NUMBER 13-19-00243-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION D/B/A CHRISTUS SPOHN
HOSPITAL CORPUS CHRISTI—SOUTH, Appellant,
v.
CHERYL WILLIAMS AND RONALD WILLIAMS, Appellees.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras
This interlocutory appeal concerns a health care liability suit filed by appellees
Cheryl and Ronald Williams against appellant Christus Spohn Health System Corporation
d/b/a Christus Spohn Hospital Corpus Christi—South (Spohn). Spohn contends by one
issue that the trial court erred in denying its plea to the jurisdiction because: (1) it is entitled
to governmental immunity as a Hospital District Management Contractor (HDMC); (2) the
Williamses did not plead a claim for which immunity is waived; and (3) in the alternative,
the Williamses did not timely notify Spohn of their claim prior to filing suit. We reverse and
render.
I. BACKGROUND
Cheryl Williams was admitted to Christus Spohn Hospital Corpus Christi—South
on or about June 19, 2014, for shoulder replacement surgery. According to the
Williamses’ petition, while Cheryl was recovering from the surgery at the hospital, she
developed a pressure sore on her lower back which later progressed into an abscess and
required additional surgery. She also suffered an infection, causing her to go into septic
shock. Eventually, Cheryl was discharged to a nursing facility on or about July 9, 2014,
and she returned home on or about September 12, 2014.
The suit alleges that Spohn, by and through its agents and staff, was negligent in
Cheryl’s post-surgical care.1 Specifically, the Williamses asserted that hospital staff failed
to comply with the applicable standard of care by: (1) “failing to reposition [Cheryl] on a
regular basis in order to prevent formation of a pressure sore”; (2) “failing to take
appropriate measures and precautions to prevent formation of a pressure sore”; (3)
“failing to timely identify [Cheryl]’s pressure sore forming on her back”; and (4) “failing to
report skin changes present for [Cheryl] to her physicians.”
Spohn answered the suit and filed a plea to the jurisdiction on the basis of
governmental immunity. Spohn argued that it is an HDMC and is considered a
1The Williamses also sued two physicians that treated Cheryl at the hospital—Sunil K. Gupta,
M.D., and Miguel Berastain Jr., M.D.—as well as Gupta’s professional association, Sunil’s Hospitalists P.A.
Those defendants are not parties to this appeal.
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“governmental unit” for immunity purposes under chapter 285 of the Texas Health and
Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 285.071, .072. It further argued
that, because the subject claim does not involve the use of personal property, and
because the Williamses failed to provide timely pre-suit notice of their claim, its
governmental immunity has not been waived by the Texas Tort Claims Act (TTCA). See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.101, .021(2); TEX. GOV’T CODE ANN. § 311.034.
As evidence supporting its plea, Spohn attached the affidavit of Jonny F. Hipp, the
administrator and chief executive officer of the Nueces County Hospital District (NCHD).
Hipp stated that Spohn’s predecessor and NCHD entered into several agreements in
1996, including a “Master Agreement,” a “Lease Agreement,” and an “Indigent Care
Agreement.” The parties later agreed to terminate those agreements in a “Membership
Agreement” dated September 28, 2012. Copies of all four agreements were attached to
Hipp’s affidavit. The Williamses filed a response to the plea, arguing that health and safety
code § 285.072 does not apply because their claim does not arise from the “management
or operation of a hospital under a contract with a hospital district,” nor does it arise from
the “provision of services” under such a contract. The response also contended that
Spohn had timely actual notice of their claims.
After a hearing on May 6, 2019, the trial court denied the plea to the jurisdiction.
This accelerated appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. DISCUSSION
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of
subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its
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purpose 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 the
disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623,
632 (Tex. 2015).
The plaintiff has the initial burden to allege facts that affirmatively demonstrate the
trial court’s jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864,
867 (Tex. 2002) (per curiam). We construe the pleadings liberally in favor of the plaintiff
and look to the pleader’s intent. Ryder Integrated Logistics, Inc. v. Fayette County, 453
S.W.3d 922, 927 (Tex. 2015) (per curiam). If the pleadings generate a fact question
regarding the jurisdictional issue, the plea to the jurisdiction must be denied. Id. at 927. If
jurisdictional facts are disputed, we consider relevant evidence submitted by the parties
when necessary to resolve those disputes, even when the evidence implicates the merits
of the cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004); see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). We take as
true all evidence favorable to the non-movant and we resolve any doubts in the non-
movant’s favor. Miranda, 133 S.W.3d at 227–28.
B. Applicable Law
The doctrine of sovereign immunity holds that “no state can be sued in her own
courts without her consent, and then only in the manner indicated by that consent.” Tooke
v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764,
769 (1847)). Under the doctrine, courts lack subject-matter jurisdiction over suits against
governmental units unless immunity has been clearly and unambiguously waived by the
legislature. Sykes, 136 S.W.3d at 638; see TEX. GOV’T CODE ANN. § 311.034.
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The TTCA clearly and unambiguously waives governmental immunity for, among
other things, “personal injury and death [proximately] caused by a condition or use of
tangible personal or real property if the government unit would, were it a private person,
be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.021(2); see Miranda, 133 S.W.3d at 224. Moreover, “[s]tatutory prerequisites to a
suit, including the provision of notice, are jurisdictional requirements in all suits against a
governmental entity.” TEX. GOV’T CODE ANN. § 311.034.
An HDMC is defined as “a nonprofit corporation, partnership, or sole proprietorship
that manages or operates a hospital or provides services under contract with a hospital
district that was created by general or special law.” TEX. HEALTH & SAFETY CODE ANN.
§ 285.071.
A[n HDMC] in its management or operation of a hospital under a contract
with a hospital district is considered a governmental unit for purposes of [the
TTCA], and any employee of the [HDMC] is, while performing services
under the contract for the benefit of the hospital, an employee of the hospital
district for the purposes of [the TTCA].
Id. § 285.072.
C. Analysis
Following the submission of initial briefs in this appeal, we considered whether
Spohn is entitled to immunity as an HDMC in a similar case involving a different Spohn
hospital. See Christus Spohn Health Sys. Corp. v. Gracia, No. 13-18-00485-CV, 2019
WL 4008554, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2019, pet. filed) (mem.
op.). As here, the plaintiffs in Gracia alleged that Spohn provided negligent post-surgical
care, and Spohn argued it was immune to suit as an HDMC. Id. The record in that case
included the same Membership Agreement that was attached to Spohn’s plea to the
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jurisdiction here.2 In Gracia, we noted that the Membership Agreement provides as
follows:
[T]he parties determined that it is in their mutual interest to transition to a
joint membership structure of Spohn by CHRISTUS Health[3] and [NCHD],
such that CHRISTUS Health and [NCHD] will be Members of Spohn,
consistent with the related amended organizational documents of Spohn
and the continued operation of Spohn as the public, safety-net hospital in
Nueces County, Texas . . . .
Spohn serves as the public, safety-net hospital in Nueces County, Texas by
providing care to the low-income and indigent population in Nueces County
at the CHRISTUS Spohn Hospital Corpus Christi—Memorial, CHRISTUS
Spohn Hospital Corpus Christi—Shoreline and CHRISTUS Spohn Hospital
Corpus Christi—South hospital facilities (these Spohn hospital facilities
along with the clinics, medical offices, and other health care facilities on the
campuses of or affiliated with such Spohn hospital facilities that share
common Medicare and Medicaid provider agreements are collectively
referred to herein as the “Nueces County Facilities”) consistent with the
provisions set forth in [chapter 281 of the Texas Health and Safety Code],
the Indigent Health Care Act, and in accordance with the [Indigent Care
Agreement] and [NCHD]’s policies . . . .
Id. at *2. The Gracias argued that Spohn could not be an HDMC under the Membership
Agreement because it already owned and operated the hospital at issue prior to any
agreement with NCHD, and the Membership Agreement “does not alter that ownership
right.” Id. at *3. They also argued that Spohn is not entitled to immunity because the
patient was not indigent, and therefore “his care does not fall within the contracted
services between Spohn and NCHD.” Id. We rejected both arguments and concluded that
Spohn was entitled to immunity under § 285.072. Id. (noting that “[t]here is nothing in the
statute that states that a hospital management contractor cannot own the hospital that is
being operated under the contract in order to come within the purview of the statute” and
2 We take judicial notice of the record in the Gracia case. See TEX. R. EVID. 201; Estate of York,
934 S.W.2d 848, 851 (Tex. App.—Corpus Christi–Edinburg 1996, writ denied).
3 The Membership Agreement states that “CHRISTUS Health” is a Texas non-profit corporation
separate from Spohn.
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“[t]here is nothing in the plain language of the statute that delineates between the types
of care received at a hospital that is being managed for the hospital district” (quoting
Christus Spohn Health Sys. Corp. v. Ven Huizen, No. 13-10-00400-CV, 2011 WL
1900174, at *8 (Tex. App.—Corpus Christi–Edinburg May 19, 2011, pet. denied) (mem.
op.))). We further held that immunity was not waived by the TTCA because the Gracias
did not plead that their injuries were “caused by the condition or use of tangible personal
or real property.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)).
Like the Gracias, the Williamses do not dispute that NCHD is a hospital district
created by general or special law, nor do they dispute that Spohn entered into an
agreement with NCHD under which it was obligated to “manage[] or operate[] a hospital
or provide[] services . . . .” See TEX. HEALTH & SAFETY CODE ANN. § 285.071. Instead, they
argue that Spohn should not be considered a “governmental unit” in this case because
their claim does not arise from Spohn’s management or operation of a hospital, or its
provision of services, under a contract with a hospital district. See id. § 285.072. In that
regard, they note that the 1996 Master Agreement did not require Spohn to “manage or
operate” the particular hospital where Cheryl received her care, and “nothing in the [2012]
Membership Agreement altered the manner in which [Spohn] was operating and
managing” the hospital. The Williamses further contend that Spohn is not a “governmental
unit” for purposes of their suit because Cheryl was not indigent.
The Williamses are correct that, merely because an entity is an HDMC under the
statutory definition, that does not necessarily mean that it must be considered a
governmental unit for immunity purposes. Instead, § 285.072 makes clear that an HDMC
is considered a governmental unit only “in its management or operation of a hospital under
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a contract with a hospital district,” and its employee is considered an employee of the
hospital district only “while performing services under the contract for the benefit of the
hospital . . . .” Id. § 285.072. Thus, if an HDMC is sued based on acts or omissions that
occur wholly outside of its obligations under its contract with the hospital district, then it
cannot claim governmental unit status under § 285.072. Cf. Jones v. Nueces County, 589
Fed. Appx. 682, 686 (5th Cir. 2014) (finding that Spohn was properly considered a
“governmental unit” under § 285.072 in a suit claiming it was negligent in providing
medical services at the Nueces County Jail pursuant to a contract with NCHD).
But that is not the case here. In addition to the language we quoted in Gracia, the
Membership Agreement also provides as follows:
Section 1.01. Public Hospital and Delivery of Indigent Care Services.
Spohn has operated and will continue, during the term of this Agreement,
to operate a safety-net hospital available for the provision of inpatient and
outpatient hospital services to the indigent and needy residents in Nueces
County, Texas at the Nueces County Facilities, in accordance with
[NCHD]’s obligations under the Texas Constitution and the Act and as more
fully set forth in Section 8.03 and Schedule 2 of this Agreement.
This paragraph requires Spohn to “operate a safety-net hospital” at the “Nueces County
Facilities,” which includes Christus Spohn Hospital Corpus Christi—South, the hospital
where Cheryl received her allegedly negligent care.4 It is undisputed that, although Cheryl
was not an indigent patient, her injury arose from Spohn’s “operation” of the hospital as
required by this paragraph. In other words, the claim implicates the acts and omissions
of Spohn “in its management or operation of a hospital under a contract with a hospital
district.” See TEX. HEALTH & SAFETY CODE ANN. § 285.072. Therefore, Spohn must be
4
Though Christus Spohn Hospital Corpus Christi—South was not one of the hospitals to which the
1996 Master Agreement applied, that agreement was terminated and entirely supplanted by the 2012
Membership Agreement.
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considered a “governmental unit” under § 285.072. See id.; see also Gracia, 2019 WL
4008554, at *3–4.
The Williamses have not argued that their live claim is one for which governmental
immunity has been waived. In particular, they do not claim that Cheryl’s injury was
“caused by a condition or use of tangible personal or real property.” See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.021(2). Accordingly, we conclude that Spohn is immune to the
Williamses’ suit as an HDMC and the trial court erred in denying its plea to the jurisdiction.
See Gracia, 2019 WL 4008554, at *3–4. Spohn’s issue is sustained.5
D. Opportunity to Amend Pleadings
When a plaintiff fails to plead facts that establish jurisdiction, but the petition does
not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend. County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
In Gracia, we held that the plaintiffs’ claim was “incurably defective” because “[n]o
allegation in their pleadings references the use of any tangible personal property” and the
plaintiffs did not “provide any additional information about what, if any, tangible personal
property may have been used.” 2019 WL 4008554, at *4. In their responsive brief on
appeal, the Williamses contend that they should be given the opportunity to add additional
allegations “which involve the condition and use of the standard mattress which
proximately caused [Cheryl] to develop a pressure sore and abscess.”
We disagree. The Beaumont court of appeals considered a claim very similar to
5 Having sustained this issue, and in light of our determination herein that the Williamses are not
entitled to an opportunity to replead, we need not address whether Spohn received timely notice of the
claim. See TEX. R. APP. P. 47.1.
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the one suggested by the Williamses in Spindletop MHMR Center v. Beauchamp ex rel.
Humphrey, 130 S.W.3d 368 (Tex. App.—Beaumont 2004, pet. denied). There, Humphrey
suffered bed sores which her guardian claimed were “caused by a bed and other property,
including ‘ulcer preventing devices.’” Id. at 369. The court of appeals held that these
allegations were not sufficient to establish a waiver of the defendant’s governmental
immunity under § 101.021(2) of the TTCA. Id. at 372. The court observed:
Plaintiff makes no allegations in this case attacking the condition of the bed
and the other named equipment, that is, that the property was defective or
lacked an integral safety feature. Non-use of “ulcer preventing devices” is
not use of tangible personal property within the statutory waiver, and
allegations of negligent care are not sufficient to establish waiver of
immunity. . . . As in Tomlinson, the property “used” by Spindletop, the bed
and the wheelchair, furnished the condition which made the injury possible.
But providing Humphrey a bed and a wheelchair are not the acts that are
alleged to have caused injury. Rather the pleadings assert a failure to
“assess, treat and monitor” her condition as the cause of her injury. The
Legislature has not waived immunity to suit for that alleged tort.
Id. (citing Gainesville Mem’l Hosp. v. Tomlinson, 48 S.W.3d 511 (Tex. App.—Fort Worth
2001, pet. denied) (“If there were to be a waiver of immunity in all cases where some item
of personal property is either used or not used, there would be virtually an unrestricted
waiver of immunity, which was not the intent of the legislature. . . . Merely asserting that
some form of tangible personal property is involved is not sufficient to demonstrate waiver
of immunity.”)).
The Williamses do not suggest that the mattress at issue was defective or lacked
an integral safety feature, nor do they suggest that the mattress was “used” in an unsafe
or improper manner. See id.; see also Dallas Cty. MHMR v. Bossley, 968 S.W.2d 339,
343 (Tex. 1998) (“Property does not cause injury if it does no more than furnish the
condition that makes the injury possible.”); San Antonio State Hosp. v. Cowan, 128
S.W.3d 244, 246 (Tex. 2004) (noting that the word “use” in § 101.021(2) “was clearly
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intended as a real limit on the waiver of sovereign immunity” and distinguishing other
cases in which it is alleged 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”). Under these circumstances, we conclude that the Williamses’ claim has
incurable jurisdictional defects. Therefore, they are not entitled to the opportunity to
replead. See County of Cameron, 80 S.W.3d at 555; see also Univ. of Tex. at Brownsville
v. Ramos, No. 13-11-00302-CV, 2012 WL 256137, at *6 (Tex. App.—Corpus Christi–
Edinburg Jan. 26, 2012, pet. denied) (mem. op.) (denying opportunity to replead where
plaintiff, who had severed three fingers while using an allegedly defective table saw,
alleged that defendant “failed to properly inspect the table saw, failed to have a proper
first aid kit available, failed to provide him immediate transportation to an emergency
room, and failed to properly handle his severed fingers”).
III. CONCLUSION
The trial court’s judgment is reversed, and we render judgment dismissing the
Williamses’ suit for want of jurisdiction.
DORI CONTRERAS
Chief Justice
Delivered and filed the
6th day of February, 2020.
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