would not have been reached under Salcedo. That is,
considering the legislature‘s 1985 amendment of the TTCA, the supreme court‘s
post-amendment narrowing of the scope of the TTCA‘s immunity waiver, and
Whitley, these courts follow the rule that a medical machine‘s use—not its
generated information—must cause injury because generated information does
not constitute ―use‖ under the TTCA.
In Anderson, for example, the San Antonio Court of Appeals held that the
use of an EKG machine did not cause Richard Anderson‘s death by heart attack
after he received two EKGs—the results of which were disputed—and was not
transported to the emergency room despite his pleas that he was having a heart
attack. 120 S.W.3d at 6–7, 9. Rather, Anderson‘s death was caused by his
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cardiac condition and the alleged negligence of the emergency medical
technicians. Id. at 9. A majority of the court stated that ―in light of Whitley, we no
longer believe that Salcedo is controlling.‖ Id.5
Similarly, in Kelso, the Corpus Christi Court of Appeals distinguished
proper use of an EKG machine from the subsequent misuse or nonuse of
information provided by it to uphold the trial court‘s grant of a hospital‘s plea to
the jurisdiction, although it reversed and remanded to allow the Kelsos the
opportunity to amend their pleading. 136 S.W.3d at 380, 382. Daisy Kelso had
an EKG performed but did not immediately receive medical treatment for her
acute myocardial infarction until two hours after the EKG results showed that she
was having a heart attack. Id. at 380. The court held that ―the use or misuse of
an EKG [machine] is distinguishable from the use or misuse of information.‖ Id.
at 382. That is, if the machine is correctly used, ―any subsequent misuse or
nonuse of the information it reveals about a patient‘s medical condition does not
waive immunity under the [TTCA], as it was the use of the information, not the
tangible property, which was the proximate cause of injury.‖ Id.
Further, in Ward, the Amarillo Court of Appeals held that a stillborn child‘s
parents, who sued a hospital alleging that misuse of information from the fetal
heart rate monitor caused the child‘s death, failed to allege that the monitor itself
5
The concurrence observed, ―We are bound to follow Salcedo unless the
Texas Supreme Court overrules it. Although having ample opportunity to do so,
the Supreme Court has not overruled its holding in Salcedo.‖ Anderson, 120
S.W.3d at 9 (Marion, J., concurring).
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was incorrectly used or that its results were erroneous, and therefore failed to
state a claim under the TTCA. 280 S.W.3d at 356 (―Rather, they couched their
allegations as ‗failing to recognize and respond,‘ which are allegations of misuse
of information and negligence by medical staff.‖). The court reached this result
by reviewing the TTCA, its revisions following Salcedo, and the numerous cases
after Salcedo, including Whitley. Id. at 349–55. It observed that the supreme
court‘s trend has been to limit Salcedo and to apply section 101.021(2) narrowly
regarding use of tangible personal property. Id. at 351–53; see also Lanphier,
244 S.W.3d at 606–07 (holding that stillborn‘s mother failed to state a claim
under the TTCA when she alleged that the nurses should have taken alternate
actions based on the information contained in the fetal monitor strips and not that
they misused the fetal monitor itself because information is not ―tangible
property‖).
On the other hand, some courts continue to follow Salcedo. The tenor of
these cases is that the supreme court has had opportunities to overrule Salcedo
and has not done so; thus, the misuse of information from medical machines
continues to constitute ―use‖ under the TTCA.
In Blackmon, for example, the Waco Court of Appeals held that allegations
that a prison nurse failed to properly use diagnostic medical tools stated a claim
under the TTCA. 169 S.W.3d at 716, 722–23. An inmate died of pneumonia
following an examination by a prison nurse using a pulse oxymeter, stethoscope,
and thermometer, and the results of the examination did not, but allegedly should
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have, resulted in a referral to a physician for treatment. Id. at 714–15. The court
stated, ―[W]e do not believe that the supreme court—without telling us so, despite
many opportunities—has . . . fashioned a new rule of law in TTCA cases that the
property itself must be the actual instrument that physically caused the harm.‖ Id.
at 721. It reasoned that although the actual physical instruments themselves did
not kill Blackmon, the fact that her immediate and direct cause of death was
untreated pneumonia did not foreclose the alleged negligent use or misuse of the
stethoscope and pulse oxymeter from being a proximate cause of her death
under the TTCA because they were tangible personal property whose purposes
were to assist in the assessment of Blackmon‘s lung functioning, and if they had
been properly used, she would have received life-saving treatment. Id. at 721–
22.
Likewise, in Lucero, the El Paso Court of Appeals applied Salcedo to hold
that misuse of an abdominal CT scan and the related failure to diagnose a bile
leak that resulted in the patient‘s death stated a claim under the TTCA. 234
S.W.3d at 163–64, 172. The court disagreed with the San Antonio court‘s refusal
to apply Salcedo in Anderson, distinguished Whitley as not involving misuse of
diagnostic medical equipment, and held that ―[l]ike the [EKG] graph in Salcedo,
an abdominal CT scan and its films are used in diagnosing various conditions of
the abdomen. The Lucero plaintiffs alleged and offered evidence to prove that
there was a misuse of the abdominal CT scan[;]‖ therefore, sovereign immunity
was waived. Id. at 171–72.
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5. Analysis
We are persuaded by the reasoning of our sister courts in holding that the
―use‖ of tangible property must involve the use of a medical machine, not the
―use‖ of information from the medical machine. See Ward, 280 S.W.3d at 356;
Kelso, 136 S.W.3d at 380, 382; Anderson, 120 S.W.3d at 6–7, 9. We base our
decision on the following factors. First, a plain reading of the TTCA requires that
the use of tangible property cause personal injury or death. Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2). It is undisputed here that the EKG machine itself
did not injure Redden. Nor was it alleged that the machine produced inaccurate
information that led to his death. Rather, Appellants alleged only that the
accurate information produced by the machine was misused by the medical staff.
Therefore, it is the medical staff that allegedly caused Redden‘s death, not the
machine or the machine‘s use.
Second, as noted above, information is not tangible property. York, 871
S.W.2d at 178–79; see also Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)
(stating that information in an emergency room procedures manual is not tangible
property). In Gainesville Memorial Hospital v. Tomlinson, we stated,
Tomlinson‘s allegation is that GMH used, misused, or failed to use
laboratory results. Laboratory results are not tangible property
merely because they are recorded on paper which is tangible. This
constitutes an allegation of use or misuse of information.
Information itself is an abstract concept, lacking corporeal, physical,
or palpable qualities, and therefore, intangible. Because this claim
does not demonstrate the use or misuse of tangible property, it must
fail.
16
48 S.W.3d 511, 514 (Tex. App.—Fort Worth 2001, pet. denied) (citing York, 871
S.W.2d at 178–79); see also Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279
S.W.3d 464, 469 (Tex. App.—Dallas 2009, no pet.) (―[I]nformation that may or
may not be documented in a patient‘s medical records does not constitute
tangible personal property for waiver under the TTCA‖); Gipson v. City of Dallas,
247 S.W.3d 465, 471–72 (Tex. App.—Dallas 2008, pet. denied) (holding that
because information is not tangible personal property but rather ―an abstract
concept that lacks corporeal, physical, or palpable qualities,‖ immunity was not
waived under TTCA based on allegation that delay resulting from ambulance
driver‘s failure to timely respond to dispatcher‘s announcement caused patient‘s
death).
Third, while we acknowledge that Whitley involved a bus and not a medical
machine, and that the supreme court did not explicitly overrule Salcedo in that
case or in any other to-date, the supreme court clearly distinguished the use of
the bus, which involved the use of tangible property, from the improper actions of
the bus driver, which did not. See Whitley, 104 S.W.3d at 543. Therefore, while
Redden‘s treatment involved the use of the EKG machine, it was only the alleged
misuse of the machine‘s information, which is not tangible property, that caused
his death. We therefore hold that the claim as alleged does not fall under the
TTCA and that the trial court properly granted the plea to the jurisdiction. We
overrule Appellants‘ sole issue.
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IV. Conclusion
Having overruled Appellants‘ sole issue, we affirm the trial court‘s
judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: February 17, 2011
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