Wise Regional Health Systems F/K/A Decatur Community Hospital, Kathi Singh, R.N., Shirley Bevis, R.N., Kelli Weatherly, L.V.N., Bethany Isbell, L.V.N., Betty Jean Snodgrass, R.N., Debbie Atkins, R.N., Roseann Smith, R.N. and Traci Vanschuyver, R.N. v. Kathi Brittain, Individually and as Next Friend of Brett Gentry, and Brett Myron Gentry, Individually

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-171-CV

WISE REGIONAL HEALTH SYSTEMS APPELLANTS
F/K/A DECATUR COMMUNITY HOSPITAL,
KATHI SINGH, R.N., SHIRLEY BEVIS, R.N.,
KELLI WEATHERLY, L.V.N., BETHANY
ISBELL, L.V.N., BETTY JEAN SNODGRASS, R.N.,
DEBBIE ATKINS, R.N., ROSEANN SMITH, R.N.
AND TRACI VANSCHUYVER, R.N.

V.

KATHI BRITTAIN, INDIVIDUALLY AND APPELLEES
AS NEXT FRIEND OF BRETT GENTRY,
DECEASED, AND BRETT MYRON GENTRY,
INDIVIDUALLY

------------

FROM THE 271ST DISTRICT COURT OF WISE COUNTY

------------

OPINION

------------

I. INTRODUCTION

This is an interlocutory appeal from the denial of Appellants’ plea to the

jurisdiction. Appellants Wise Regional Health Systems f/k/a Decatur Community

Hospital, Kathi Singh, R.N., Shirley Bevis, R.N., Kelli Weatherly, L.R.N., Bethany
Isbell, L.R.N., Betty Jean Snodgrass, R.N., Debbie Atkins, R.N., Roseann Smith,

R.N. and Traci Vanschuyver, R.N., appeal the trial court’s denial of their plea

to the jurisdiction premised on sovereign immunity. We affirm in part and

reverse in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

Sixteen-year old Brett Gentry was evaluated at her primary care doctor’s

office on December 17, 2002, complaining of high temperature, cough,

congestion, and chest pain. Two days later, her mother took her to Decatur

Community Hospital emergency room with complaints of coughing, cramping,

vomiting, weakness, and dizziness. While in the hospital, she complained of

difficulty breathing and chest pain and had low blood pressure and several

episodes of low oxygen saturation. Two days after being admitted and while

being transported to ICU, Gentry suffered a cardiopulmonary arrest, from which

she could not be resuscitated.

Kathi Brittain, acting individually and as next friend of Gentry, and Brett

Myron Gentry, individually,1 filed a wrongful death and survival action under the

Texas Tort Claims Act (TTCA) against Appellants, alleging that Appellants were

1
… Appellees Kathi Brittain and Brett Myron Gentry hereinafter will be
referred to as Brittain.

2
negligent and grossly negligent in diagnosing and treating Gentry, which

proximately caused Gentry’s death.

Appellants filed a plea to the jurisdiction, asserting that they are a

governmental unit (and its employees) and are entitled to sovereign immunity

as to all of Brittain’s claims. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.001(3)(B) (Vernon 2005). Specifically, Appellants asserted that

Brittain’s allegations failed to waive sovereign immunity under the Texas Tort

Claims Act because none of the claims alleged that a condition or use of

tangible personal property was a proximate cause of Gentry’s death.

Appellants attached to and incorporated into their plea to the jurisdiction the

reports of three expert witnesses retained by Brittain as well as the depositions

of those three witnesses, and further asserted that there was no evidence in

Brittain’s experts’ depositions that any such condition or use proximately

caused the patient’s death.

In a supplement to Brittain’s third amended original petition, which the

trial court granted leave to file on the day of the hearing on Appellants’ plea to

the jurisdiction, Brittain pleaded these potentially relevant allegations:

[T]hat [Appellants] used and misused certain tangible personal
property when caring for/treating Brett Gentry, and that Brett
Gentry’s damages, injuries, and death were proximately caused by
the condition or use of certain tangible personal property. By way
of example only, the Defendant Nurses misused the following

3
 tangible personal property, among others, when caring for/treating
Brett Gentry: an IV, medications (including Stadol), a pulse
oxymeter, a blood pressure machine/cuff, an oxygen supply, an
oxygen mask, [and] an ambu bag, and Defendant Vanschyver
misused the following tangible personal property (among others)
when caring for/treating Brett Gentry: a pulse oxymeter, syringes,
oxygen supply, an oxygen mask, and an ambu bag. These lists are
not exhaustive.

After a hearing, the trial court denied Appellants’ plea, and they filed this

interlocutory appeal.

III. ISSUE

Appellants’ issue is that the trial court erred in denying their plea to the

jurisdiction because Brittain’s pleadings and the depositions of her experts,

offered by Appellants, failed to establish a condition or use of tangible personal

property and further failed to establish that any such condition or use was a

proximate cause of Gentry’s death.

IV. ANALYSIS

A. Sovereign Immunity and Standard of Review

There is no dispute that Appellant Wise Regional—and its employees who

are the other Appellants and were acting within their scope of employment at

all times relevant to this case—constitutes a governmental entity, and as such

is entitled to claim sovereign immunity. See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Sovereign immunity has two

4
components: immunity from liability and immunity from suit. Id. Immunity

from liability is an affirmative defense, while immunity from suit deprives a

court of subject-matter jurisdiction. Id. The TTCA creates a unique statutory

scheme in which these two immunities are coextensive: “Sovereign immunity

to suit is waived and abolished to the extent of liability created by this chapter.”

Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 2005); see Miranda,

133 S.W .3d at 224. Sovereign immunity from suit defeats a trial court’s

subject-matter jurisdiction because, absent the State’s consent to sue a

governmental entity, a trial court has no basis for jurisdiction. Miranda, 133

S.W.3d at 225. Section 101.021 of the civil practices and remedies code

waives the State’s immunity under certain circumstances. Tex. Civ. Prac. &

Rem. Code Ann. § 101.021 (Vernon 2005). A trial court’s subject-matter

jurisdiction is a question of law and reviewed de novo. State v. Holland, 221

S.W.3d 639, 642 (Tex. 2007).

We focus first on the plaintiff’s pleadings to determine whether the facts

pleaded affirmatively demonstrate that jurisdiction exists. Id. The pleader has

the initial burden of alleging facts that affirmatively demonstrate the trial court’s

jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (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 favor of a plaintiff, looking to the pleader’s

5
intent. Id. If the pleadings are insufficient to establish jurisdiction but do not

affirmatively demonstrate an incurable defect in jurisdiction, the plaintiff should

be afforded the opportunity to amend. Id. at 226–27. If the pleadings

affirmatively negate the existence of jurisdiction, the plea to the jurisdiction may

be granted without an opportunity to amend. Id. at 227.

A court deciding a plea to the jurisdiction is not required to look solely to

the pleadings but may consider evidence and must do so when necessary to

resolve the jurisdictional issues. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000)). When a plea to the jurisdiction challenges the

existence of facts alleged to establish the trial court’s subject matter

jurisdiction, the trial court must consider relevant evidence offered by the

parties. Id. Where, as here, the jurisdictional challenge implicates the merits

of the pleader’s cause of action and the plea to the jurisdiction includes

evidence, the trial court reviews the relevant evidence to determine if a fact

issue exists. Id.

When evidence has been submitted that implicates the merits of the suit,

we take as true all evidence favorable to the nonmovant. Id. at 228. We

indulge every reasonable inference and resolve all doubts in favor of the

nonmovant. Id. If the evidence is undisputed or fails to raise a fact issue on

6
the jurisdictional issue, then the trial court rules on the plea to the jurisdiction

as a matter of law. Id.

The requirements that a cause of action must meet in order to come

within the TTCA’s waiver of governmental immunity are found in

section 101.021 of the Act, which provides that, as applied to this particular

case, Brittain must establish that Gentry’s death was proximately caused by the

negligence of a governmental employee acting within the scope of employment,

that Gentry’s death was caused by a condition or use of tangible, personal, or

real property, and that Wise Regional would, if it were a private person, be

liable to Gentry according to Texas law. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2). Specifically, the alleged negligence of Appellants must have

involved a condition or use of tangible personal property, and the condition or

use of the tangible personal property must be the proximate cause of the injury.

See id.; see also Tex. Tech Univ. Health Scis. Ctr. v. Lucero, 234 S.W.3d 158,

169 (Tex. App.—El Paso 2007, pet. denied).

B. Allegations of Failure to Act

Most of Brittain’s allegations involve the failure of Appellants to act,

rather than the condition or use of tangible personal property—including the

failure to communicate with Gentry’s physician in a timely manner, failure to

promptly document vital signs, and failure to transfer Gentry to ICU once her

7
condition deteriorated. We agree with Appellants that the allegations of these

“failures to act” are not sufficient to waive sovereign immunity. See Somervell

Cty. Healthcare Auth. v. Sanders, 169 S.W.3d 724, 727 (Tex. App.—Waco

2005, no pet.); see also Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584

(Tex. 1996) (holding that the failure to administer an injectable drug is a

non-use of tangible property and does not fall under the waiver provisions of

the TTCA); Snelling v. Mims, 97 S.W.3d 646, 654 (Tex. App.—Waco 2002,

no pet.) (holding that plaintiff’s petition alleging that the defendant nursing

home failed to diagnose, treat and report injuries and supervise employees was

not sufficient to waive immunity).

There are no allegations in the third amended original petition of acts or

omissions other than failures to act. To this extent, we sustain Appellants’ sole

issue and hold that these claims are not sufficient to waive sovereign immunity.

C. Medications

Brittain’s supplement to her third amended original petition does contain

allegations alluding to the use or misuse of tangible personal property that

require our analysis of whether these pleadings, and the evidence produced at

the hearing, support the trial court’s denial of Appellants’ plea to the

jurisdiction. The most pivotal facts we find in the pleadings or evidence that

8
arguably involve a condition or use of property are those concerning Appellants’

administration of certain medications to Gentry.

1. Use or Misuse

Appellants contend that Brittain did not allege that the nurses gave

medication in an improper manner, but rather, she alleged only that Appellants

failed to question Gentry’s physician about his order prescribing these

medications. Appellants reason that the failure to question the doctor about

administration of medications is not a use or misuse of tangible personal

property and does not support a waiver of sovereign immunity. We agree with

Appellants’ proposition that a failure to question a doctor about administering

medications is not a use or misuse of tangible personal property; we do not

agree with their interpretation of Brittain’s allegations, which specifically state

that “Defendant Nurses misused . . . tangible personal property . . . when

caring for/treating Brett Gentry: an IV, medications (including Stadol) . . . .”

These allegations fail to set forth any factual specifics as to how Appellants

allegedly misused medications. But it is unnecessary to determine whether the

conclusory nature of the pleadings makes them insufficient to establish waiver

of sovereign immunity because the evidence offered at the hearing on

Appellants’ plea to the jurisdiction adds the necessary factual specifics.

9
 Dr. Joseph Varon’s deposition testimony expands upon and supports

Brittain’s claim that the nurses misused the medications by negligently

administering them when they should not have done so, in addition to failing to

question the attending physician’s orders to give the medications. Dr. Varon

testified that the nurses would have followed the standard of care if they had

communicated with the doctor that the patient was hypotensive and had a low

oxygen saturation and told him that they “d[idn’t] think that it [was] safe to

give [S]tadol.” However, he was also adamant that “they gave medications

that they should not have given on the basis of the clinical condition of [the]

patient. . . . They failed by administering medication that should not have been

administered to a lady under these conditions.” Dr. Varon’s deposition also

contained the relevant colloquy:

Q. And what you are saying [is] there is a physician orders
[sic] for Stadol, but it’s your opinion that the nurses should not
have followed the physician order and given that medication to the
patient?

A. Correct, based on just common sense and, again acting
as the patient advocate and knowing that the risk of giving [the]
patient the agent far outweighs the benefit that the patient would
get.

Not every pleading or item of evidence in support of that pleading—that

medication contributed to an injury—constitutes a use or misuse of tangible

personal property. See Dallas County v. Alejo, 243 S.W.3d 21, 27 (Tex.

10
App.—Dallas 2007, no pet.). For example, the nonuse of medication does not

waive immunity. Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994). In Kassen,

a woman suffering from mental problems was taken to a public hospital. Id.

Her prescription medication was confiscated by hospital personnel. Without

returning her medication to her, the hospital released her. Id. Shortly

thereafter, she committed suicide. Id. The court held that the failure to return

the patient’s medication to her upon discharge was a nonuse of tangible

property that did not trigger waiver of sovereign immunity. Id. In another

Supreme Court of Texas case, a hospital released a patient who subsequently

murdered his estranged wife. Clark, 923 S.W.2d at 583. The issue before the

court was whether the hospital’s administration of an oral form of an

anti-psychotic drug rather than an injectable drug constituted use or misuse of

tangible personal property. Id. The court held that the substance of the claim

was, rather, the failure to administer an injectable drug, which constituted a

nonuse of tangible personal property and, thus, did not fall under the waiver

provisions of the TTCA. Id. The court stated:

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.

Id. at 585–86.

11
 Some Texas courts have found the dispensing of medications by a

hospital a “use” falling squarely within the waiver statute. See Quinn v. Mem’l

Med. Ctr., 764 S.W.2d 915, 917 (Tex. App.—Corpus Christi 1989, no writ);

see also 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); Adams v. Rios, No. 14-95-00239-CV, 1996 WL 337108, at *4 (Tex.

App.—Houston [14th Dist.] June 20, 1996, no writ) (not designated for

publication). In Quinn, a physician resident-in-training at a county hospital

obtained a prescription from the hospital pharmacy for an abortion pill. While

off duty, the doctor administered the pill to his pregnant girlfriend. The

girlfriend suffered complications after taking the pill and was admitted to the

hospital for surgery. Quinn, 764 S.W.2d at 916. The court held that the

dispensing of the drug by the hospital pharmacy was a use of tangible personal

property. Id. at 917. Similarly, in Adams, the court found the dispensing of a

drug by the hospital’s pharmacy a “use of tangible property [that] falls within

the waiver of sovereign immunity under the [TTCA].” Adams, 1996 WL

337108, at *4. In contrast, the Waco court has held that a nursing home’s

distribution of medication according to a prescribing doctor’s direction was

insufficient to fall within the waiver because the essence of the claim was that

12
the nurses were aware of sedating side effects of the medication and failed to

monitor the patient, who slipped and fell, and such failure to monitor was not

a misuse of the medication. See Somervell, 169 S.W.3d at 728.

Viewing the pleadings and evidence in the light most favorable to

Brittain—specifically the pleading that alleges Gentry’s “death [was] proximately

caused by the condition or use of [certain medications]” and the testimony from

Dr. Varon that the nurses administered the medications to Gentry when they

should have refused to do so—we hold that the pleadings and evidence suffice

to establish a “use” of medications in this case sufficient to waive immunity

under the TTCA.

2. Proximate Cause

In addition to the requirement of “use,” the TTCA specifically states that

the injury must be “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 Ann.

§ 101.021(2) (emphasis added). Accordingly, the plaintiff must allege that the

property’s condition or use proximately caused the personal injury or death.

Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d

339, 342–43 (Tex.), cert. denied, 525 U.S. 1017 (1998).

13
 Proximate cause consists of cause-in-fact and foreseeability. W. Invs.,

Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). The test for cause-in-fact

is whether the act or omission was a substantial factor in causing the injury,

without which the harm would not have occurred. Ford Motor Co. v. Ledesma,

242 S.W.3d 32, 45–46 (Tex. 2007); Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 477 (Tex. 1995). To establish cause-in-fact, or “but for”

causation, a party must show that the defendant’s negligence was a substantial

factor in bringing about his injury without which no harm would have been

incurred. Ledesma, 242 S.W.3d at 45–46; Excel Corp. v. Apodaca, 81 S.W.3d

817, 820 (Tex. 2002); see also Salas v. Wilson Mem’l Hosp. Dist., 139 S.W.3d

398, 403 (Tex. App.—San Antonio 2004, no pet.).

Appellants focus on a line of cases that uses the phrase “instrumentality

of harm” to describe proximate cause. And we agree that some Texas courts

use this phrase to describe proximate cause under the TTCA. See McClain v.

Univ. of Tex. Health Ctr., 119 S.W.3d 4, 7 (Tex. App.—Tyler 2002, pet.

denied) (using the language “instrumentality of the harm” to describe proximate

cause under the TTCA). However, Appellants construe the phrase “the

instrumentality of harm” as though it requires sole causation. We disagree with

this portrayal of causation. The causation requirement in section 101.021(2)

is one of proximate cause—not a heightened standard such as sole cause.

14
Univ. of N. Tex. v. Harvey, 124 S.W .3d 216, 220 (Tex. App.—Fort Worth

2003, pet. denied); Michael v. Travis County Hous. Auth., 995 S.W.2d 909,

912–15 (Tex. App.—Austin 1999, no pet.); see Bossley, 968 S.W.2d at 342

(“Section 101.021(2) states that for immunity to be waived, personal injury or

death must be proximately caused by the condition or use of tangible . . .

property.”). Proximate cause does not require a plaintiff to leap the high hurdle

that Appellants suggest.

Liberally construing the pleadings in favor of Brittain, she alleged only a

single conclusory statement that the laundry list of tangible personal property

items, including medications, proximately caused the injuries and death of

Gentry. These pleadings are not sufficiently specific, standing alone, to

establish a waiver of sovereign immunity. See Tex. Dept. of Criminal Justice

v. Miller, 51 S.W.3d 583, 592 (Tex. 2001) (Hecht, J., concurring) (noting

allegation that property was directly involved in actionable injury or death

generally sufficient to survive a plea to the jurisdiction); compare City of Dallas

v. Heard, 252 S.W.3d 98, 106 (Tex. App.—Dallas 2008, no pet. h.)

(concluding factual allegations were sufficient that plaintiff was trapped in zoo

enclosure when doors malfunctioned so as to allow gorilla to pick her up and

throw her against wall), with Ager v. W ichita Gen. Hosp., 977 S.W.2d 658,

660 (Tex. App.—Fort Worth 1998, no pet.) (holding conclusory allegation that

15
failure to recognize symptoms resulted from misuse or condition of medical

devices including stethoscopes and thermometers and that such was a

proximate cause of plaintiff’s injuries failed to sufficiently allege that any

tangible item of property or its use was a contributing factor of plaintiff’s

injuries to constitute waiver of sovereign immunity).

Brittain’s pleadings, however, do not stand alone. We must consider the

evidence offered at the hearing, which consisted of the three depositions of

Brittain’s expert witnesses offered by Appellants. Appellants argue that,

regardless of the level of proximate cause required by Texas law, Brittain has

failed to raise a fact issue as to the causation of any harm to Gentry by use of

the medications in question and that the evidence Appellants offered

establishes lack of causation as a matter of law. We disagree with Appellants

that any burden was on Brittain in the first instance to raise a fact issue.

This is not a review of a “no evidence” summary judgment. Appellants

are held to the same burden as a movant for a traditional summary judgment,

and must negate jurisdiction as a matter of law. Miranda, 133 S.W.3d at

227–28 (stating governmental entity held to same standard on plea of

jurisdiction as movant for summary judgment under rule 166a(c)); Hendee v.

Dewhust, 228 S.W.3d 354, 366 (Tex. App.—Austin 2007, pet. denied) (same);

16
Dallas County v. Wadley, 168 S.W.3d 373, 376–77 (Tex. App.—Dallas 2005,

pet. denied) (same).

A plaintiffs is not required to show a disputed material fact issue

regarding jurisdiction where facts underlying the merits and subject matter

jurisdiction are intertwined until after the defendant asserts and supports with

evidence that the trial court lacks jurisdiction. Miranda, 133 S.W.3d at 228

(holding plaintiffs required to show a disputed material fact issue exists

regarding the jurisdictional issue where facts underlying the merits and subject

matter jurisdiction are intertwined after State asserts and supports with

evidence that trial court lacks subject matter jurisdiction); Wadley, 168 S.W.3d

at 376–77 (rejecting county’s argument that plaintiffs presented “no evidence”

that county had actual knowledge of dangerous condition of elevator because

plaintiffs had no burden to present evidence of county’s knowledge where

county failed to meet its burden to first establish its lack of knowledge).

If the evidence merely creates a fact question regarding the jurisdictional

issue, then the trial court cannot grant the plea to the jurisdiction, and the fact

issue will be resolved by the fact finder. Miranda, 133 S.W.3d at 228; Tarrant

County v. Morales, 207 S.W.3d 870, 875 (Tex. App.—Fort Worth 2006, no

pet.). Holding the governmental entity to the burden of meeting the traditional

summary judgment standard of proof under rule 166a(c) protects plaintiffs from

17
having to “put on their case simply to establish jurisdiction.” Miranda, 133

S.W.3d at 228 (quoting Bland, 34 S.W.3d at 554).

Our review of the evidence submitted by Appellants leads us to conclude

that it supports, rather than negates, the allegations that the use of medications

by Appellants was a contributing factor in causing Gentry’s death. See id. Dr.

Varon, a board certified physician in critical care and pulmonary and internal

medicine, and a professor at the University of Texas School of Nursing in

Houston, testified in a 2005 deposition taken by Appellants that, based on his

review of the medical records, Gentry’s condition significantly worsened from

the time she entered the hospital on the night of December 19 until the time of

her death. On the evening of December 20, her oxygen saturation level

decreased to 81 percent fifteen minutes after her fourth dose of Stadol, even

though she was already on oxygen by nasal cannula. She was then placed on

a nonrebreather oxygen mask, another mode of providing supplemental oxygen;

attempts were made to wake her up and make her cough; and calls were made

to the treating physician and the nurse supervisor. At 12:10 p.m. on December

21, she had to be intubated and given CPR, but attempts to resuscitate her

failed. The intubation her was appropriate based on at least three criteria: for

more than 24 hours prior to her final “event” her oxygen requirements were too

high, she was in impending respiratory failure, and she had been given

18
medications known to alter one’s mental state, “so her ability to protect her

airway was impaired.”

Appellants also offered the deposition of Dr. Mark Entman, a board

certified cardiologist and Chief of Cardiovascular Sciences at Baylor College of

Medicine, an expert retained by Brittain regarding causation. Dr. Entman

testified that, in his opinion, Gentry died a “cardiac death secondary to acute

myocarditis of probable viral origin.” In his opinion, the myocarditis itself was

a secondary cause by “inducing an arrhythmia.” There could have been a viral

or, less likely, a bacterial infecting agent. With myocarditis, however it occurs,

there is a significant risk of an arrhythmia, a departure from the normal beat of

the heart, which in his opinion occurred in this case. In Dr. Entman’s opinion,

Gentry suffered a sudden cardiac death from an unexpected arrhythmia.

Dr. Entman did not believe that the patient’s oxygen saturation level had

anything to do with her death. In contrast, another causation expert hired by

Brittain, whose deposition was also offered by Appellants, believed that the

oxygen saturation level was very important, “a big thing.” Dr. Guileyardo, a

board certified clinical, anatomic, and forensic pathologist in Dallas, noted that

Gentry’s oxygen saturation level decreased significantly on several occasions

as she progressed to cardiopulmonary arrest. He was of the opinion that she

died of “idiopathic myocarditis” most likely associated with bacterial sepsis. He

19
defined myocarditis as inflammation of the heart muscle not due to coronary

disease, lack of blood flow, or ischemia.

Dr. Guileyardo explained that myocarditis kills by causing the heart to fail

or by causing a ventricular arrhythmia. He further testified that anything that

causes damage, even of a small area, of the heart muscle can become the

focus for an arrhythmia. He observed that the nurses’ notes indicated that

Gentry exhibited “hypoxia,” meaning that Gentry’s oxygen saturation was quite

low several times. This was very important, he said, because hypoxia

“intensifies the damage from myocarditis.” In this case, in his opinion, the

hypoxia working together with the myocarditis caused damage to the heart

muscle, which caused the heart to go into the arrhythmia.

Viewing the evidence in the light most favorable to Brittain, a reasonable

inference may be drawn from the medical testimony that the medications

administered to Gentry caused or contributed to hypoxia, which concurred with

the myocarditis in causing damage to the heart muscle, which resulted in

Gentry’s arrhythmia and death. Moreover, we have combed the voluminous

record of testimony offered by Appellants and find no evidence that no such

causal connection existed. Appellants took the experts’ depositions but never

inquired as to any causal effect of the medications. We conclude that

Appellants failed to carry their burden to conclusively establish lack of causation

20
so as to require Brittain to come forward with affirmative evidence to raise a

fact issue on her claim. Concerning the misuse of these medications as a

proximate cause of her death, we hold that the trial court did not err in denying

Appellants’ plea to the jurisdiction. We overrule this portion of Appellants’ sole

issue.

D. Use of Other Tangible Personal Property

In addition to alleging the use of medications, Brittain’s supplement to her

third amended original petition contains a litany of other tangible personal

property that Brittain claims Appellants used or misused when treating Gentry,

to wit: an IV, a pulse oxymeter, a blood pressure machine and cuff, an oxygen

supply, an oxygen mask, an ambu bag, and syringes.

While we agree that Brittain has pleaded that Appellants used or misused

these items of tangible property, we do not agree that Brittain has pleaded

sufficient factual allegations that the use or misuse of these additional items

caused or even contributed to Gentry’s death, and no evidence offered at the

hearing on the plea to the jurisdiction tended to establish any causal connection

between use of those items and any harm to Gentry. See Ager, 977 S.W.2d

at 662 (“Without proof that a specific act or item of property contributed to

injury, there can be no proximate cause.”). However, these pleadings do not

affirmatively negate jurisdiction. See Holland, 221 S.W.3d at 643. In such

21
cases, the plaintiff should ordinarily be afforded the opportunity to re-plead. Id.;

see also Miranda, 133 S.W.3d at 226–27. But, as a practical matter, Brittain

has already had the opportunity to re-plead. Brittain’s supplement to her third

amended petition clearly was an attempt to re-plead to cure the jurisdictional

defects raised by the plea to the jurisdiction. Therefore, she does not need, nor

is she entitled to, another opportunity to re-plead. See Miranda, 221 S.W.3d

at 231.

V. Conclusion

Having overruled in part and sustained in part Appellants’ sole issue, we

affirm the trial court’s order denying Appellants’ plea to the jurisdiction as to

Brittain’s claims that are based on the use of the aforementioned medications

and remand those claims to the trial court for further proceedings. We reverse

the trial court’s order denying their plea to the jurisdiction as to Brittain’s claims

that are based on failures to act and dismiss those claims for want of subject

matter jurisdiction. Finally, we reverse the trial court’s order as to Brittain’s

remaining claims alleging use of tangible personal property and dismiss those

claims for want of subject matter jurisdiction.

ANNE GARDNER
JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

22
DELIVERED: September 25, 2008

23