the University of Texas M.D. Anderson Cancer Center 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

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.

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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.

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 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.

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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.

....

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 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

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