the University of Texas Medical Branch at Galveston v. Kai Hui Qi

Reversed and Rendered and Opinion filed May 30, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00581-CV

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
Appellant

V.

KAI HUI QI, Appellee

On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 11CV0043

OPINION

The University of Texas Medical Branch at Galveston (“UTMB”) appeals an
order denying its plea to the jurisdiction. We reverse and render judgment
dismissing Kai Hui Qi’s suit against UTMB for lack of jurisdiction.

Background

Appellee Kai Hui Qi sued UTMB, Virginia Rauth, M.D., and Julie Griffice,
R.N. on January 11, 2011, after delivering a stillborn male child. In her original
petition, Qi alleged that she had an “uncomplicated pregnancy until January 12,
2009, when she presented to Defendants with a blood pressure of 146/83, an
interval 8 pound weight gain, and a urine dipstick test which returned trace.” Qi
alleged that she called into UTMB’s labor and delivery triage unit on January 18,
2009, complaining of vaginal bleeding and a blood pressure of 140/90. The next
day, Qi went to UTMB and complained of vaginal bleeding, headache, and
elevated blood pressure. “In triage, she had a blood pressure of 148/101 and was
noted to have an intrauterine fetal demise and oligo/anhydramnios.” Qi alleged
that the attending physician induced her labor, and she delivered a stillborn child
on January 20, 2009. Qi alleged that Rauth and Griffice were negligent by failing
to “diagnose preeclampsia” and by failing to admit Qi for elevated blood pressure.
She alleged causes of action for negligence and gross negligence.

UTMB and Griffice filed an original answer, a plea to the jurisdiction, and a
motion to dismiss on February 14, 2011, arguing that Qi’s suit should be dismissed
for lack of jurisdiction because UTMB has sovereign immunity from suit and
liability. They contend that Qi’s petition failed to allege “adequate grounds or
facts to establish a waiver of sovereign immunity under the Texas Tort Claims Act
or any other statute or constitutional provision.” On the same day, UTMB filed a
motion to dismiss Rauth and Griffice from the suit pursuant to Texas Practice and
Remedies Code section 101.106(e).

Qi filed an agreed motion to dismiss Rauth and Griffice from the suit on
March 3, 2011. The trial court granted the agreed motion on March 4, 2011, and
dismissed Rauth and Griffice from Qi’s suit.

Qi filed a first amended petition on March 17, 2011, alleging that UTMB’s
“employees were negligent in the use of the blood pressure cuffs/testing equipment
and urine test strips, by improperly reading and interpreting the results produced by
the testing equipment” which “led directly to [Qi]’s preeclampsia, which directly

2
resulted in the death of [Qi]’s unborn child and to the injuries” Qi suffered. “Had
[UTMB]’s employees properly read and interpreted those test results, a standard
work-up would have been ordered, including, serial blood pressures, a 24-hour
urine collection, and laboratory tests, and if any of these were persistently positive,
a fetal ultrasound to screen for intrauterine growth restriction.” Qi alleged that this
is “a claim brought under the Texas Tort Claims Act,” and further stated in her
petition that UTMB’s “employees were negligent and proximately cause[d] [Qi]’s
injuries as follows:”

a. In the use of the blood pressure cuffs/testing equipment and
urine test strips.
b. In deviating from the standard of care for the treatment of high
blood pressure and preeclampsia;
c. In failing to properly and timely diagnose high blood pressure
and preeclampsia;
d. In failing to counsel Plaintiff on the possibility of developing
preeclampsia and the symptoms to watch for.
c. In failing to properly treat Plaintiff’s condition;
d. In failing to admit Plaintiff to the hospital for observation;
g. In failing to order the appropriate tests;
h. In failing to refer Plaintiff to a specialist or a physician
qualified to confirm diagnosis and treat Plaintiff, or to consult
with such a specialist or physician concerning Plaintiff’s
condition; and
The employees’ negligence, and the resulting injuries suffered by
[Qi], was the direct result of the negligent use of the blood pressure
cuffs/testing equipment and urine test strips, items of tangible
personal property. More specifically, [UTMB]’s employees
negligently used the blood pressure cuffs/testing equipment and urine
test strips, by improperly reading and interpreting the results produced
by that equipment.
* * *
As a direct and proximate result of [UTMB]’s employees’ negligent
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 use of tangible personal property, [Qi]’s son was stillborn, and [Qi]
has been caused to suffer severe mental pain, anguish, grief, and
sorrow . . . loss of society, companionship, and affection of her son . .
. severe injuries, mental and physical pain and suffering, mental
anguish, and physical impairment.
UTMB filed a supplement to its plea to the jurisdiction and motion to dismiss with
prejudice on May 18, 2012, to which it attached Qi’s interrogatory responses and
the deposition testimony of Qi’s expert witness, Aaron Caughey, M.D., Ph.D.

In its plea, UTMB argued that Qi’s claim does not fall within one of the
categories to which waiver of sovereign immunity applies under the Texas Tort
Claims Act because Qi’s “allegations do not assert that [UTMB] negligently used
the alleged tangible personal property and thus caused [Qi’s] injury; but, [Qi] is
complaining that [UTMB] improperly read and interpreted the information
produced by the alleged tangible personal property.” UTMB argued that “Dr.
Caughey’s criticism is not that the use of the alleged tangible personal property
caused the preeclampsia in [Qi]; but, that [UTMB] failed to use the tangible
personal property in order to diagnose the existence of preeclampsia in [Qi].”
UTMB also contended that Qi’s other allegations of negligent acts by UTMB “are
not sufficient to allege a waiver of sovereign immunity under the Texas Tort
Claims Act as they do not allege the use of tangible personal property. Instead, the
allegations complain of the medical judgment exercised by employees of [UTMB].
Alleged errors in medical judgment, absent the negligent use of tangible personal
property, do not give rise to a waiver of sovereign immunity under the Texas Tort
Claims Act.”

Dr. Caughey testified in his deposition that preeclampsia is a “disease that’s
specific to pregnancy, which we believe is caused by an [sic] maternal immune
response, we say alloimmune response, allo meaning other, response to other,
which is a response to actually the fetus, but specifically the placenta and
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antibodies on the placenta.” He testified that preeclampsia “encompasses a
triumvirate of elevated blood pressure, elevated protein in the urine,” and “usually
nondependent edema.” To diagnose preeclampsia, there must be (1) two elevated
blood pressures, “either a systolic greater than 140 or a diastolic greater than 90,”
at least six hours apart; and (2) elevated protein in the urine of 300 milligram after
a 24 hour urine collection.

Dr. Caughey made the following points during his testimony:

Qi was at higher risk for developing preeclampsia because she had an
in vitro fertilization pregnancy; therefore, it was necessary to diagnose
whether she had gestational hypertension, mild preeclampsia, or
severe preeclampsia.

The blood pressure readings on January 12 were not sufficient by
themselves to diagnose preeclampsia.

The tools that were available on January 12 to diagnose Qi included
blood tests; a 24-hour urine collection to measure protein levels in the
urine; blood pressure readings taken at least six hours apart; and an
obstetric ultrasound to evaluate fetal growth. These tests could have
been performed on January 12 or within 24 hours.

Qi’s treatment when she presented with elevated blood pressure on
January 12 fell below the standard of care because these available
diagnostic tools were not used to determine whether she had
gestational hypertension or preeclampsia.

The two blood pressure readings taken on January 12 were not
performed improperly. Another blood pressure reading should have
been taken six hours later.

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 Dr. Caughey answered “no” to questions asking whether he had seen
anything in the records leading to a conclusion that Dr. Rauth and
Nurse Griffice were negligent in the way they used the blood pressure
cuff and urine test strips.

No evidence suggests that the blood pressure readings were recorded
improperly.

Dr. Caughey does not dispute the accuracy of the dipstick test result
that came back trace positive, and does not believe the dipstick test
was performed in an inappropriate manner. Making a definitive
diagnosis requires a 24-hour urine collection.

Dr. Caughey stated that if Qi had been “diagnosed appropriately” with
“preeclampsia on January 12th, 2009, then . . . the intrauterine fetal demise could
have been prevented by earlier delivery and if delivered, the infant would have
survived more likely than not.” The placental abruption “seems to be the cause in
this case of the stillbirth, and so that would be then caused by preeclampsia.”
“Thus, the clinicians who saw Ms. Qi on January 12th, 2009 violated the standard
of care by not further evaluating her for gestational hypertension/preeclampsia.”

Qi filed a response to UTMB’s supplement to the plea to the jurisdiction and
motion to dismiss with prejudice on June 8, 2012. In her motion, Qi argued that
improperly reading and interpreting the results produced by medical testing
equipment constitutes a use of tangible personal property and a waiver of
governmental immunity.

The trial court held a hearing on UTMB’s plea to the jurisdiction and motion
to dismiss on June 11, 2012. On the same day, the trial court signed an order
denying UTMB’s plea to the jurisdiction and motion to dismiss with prejudice.

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UTMB timely filed this interlocutory appeal on June 21, 2012.1

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).

When reviewing whether a plea was properly granted, 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 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.

If a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised, even where those facts may implicate the merits of

1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2012) (permitting
interlocutory appeal from an order granting or denying government’s plea to the jurisdiction).

7
the cause of action. Kirwan, 298 S.W.3d at 622. If the evidence creates a fact
issue as to the jurisdictional issue, then it is for the factfinder to decide. Id. If the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. In
considering this evidence, we take as true all evidence favorable to the nonmovant
and indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id.

Analysis

In one issue, UTMB argues that the trial court erred by denying its plea to
the jurisdiction and motion to dismiss with prejudice “as there is not a waiver of
sovereign immunity under the Texas Tort Claims Act as the evidence conclusively
established that the appellee’s alleged injuries and damages were not proximately
caused by the negligent use of tangible personal property.”

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. UTMB is a “governmental
unit.” Robinson v. Univ. of Tex. Med. Branch, 171 S.W.3d 365, 368 (Tex. App.—
Houston [14th Dist.] 2005, no pet.); Noah v. Univ. of Tex. Med. Branch, 176
S.W.3d 350, 355 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The Texas
Tort Claims Act (“TTCA”) provides a limited waiver of sovereign immunity.
Miranda, 133 S.W.3d at 224; see Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–
.109. (Vernon 2011 & Supp. 2012). 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:
(A) the property damage, personal injury, or death arises
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 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 Ann. § 101.021.

UTMB contends that the trial court should have granted its plea to the
jurisdiction and dismissed Qi’s suit because (1) UTMB employees did not
negligently use tangible personal property, i.e., blood pressure cuffs/testing
equipment and urine test strips; (2) tangible personal property did not cause Qi
injury because she already suffered from preeclampsia when she came to the
hospital; (3) Qi’s allegation that UTMB employees improperly read and interpreted
test results does not waive sovereign immunity under the Texas Tort Claims Act
“as there is not a waiver of sovereign immunity for the use or misuse of
information;” (4) the true substance of Qi’s “complaint is not that she was injured
by the negligent use of tangible personal property; but, instead, that she was
harmed by an error in medical judgment and/or a failure to diagnose
preeclampsia;” and (5) the remaining allegations of negligence in Qi’s petition are
“not sufficient to allege a waiver of sovereign immunity under the Texas Tort
Claims Act as they do not allege a condition or use of tangible personal property.”

Qi responds that the trial court correctly found a waiver of sovereign
immunity under the Texas Tort Claims Act and denied UTMB’s plea to the
jurisdiction and motion to dismiss because (1) the improper reading and
interpreting of results produced by medical testing equipment constitutes a use of
tangible personal property, and a waiver of governmental immunity under Salcedo

9
v. El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983), Texas Tech University
Health Sciences Center v. Lucero, 234 S.W.3d 158 (Tex. App.—El Paso 2007, pet.
denied), and University of Texas Medical Branch Hospital v. Hardy, 2 S.W.3d 607
(Tex. App.—Houston [14th Dist.] 1999, pet. denied); (2) Dr. Caughey’s expert
report and deposition testimony “support the claim that had the doctors at UTMB
properly read and interpreted the results of the blood pressure and urine protein
tests, [Qi] would have been admitted for further testing,” she would have been
diagnosed with preeclampsia, delivery of the baby would have been induced, and
the baby would have more likely than not survived; and (3) tangible personal
property need not actually cause the stillbirth and injury but only need to be a
substantial factor in bringing about the stillbirth and injury to establish a waiver of
sovereign immunity under the Texas Tort Claims Act.

We conclude that Qi’s suit does not invoke the limited waiver of sovereign
immunity found in the Texas Tort Claims Act because Qi’s allegations do not meet
the Act’s requirement that the use of tangible personal property caused the
stillbirth and injury, and the substance of Qi’s claim is that UTMB’s employees
failed to timely diagnose and treat Qi for preeclampsia and induce delivery of her
baby.

I. Use of Property did not Cause the Injury

To state a claim that falls within the limited waiver of immunity under the
TTCA, Qi must allege that the use of tangible personal property proximately
caused personal injury or death. See Tex. Civ. Prac. & Rem. Code Ann. §
101.021(2). “Use” is defined as “to put or to bring into action or service; to
employ for or apply to give a purpose.” Tex. Dep’t of Crim. Justice v. Miller, 51
S.W.3d 583, 588 (Tex. 2001). However, the basic purpose of section 101.021 is to
waive immunity “only to a limited degree.” Dallas Cnty. Mental Health & Mental

10
Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Thus, for a waiver
under subsection (2) to apply, the plaintiff’s injury “must be proximately caused by
the condition or use of tangible property.” Id. “The requirement of causation is
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.; see Miller, 51
S.W.3d at 588. 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.); Robinson, 171 S.W.3d at 369; see Bossley, 968 S.W.2d at 342.2

Qi’s reliance on Salcedo, Lucero, and Hardy is misplaced in light of the case
law’s development after Salcedo.

In Salcedo, the decedent was examined for severe chest pains. 659 S.W.2d
at 31. An electrocardiogram test conducted in the emergency room showed a
classic heart attack pattern, but Salcedo was released; he later died of a heart
attack. Id. His widow sued and alleged that the hospital was liable for his death
under the TTCA based on misuse of the electrocardiogram 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, holding that “an allegation of defective or
inadequate tangible property is not necessary to state a cause of action under the
2
A panel majority of this court recently held that the “use” of tangible property must be
negligent in order for the waiver of sovereign immunity to be applicable. Univ. of Tex. Health
Sci. Ctr. v. DeSoto, No. 14-12-00620-CV, 2013 WL 1169126 at *4-6 (Tex. App.—Houston
[14th Dist.] March 21, 2013, no pet. h.). Justice McCally dissented. Id. at *6-8. We need not
address negligent “use” of tangible property in order to resolve this appeal because there is no
“use” of tangible property in the statutory sense – negligent or otherwise – at issue in this case.
Instead, this case focuses on a different inquiry involving alleged misuse of intangible
information.

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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 determined that the
widow’s allegation that the hospital was liable under the TTCA for misuse in
improperly reading and interpreting the electrocardiogram graphs stated a claim.
Id. at 31, 33. The court held that “[r]eading and interpreting are purposes for
which an electrocardiograph is used or employed in diagnosing” a heart attack, and
that therefore Salcedo’s widow “has alleged her loss was proximately caused by
the negligence of the hospital district’s employees in the use of tangible property.”
To reach this holding, the supreme court construed language in an earlier version
of the TTCA — specifically, the word “some” appearing before “condition” and
“use,” and the provision requiring liberal construction. Id. at 32, 33.

When Salcedo was decided in 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. Redden v. Denton Cnty., 335 S.W.3d 743, 748
(Tex. App.—Fort Worth 2011, no pet.); Tex. Tech Univ. Health Scis. Ctr. v. Ward,
280 S.W.3d 345, 349-50 (Tex. App.—Amarillo 2008, pet. denied); see Act of May
28, 1983, 68th 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.”
Redden, 335 S.W.3d at 748; Ward, 280 S.W.3d at 350; 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. Redden,
335 S.W.3d at 748; Ward, 280 S.W.3d at 350; see Act of May 17, 1985, 69th Leg.,
R.S., ch. 959, §§ 1, 9–10, 1985 Tex. Gen. Laws 3242, 3303, 3322.

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 After the amendment of the TTCA, the supreme court began limiting
Salcedo and the waiver of immunity under section 101.021(2); lower courts
followed suit. See Redden, 335 S.W.3d at 748; Kamel v. Univ. of Tex. Health Sci.
Ctr. at Houston, 333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied). Several cases illustrate this progression.

In University of Texas Medical Branch v. York, 871 S.W.2d 175, 176 (Tex.
1994), the patient, who was improving from severe injuries he sustained in a car
accident that left him partially paralyzed, was admitted to UTMB for an inpatient
program. Shortly after his admission, the patient broke his hip which went
undiagnosed for approximately eight days. Id. He suffered severe pain,
withdrawal, depression, and regression in his rehabilitation. Id. The patient’s
father sued UTMB and alleged misuse of tangible personal property by “failing to
note in [the patient’s] medical records” the events of the day he broke his hip and
in “failing to memorialize in writing numerous other observations concerning [his]
condition.” Id. The patient’s father further alleged misuse of medical records by
“failing to follow a recommendation noted in the records for an x-ray of [the
patient’s] hip.” Id. A jury returned a verdict in York’s favor, which was affirmed
by the court of appeals. Id.

Recognizing that the recodified version of the TTCA eliminated the mandate
for liberal construction and instead called for construction subject to the general
principles of statutory construction in § 311.023 of the Code Construction Act, the
supreme court held that mere information, which may or may not be recorded in a
patient’s medical records, does not constitute use, misuse, or non-use of tangible
personal property under section 101.021(2) of the TTCA. Id. at 179. The supreme
court reversed the judgment and rendered judgment in favor of UTMB. Id. While
paper itself can be touched, handled, and seen, the court reasoned that medical

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information recorded on paper is not tangible personal property; information is
intangible. Id. at 176, 179. The court noted that the plaintiff had not alleged any
misuse of any hospital device or equipment. Id. at 178. It also stated that “Salcedo
does not permit claims against the State for misuse of information.” Id. at 179.

In Bossley, 968 S.W.2d at 340–41, a mental patient escaped through
unlocked doors from a mental hospital and committed suicide by throwing himself
in front of a truck; his parents sued, claiming that the patient’s death was caused by
the unlocked doors, and thus MHMR waived its liability under section 101.021(2).
The trial court granted summary judgment in favor of MHMR based on sovereign
immunity, and the plaintiffs appealed. Id. at 341. The appellate court applied
Salcedo, reasoning that the involvement of “some condition or use of tangible
property is enough” for waiver of immunity and reversed the trial court. Id. at 342.

The supreme court reversed the appellate court and rendered judgment that
plaintiffs take nothing. Id. at 344. In explaining its earlier holding in Salcedo, the
court declared that while some involvement of property was necessary, mere
involvement, without causation, was insufficient. Id. at 342. The supreme court
also stated: “The court of appeals in this case took our comment in Salcedo to
mean that for immunity to be waived, ‘the property . . . does not have to be the
instrumentality of harm, it need only be involved.’ In other words, the court
concluded that some involvement of property is all that is required for immunity to
be waived by Section 101.021(2). But we did not say in Salcedo that the
involvement of property is sufficient for waiver of immunity, as the court of
appeals concluded; we said only that the involvement of property is necessary.”
Id. (emphasis in original) (citation omitted).

The supreme court stated that the “requirement of causation is more than
mere involvement, although exactly how much more has been difficult for courts

14
to define. If only involvement were required, the waiver of immunity would be
virtually unlimited, since few injuries do not somehow involve tangible personal or
real property.” Id. at 343. The court stated that requiring only that a condition or
use of the property be involved would conflict with the TTCA’s basic purpose of
waiving immunity only to a limited degree. Id. The court also held that
“[p]roperty does not cause injury if it does no more than furnish the condition that
makes the injury possible.” Id. at 343. The court concluded that, while the
unlocked doors permitted the patient’s escape, they did not cause his death, and
thus the nexus between the use or condition of the doors and the patient’s death
was too attenuated to constitute a waiver of immunity. Id. Importantly, the
supreme court declared: “The decision in Salcedo is limited to its facts.” Id. at
342.

In Miller, 51 S.W.3d at 588, the supreme court found that the plaintiff’s
claim did not fall within section 101.021(2) and again narrowed the application of
the TTCA’s waiver provision. Miller, an inmate, was treated by TDCJ’s staff for
nausea and severe headaches; he was given pain medication and other medications
for fifteen days, after which he was hospitalized and diagnosed with cryptococcal
meningitis, which caused his death. Id. at 585. His widow filed suit alleging that
Miller’s death was caused by misuse of tangible property by (1) improperly
administering pain medications and fluids which masked the symptoms of
meningitis, (2) improperly reading and interpreting fever-detecting equipment, and
(3) improperly using clinic facilities and equipment in diagnosing and treating
Miller. Id. She further alleged that TDCJ staff members were negligent in “failing
to practice medicine in an acceptable manner,” failing to evaluate Miller in a
timely manner, failing to make a proper diagnosis, failing to order appropriate
laboratory tests, and failing to treat Miller’s true condition. Id.

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 The supreme court noted that the widow’s “petition alleged generally that
TDCJ was negligent in its treatment of her husband by failing to diagnose
meningitis. But the Tort Claims Act does not waive sovereign immunity for all
negligence claims against governmental units. Accordingly, [the widow] sought to
bring her claim within the ‘condition or use of tangible . . . property’ . . . waiver
provision by also alleging that misuse of various medications and medical
equipment masked the diagnosable symptoms of the fatal disease.” Id. at 587. The
court stated that “[w]hile this is an attractive attempt to distinguish our non-use
cases, we are not persuaded.” Id. at 588. “‘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.’” Id. (quoting Kerrville State Hosp. v. Clark,
923 S.W.2d 582, 585-86 (Tex. 1996)).

The court stated that while TDCJ did “use” various drugs and medical
equipment in treating the inmate, it is not sufficient for waiver purposes “that some
property is merely involved . . . . Using that property must have actually caused
the injury.” Id. The court concluded that Miller’s treatment might have furnished
the condition that made his injury possible, but treatment did not hurt him, make
him worse, or actually cause his death.” Id.

In Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003),
Whitley sued the Dallas Area Rapid Transit Authority under the TTCA after a
fellow bus passenger, Burkley, severely beat him. After Burkley verbally harassed
and threatened Whitley, the bus driver told Whitley to exit the bus and that he
would return for Whitley in a few minutes. Id. at 541–42. The bus did not return;
Burkley disembarked at the next stop; recruited her son and his friends to join her
vendetta; and attacked Whitley. Id. at 542. Whitley sued Dallas Area Rapid

16
Transit Authority 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.

The supreme court stated that it has “consistently required a nexus between
the operation or use of a motor-driven vehicle or equipment and a plaintiff’s
injuries.” Id. at 543. “This nexus requires more than mere involvement of
property;” the property’s use must have actually caused the injury. Id. The court
also stated that, “as with the condition or use of property, the operation or use of a
motor vehicle ‘does not cause injury if it does no more than furnish the condition
that makes the injury possible.’” Id. (quoting Bossley, 968 S.W.2d at 343).
Therefore, the court concluded that Burkley and her cohorts caused Whitley’s
injuries, and the driver’s failure to supervise Burkley may have contributed, but the
operations or use of the bus did not. Id. Accordingly, Whitley’s claim does not
fall within the limited waiver of sovereign immunity. Id. at 543-44.

Several intermediate courts of appeals have followed these more recent
supreme court cases in limiting Salcedo’s application.

In Gainesville Memorial Hospital v. Tomlinson, 48 S.W.3d 511, 512-14
(Tex. App.—Fort Worth 2001, pet. denied), Tomlinson sued the hospital for
injuries she sustained after falling out of a hospital bed; she contended that the
hospital acted tortiously “[i]n using, misusing, or not using laboratory results
obtained from blood drawn from [her] by [the hospital] utilizing medical
diagnostic devices so as to know that [her] H & H3 was falling . . . .” Id. (emphasis
in original). She further contended that “it was not appropriate to leave her up and
unattended in the condition she was in at the time.” Id. The court of appeals held
3
“H & H is an abbreviation for Hemoglobin and Hematocrit.” Id.

17
that the hospital did not waive sovereign immunity under the tangible property
exception to the TTCA because Tomlinson’s claim did not demonstrate the use or
misuse of tangible personal property. Id. at 514. The court relied on the Texas
Supreme Court opinion in York and stated that “Tomlinson’s allegation is that [the
hospital] 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.” Id. (emphasis in original) (citations omitted).

In Anderson v. City of San Antonio, 120 S.W.3d 5, 6 (Tex. App.—San
Antonio 2003, pet. denied), the plaintiffs sued the City after Anderson died of a
heart attack, alleging that the EMTs failed to transport Anderson to the emergency
room because they negligently misinterpreted the electrocardiogram and ignored
his pleas that he was having a heart attack. Relying on Whitley, the court of
appeals held that the use of an electrocardiogram machine did not cause
Anderson’s death by heart attack after he received two electrocardiograms — the
results of which were disputed — and was not transported to the emergency room
despite his pleas that he was having a heart attack. Id. at 6–7, 9. Rather,
Anderson’s “death was caused by his cardiac condition and the EMTs’ alleged
negligence. It was not caused by the use of the EKG machine.” Id. at 9.

In University of Texas Medical Branch v. Thompson, No. 14-06-00014-CV,
2006 WL 1675401, at *1-2 (Tex. App.—Houston [14th Dist.] June 20, 2006, no
pet.) (mem. op.), Thompson sued UTMB after she was not diagnosed with
appendicitis until her third visit to the emergency room. She alleged UTMB’s
physicians and nurses harmed her by improperly administering medications that
masked the symptoms of appendicitis; using x-ray equipment that is not capable of

18
diagnosing appendicitis; and misusing diagnostic equipment such as a stethoscope,
blood pressure machines, and thermometers in a way that failed to recognize the
signs and symptoms of her illness. Id. at 2. Thompson asserted that the tangible
personal property used by the physicians that invoked the TTCA’s limited waiver
of immunity were: pain medications, the x-ray machine, and various diagnostic
equipment including a stethoscope, blood pressure machine, and a thermometer.
Id.

This court relied on the Texas Supreme Court’s holding in Miller that “mere
involvement of tangible personal property in the treatment is not enough to waive
immunity; instead, that property must have actually caused the injury.” Thompson
alleged that she was given symptom-masking drugs, that UTMB’s emergency
room personnel did not properly use medical diagnostic tools to timely diagnose
her appendicitis. “These allegations do not meet the Tort Claims Act’s causation
requirement because none of the property involved in [her] medical treatment
actually harmed” her. Id.

In Lanphier v. Avis, 244 S.W.3d 596, 599 (Tex. App.—Texarkana 2008, pet.
dism’d as moot), disapproved on other grounds by Franka v. Velasquez, 332
S.W.3d 367 (Tex. 2011), Avis filed a health care liability suit against two nurses
alleging negligence in failing to properly carry out their nursing responsibilities.
Avis claimed that, even though she began experiencing labor pains accompanied
by a high fever and vomiting, and a fetal monitor strip showed her fetus to be in
distress, her labor was allowed to proceed for eight hours. Id. After the nurses
were unable to locate a fetal heart tone, a cesarean section surgery was performed
and Avis’s baby was delivered stillborn; a timely delivery would have allowed
Avis’s baby to survive. Id.

The court relied on the supreme court’s opinions in York, Bossley, and

19
Miller. It concluded that Avis’s allegations against the nurses did not “concern use
of tangible property” and fell outside the TTCA’s waiver of sovereign immunity.
Id. at 606. The court noted that Avis did not allege that the nurses failed to watch
the fetal monitor, that they used the monitor improperly, or that the injuries to her
infant were caused by a device used during delivery. Instead, Avis alleged that
“the nurses should have taken alternate actions based on the information generated
by the monitor. No device used during the delivery is alleged to have caused the
injury to Avis’s infant.” The court also stated: “Since Avis’s allegations here are
more accurately characterized as allegations that the nurses took the wrong course
of action based on the information from the monitor, we reiterate that information
is not treated as tangible property under the TTCA.”

In Ward, 280 S.W.3d at 356, the Amarillo Court of Appeals held that the
alleged misuse of a fetal heart monitor was insufficient to waive immunity under
section 101.021(2). The court stated that given the elimination of the mandate to
liberally construe the TTCA’s waiver provisions and the supreme court’s trend to
limit Salcedo and narrowly apply section 101.021(2) to cases involving a causation
nexus between the use of tangible property and complained of injury or death, “the
Wards have not demonstrated that ‘use’ of the fetal heart rate monitor caused their
injury. They did not allege that the monitor was incorrectly used or that its results
were erroneous. Rather, they couched their allegations as ‘failing to recognize and
respond,’ which are allegations of misuse of information and negligence by
medical staff.” Id. The court also concluded that the Wards failed to establish a
nexus between the use of the monitor and the stillborn birth of their child; the
evidence indicated that the cause of death was a true knot in the umbilical cord. Id.

In Redden, 335 S.W.3d at 744, plaintiffs sued Denton County under the
TTCA after Redden died while being incarcerated; plaintiffs alleged misuse of the

20
county’s electrocardiogram machine by misinterpreting the data derived from the
machine that led to Redden’s improper treatment and death. Considering the
amendments to the TTCA as well as the development in the case law since the
supreme court’s decision in Salcedo, the court of appeals held that, because “the
‘use’ of tangible property must involve the use of a medical machine, not the ‘use’
of information from the medical machine,” the plaintiffs’ claim as alleged does not
fall under the TTCA. Id. at 747-51.

The court stated that it based its holding on three factors in particular. Id. at
751. “First, a plain reading of the TTCA requires that the use of tangible property
cause personal injury or death.” Id. “It is undisputed here that the EKG machine
itself did not injure Redden.” Id. “Nor was it alleged that the machine produced
inaccurate information that led to his death.” Id. “Rather, [plaintiff]s alleged only
that the accurate information produced by the machine was misused by the medical
staff.” Id. “Therefore, it is the medical staff that allegedly caused Redden’s death,
not the machine or the machine’s use.” Id. Second, the court stated that
information is not tangible property as stated by the supreme court in York. Id.
Third, the court concluded that the supreme court’s opinion in Whitley mandates a
finding that the plaintiffs’ claim as alleged does not fall within the TTCA’s waiver
of immunity. Id.

Qi states that this court in Hardy and the El Paso Court of Appeals in Lucero
applied Salcedo to find a waiver of sovereign immunity under analogous
circumstances; Qi asks us to find waiver in this case. We decline for several
reasons.

First, the supreme court limited Salcedo to its facts. Bossley, 968 S.W.2d
342 (“The decision in Salcedo is limited to its facts.”). The court subsequently has
explained that “information itself is an abstract concept, lacking corporeal,

21
physical, or palpable qualities. Information thus, is intangible.” York, 871 S.W.2d
at 179. The fact that information is recorded in writing on paper or by a medical
device does not render the information tangible property. See id.

Qi’s expert, Dr. Caughey, testified that the two blood pressure readings
taken on January 12 were not performed improperly. Dr. Caughey answered “no”
to questions asking whether he had seen anything in the records leading to a
conclusion that Dr. Rauth and Nurse Griffice were negligent in the way they used
the blood pressure cuff and urine test strips. No evidence suggests that the blood
pressure readings were recorded improperly. Dr. Caughey does not dispute the
accuracy of the dipstick test result that came back trace positive, and does not
believe the dipstick test was performed in an inappropriate manner. This testimony
confirms that Qi’s allegations rest upon the results produced by blood pressure
equipment and urine test strips rather than the use of this equipment; these results
are information. Because information is intangible property, the results also are
intangible property. Accordingly, the use of results produced by medical
equipment constitutes, at most, use of intangible property.

Based on the language in the TTCA and the development of case law after
Salcedo, the “use” of tangible property at issue must involve the use of the medical
equipment itself and not merely the use of information from the medical
equipment. See Redden, 335 S.W.3d at 751; Ward, 280 S.W.3d at 356. Thus, the
“use” of property requires more than reading and interpreting data produced by
medical equipment.

Here, Qi does not base her claims upon use of the medical equipment itself;
instead, she bases her claims on the alleged use or misuse of information produced
by the medical equipment. Qi does not allege that the medical equipment was used
inappropriately or incorrectly, or that the equipment’s results were erroneous, or

22
that the results were recorded erroneously. Dr. Caughey’s criticism centered
around his contention that UTMB employees violated the standard of care because
they “didn’t go further in the work-up” and did not further evaluate Qi for
preeclampsia. Dr. Caughey opined that the blood pressure measures and the urine
test by dipstick the UTMB employees performed yielded insufficient information
to rule out a diagnosis of preeclampsia. He opined that a series of blood pressure
readings taken at least six hours apart and a 24 hour urine collection are necessary
to make a proper diagnosis of preeclampsia.

Second, Qi incorrectly asserts that tangible personal property need not have
actually caused the stillbirth as long as it was a “substantial factor in bringing
about the injury.” The use of tangible property “must have actually caused the
injury.” Whitley, 104 S.W.3d at 543. In other words, the tangible property must be
the instrumentality of the harm. Jackson, 354 S.W.3d at 884; Robinson, 171
S.W.3d at 369; see Bossley, 968 S.W.2d at 342. Here, Qi’s claim cannot go
forward in the absence of an allegation that the blood pressure equipment and urine
test strips were the instrumentality that caused the harm.

Qi does not allege that the medical equipment caused the stillbirth of her
baby. Instead, she claims that the cause of the stillbirth was the failure to do
further testing to diagnose her with preeclampsia and treat her appropriately by
inducing labor. Accordingly, Qi failed to allege a nexus between the use of the
medical equipment in this case and the stillbirth.

Third, we are not bound to follow Lucero; nor are we persuaded by it in light
of the supreme court’s limitation of Salcedo. In Lucero, the plaintiffs alleged the
negligent misuse of equipment, “specifically an abdominal CT scan that indicated
liver abscess; and the failure to properly and timely diagnose and treat Lucero’s
bile leak, liver bilomas, and abscess.” 234 S.W.3d at 169. The court of appeals

23
distinguished Whitley as not involving misuse of diagnostic medical equipment and
followed Salcedo; the court concluded there is a waiver of sovereign immunity
because “[l]ike the electrocardiogram graph in Salcedo, an abdominal CT scan and
its films are used in diagnosing various conditions of the abdomen,” and the
“Lucero plaintiffs alleged and offered evidence to prove that there was a misuse of
the abdominal CT scan.” Id. at 172. The court, however, did not state that the use
or misuse of the CT scan actually caused the injury.

Finally, we believe that Hardy is distinguishable from the present case and
more analogous to Thompson. In Hardy, the patient was connected to a cardiac
monitor while recovering from bypass surgery and, 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. 2 S.W.3d at 608-09. The patient never
regained consciousness and was taken off life support. Id. at 609.

Relying on Salcedo, the court held that the plaintiff’s allegations that failure
to pay proper attention to the cardiac monitor (1) constituted a use or misuse of
tangible property and (2) proximately caused the patient’s death were “sufficient to
bring the case within the waiver of governmental immunity under section
101.021(2) of the TTCA.” Id. at 610. The court noted that “the use of the cardiac
monitor directly affected the decedent by monitoring her heart’s activity, and
served as an early warning device in case of a problem. The cardiac monitor could
only be effective, however, if it was properly monitored at all times.
Unfortunately, the person responsible for monitoring the cardiac monitor failed to
do so, resulting in the death of the decedent from the very condition that the proper
use of the cardiac monitor was intended to avoid.” Id.

Hardy stated that the cardiac monitor was “put into service” for the purpose
of monitoring the patient’s heart and that the hospital employee’s failure to pay

24
attention to the monitor constituted a use or misuse of the monitor; Hardy did not
conclude that misreading or misinterpreting results or information generated from
the monitor constituted use of tangible property. Id. Nor did the plaintiff allege
misreading or misinterpreting of monitor results. Id. at 609. Further, the cardiac
monitor sounded an alarm due to heart stoppage, and no other reading,
interpretation, or action was necessary for the patient’s diagnosis. Here, the blood
pressure equipment and urine test strips did not show a diagnosis of preeclampsia
that UTMB’s employees simply misread or misinterpreted as not showing
preeclampsia. The blood pressure equipment showed an elevated blood pressure,
and the urine test strips showed protein in the urine. This information was
insufficient to diagnose Qi with preeclampsia and then treat Qi appropriately;
according to Qi’s expert, a series of blood pressure measures and a 24 hour urine
collection were necessary for a proper diagnosis.

We conclude that Qi’s allegations do not meet the TTCA’s requirement that
use of tangible property actually caused the harm in this case.

II. Substance of Complaint is the Failure to Diagnose and Treat

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. Thompson, 2006 WL 1675401, at *4 (citing Whitley, 104 S.W.3d at
543, and Bossley, 968 S.W.2d at 343). Here, the real substance of Qi’s suit is that
UTMB’s employees failed to timely diagnose Qi with preeclampsia and induce
delivery of her baby; this failure allegedly resulted in the stillbirth of her baby and
her injury that would not have occurred if she had been timely and properly
diagnosed and treated. “However, a state entity’s failure to act does not invoke the
Tort Claims Act’s limited waiver of immunity.” Thompson, 2006 WL 1675401, at
*4 (citing Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)). Because the real

25
substance of Qi’s cause of action is a failure to act, Qi’s suit does not invoke the
Tort Claims Act’s waiver of immunity. See id.

Further, none of the remaining allegations in Qi’s petition allege a use or
misuse of tangible property: “[UTMB’s] employees were negligent and
proximately cause[d] [Qi]’s injuries”

b. In deviating from the standard of care for the treatment of high
blood pressure and preeclampsia;
c. In failing to properly and timely diagnose high blood pressure
and preeclampsia;
d. In failing to counsel Plaintiff on the possibility of developing
preeclampsia and the symptoms to watch for.
c. In failing to properly treat Plaintiff’s condition;
d. In failing to admit Plaintiff to the hospital for observation;
g. In failing to order the appropriate tests;
h. In failing to refer Plaintiff to a specialist or a physician
qualified to confirm diagnosis and treat Plaintiff, or to consult
with such a specialist or physician concerning Plaintiff’s
condition
Instead, as noted above, Qi’s allegations state a complaint of the medical judgment
exercised by UTMB’s employees. The TTCA does not waive immunity for claims
alleging erroneous medical judgment. See Univ. of Tex. Health Sci. Ctr. v. DeSoto,
No. 14-12-00620-CV, 2013 WL 1169126, at *6 (Tex. App.—Houston [14th Dist.]
March 21, 2013, no pet. h.). Therefore, Qi’s remaining allegations cannot waive
UTMB’s immunity under the TTCA.

Although a plaintiff may be afforded an opportunity to amend pleadings,
when pleadings affirmatively negate the existence of jurisdiction, they are
considered incurably defective and cannot be cured by a plaintiff’s assertion of
more detailed facts. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329
S.W.3d 876, 881 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Qi has
26
failed to plead sufficient factual allegations that the negligent use of tangible
property by a state employee caused the stillbirth and injury within the waiver of
sovereign immunity contained in section 101.021(2). See id. Qi’s allegations are
incurably defective; therefore, Qi cannot cure the defects by pleading more
detailed facts to support her assertion that the stillbirth and injury were caused by
the acts or omissions listed in her live petition. See id.

Conclusion

We sustain UTMB’s sole issue. We reverse the trial court’s order denying
UTMB’s plea to the jurisdiction and render judgment dismissing Qi’s suit against
UTMB for lack of jurisdiction.4

/s/ William J. Boyce
Justice

Panel consists of Justices Boyce, McCally and Donovan.

4
In light of our disposition, we deny the parties’ joint motion to stay jury trial and all
other trial court proceedings as moot.

27