IN THE SUPREME COURT OF TEXAS
444444444444
NO. 17-0730
444444444444
THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, PETITIONER,
v.
LANCE MCKENZIE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
COURTNEY MCKENZIE-THUE (DECEASED), AND DEBORAH DIVER, INDIVIDUALLY
AND AS NEXT FRIEND OF J.O., A MINOR, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
CHIEF JUSTICE HECHT, joined by JUSTICE GREEN and JUSTICE BROWN, dissenting.
Suffering from rare, Stage IV appendiceal cancer, Courtney McKenzie-Thue elected to
undergo a complex, clinical-trial procedure detailed in a protocol developed by the Wake Forest
University School of Medicine. The procedure began with extensive surgery to remove tumors
growing throughout her peritoneal cavity, followed by a perfusion of the cavity with a chemotherapy
drug mixed with D5W—sugar water—to kill remaining cancer cells. The ten-hour procedure was
performed flawlessly at the University of Texas M.D. Anderson Cancer Center, but two days later,
unexpectedly and tragically, McKenzie-Thue died of unlikely complications from the use of the
sugar water prescribed by the protocol, a risk M.D. Anderson had recognized—though it never
before had resulted in death—and took steps to prevent.
The Court holds that M.D. Anderson’s immunity from this wrongful-death suit is waived by
the Texas Tort Claims Act (“the Act”)1 because plaintiffs, the McKenzies,2 claim that death was
proximately caused by the negligent use of the sugar water—not in the manner of use, which was
perfect, but in the use of the sugar water at all. But the use of the sugar water was prescribed by the
surgical protocol and was an integral part of the procedure. If sugar water could not be used, the
procedure could not have been performed, and whether to perform the procedure was a medical
judgment for which, the Court acknowledges, immunity is not waived. The involvement of sugar
water cannot change that. If sugar water should not have been used, neither should a scalpel have
been, or the surgical apparatus, or for that matter, the building. Surgery cannot be performed without
the use of real and personal property, and if that use and a bad result are sufficient to waive
immunity, the Act’s waiver is very broad. Today’s decision runs counter to the Court’s decisions
that the Act’s waiver of immunity is limited.
The Court also holds that McKenzie-Thue’s death was foreseeable, a requirement of
proximate causation, because hyponatremia was a known risk of the use of sugar water. But death
from the procedure had never previously occurred and was unlikely; M.D. Anderson took all proper
1
TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109. M.D. Anderson is a governmental unit with immunity under
the Act. See TEX. CIV. PRAC. & REM. CODE § 101.001(3)(D) (defining governmental unit to include “any . . . institution
. . . the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature
under the constitution”); see also TEX. CONST. art. VII, § 10 (“The Legislature shall as soon as practicable establish,
organize and provide for the maintenance, support and direction of a University of the first class . . . styled, ‘The
University of Texas’ . . . .”); TEX. EDUC. CODE § 65.02(a) (“The University of Texas System is composed of the
following institutions and entities: . . . (11) The University of Texas M.D. Anderson Cancer Center . . . .”); LTTS Charter
Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 86 (Tex. 2011) (stating that “public universities . . . satisfy the precise
standards articulated by section 101.001(3)(D)”).
2
Plaintiffs are McKenzie-Thue’s father, Lance McKenzie, individually and on behalf of McKenzie-Thue’s
estate, and her mother, Deborah Diver, individually and on behalf of McKenzie-Thue’s minor son.
2
precautions to prevent it; and the McKenzies’ only medical expert, Dr. David H. Miller, testified
squarely that McKenzie-Thue’s death, though “a possibility,” was neither “predictable” nor
“foreseeable.” The Court’s conclusion directly contradicts settled law that injury is foreseeable only
if it is the “natural and probable” consequence of an action.3 There are risks to any surgery.
Healthcare providers should know what they are and try to prevent them. That is exactly what
M.D. Anderson did here. The effect of the Court’s decision is to impose strict liability for any bad
result from surgery.
Today’s decision departs from the Act and our caselaw and strikes all healthcare providers,
government and private alike, a heavy blow. I respectfully dissent.
I
Courtney McKenzie-Thue, 33, suffered from advanced Stage IV cancer of the appendix, a
rare disease that manifests in tumors growing on the organs and tissues in and around the peritoneal
cavity. Dr. Paul Mansfield, a surgical oncologist at M.D. Anderson, recommended that McKenzie-
Thue undergo an experimental intraperitoneal hyperthermic chemotherapy procedure—IPHC4—
developed by the Wake Forest University School of Medicine. The protocol calls for the surgeon
to open the peritoneal cavity, resect all tumors and visible signs of cancer, and close the incision.
A perfusionist then pumps several liters of a chemotherapy drug mixed with a heated carrier solution
into the cavity through a circuit of tubes and filters, bathing the organs and tissues. The patient’s
3
See, e.g., Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995) (emphasis added)
(quoting Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939)).
4
The procedure is also sometimes referred to with the acronyms HIPEC and HYPEC. Wake Forest has referred
to the procedure as IPHC.
3
abdomen is massaged to assure complete perfusion of the fluid throughout the cavity to kill all
cancer cells. The cavity is then washed with fresh carrier solution to flush out the chemotherapeutic
agent.
The Wake Forest IPHC protocol called for the use of one of two chemotherapy drugs, either
Mitomycin C or Oxaliplatin. The carrier solution specified for Mitomycin C was a normal saline
solution and for Oxaliplatin it was D5W, a solution of 5% dextrose—a form of sugar—in water.
D5W was required because the drug manufacturer’s insert accompanying the Oxaliplatin warned
that “[a] final dilution must never be performed with a sodium chloride solution or other chloride-
containing solutions”, such as saline, because the drug is “incompatible” with them. Accordingly,
the Wake Forest protocol specified that with Oxaliplatin, “[r]econstitution or final dilution must
never be performed with a sodium chloride solution or other chloride-containing solutions.”5 The
IPHC clinical-trial protocol was designed as a double-blind study to test the relative toxicity of the
two drugs. Oxaliplatin was randomly selected for McKenzie-Thue’s procedure at M.D. Anderson.
Thus, the required carrier solution was D5W.
McKenzie-Thue’s procedure lasted ten hours. During the first eight hours, Mansfield
removed her spleen, her omentum, the lining of her left and right diaphragm, her gallbladder, and
the ends of her small intestine and colon. Another surgeon performed a complete hysterectomy,
removing her uterus, fallopian tubes, and ovaries, as well as a peritonectomy, stripping the lining
of her pelvis. Then the chemotherapeutic perfusion began. The heated Oxaliplatin–D5W solution
was pumped through McKenzie-Thue’s peritoneal cavity for two hours, then flushed with the pure
5
The Court mischaracterizes these mandates as suggestions. Ante at ___.
4
sugar water. The entire procedure went without a hitch, and Mansfield was hopeful that all had gone
well. The McKenzies do not complain that any aspect of the procedure was performed below the
standard of care.
But introducing so large a volume of D5W into the peritoneal cavity can lower sodium levels
in the body, a condition called hyponatremia. Hyponatremia, in turn, can lead to edema—swelling
from excess fluid trapped in the body. The anesthesiologist was aware of this risk and, consistent
with the standard of care, took precautions to counteract it by starting saline and insulin IV drips
prior to the introduction of the D5W. Nevertheless, McKenzie-Thue developed hyponatremia,
resulting in an increased water level in her body, swelling of her brain stem, brain herniation, and
death two days later.
Mansfield was shocked. He had treated 14 patients using the Wake Forest IPHC protocol,
several using Oxaliplatin and D5W, without incident. There is no evidence that the IPHC procedure
using Oxaliplatin and D5W ever caused the death of any patient other than McKenzie-Thue. When
McKenzie-Thue’s expert Miller was asked why McKenzie-Thue had such a tragic result, he testified
only:
[T]here’s no way . . . I can know why Courtney died and other people don’t other
than her risk factors in that she had multiple hours of surgery debulking the tumor,
multiple hours of anesthesia, then the . . . sugar water in her abdominal cavity at the
end to . . . give her the chemotherapy.
So, she is a unique person. I do not know what other people in other studies have had
in terms of their experience around the time the chemotherapy is put into the
abdominal cavity.
5
Other evidence suggests that McKenzie-Thue may have been more susceptible to cerebral edema
because of her age and smaller size. The record does not reflect a more definite explanation.
M.D. Anderson had itself reviewed the Wake Forest IPHC protocol before approving it for
use. Following McKenzie-Thue’s death, M.D. Anderson and Wake Forest re-examined the protocol,
and after discussions with the manufacturer of Oxaliplatin, concluded that the drug could be
perfused using a normal saline solution rather than D5W.
II
A
The Texas Tort Claims Act waives governmental immunity in stated circumstances. 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 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.6
This case involves subdivision (2). The phrase “so caused” clearly refers back to “proximately
caused” in subdivision (1), but it also incorporates the requirement of subdivision (1) that injury be
6
TEX. CIV. PRAC. & REM. CODE § 101.021.
6
caused “by” a wrongful or negligent act or omission of the governmental unit, especially since the
unit would not be liable, were it a private person, absent negligence or other wrong. The requirement
also applies directly to the condition or use of property. It is not enough for liability that injury be
caused by a use of property and, separately, an act of negligence. Subdivision (2) waives immunity
from suit for an injury proximately caused by a negligent or wrongful use of property.
B
As easy as that rule is to say, it has been maddeningly difficult to apply.7 In the first two
decades of the Act’s existence, we concluded that immunity had been waived in virtually every case
that came before us whenever property was present. We held to be actionable claims of negligence
for providing a post-operative patient a bed without rails,8 for failing to provide a college football
player a brace for his injured knee,9 for failing to diagnose a heart attack from the results of an
electrocardiogram,10 and for taking an epileptic mental-health patient swimming while failing to
provide him a life preserver.11 During this period, we described the statutory language as “difficult
7
Our efforts to apply Section 101.021 have had a “long and arduous history”. Kerrville State Hosp. v. Clark,
923 S.W.2d 582, 584 (Tex. 1996) (quoting Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)).
Eighteen years ago I expressed the view “that it is simply impossible for the courts to meaningfully construe and
consistently apply the use-of-property standard” in the statute. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,
591 (Tex. 2001) (Hecht, J., concurring).
8
Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (per curiam).
9
Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976).
10
Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983).
11
Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989). In the only claim we found not to be
actionable, the plaintiff alleged use of tangible personal property by a third party, not by the government. See Beggs v.
Tex. Dep’t of Mental Health and Mental Retardation, 496 S.W.2d 252, 253–254 (Tex. App.—San Antonio 1973, writ
ref’d) (after another patient doused the plaintiff with lighter fluid and ignited it, the plaintiff alleged that the defendant
state agencies were negligent in transferring a dangerous patient to the nursing home where the plaintiff resided).
7
to understand”12 and “troublesome”13 and made repeated, unanswered pleas for legislative
clarification.14 The Court eventually opined that the Legislature’s silence amounted to approval of
our having “interpreted the Act broadly”15—an inference belied by the fact that “waiver of
governmental immunity is a controversial political issue”16 and by the legislative compromises
necessary to get the Act passed in the first place.17
The jurisprudential tide began turning in 1992. In LeLeaux v. Hamshire–Fannett Independent
School District, we held that an injury that occurred on a parked school bus did not arise out of the
use of the bus.18 “[T]he bus [was] only the setting for the injury”.19 Several months later, in Texas
Department of Mental Health and Mental Retardation v. Petty, five members of the Court concluded
that the Act waives immunity for a claim based on the state’s having continually misdiagnosed a
mental patient over the course of several decades.20 But the lead opinion for the Court attracted only
12
Lowe, 540 S.W.2d at 301 (Greenhill, C.J., concurring).
13
Salcedo, 659 S.W.2d at 32.
14
See Robinson, 780 S.W.2d at 170; Salcedo, 659 S.W.2d at 32; Lowe, 540 S.W.2d at 303 (Greenhill, C.J.,
concurring).
15
Robinson, 780 S.W.2d at 170; see id. at 170–171 (opining that the Legislature’s having amended and codified
the waiver provision without addressing the Court’s concerns “indicates a legislative adoption of the construction given
in [Lowe and Salcedo]”).
16
Id. at 173 (Hecht, J., dissenting).
17
See Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 686 (Tex. 1992) (Cornyn,
J., dissenting); Robinson, 780 S.W.2d at 175 (Hecht, J., dissenting) (both recounting the legislative history of the Act).
18
835 S.W.2d 49, 52 (Tex. 1992).
19
Id.
20
848 S.W.2d at 681.
8
a plurality.21 In dissent, Justice Cornyn warned that the Court’s interpretation of the use-of-property
standard had veered off course, was undermining the Legislature’s intent to enact only a limited
waiver of immunity, and had spawned “patently inconsistent results” in the lower courts.22
Within a few years, the Court had fully retreated from its initial, broad construction of the
Act. In University of Texas Medical Branch at Galveston v. York, we held that immunity was not
waived for a claim of negligence in failing to diagnose a broken hip—or, put another way, “for
negligence involving the use, misuse, or nonuse of medical information.”23 We acknowledged our
departure from Petty but explained that because Petty was a plurality opinion, it had “very limited
precedential value”, and “we [were] not bound by the result in that case”.24 We based our decision
on the bedrock principle that “for the Legislature to waive sovereign immunity, it must do so by
clear and unambiguous language”,25 and we reasoned that “the Legislature [had] not, by clear and
unambiguous language, eliminated governmental immunity for injuries resulting from the misuse
of information”.26 Later, we implicitly overruled our earlier decisions involving the football player
21
Justice Cook concurred in the Court’s judgment only, without providing any explanation. Id. at 685; id. at
685 (Cornyn, J., dissenting) (“The result [of the plurality opinion] is that no opinion speaks for the court.”).
22
See id. at 688–689 (Cornyn, J., dissenting).
23
871 S.W.2d 175, 176 (Tex. 1994).
24
Id. at 176–177.
25
Id. at 177 (citing Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980)).
26
Id. at 179.
9
who was not provided a knee brace, the epileptic swimmer who was not provided a life preserver,
and the undiagnosed heart attack, stating that each was limited to its facts.27
C
York’s precept—that a waiver of sovereign immunity must be by clear and unambiguous
language—has been codified by the Legislature: “[A] statute shall not be construed as a waiver of
sovereign immunity unless the waiver is effected by clear and unambiguous language.”28 Two other
principles are equally fundamental.
One, as Justice Cornyn reminded in Petty, is that the Act’s waiver is limited.29 In Dallas
County Mental Health & Mental Retardation v. Bossley, we stated, “[O]ne thing is clear: the waiver
of immunity in the Tort Claims Act is not, and was not intended to be, complete. Arguments for
applications of the Act that would essentially result in its waiver becoming absolute must therefore
be rejected as contrary to the Act’s fundamental purpose.”30 We applied this principle in the medical
context in Kerrville State Hospital v. Clark. There, the plaintiffs’ daughter was murdered by her
estranged husband while he was undergoing a course of outpatient mental-health treatment at the
27
See Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998) (“The
decision in Salcedo [the undiagnosed heart attack case] is limited to its facts.”); Kerrville State Hosp. v. Clark, 923
S.W.2d 582, 585 (Tex. 1996) (explaining that Lowe, the football player case, and Robinson, the epileptic swimmer case,
“represent perhaps the outer bounds of what we have defined as use of tangible personal property” and that their
“precedential value . . . is . . . limited to claims in which a plaintiff alleges that a state actor has provided property that
lacks an integral safety component and that the lack of this integral component led to the plaintiff’s injuries”).
28
TEX. GOV’T CODE § 311.034.
29
Tex. Dep’t of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 688 (Tex. 1992) (Cornyn, J.,
dissenting) (quoting Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 301–302 (Tex. 1976) (Greenhill, C.J., concurring)).
30
968 S.W.2d at 342.
10
Kerrville State Hospital.31 The plaintiffs alleged that the hospital was negligent in giving the
husband an oral form of medication to take on his own outside the hospital—which he failed to
do—rather than administering to him an available injectionable form on site.32 In sum, the plaintiffs’
claim was “that the treatment prescribed to [the husband] was not as effective as an alternative
method of treatment would have been.”33 We “[held] that [the hospital’s] failure to administer an
injectionable drug [was] non-use of tangible personal property and therefore [did] not fall under the
waiver provisions of the Act.”34 To conclude otherwise, we said, would be “contrary to the limited
waiver the Legislature clearly intended.”35
The Court today states that “[u]nder our reasoning in Kerrville,” the McKenzies’ allegation
that M.D. Anderson should have used a different carrier solution than D5W “is sufficient to waive
immunity.”36 The Court’s argument runs like this:
• Kerrville holds that non-use of property is not use for waiver of immunity.37
31
923 S.W.2d at 583.
32
Id. at 584.
33
Id. at 585.
34
Id. at 584.
35
Id. at 585.
36
Ante at __.
37
“Kerrville involved the distinction between use and non-use of property . . . . This distinction—that the
property actually used (the oral form of the drug) did not cause the injury at issue—is what rendered the waiver for
injuries caused by the use of tangible personal property inapplicable.” Ante at ___.
11
• The McKenzies do not allege non-use, but rather, the non-negligent use of property that
should not have been used.38
• Kerrville’s holding does not preclude the McKenzies’ claim.
• Therefore, Kerrville allows the McKenzies’ claim.39
The Court charges that “[t]he dissent . . . ignores” Kerrville’s reasoning that non-use is not use.40 To
the contrary, I embrace it. Here is Kerrville’s reasoning, which the Court ignores:
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. If such a complaint were enough to constitute the use of
tangible personal property under the Act, the doctrine of sovereign immunity would
be rendered a nullity.41
Kerrville’s fundamental rationale and today’s holding are irreconcilable.
Another fundamental principle for construing the Act follows from Kerrville: the Act does
not waive immunity for an exercise of judgment—in the healthcare context, for medical judgment.
In Texas Department of Criminal Justice v. Miller, the defendant failed to diagnose an inmate with
meningitis, from which he died.42 The plaintiff alleged that the defendant had been negligent in
administering to the inmate medications that treated his symptoms but masked the true nature of his
38
“By contrast, here the McKenzies allege and have presented evidence that [M.D. Anderson] used property
(the D5W) that should not have been used and that the D5W is what harmed Courtney.” Ante at ___.
39
“Under our reasoning in Kerrville, this is sufficient to waive immunity.” Ante at ___.
40
Ante at ___ n.8.
41
Kerrville, 923 S.W.2d at 585–586.
42
51 S.W.3d 583, 585 (Tex. 2001).
12
illness.43 We agreed with the defendant’s argument that the plaintiff “alleged only the non-use of
tangible personal property and an error in medical judgment, neither of which are within the
statutory waiver.”44 Quoting the passage from Kerrville above, we explained that our holding
comported with the Legislature’s intent that the immunity waiver be limited.45
The rule that an error in medical judgment, alone, is not within the Act’s waiver is traceable
to one of our earliest decisions, where Chief Justice Greenhill opined in a concurring opinion that
a claim based on a doctor’s removing the wrong kidney would not fall within the statutory waiver
of immunity.46 We adopted it expressly in York when we held that the Act does not waive immunity
“from liability for negligence involving the use, misuse, or nonuse of medical information” and
simultaneously disavowed our prior decision in Petty.47 And it is consistent with our decision in
Kerrville that a hospital’s prescribing one form of medication over another potentially more effective
form is not actionable under the Tort Claims Act.48 None of our subsequent decisions have backed
away from this principle or even muddied the waters. Because the McKenzies’ negligence claim
43
See id.
44
Id. at 588 (emphasis added).
45
Id. (quoting and paraphrasing Kerrville, 923 S.W.2d at 585–586).
46
Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 303 (Tex. 1976) (Greenhill, C.J., concurring); see Kamel v. Univ.
of Tex. Health Science Ctr. at Hous., 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding
that a claim against a doctor for removing the plaintiff’s testicle during surgery, when the testicle later turned out to be
healthy, did not fall within the statutory waiver of immunity in Section 101.021(2)) (“Kamel has made no claim that the
surgical instruments themselves were defective in any way or that they were used in a negligent manner. Rather, the crux
of Kamel’s argument is that Dr. Wang made an erroneous medical judgment in determining that Kamel’s testicle needed
to be removed.”).
47
Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 176–177 (Tex. 1994).
48
Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996).
13
centers on M.D. Anderson’s decision to use D5W rather than a different carrier solution during the
clinical-trial protocol—not the manner in which M.D. Anderson administered the D5W—the
medical-judgment limitation established in our caselaw is fatal to the McKenzies’ case.
D
In the case before us, Section 101.021(2) must be applied in light of these three principles:
there is no waiver except by clear and unambiguous language, any waiver must be limited, and
immunity from suit for medical judgments is not waived.
The McKenzies admit, and the Court agrees, that there was nothing improper in the way
sugar water was used in the IPHC procedure. The McKenzies’ claim is that sugar water “should not
have been used at all”.49 And as the Court states, “absent the use of that particular carrier agent”—
i.e., sugar water—McKenzie-Thue’s “injury would not have occurred.”50 That is probably true.
Although the surgical procedure was long and invasive, nothing in the evidence suggests McKenzie-
Thue would not have fully recovered and, perhaps, been freed of cancer. There is evidence to
support the claim that the surgical protocol need not have called for the use of sugar water as the
carrier solution to the extent it did. After McKenzie-Thue’s death, M.D. Anderson’s and Wake
Forest’s re-examination of the IPHC protocol concluded that a saline solution could be used with
Oxaliplatin, at least in part, and the drug manufacturer changed its requirement that only sugar water
be used. But all of this is information, not property.
49
Ante at ___.
50
Ante at ___.
14
But it is absolutely true that, absent the use of sugar water, McKenzie-Thue could not have
had the IPHC procedure. At the time of McKenzie-Thue’s procedure, the IPHC protocol prescribed
that Oxaliplatin be perfused in solution with sugar water. Sugar water was no more a cause of
McKenzie-Thue’s death than was the use of Oxaliplatin, which was determined by random selection
in the double-blind clinical trial. The McKenzies’ complaint—that sugar water should not have been
used at all—is tantamount to a complaint that the procedure should never have been performed at
all. But that was clearly a medical judgment, for which the Court acknowledges immunity was not
waived. The Court argues that following surgical protocol “does not somehow negate any
negligence in using the property in the first instance.”51 That’s true, of course, but following protocol
involves the use of property; deciding to follow protocol does not.
The Court explains that its decision is really narrow:
[N]ot every tort claim involving medical providers will arise from the improper use
of tangible personal property that causes harm. As discussed, a patient cannot merely
allege that a medical provider used tangible personal property during treatment; the
patient must also demonstrate that the use of the particular property at issue was both
improper under the circumstances and caused injury.52
But not to be repetitive, the Court ignores what it said in Kerrville:
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. If such a complaint were enough to constitute the use of
51
Ante at ___.
52
Ante at ___ (internal citations omitted).
15
tangible personal property under the Act, the doctrine of sovereign immunity would
be rendered a nullity.53
The Court attempts to distinguish Kamel v. University of Texas Health Science Center at
Houston,54 a case the McKenzies more candidly acknowledge is contrary to their position. There,
a surgeon performed a hydrocelectomy—a removal of fluid around the testicle.55 But during the
surgery, the surgeon decided the testicle looked cancerous and removed it altogether.56 Later tests
showed that there was no cancer in the testicle.57 The patient sued, claiming that his injury was
caused by the use of property—a scalpel and other surgical instruments.58 The Court rejects that
argument: “[T]he negligence complained of”, it says, “was the surgeon’s decision to remove the
testicle, not his choice of property to accomplish that task.”59 So in the present case, the decision was
not whether to use sugar water; its use was prescribed by the IPHC surgical protocol. The decision
was whether to perform the IPHC procedure. That decision involved the use of a scalpel and sugar
water. In the Court’s view, M.D. Anderson’s immunity was waived by the second but not the first.
Under Kamel’s reasoning, immunity was waived by neither.
53
See supra note __.
54
333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
55
Id. at 679.
56
Id.
57
Id.
58
Id. at 680.
59
Ante at ___.
16
Similarly, in University of Texas Health Science Center at Tyler v. Smith, the court of
appeals rejected a claim that a bile leak following gallbladder surgery was caused by the use of the
electrocautery instrument used in the surgery.60 As in this case, there was no evidence or even a
claim that the use of the instrument was itself negligent.61 The court concluded that the plaintiff’s
injury was the result of the medical judgment to perform surgery, for which immunity was not
waived, and “use of the electrocautery instrument to remove the gallbladder did nothing more than
furnish the condition that made the bile leak possible.”62
The Court relies on University of Texas M.D. Anderson Cancer Center v. Jones.63 There, the
plaintiff volunteered to participate in a blind study to determine which of two drugs better helped
people quit smoking.64 The drug randomly chosen for the plaintiff was one she had taken before.65
She told the study’s candidate screener she had suffered an adverse reaction from the drug, but she
nevertheless was instructed to take the drug, and she suffered the same adverse reaction as before.66
The court of appeals held that the use of the drug waived immunity.67 Regardless of whether the case
was decided correctly, the present case is different. In Jones, M.D. Anderson knew that the plaintiff
60
No. 12-18-00270-CV, 2019 WL 1960251, at *3 (Tex. App.—Tyler Apr. 30, 2019, no pet. h.) (mem. op.).
61
Id.
62
Id.
63
485 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
64
Id. at 147.
65
Id.
66
See id.
67
Id.
17
had suffered an adverse reaction to a drug but prescribed it for her anyway, and she developed the
same reaction. The clinical study was about the drug itself. In the present case, M.D. Anderson knew
of the risk of hyponatremia from using sugar water, but also knew those risks could be managed and
that no one had ever died from its use in the procedure. The decision whether to perform the IPHC
procedure—a lengthy, very invasive surgery involving a complete cleansing of cancer from the
peritoneal cavity—was not about whether to use sugar water but rather about whether the procedure
could cure McKenzie-Thue of cancer.
The Court argues that its conclusion is unavoidable. To treat the claim here as complaining
of a medical judgment, the Court says, would nullify the waiver of immunity altogether. To
“separate the decision to use particular property from the subsequent physical manipulation of the
property”, the Court asserts, “would effectively write the use-of-property waiver out of the statute.”68
This is simply untrue. Had the sugar water been used in a negligent manner, no one argues that
immunity would not be waived. The reality is that no healthcare provider makes a medical judgment
to use property negligently in treating a patient. The medical judgment is to treat; negligence is a
misstep. One would hope that such missteps are indeed rare and that the statutory waiver need only
be narrow. By objecting to the dissent’s narrow waiver, the Court implicitly concedes that its waiver
is broad, and that directly conflicts with our cases. Even if the Court’s analysis were reasonable, it
is not required by any clear and unambiguous language of Section 101.021(2). The statutory text
does not require so broad a waiver of immunity in conflict with the rule that immunity is not waived
for medical judgments.
68
Ante at ___ (emphasis omitted).
18
The Court gets one thing exactly right: “[T]he dissent would hold that causing harm by
improperly administering the right property does not involve medical judgment and thus constitutes
negligent or wrongful use of property under the Act’s use waiver, while causing harm by properly
administering the wrong property does involve medical judgment and thus cannot be negligent use
under the Act.”69 That is true. And the reason is that using property in treatment improperly is a
negligent use for which the Act waives immunity, while choosing an improper treatment that
involves the use of property is not within the Act’s waiver.
I would hold that the McKenzies’ claim does not assert a use of property for which Section
101.021(2) waives immunity.
III
Section 101.021(2) waives immunity only for a negligent or wrongful use of property that
proximately causes injury.
In order for it to be said that an injury proximately resulted from an act of
negligence, the evidence must justify the conclusion that such injury was the natural
and probable result thereof. In order to justify such a conclusion, the evidence must
justify a finding that the party committing the negligent act ought to have foreseen
the consequences thereof in the light of the attendant circumstances.70
The McKenzies’ expert, Dr. Miller, clearly testified that McKenzie-Thue’s death was not
foreseeable. The Court explains that his statement must not be “divorced from its context.”71 Here
is the context, as set out by the Court:
69
Ante at ___.
70
Snellenberger v. Rodriguez, 760 S.W.2d 237, 238 (Tex. 1988) (quoting Carey v. Pure Distrib. Corp., 124
S.W.2d 847, 849 (Tex. 1939)).
71
Ante at ___.
19
Q: [Do] you believe that Courtney’s death at M.D. Anderson was
foreseeable to the doctors there?
A: Oh I don’t think [it was] foreseeable. I think that with her—the use
of that amount of sugar water, that it was a possibility; but I don’t think it was
predictable.
Q: They didn’t expect her to die?
A: No. Not—
Q: But it was definitely a risk?
A: It was a risk, yes, or severe neurological damage, permanent—
permanent damage.
Q: And according to [the expert witness designation], they were well
aware of that risk?
A: Yes.72
Read in context, Miller clearly, affirmatively testified that McKenzie-Thue’s death was merely a
possibility and was not predictable or foreseeable.
The Court states that “[f]oreseeability does not necessarily equate to predictability. Rather,
‘foreseeability’ means that the actor should have reasonably anticipated the dangers that his
negligent conduct created for others.”73 But by “dangers” the Court means risks, not injuries. Miller
testified that M.D. Anderson could not have reasonably anticipated McKenzie-Thue’s death, but it
knew very well the risks associated with injecting sugar water into McKenzie-Thue’s body. Indeed,
72
Ante at ___ (second and third alterations in original).
73
Ante at ___.
20
it took steps, which Miller testified were proper, to avoid the risks. Those steps were, for reasons
he could not explain, sadly ineffective.
So the Court reasons that if a healthcare provider knows the risks of treatment—as it always
should—and takes steps to minimize those risks—again, as it always should—but injury occurs, the
provider’s administration of the treatment proximately caused the injury. This is nothing less than
strict liability for any injury that occurs. The Court makes no bones about it:
It is . . . clear that, at a minimum, the general dangers associated with the use of the
D5W were known to Courtney’s doctors. This evidence is sufficient to raise a fact
issue on foreseeability.74
There are always risks to surgery. They may be so great that a procedure cannot be justified.
That was not true for McKenzie-Thue. Mansfield thought she was a good candidate for the IPHC
procedure. Miller testified that Mansfield’s treatment of her was completely within the standard of
care. He had successfully performed the procedure many times, several using Oxaliplatin and sugar
water. M.D. Anderson should have foreseen the risks, and it did. Miller is right: it could not have
foreseen her death.
The Court chides that the dissent “mischaracterizes not only our analysis, but the
fundamentals of tort law” because it “has overlooked the fact” that the issue here is immunity not
liability.75 What the Court does not acknowledge is that the standard for proximate cause is the same
in any context, whether determining immunity or liability. Of course, the Court offers, “we certainly
recognize that the actions taken by [M.D. Anderson] to address the risk inherent in using the D5W
74
Ante at ___.
75
Ante at ___.
21
are relevant to both negligence and causation” and “hold only that these actions do not conclusively
negate foreseeability”.76 That is precisely the point. The Court holds that if treatment involves risks
(as it almost always does), and a healthcare provider recognizes them and does everything within
the standard of care to avoid injury (as it certainly should and did here), yet injury still occurs (which
had never happened before and was therefore highly improbable), and the unchallenged evidence
from the plaintiffs’ own expert is that the injury was not foreseeable (as Dr. Miller testified), then
that evidence is sufficient for liability. I disagree. As far-reaching as today’s decision on immunity
will be, the Court’s proximate cause analysis will affect, in its words, “the fundamentals of tort law.”
* * * * *
I would reverse and render. Today’s decision greatly expands the Tort Claims Act’s waiver
of immunity, contrary to our caselaw. And it fundamentally alters the concept of proximate
causation. I respectfully dissent.
Nathan L. Hecht
Chief Justice
Opinion delivered: June 28, 2019
76
Ante at ___.
22