NUMBER 13-20-00001-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ELDA ALANIZ, Appellant,
v.
CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION D/B/A CHRISTUS SPOHN
HOSPITAL CORPUS CHRISTI – SHORELINE, Appellee.
On appeal from County Court at Law No. 1
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Benavides
Appellant Elda Alaniz filed a medical malpractice claim against appellee Christus
Spohn Health System Corporation d/b/a Christus Spohn Hospital Corpus Christi –
Shoreline (Shoreline). The trial court granted Shoreline’s plea to the jurisdiction based on
its assertion of governmental immunity and its contention that Alaniz’s claim did not fall
within the “use of tangible personal property” waiver of immunity found in the Texas Tort
Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). We affirm.
I. BACKGROUND
Alaniz was admitted to Shoreline on July 14, 2015, complaining of symptoms
consistent with Raynaud’s phenomenon. 1 A rheumatologist, Dr. Adriana Pop-Moody,
ordered an upper extremity angiogram as a diagnostic procedure. Minutes after
undergoing the angiogram, Alaniz suffered a stroke.
According to Alaniz’s expert report, 2 angiography is an invasive procedure
associated with approximately a 0.5% chance of stroke; therefore, it should only be
performed when necessary. According to one of her experts, Alaniz presented with
classic symptoms of Raynaud’s phenomenon, and as such, the diagnostic approach,
according to the New England Journal of Medicine, is to order “specific blood work,” not
conduct the inherently risky angiogram performed on Alaniz. In short, the expert opined
that Dr. Pop-Moody breached the standard of care by administering an unnecessary
angiogram that caused Alaniz’s stroke.
The expert also opined that the standard of care was breached a second time
when medical personnel failed to administer tPA, a clot dissolving agent, to Alaniz within
1Raynaud’s phenomenon “causes some areas of your body—such as your fingers and toes—to
feel numb and cold in response to cold temperatures or stress.” MAYO CLINIC, Raynaud’s Disease,
Symptoms & Causes, https://www.mayoclinic.org/diseases-conditions/raynauds-disease/symptoms-
causes/syc-20363571 (last visited June 21, 2021).
2 We previously reviewed the sufficiency of Alaniz’s expert report as it pertained to Shoreline.
Christus Spohn Health Sys. Corp. v. Alaniz, No. 13-17-00590-CV, 2018 WL 3673013 (Tex. App.—Corpus
Christi—Edinburg Aug. 2, 2018, no pet.) (mem. op.) (finding the report deficient under § 74.351 of the Texas
Civil Practice & Remedies Code but remanding to the trial court to consider whether Alaniz should be
granted a thirty-day extension to amend).
2
a four and one-half hour therapeutic window. According to the expert, tPA is the
“appropriate treatment for an acute stroke,” it can “reverse all or part of the symptoms of
a stroke,” and “[t]he earlier tPA is given, the higher the likelihood for complete recovery.”
The treating physicians initially believed that administering tPA was inadvisable
because Alaniz suffered an arterial puncture during the angiogram. Alaniz’s condition
worsened, and three hours later, the treating physicians consulted with a specialist. The
specialist explained that their concerns were misplaced and recommended that tPA be
administered promptly. By the time the decision to administer tPA was made, only fifteen
minutes remained in the therapeutic window. According to her expert, Alaniz’s medical
records contain conflicting explanations for why Alaniz did not ultimately receive tPA
within the therapeutic window. The specialist was told that the tPA had not been mixed in
advance, and therefore, it would be impossible to administer timely. Another note in
Alaniz’s medical records indicated that the tPA had been prepared but sent back to the
pharmacy prematurely. Whatever the reason, Alaniz claims she suffered a “major,
disabling stroke” in the hospital, but the only medical treatment provided to her was
aspirin.
According to Alaniz’s petition, her treating physicians were negligent in several
regards, including ordering the angiogram and failing to timely administer tPA. But she
does not allege that any of the physicians were Shoreline employees. As to Shoreline,
she alleges only that “hospital staff” were negligent for “[f]ailing to timely mix and
administer the tPA.”
Shoreline filed a plea to the jurisdiction arguing that Alaniz’s claim does not fall
3
within the TTCA’s waiver of governmental immunity because it involves a failure to use
tangible personal property. The trial court granted the plea and severed Alaniz’s claim
against Shoreline. This appeal followed.
II. STANDARD OF REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that
affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
Air Control Bd., 852 S.W.2d at 446).
A plea to the jurisdiction is a procedural vehicle used to challenge the trial court’s
jurisdiction. Blue, 34 S.W.3d at 554. When a plea challenges the sufficiency of the
pleadings, we construe the pleadings liberally, taking all factual assertions as true, and
look to the plaintiff’s intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a
trial court’s subject matter jurisdiction is a question of law. Id. If the pleadings are deficient
but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of
pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at
226–27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). On the
other hand, if the pleadings affirmatively negate the existence of jurisdiction, then the plea
4
may be granted without allowing an opportunity to amend. Id. at 227 (citing Brown, 80
S.W.3d at 555).
Governmental immunity from suit protects the political subdivisions of the State
from lawsuits for money damages and deprives a trial court of subject matter jurisdiction
over the plaintiff’s claims. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)).
The TTCA provides a limited waiver of governmental immunity for certain negligent
conduct by government employees, including personal injury caused by a condition or
use of tangible personal property. 3 TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2),
.025. “Use” means “to put or bring into action or service; to employ for or apply to a given
purpose.” Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). A claim
involving the failure to use, or the non-use of property, does not fall within this limited
waiver. Id. at 587; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996)
(distinguishing between use and non-use of property).
For the waiver to apply, a use of property must proximately cause the plaintiff’s
injury. City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (per curiam) (citing
Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex.
1998)). Proximate cause has two requirements: cause in fact and foreseeability. Id. (citing
Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015) (per
3 It is undisputed that Shoreline is a “governmental unit” for purposes of the TTCA. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.001(3)(B); see also 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. dism’d
by agr.) (mem. op.) (finding the hospital system was entitled to governmental immunity because it operated
Shoreline as a hospital district management contractor under § 285.072 of the Texas Health & Safety
Code).
5
curiam)). To satisfy the cause in fact element, the use of property must be a substantial
factor in causing the injury; that is, the use of property “must actually have caused the
injury.” Id. (quoting Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex. 2009) (per
curiam)). When using property merely furnishes a circumstance that makes the injury
possible, the use is not a substantial factor in causing the injury. Id. (citing Bossley, 968
S.W.2d at 343).
III. ANALYSIS
A. Ordering the Angiogram
On appeal, Alaniz characterizes her malpractice claims against Shoreline as
twofold: (1) the decision to administer the angiogram that caused the stroke; and (2) the
treatment, or lack thereof, Alaniz received after the stroke. Shoreline correctly points out
that Alaniz’s pleading contains a single claim of negligence against Shoreline for failing
“to timely mix and administer the tPA.” Nevertheless, we will consider this suggested
claim in deciding whether Alaniz should be granted an opportunity to amend. See
Miranda, 133 S.W.3d at 226–27 (citing Brown, 80 S.W.3d at 555).
Where a “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 [TTCA], regardless of the manner in which the property was administered.”
Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 509 (Tex. 2019).
Here, like McKenzie, Alaniz does not complain about the manner in which the angiogram
was administered; rather, she alleges that it was improper to administer the angiogram
under the circumstances. See id. Further, it is undisputed that the angiogram caused
6
Alaniz’s stroke. See id. Thus, we conclude that the decision to order the angiogram could
constitute a claim for negligent use of tangible personal property under the TTCA with
one caveat—for Shoreline’s immunity to be waived, the decision must have been made
by a Shoreline employee acting in the course and scope of their employment. See DeWitt
v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). This is where Alaniz’s suggested
claim falls short.
Alaniz alleges in her petition that Dr. Pop-Moody ordered the angiogram. The
TTCA defines “employee” as “a person, including an officer or agent, who is in the paid
service of a governmental unit by competent authority, but does not include an
independent contractor . . . or a person who performs tasks the details of which the
governmental unit does not have the legal right to control.” TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(2). Although physicians exercise independent medical judgment, that fact
alone does not preclude them from being an “employee” under the TTCA. Murk v.
Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam). Instead, the inquiry turns on
whether the physician is in the “paid service” of the hospital and the hospital otherwise
exercises control over the physician’s practice. Id. (quoting TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(2)). Usually physicians deemed to be an “employee” of a governmental
unit are medical faculty at a public teaching hospital. See, e.g., Franka v. Velasquez, 332
S.W.3d 367, 369–70 (Tex. 2011); Murk, 120 S.W.3d at 867.
Here, Alaniz has never alleged or suggested on appeal that Dr. Pop-Moody is in
the paid service of Shoreline or that Shoreline exercises control over the doctor’s practice.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2); Murk, 120 S.W.3d at 867. To the
7
contrary, in her petition, Alaniz distinguished her claims against Dr. Pop-Moody from her
single claim against “hospital staff.” Shoreline has never claimed that Dr. Pop-Moody is
an employee. See, e.g., TEX. CIV. PRAC. & REM. CODE § 101.106(e) (“If a suit is filed under
this chapter against both a governmental unit and any of its employees, the employees
shall immediately be dismissed on the filing of a motion by the governmental unit.”). In
short, there is no indication that Dr. Pop-Moody was anything other than an independent
contractor. See Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998)
(“A hospital is ordinarily not liable for the negligence of a physician who is an independent
contractor.”); TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (excluding independent
contractors from the definition of “employee”). Because Alaniz’s suggested claim does
not fall within the TTCA’s limited waiver, we decline her implicit invitation to remand the
case for an opportunity to replead. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 840 (Tex. 2007) (declining request to replead where plaintiff’s “pleading defects
cannot be cured, and he has made no suggestion as to how to cure the jurisdictional
defect”). We overrule Alaniz’s first sub-issue.
B. Failure to Timely Mix and Administer tPA
Alaniz’s claim that hospital staff were negligent in failing to timely mix and
administer tPA is a complaint about the non-use of tangible personal property that falls
outside of the TTCA’s limited waiver of immunity. See Miller, 51 S.W.3d at 587; Clark,
923 S.W.2d at 584; Dallas County v. Alejo, 243 S.W.3d 21, 28 (Tex. App—Dallas 2008,
no pet.) (failing to give a patient a more effective medication than the one administered
8
constitutes non-use of property). Alaniz argues on appeal that Shoreline “dispensed” 4 the
tPA, and this constituted a use of tangible personal property that waived Shoreline’s
immunity. Alaniz points to cases finding waiver where a hospital’s pharmacy negligently
dispensed a medication, and the plaintiff suffered an injury as a result of taking the
improper medication. See, e.g., Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485
S.W.3d 145, 151–52 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that
immunity was waived for a claim that the hospital negligently prescribed and 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 claim
that nurses administered medication when they should not have done so).
While we agree that dispensing medication can constitute a use of tangible
personal property under the TTCA, in this case, there is no causal link between Shoreline
dispensing tPA and Alaniz’s injury. See Sanchez, 494 S.W.3d at 726. The TTCA’s waiver
only applies if the use of property actually caused the plaintiff’s injury. Id. Here, Alaniz
does not allege that Shoreline was negligent in dispensing tPA. To the contrary—unlike
the cases she relies on—Alaniz alleges that tPA was the proper medication under the
circumstances. See Jones, 485 S.W.3d at 151; Brittain, 268 S.W.3d at 805. Instead, as
Alaniz acknowledges in her brief, Shoreline’s “subsequent failure to timely mix and
4 We assume that when Alaniz claims Shoreline “dispensed” the tPA, she is referring to the
conflicting note in her medical records indicating that the hospital pharmacy prepared the tPA but that it
was returned to the pharmacy prematurely. As discussed below, it is undisputed that Shoreline never
administered the tPA to Alaniz. Therefore, as Alaniz uses the term, a hospital pharmacy “dispensing” a
medication is not synonymous with a patient taking or receiving the medication.
9
administer the tPA” was the negligent conduct that proximately caused her injury.
Consequently, the true nature of Alaniz’s claim is a “mere non-use” of property that is
insufficient to waive Shoreline’s immunity. See McKenzie, 578 S.W.3d at 513 (quoting
Clark, 923 S.W.2d at 584); TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). Additionally,
because this defect cannot be cured, remanding for an opportunity to replead this claim
would be improper. See Miranda, 133 S.W.3d at 227. We overrule Alaniz’s second sub-
issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
15th day of July, 2021.
10