IN THE SUPREME COURT OF TEXAS
══════════
No. 17-0730
══════════
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
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
══════════════════════════════════════════
Argued February 19, 2019
JUSTICE LEHRMANN delivered the opinion of the Court, in which JUSTICE GUZMAN, JUSTICE
BOYD, JUSTICE DEVINE, and JUSTICE BLACKLOCK joined.
CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE GREEN and JUSTICE
BROWN joined.
JUSTICE BUSBY did not participate in the decision.
The Texas Tort Claims Act waives governmental immunity for personal injury and death
proximately caused by a condition or use of tangible personal property. In this case, before us on
the defendant hospital’s plea to the jurisdiction, we are asked whether the hospital’s use of an
allegedly improper carrier agent during surgery constitutes negligent “use” of tangible personal
property and, if so, whether sufficient evidence was presented that this use proximately caused the
patient’s death. The trial court found that the plaintiffs sufficiently demonstrated both use and
proximate cause and accordingly denied the plea. The court of appeals agreed, affirmed the trial
court’s order, and remanded the case to the trial court for further proceedings.
In this Court the hospital argues that because the carrier agent was administered properly
during surgery, the plaintiffs complain only of negligent medical judgment for which immunity is
not waived. However, when, as here, the claim is premised on the hospital’s use of property that
was improper under the circumstances and caused harm, this is sufficient to establish negligent
“use” under the Act, regardless of the manner in which the property was administered. We
therefore affirm the court of appeals’ judgment.
I. Background
In 2011, Courtney McKenzie-Thue, then thirty-three years old, began treatment at M.D.
Anderson Cancer Center (the “Hospital”) for a rare cancer of the appendix. As part of this
treatment, Courtney agreed to undergo a two-part procedure called a HIPEC (short for
hyperthermic intraperitoneal chemotherapy). 1 The Hospital performed the procedure pursuant to
a clinical trial protocol designed by Wake Forest Medical School (the Wake Forest protocol). The
purpose of the protocol was to test the efficacy of two chemotherapy drugs: oxaliplatin and
mitomycin C.
The first part of the HIPEC procedure involves the surgical removal of all visible cancer
from the patient’s peritoneal cavity. 2 The second part of the procedure involves flushing out, or
perfusing, the patient with a chemotherapy drug mixed with another fluid. This second fluid serves
1
The procedure is also referenced in various parts of the record and the parties’ briefing as intraperitoneal
hyperthermic chemotherapy, or IPHC, as well as hyperthermic intraperitoneal chemoperfusion and intraperitoneal
hyperthermic chemoperfusion. The names appear to be interchangeable.
2
The peritoneal cavity is the space within a person’s abdomen that contains the intestines, stomach, and liver.
Peritoneal Cavity, National Cancer Institute Dictionary of Cancer Terms,
https://www.cancer.gov/publications/dictionaries/cancer-terms/def/peritoneal-cavity.
2
as a carrier agent, helping to disperse the chemotherapy drug throughout the patient’s peritoneal
cavity. When the perfusion is complete, the patient is washed out with the carrier agent alone to
remove any trace of the chemotherapy drug.
Courtney was randomly selected to receive the chemotherapy drug oxaliplatin. Pursuant
to the Wake Forest protocol, the Hospital used a sugar water solution, called D5W, as the carrier
agent. Dr. Paul Mansfield, an M.D. Anderson surgical oncologist, oversaw the procedure. 3
As the Hospital acknowledges, D5W can cause hyponatremia, a condition that occurs when
the body’s blood sodium level becomes too low. This drop in sodium levels causes the body’s
water level to rise, which leads to swelling of the cells. To counteract this electrolyte imbalance,
the Hospital administered an insulin and saline IV drip during surgery. Despite these efforts,
Courtney developed hyponatremia following completion of the procedure. As a result, she
experienced swelling in her brain, which in turn caused brain herniation. Courtney died from these
injuries two days after her surgery.
After Courtney’s death, her family 4 sued the Hospital for negligence. 5 Specifically, the
McKenzies alleged that the Hospital was negligent in
misusing a fluid, tangible physical property, for chemotherapy under circumstances
where it was reasonably obvious that it was not the appropriate fluid and posed a
significant risk of serious harm to the patient, including the exact condition from
which Courtney died.
3
The Hospital hired a medical technician called a perfusionist to operate the pump during the second part of
Courtney’s procedure. However, the perfusionist worked under Dr. Mansfield’s direction.
4
The plaintiffs include Courtney’s father, Lance McKenzie, and her mother Deborah Diver, individually and
on behalf of Courtney’s minor son.
5
The McKenzies also sued Wake Forest and the two physicians responsible for publishing the Wake Forest
protocol. The claims against these defendants are not at issue here.
3
The McKenzies further alleged that the “conduct of MD Anderson’s employees that proximately
caused Courtney’s death was misuse of tangible personal property . . . for which the State of Texas
has waived sovereign immunity.”
To support these claims, the McKenzies timely filed an expert report prepared by Dr. David
Miller, a board-certified internal medicine specialist. See TEX. CIV. PRAC. & REM. CODE § 74.351
(requiring a health care liability claimant to serve an expert report on each defendant no later than
120 days after the date the defendant’s original answer is filed). Dr. Miller opined that Courtney’s
death was caused, in reasonable medical probability, by the “misuse of fluid that was perfused into
[her] body.” He explained:
Use of a large dose of D5W in perfusion of a patient in any condition exposes the
patient to the danger of hyponatremia and death because this creates a situation
where the patient’s body is subjected to an imbalance of sodium in relation to blood,
resulting in low sodium and too much water in the bloodstream, diluting the sodium
in the bloodstream, causing edema that is critical in the area of the brain and causes
death as what happened in this case.
He further opined:
[I]t is clear and in reasonable medical probability, that this patient would not have
died from brain herniation secondary to hyponatremia secondary to intra-operative
complications as explained above had she not been perfused with the wrong
substance that led to hyponatremia and brain herniation . . . . [T]he perfusion of a
large volume of D5W solution into a patient’s abdominal cavity, regardless of other
circumstances and regardless of the reason for the perfusion, exposes the patient to
a risk of developing hyponatremia and death from brain herniation.
The Hospital filed a plea to the jurisdiction, asserting that the Hospital is immune from
suit. It argued that the McKenzies failed to show waiver of immunity under the Tort Claims Act
because (1) the D5W was used by an independent contractor (the perfusionist), not the Hospital,
and (2) Courtney’s death was not foreseeable under the circumstances, so the McKenzies could
4
not show proximate cause. In support of its plea, the Hospital attached the protocol documents
promulgated by Wake Forest, as well as the deposition testimony of Dr. Miller and Dr. Mansfield. 6
Following a hearing, the trial court denied the Hospital’s plea to the jurisdiction. The
Hospital then timely filed an interlocutory appeal. See id. § 51.014(a)(8) (authorizing an
interlocutory appeal from an order that grants or denies a plea to the jurisdiction by a governmental
unit). At the court of appeals, the Hospital again argued that the D5W was used only by the third-
party perfusionist and not by Hospital employees. However, the Hospital alternatively argued that
the McKenzies’ claims are not for negligent use of property (for which immunity would be
waived), but rather are premised on errors in medical judgment disguised as use of tangible
personal property. The court of appeals affirmed, holding that the “crux of [the McKenzies’]
allegations against [the Hospital] involves more than complaints about medical judgment” and that
the McKenzies “alleged, and presented some evidence, that [the Hospital] used D5W when it
should not have been used.” 529 S.W.3d 177, 187 (Tex. App.—Houston [14th Dist.] 2017). 7
Regarding proximate cause, the court of appeals held that the record “contains evidence
that D5W caused [Courtney’s] hyponatremia, which in turn caused her death.” Id. at 188.
Specifically, the court of appeals cited Dr. Mansfield’s testimony that he knew D5W could cause
a patient’s blood sodium level to decrease, and that he expected such a drop to occur. Id. The
6
The depositions of Dr. Crawford, the perfusionist, and Dr. Fournier, an M.D. Anderson surgical oncologist,
were also attached to the plea. However, the Hospital does not rely on that testimony to support the issues presented
in this Court.
7
The court of appeals also held that the Hospital, not the third-party perfusionist, used the D5W because
(1) the Hospital provided the D5W to the perfusionist, (2) Dr. Mansfield used the D5W during the final washout
portion of the procedure, and (3) the Hospital “used” the D5W when it manipulated Courtney’s body to better
distribute the drug throughout her peritoneal cavity. 529 S.W.3d at 185–86. The Hospital does not challenge this
holding here.
5
court thus concluded that a genuine issue of material fact exists as to whether the use of the D5W
proximately caused Courtney’s death. Id.
In this Court, the Hospital argues its immunity was not waived because (1) the McKenzies
failed to show that the Hospital negligently “used” tangible personal property and (2) Courtney’s
death as a result of the D5W’s use was unforeseeable. We will address each issue in turn.
II. Standard of Review
“Governmental immunity generally protects municipalities and other state subdivisions
from suit unless the immunity has been waived by the constitution or state law.” City of Watauga
v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). A claim of immunity is properly raised by a plea to
the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
The purpose of a plea to the jurisdiction is to “defeat a cause of action without regard to whether
the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
We review an appellate court’s ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d
at 226.
The Tort Claims Act waives the state’s immunity for certain negligent acts by
governmental employees. 8 See TEX. CIV. PRAC. & REM. CODE § 101.021. A party suing the
governmental unit bears the burden of affirmatively showing waiver of immunity. See Tex. Dep’t
of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). To determine whether the party
has met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted
by the parties. Tex. Nat. Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001).
In doing so, we “construe the plaintiff’s pleadings liberally, taking all factual assertions as true,
8
The parties do not dispute that the Hospital is a governmental unit.
6
and look to the plaintiff’s intent.” Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex.
2012). “If the evidence raises a fact question on jurisdiction,” we cannot grant the plea, “and the
issue must be resolved by the trier of fact.” Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116
(Tex. 2010). However, “if the evidence is undisputed or fails to raise a fact question, the plea must
be granted.” Id.
III. Analysis
A. Use of Tangible Personal Property
The Tort Claims Act waives immunity 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.
TEX. CIV. PRAC. & REM. CODE § 101.021. Construing section 101.021’s substantively similar
predecessor statute, we have explained that waiver of immunity under subsection (2) requires
negligence or a wrongful act or omission of an officer or employee acting within the scope of his
employment, where the negligent conduct “involve[s] ‘some condition or some use’ of tangible
personal property under circumstances where there would be private liability.” Salcedo v. El Paso
Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983).
7
Generally speaking, then, immunity may be waived when an employee (1) furnishes
property in a defective or inadequate condition causing injury or (2) improperly uses otherwise
non-defective property to cause injury. See id. at 32. To “use” property in this context means “to
put or bring [the property] into action or service; to employ for or apply to a given purpose.” San
Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). A claim of “mere non-use” is
insufficient to waive immunity; actual use is required. See Kerrville State Hosp. v. Clark, 923
S.W.2d 582, 584 (Tex. 1996). Here, the Hospital does not dispute that it actually used tangible
personal property. Rather, the issue presented in this case is whether actual use of non-defective
property is sufficient to establish waiver where the complaint is not that the property was
administered incorrectly, but that it should not have been used in the first place.
In determining whether a plaintiff has stated a claim for use of tangible personal property,
we look to the true nature of the dispute—a plaintiff may not expand the Act’s limited waiver
through artful pleading. See Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968
S.W.2d 339, 343 (Tex. 1998) (holding that the “real substance of plaintiffs’ complaint [was] that
[the patient’s] death was caused, not by the condition or use of property, but by the failure of [the
hospital’s] staff to restrain him” and thus was a claim of non-use for which immunity was not
waived); see also Kerrville, 923 S.W.2d at 585–86 (holding that the claim involved non-use
because the “gravamen” of the plaintiff’s complaint was that “a different form of
treatment . . . would have been more effective,” not that the property that was actually used caused
any harm).
In the instant case, the McKenzies claim that the Hospital’s actual use of tangible personal
property caused harm. However, the Hospital argues that the gravamen of the McKenzies’
8
complaint is that the Hospital negligently exercised its medical judgment, not that it negligently
used property. That is, because the McKenzies do not complain about the manner in which the
Hospital administered the D5W—but instead allege that the decision to use the D5W in the first
place was improper—this is a claim regarding medical judgment, and the Tort Claims Act does
not waive immunity for such claims. The dissent similarly opines that “[b]ecause the McKenzies’
negligence claim centers on [the Hospital’s] decision to use D5W . . . [and] not the manner in
which [the Hospital] administered the D5W,” the alleged error is one of medical judgment for
which immunity is not waived. Post at ___.
However, neither the dissent nor the Hospital offers an explanation grounded in the Tort
Claims Act’s language to support this assertion. The Act does not narrow the definition of use to
encompass only the manner of administration, nor does it limit the scope of the waiver to “use”
that is not preceded by medical judgment. See Cowan, 128 S.W.3d at 246 (explaining that the
ordinary meaning of “use” is “to put or bring into action or service; to employ for or apply to a
given purpose”). The suggestion that “use” of property transforms into medical judgment so long
as the property is administered correctly simply is not supported either by the statute’s plain
language or, as discussed below, by our precedent.
As such, we disagree with the Hospital’s characterization of the McKenzies’ claims as being
unrelated to its use of property. While the McKenzies do not allege the D5W was administered
incorrectly during surgery, they do allege that the Hospital was negligent in using the D5W in the
first instance “under circumstances where it was reasonably obvious that it was not the appropriate
fluid and posed a significant risk of serious harm.” In other words, the McKenzies complain about
the Hospital’s use of property under circumstances where it (1) should not have been used at all
9
and (2) caused harm. This is as much a claim for negligent use of property as a claim that the
D5W was improperly administered would have been. That the subsequent administration followed
protocol does not somehow negate any negligence in using the property in the first place.
While we have never addressed the issue directly, we have indicated that the use of
medication that is improper under the circumstances and causes harm constitutes negligent “use”
under the Tort Claims Act. See Kerrville State Hosp., 923 S.W.2d at 584. Although Kerrville
involved the distinction between use and non-use of property, we nevertheless find it instructive.
In that case, we were asked to determine whether immunity was waived for a claim involving the
hospital’s dispensing an oral, rather than injectable, form of medication to a patient. Id. In holding
that immunity was not waived, we focused on the fact that the plaintiffs had neither alleged nor
presented evidence that the oral form of medication provided caused any harm. Id. at 585. We
concluded that “the gravamen of their complaint [was] that [the hospital’s] non-use of an
injectionable drug was the cause of” the harm. Id. 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. See id. 9
By contrast, here the McKenzies allege and have presented evidence that the Hospital used
property (the D5W) that should not have been used and that the D5W is what harmed Courtney.
Under our reasoning in Kerrville, this is sufficient to waive immunity. See Univ. of Tex. M.D.
Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied) (holding that immunity was waived for a claim that the hospital negligently prescribed and
9
The dissent (as it must) ignores this critical piece of our reasoning in Kerrville in erroneously asserting that
it is “irreconcilable” with today’s holding. Post at ___.
10
dispensed a drug that should not have been provided to the patient due to her history with
depression); see also Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 805–07 (Tex. App.—
Fort Worth 2008, no pet.) (holding that immunity was waived for a patient’s claims that nurses
administered medication when they should not have done so).
The Hospital relies extensively on Kamel v. University of Texas Health Science Center at
Houston for the proposition that this case concerns only a medical decision that is insulated from
suit. 333 S.W.3d 676, 679 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). In Kamel, a patient
underwent surgery to remove an accumulation of fluid around his testicle. Id. However, during
the surgery, the doctor decided to remove the testicle altogether because he believed it was
cancerous. Id. Tests later revealed that the doctor was wrong; the testicle was not cancerous. Id.
The patient sued and alleged that immunity was waived because the doctor “negligently used
tangible personal property, namely a scalpel, scissors, and/or other surgical instruments to
negligently . . . remov[e] plaintiff’s right testicle.” Id. at 680. The court of appeals held that the
true nature of the patient’s claim was not that the surgical instruments were defective or used
improperly, but that the doctor made an erroneous medical judgment in removing the testicle. Id.
at 686. Importantly, the injury would have occurred regardless of the method used—i.e., whether
the surgeon used “a scalpel, scissors . . . or other surgical instrument” to remove the testicle. Id.
at 680, 686. Accordingly, the patient’s claims did not fall within section 101.021(2)’s limited
waiver. Id. at 686.
While we agree that a complaint about medical judgment, without more, is insufficient to
waive immunity, the negligence alleged here does not involve only medical judgment. In this
regard Kamel is distinguishable. There, the negligence complained of was the surgeon’s decision
11
to remove the testicle, not his choice of property to accomplish that task. Indeed, as stated above,
the injury—removal of the non-cancerous testicle—would have occurred regardless of the method
or instrument used to carry out that decision. That is, the fact that some form of tangible personal
property had to be used to effectuate the improper medical decision is simply not relevant; it was
the decision itself, regardless of whether property was used or whether it was administered
properly, that caused the injury. See id.; see also Univ. of Tex. Health Sci. Ctr. at Tyler v. Smith,
No. 12-18-00270-CV, 2019 WL 1960251, at *4 (Tex. App.—Tyler Apr. 30, 2019, no pet.) (mem.
op.) (finding no waiver where the patient’s complaint was not that the surgical instrument was
used incorrectly, but that removal of her gallbladder was unnecessary).
By contrast, the negligence complained of in this case is that the Hospital’s use of a specific
carrier agent was improper under the circumstances and caused harm; absent the use of that
particular carrier agent, the injury would not have occurred. See Hopkins v. Spring Indep. Sch.
Dist., 706 S.W.2d 325, 327 (Tex. App.—Houston [14th Dist.] 1986) (noting that waiver has been
found “when the injuries are alleged to have proximately resulted from the negligent use of
property in some respect deficient or inappropriate for the purpose for which it was used”), aff’d,
736 S.W.2d 617 (Tex. 1987). In other words, it was the use itself that caused the injury, and the
fact that the property was administered properly or that the use of the D5W was preceded by
medical judgment does not affect the analysis.
This distinction is further illustrated in University of Texas M.D. Anderson Cancer Center
v. Jones. 485 S.W.3d at 147–49. In that case, a patient participated in a hospital’s smoking
cessation study designed to test the efficacy of two medications, Chantix and Zyban, to help people
quit smoking. Id. at 147. Both medications carried possible side effects, including depression and
12
suicidal ideation. Id. Before participating in the study, the patient disclosed that she had
previously struggled with depression. Id. The hospital nonetheless accepted the patient into the
study and instructed her to take the drug Chantix. Id. After a few weeks of taking the drug as
directed, the patient attempted suicide and suffered permanent nerve and renal damage as a result.
Id.
The patient filed suit against the hospital and alleged that her injuries were caused by the
hospital’s “negligently screening her, admitting her into the study, and prescribing and dispensing
Chantix when it knew or should have known that she should not be given the drug due to her
history of depression.” Id. at 148. In response, the hospital claimed the patient failed to establish
waiver under section 101.021(2) because the true nature of her allegations was that the hospital
negligently exercised its medical judgment when it allowed her to participate in the study. Id. at
148–49. The court of appeals disagreed, holding that although the patient “include[d] allegations
of negligent medical judgment . . . in her pleadings, she also allege[d] that the consequence of
those errors was the negligent prescribing and dispensing of a drug that caused her injuries.” Id.
In other words, the Jones patient did not merely challenge the hospital’s judgment in screening
her; she challenged the hospital’s dispensing of medication that allegedly should not have been
provided to her at all and caused her injury. See id.
Similarly here, the McKenzies allege that the Hospital should never have used the D5W as
a carrier agent given the large doses required for the HIPEC procedure. The fact that the use of
the agent was preceded by a medical professional’s decision to do so is of no consequence given
that virtually every action (or inaction) taken by a medical professional is preceded by medical
judgment. The key is that while medical judgment was involved, it led to the use of property that
13
was allegedly improper under the circumstances and caused harm. This is sufficient to establish
waiver under the Tort Claims Act, as any other reading would effectively write the use-of-property
waiver out of the statute.
The Hospital further insists that because the McKenzies do not complain about how the
D5W was administered—only that is was used at all—this is a case of “mere involvement” of
tangible personal property that is insufficient to waive immunity. See Bossley, 968 S.W.2d at 343.
However, in the cases from which the Hospital extracts this language we were explaining that the
“requirement of causation is more than mere involvement.” See id. (emphasis added) (holding
that a patient’s death “was caused, not by the condition or use of property” but by the hospital’s
failure to restrain the patient); see also Miller, 51 S.W.3d at 588 (holding that while the
governmental unit used various drugs while treating a patient, the use of these drugs did not cause
his injury). In other words, a plaintiff cannot invoke waiver merely by alleging use of tangible
personal property; the use of the property must also cause his injury. However, this well-settled
proposition does not affect our analysis here. No one contends that the Hospital’s use of a
stethoscope during Courtney’s treatment waived its immunity, because no one contends that the
use of this instrument was causally related to Courtney’s death. Rather, the carrier agent allegedly
caused the injury.
Finally, the Hospital argues that allowing waiver for the McKenzies’ claims would
“effectively eliminate the State’s sovereign immunity in claims challenging medical judgment”
and thus “expose the State to considerable liability, given the countless medical decisions that take
place every day involving non-negligent use of tangible property.” The dissent echoes this
14
assertion, contending that our decision renders the sovereign immunity doctrine a “nullity.” Post
at ___ (quoting Kerrville, 923 S.W.2d at 586).
This floodgate argument is unsupported and paints our holding in overly broad strokes. As
our jurisprudence demonstrates, not every tort claim involving medical providers will arise from
the improper use of tangible personal property that causes harm. See, e.g., Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994) (holding that immunity is not
waived for negligence involving the use, misuse, or nonuse of information in a patient’s medical
record); see also Kerrville, 923 S.W.2d at 586 (holding that the alleged failure to prescribe a
specific form of medication is not “use”). 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. See Miller, 51 S.W.3d at 588 (holding that immunity was not
waived because “[n]either the drugs nor the treatment afforded” to the inmate “actually cause[d]
his death,” as the inmate’s condition became fatal due to the doctor’s incorrect diagnosis); Kamel,
333 S.W.3d at 686 (finding no waiver for negligent removal of a testicle where the negligent
conduct—the decision to remove the non-cancerous testicle—was unrelated to the property used
to carry out that decision). Causation is key because it forecloses the flood of liability the dissent
fears will ensue.
To the contrary, it is the dissent’s interpretation that has overly broad implications and
renders section 101.021(2) largely useless. The dissent agrees with the Hospital that for immunity
purposes, we must separate the decision to use particular property from the subsequent physical
manipulation of the property. That is, the dissent would hold that causing harm by improperly
15
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. Post at ___. We fail to see the textual basis for that distinction.
Indeed, we recently rejected a similar categorical analysis in Tarrant Regional Water
District v. Johnson. 572 S.W.3d 658 (Tex. 2019). In that case, we applied the Tort Claims Act’s
discretionary function exception, under which the government retains immunity for claims
involving discretionary decisions. Id. at 664–65; TEX. CIV. PRAC. & REM. CODE § 101.056. The
court of appeals applied a strict “design versus maintenance” approach that had developed in our
jurisprudence with respect to the exception, wherein anything on the “design” side of the line
would be covered by the exception and anything on the “maintenance” side would not. Johnson,
572 S.W.3d at 665. While we recognized that “[those] labels provide useful conceptual
frameworks that aid courts and litigants in the application of the rather obscure text” of the Tort
Claims Act, we ultimately concluded that this “design versus maintenance” framework was “not
an element of the statute”; accordingly, the court of appeals’ “[n]arrow consideration of whether
the claim involve[d] a design function or a maintenance function” could not displace the statute’s
“textual touchstone: ‘discretion.’” Id. at 665, 667–68. Similarly here, the Hospital’s and the
dissent’s proposal—that “use” transforms into medical judgment when the property is
administered properly but nevertheless causes harm—adds language to section 101.021 that does
16
not appear anywhere in its text. Our analysis must be driven not by the Hospital’s creative labeling,
but by the provision’s “textual touchstone”: use. 10
Finally, we reiterate that the issue before us today is immunity, not liability. The Hospital’s
compliance with the applicable standard of care has no bearing on our analysis. We are called
upon only to determine whether, looking at the gravamen of the plaintiffs’ complaint, a fact issue
exists regarding whether Courtney’s injury was proximately caused by the Hospital’s “use” of
tangible personal property. For the reasons discussed, we hold that the McKenzies’ claim against
the Hospital is not premised solely on the exercise of medical judgment for which immunity would
not be waived. Rather, the McKenzies adequately alleged that the Hospital used property that was
improper under the circumstances and that such use caused harm. This constitutes a claim for
which section 101.021(2) waives immunity.
B. Proximate Cause: Foreseeability
The Hospital next argues that, even if the McKenzies have adequately alleged negligent
use of property, the Hospital retains its immunity because the record evidence establishes as a
matter of law that the use of D5W did not proximately cause Courtney’s death. City of Dallas v.
Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (explaining that to establish waiver under section
101.021(2), the condition or use of the property must be a proximate cause of the injury).
Proximate cause has two components: cause in fact and foreseeability. Id. Because proximate
cause is ultimately a question for the factfinder, on a plea to the jurisdiction we need only determine
whether the evidence creates a fact question regarding the causal relationship between the use of
10
Insofar as there may or may not be policy reasons to further restrict the scope of the immunity waiver, that
is not our decision to make. The Legislature drew the line by waiving immunity for injuries proximately caused by
negligent “use” of tangible personal property and makes no exception when the “use” is precipitated by the exercise
of medical judgment.
17
property and the resulting injury. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d
922, 929 (Tex. 2015).
The Hospital does not dispute that the D5W was a cause in fact of Courtney’s death,
arguing only that proximate cause is lacking because Courtney’s death was not a foreseeable result
of using the D5W. 11 The Hospital advances two arguments that it claims foreclose foreseeability:
(1) Courtney’s death was a “possibility” but was not “predictable” and (2) the precautions taken
to prevent Courtney from developing hyponatremia rendered any risk of death unforeseeable.
Essentially, the Hospital contends that Courtney’s death was unforeseeable because it was
unlikely. We disagree.
In making its argument, the Hospital relies almost exclusively on an excerpt from the
deposition of the McKenzies’ expert, Dr. Miller, in which he stated that he did not think Courtney’s
death was foreseeable. However, this answer is divorced from its context. The entirety of Dr.
Miller’s testimony on this issue is as follows:
Q: Based on that statement [in the Hospital’s expert witness designation], 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.
11
While the Hospital addressed the cause-in-fact component in its brief, it conceded the issue at oral argument
and confirmed that it disputed only foreseeability.
18
Q: And according to [the expert witness designation], they were well aware of that
risk?
A: Yes.
Dr. Miller’s testimony is consistent with his expert report, in which he repeatedly explained
how and why death can result from hyponatremia. First, Dr. Miller opined that the Hospital’s use
of the D5W breached the relevant standard of care because it “expose[d] the patient to the danger
of developing hyponatremia and death [by] creat[ing] a situation where the patient’s body is
subjected to an imbalance of sodium . . . causing edema that is critical in the area of the brain and
causes death.” Dr. Miller then opined that this breach caused Courtney’s death because “the
perfusion of a large volume of D5W solution into a patient’s abdominal cavity, regardless of other
circumstances . . . exposes the patient to a risk of developing hyponatremia and death from brain
herniation.” Thus, it is clear that, in Dr. Miller’s expert opinion, a recognized consequence of
hyponatremia is serious neurological damage or death, and that Courtney’s death was in fact
caused as a result of her developing this condition.
Indeed, the testimony of Dr. Mansfield, the surgical oncologist who performed the
procedure, draws the same causal link as the McKenzies’ expert:
Q: What condition did [Courtney] have that led to her brain herniation?
A: She had cerebral edema.
Q: Okay. What caused [that]?
....
A: It was a result of her hyponatremia.
19
At a later point in his deposition, Dr. Mansfield again confirmed that there was “no question” that
Courtney died of a brain herniation secondary to hyponatremia. He also admitted that the D5W
caused her hyponatremia and that D5W is known to create electrolyte abnormalities—
abnormalities that would not have resulted had a saline solution been used.
Foreseeability 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. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992); see also Ryder, 453 S.W.3d at
929. It “does not require that a person anticipate the precise manner in which injury will occur
once he has created a dangerous situation through his negligence.” Travis, 830 S.W.2d at 98. It
requires only that “the general danger, not the exact sequence of events that produced the harm,
be foreseeable.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Ryder, 452 S.W.3d
at 929 (holding that the “injury [must] be of such a general character as might reasonably have
been anticipated”). Accordingly, the plaintiff need not always show that his particular injury has
occurred before in order to create a fact question on foreseeability. See Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 551 (Tex. 1985) (holding that evidence of previous sexual assaults was not
necessary to create a fact issue on foreseeability and that a history of other violent crimes in the
area was sufficient).
Here, while the McKenzies’ expert stated that he did not think Courtney’s death was
predictable, he also testified that the risks associated with using the D5W were “basic medicine”:
Q: In your opinion, should M.D. Anderson have known that the D5W was a
mistake?
A: Oh, yes.
....
20
Q: And why is that? Is it because of what you told us earlier, that –
A: Yes, because of the large . . . volume of sugar water being placed in the
abdominal cavity, which you just don’t do.
....
Q: And is that basic medicine?
A: That’s basic medicine.
Moreover, the Hospital concedes that it knew the use of D5W could cause hyponatremia. Indeed,
it implemented a saline and insulin drip precisely because it expected such a condition to result. It
is therefore clear that, at a minimum, the general dangers associated with the use of the D5W were
known to Courtney’s doctors. 12 This evidence is sufficient to raise a fact issue on foreseeability.
And the precautionary measures taken to prevent hyponatremia do not negate
foreseeability. The Hospital insists that, because Courtney’s doctors administered a saline and
insulin drip during surgery, her injuries were unforeseeable. The dissent similarly argues that
because the Hospital took steps to minimize the risks associated with injecting sugar water into
Courtney’s body, her death was unforeseeable. See post at ___. But reducing risk is not the same
as eliminating it.
The dissent further opines that our conclusion that a fact issue exists on proximate cause
amounts to “strict liability” for healthcare providers whose patients suffer injury despite the efforts
12
The dissent focuses on the fewer than fourteen instances in which Dr. Mansfield had previously performed
the HIPEC procedure using oxaliplatin and D5W, none of which resulted in the patient’s death. See post at ___. But
the question of foreseeability asks only whether the actor should have “anticipated the dangers that his negligent act
created for others.” Travis, 830 S.W.2d at 98. “The test is not what the [defendant] believed would occur,” nor does
it “require that he anticipate just how injuries will grow out of that dangerous situation.” Clark v. Waggoner, 452
S.W.2d 437, 440 (Tex. 1970). Again, no one disputes that the hyponatremia was foreseeable, and that this condition
carried serious risks, including brain herniation and death. The fact that the ultimate outcome (death) was unexpected
is therefore not dispositive given that the dangerous condition leading to this outcome (hyponatremia) was not.
21
made to minimize the risks of treatment. This assertion mischaracterizes not only our analysis,
but the fundamentals of tort law. Specifically, the dissent has overlooked the fact that the Hospital
will not be held liable on the McKenzies’ negligence claim unless and until a factfinder determines
that the Hospital breached the applicable standard of care and that the breach proximately caused
the injury. See Rourke v. Garza, 530 S.W.2d 794, 800 (Tex. 1975) (explaining that under a strict
liability theory, “[a] finding of negligence is not required,” and one may be liable “even though he
has exercised all possible care”). As noted, whether the Hospital was or was not negligent is well
beyond the scope of the immunity issue before us. And we certainly recognize that the actions
taken by the Hospital to address the risk inherent in using the D5W are relevant to both negligence
and causation. Addressing the issue at hand, we hold only that these actions do not conclusively
negate foreseeability on this record.
In sum, after considering the evidence in the light most favorable to the McKenzies,
Miranda, 133 S.W.3d at 228, we hold that a fact issue exists on foreseeability. As such, the
Hospital’s plea to the jurisdiction was properly denied. Id.
IV. Conclusion
The court of appeals correctly held that the Tort Claims Act waives the Hospital’s
sovereign immunity. We accordingly affirm the court’s judgment.
________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: June 28, 2019
22