COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TEXAS TECH UNIVERSITY HEALTH No. 08-22-00112-CV
SCIENCES CENTER, §
Appeal from the
Appellant, §
County Court at Law No. 7
v. §
of El Paso County, Texas
CLAUDIA OAXACA, Individually and as §
Independent Executor of the Estate of (TC# 2018DCV0531)
JUAN R. OAXACA, §
Appellee. §
MEMORANDUM OPINION
Appellant Texas Tech University Health Sciences Center (TTUHSC) challenges the trial
court’s denial of its plea to the jurisdiction in this medical negligence action subject to the Texas
Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109. Juan R.
Oaxaca sued TTUHSC alleging its physicians negligently caused him injury and damages by their
use or misuse of a catheter during his medical treatment. 1 On appeal, Appellee Claudia Oaxaca,
surviving spouse of Juan R. Oaxaca, deceased, continues the underlying suit, which was initially
1
While Oaxaca’s case remained pending in the trial court, his surviving spouse, Claudia Oaxaca, filed a suggestion
of death giving notice that her husband died on August 8, 2020, and she was then serving as the independent executor
of his estate. In accordance with this record, we have amended the caption of the case to properly reflect the change
in party and the capacities in which she maintains the suit.
brought by her husband. Finding no error on review, we affirm the trial court’s order denying the
plea to the jurisdiction and motion to dismiss.
I. BACKGROUND 2
On January 13, 2016, Juan R. Oaxaca was hospitalized for treatment of cirrhosis and end
stage renal disease at University Medical Center of El Paso (UMC). At all times relevant,
physicians of TTUHSC managed Oaxaca’s nephrology care and treatment. Among other care, his
treating physicians determined his condition required dialysis treatment. On January 26, 2016,
physicians inserted a nontunneled temporary dialysis catheter into Oaxaca’s right jugular vein. On
February 11, 2016, physicians exchanged the temporary catheter with another catheter of a similar
type. Plans were made for transferring Oaxaca the next day to Highlands Rehabilitation Hospital
(HRH) for continuation of his care. Towards that end, a note from a TTUHSC nephrology
consultation requested that Oaxaca be evaluated for dialysis at HRH, and if no longer needed, to
remove the temporary catheter in use. On February 12, 2016, Oaxaca was discharged and
transferred by ambulance to HRH.
On arrival, he exhibited symptoms consistent with sepsis, including a temperature of 103.1,
pulse rate 110, blood pressure 127/81, and oxygen saturation of 93% on 3 liters of oxygen. HRH’s
attending physician ordered his immediate transfer back to UMC. Instead, however, he was
diverted to Del Sol Medical Center, where he was admitted that same day. As his condition became
hypotensive, he was diagnosed as suffering from septic shock and admitted to Del Sol’s intensive
care unit. His treating physicians identified the temporary dialysis catheter as being the source of
2
The background facts are based on appellee’s pleading and the jurisdictional evidence of record. For purposes of
this appeal, we take as true all evidence favorable to the nonmovant based on our applicable standard of review. See
Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Texas Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 227–28 (Tex. 2004).
2
his infection, and it was removed. On February 25, 2016, after his condition stabilized, Oaxaca
was discharged to a rehabilitation facility for continued care and treatment.
On February 12, 2018, Juan R. Oaxaca filed his original petition alleging claims of medical
negligence against TTUHSC, contending there was a misuse of tangible property while he
remained under the care of its physicians, which proximately caused his injuries and damages.
Specifically, Oaxaca alleged a misuse of tangible personal property by use of an infected catheter.
TTUHSC thereafter filed a plea to the jurisdiction asserting: “Upon review of Plaintiff’s
true allegations as demonstrated by the undisputed jurisdictional evidence, there was no negligent
use of tangible personal property that caused injury to Plaintiff concerning the alleged infected
catheter or improper discharge from UMC.” It argued Oaxaca had failed to allege a waiver of
sovereign immunity under the Texas Tort Claims Act (TTCA). Specifically, TTUHSC urged that
none of the allegations of Oaxaca’s petition pinpointed any misuse of tangible property directly
causing injury to him. Moreover, it asserted the jurisdictional evidence related to Oaxaca’s
allegations negated such a waiver as a matter of law. Supporting its plea, TTUHSC provided
excerpts of Oaxaca’s medical records and of deposition testimony of multiple witnesses. Such
records included testimony of Juan R. Oaxaca, of Claudia Oaxaca, of certain treating physicians,
and of Oaxaca’s testifying expert, Louis Roddy, M.D. After supplementing these records,
TTUHSC further submitted an expert report from its designated expert, John R. Holcomb, M.D.
Following the passing of Juan R. Oaxaca, his surviving spouse, Claudia Oaxaca, who then
served as independent executor of her late husband’s estate, filed a second amended original
petition. In her live pleading, Oaxaca described two types of catheters—nontunneled and
tunneled—which are typically placed for hemodialysis treatment. She alleged that a nontunneled
catheter should not be used for chronic, long-term, or outpatient hemodialysis. She claimed that
3
nontunneled catheters are “limited to less than two weeks for internal jugular catheters and should
not be used for outpatient settings.” Continuing, she alleged that TTUHSC knew or should have
known that the nontunneled catheter used for treatment of Juan R. Oaxaca should have been
converted to a tunneled catheter within one week, but no less than two, and its failure to convert
or remove such catheter caused Oaxaca’s resulting injury. Specifically, Oaxaca alleged that the
nontunneled temporary catheter should have been converted to a tunneled catheter within one week
of placement, on February 3, 2016, or less than two weeks after placement on February 10, 2016.
Oaxaca’s second amended petition continued with the following pertinent claims:
[TTUHSC], acting by through agents and employees, negligently misused tangible
property, which was a proximate cause of the injuries and damages set forth below.
[TTUHSC’s] nephrology consultants knew or should have known the risk of a
bloodstream infection outweighed the benefit of keeping the nontunneled
temporary catheter and should have converted it to a tunneled catheter. However,
[TTUHSC] failed to convert to a tunneled catheter. This negligence was a
proximate cause [of] a bloodstream infection which led to sepsis and to septic shock
and the injuries and damages stated below.
[TTUHSC’s] nephrology consultants knew or should have known the risk of a
bloodstream infection outweighed the benefit of keeping the nontunneled
temporary catheter and should have removed it when there were signs of a
bloodstream infection. However, [TTUHSC] failed to remove the nontunneled
catheter. This negligence was a proximate cause of a worsening bloodstream
infection which led to sepsis and to septic shock and the injuries and damages stated
below the injuries and damages.
As a proximate cause of this misuse of tangible property, the nontunneled
temporary dialysis catheter, Mr. Oaxaca developed a bloodstream infection which
resulted in sepsis, which developed into septic shock.
Contemporaneous with the filing of her amended pleading, Oaxaca filed a response to
TTUHSC’s plea to the jurisdiction and motion to dismiss. She incorporated by reference her
amended pleading, and further asserted her claim supported a valid waiver of immunity based on
a condition or use of tangible property. Oaxaca argued that TTUHSC’s jurisdictional evidence
4
failed to negate a waiver of immunity. In support of her response, she attached Oaxaca’s medical
treatment records and an expert report of Louis Roddy, M.D. She later filed a first supplemental
response providing further argument and citation to authorities. TTUHSC replied, arguing that
neither Oaxaca’s amended pleading nor her response supported a waiver of immunity under the
TTCA.
Following a hearing, the trial court denied TTUHSC’s plea to the jurisdiction and motion
to dismiss. TTUHSC next brought this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE
ANN. § 51.014(a)(8).
II. DISCUSSION
In its sole issue, TTUHSC contends the trial court erred in denying its plea to the
jurisdiction and motion to dismiss, arguing Oaxaca’s claims—as demonstrated by the conclusive
jurisdictional evidence—establish there was no actual negligent use of an allegedly infected
dialysis catheter. Characterizing the claims as non-use claims, TTUHSC urges they fall outside the
scope of the terms of the TTCA’s waiver of immunity as a matter of law.
Responding, Oaxaca contends the denial of the plea was proper because the undisputed
pleadings affirmatively pleaded, and the jurisdictional evidence demonstrated, the negligent use
of tangible property proximately causing her husband’s injury. She maintains the pleadings allege
negligent use of a catheter by failing to remove it as it became a source of infection, with Juan R.
Oaxaca’s symptoms showing signs of early sepsis, of which TTUHSC knew or should have
known, and this catheter-caused condition led to worsening sepsis and septic shock. In short,
Oaxaca contends the undisputed pleadings allege, and the jurisdictional evidence demonstrate,
misuse of tangible property, or said differently, an unreasonable use of a hemodialysis catheter.
A. Standard of review
5
A party suing a governmental unit bears the burden to affirmatively show waiver of
immunity. Univ. of Texas M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512
(Tex. 2019). Immunity from suit implicates a court’s subject matter jurisdiction. Sampson v. Univ.
of Texas at Austin, 500 S.W.3d 380, 384 (Tex. 2016). “Whether a court has subject matter
jurisdiction is a question of law, properly asserted in a plea to the jurisdiction.” Id. By such plea,
a defendant may challenge either the adequacy of the plaintiff’s pleadings or the existence of
jurisdictional facts on the ground that they do not support a finding of subject matter jurisdiction.
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We review
de novo a trial court’s ruling on a plea to the jurisdiction. Id. at 228.
When a plea to the jurisdiction challenges the pleadings, we must determine whether the
pleader has alleged facts that affirmatively demonstrate the court’s subject matter jurisdiction.
Miranda, 133 S.W.3d at 226. We construe a plaintiff’s pleadings liberally and in favor of
jurisdiction unless the petition, on its face, affirmatively demonstrates a lack of jurisdiction. Texas
Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Arnold v. University of Texas
Southwestern Medical Center at Dallas, 279 S.W.3d 464, 467 (Tex. App.—Dallas 2009, no pet.).
But, when a plea challenges the existence of jurisdictional facts, “we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court
is required to do.” Miranda, 133 S.W.3d at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000) (instructing that a court should “confine itself to the evidence relevant to the
jurisdictional issue”). We take as true all evidence favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in its favor. Miranda, 133 S.W.3d. at 228.
In these situations, the review of a plea to the jurisdiction mirrors that of a traditional
summary judgment motion. Id. (citing Texas Rule of Civil Procedure 166a(c)). “[A]fter the state
6
asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply
require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are
intertwined, to show that there is a disputed material fact regarding the jurisdictional issue.” Id.
at 228. “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court
cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.” Id.
at 227–28. Otherwise, when the relevant evidence is undisputed or fails to raise a fact question on
the jurisdictional issue, courts may rule on a plea as a matter of law. Id. at 228.
B. Applicable law
The TTCA provides a limited waiver of governmental immunity when the “use” of tangible
personal property is involved. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109. The
“use” provision provides:
A governmental unit in the state is liable for . . . 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.
Id. § 101.021(2). Generally speaking, “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.” McKenzie, 578 S.W.3d at 513.
As interpreted by the Supreme Court, the term “‘[u]se’ means ‘to put or bring into action
or service; to employ for or apply to a given purpose.’” Texas Nat. Res. Conservation Comm’n v.
White, 46 S.W.3d 864, 869 (Tex. 2001). Yet, the term has also been recognized as encompassing
a “misuse” of tangible personal property. Univ. of Texas Health Sci. Ctr. at Houston v. DeSoto,
401 S.W.3d 319, 324 & n.7 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (citing Kerrville
State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (“[T]he issue is whether [the government’s]
administration of an oral form of [a drug], rather than an injectionable drug, constitutes use or
7
misuse of tangible personal property under the terms of the [TTCA].”); and Univ. of Texas Med.
Branch at Galveston v. Malveaux, No. 14–09–00878–CV, 2010 WL 2968021, at *3 (Tex. App.—
Houston [14th Dist.] July 29, 2010, pet. denied) (mem. op.) (recognizing immunity may be waived
for claims involving “use or misuse of property”). As a result, “misuse” may refer to the negligent
use of personal property, while “use” refers to the non-negligent use of defective personal property.
See, e.g., Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (holding that allegation of
furnishing defective football equipment states a case within the statutory waiver of immunity
arising from some condition or some use of tangible property); City of San Augustine v. Parrish,
10 S.W.3d 734, 738 (Tex. App.—Tyler 1999, pet. dism’d w.o.j.) (officer negligently fired gun).
Notably, however, mere involvement of tangible property is not enough. Texas Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). Rather, the use of the property must
have actually caused the injury. Id. Similarly, a claim of non-use is also insufficient to waive
immunity as actual use is required to demonstrate a waiver of immunity. McKenzie, 578 S.W.3d
at 513.
C. Waiver of immunity based on TTCA
We first consider TTUHSC’s argument challenging Oaxaca’s second amended petition.
Oaxaca’s live pleading alleged TTUHSC negligently misused the temporary nontunneled catheter
proximately causing Oaxaca’s injuries. TTUHSC argues Oaxaca’s amended pleading
“significantly altered” the allegations and lacks evidentiary support. It argues the live pleading is
“at best [a] mere artful pleading,” filed in “an inappropriate attempt to expand the waiver of
sovereign immunity under the TTCA.” Continuing, it urges that, because the discovery deadline
had expired prior to the filing of the live pleading, and because it lacks evidentiary support, its
8
allegations are groundless and cannot support a waiver of sovereign immunity. On this record,
however, we disagree.
First, TTUHSC points us to no authority, and we find none, to support its argument that
the passing of a discovery deadline is relevant to our review. Second, the record shows the parties
had agreed, and the trial court had signed, a third amended docket control and scheduling order
setting a deadline of April 1, 2022, for completion of discovery, and a later deadline of June 2,
2022, for plaintiff to supplement or amend pleadings. Oaxaca timely filed both her response to
TTUHSC’s plea and her second amended petition on June 2, 2022. See TEX. R. CIV. P. 63
(permitting amendment of pleadings) A week later, on June 9, 2022, TTUHSC replied with an
acknowledgment that Oaxaca had clarified her allegations by means of the amending pleading.
Yet, TTUHSC neither raised a complaint about Oaxaca amending her pleading after expiration of
the discovery deadline, nor otherwise requested striking of the pleading from the trial court. To
that extent, then, TTUHSC has waived any complaint about the timing or substance of Oaxaca’s
amended pleading. See TEX. R. APP. P. 33.1 (requiring a showing of a complaint made to the trial
court by a timely request, objection, or motion as a prerequisite to present complaint for appellate
review).
As provided by the applicable standard of review, a plaintiff is not required to prove her
allegations on the merits but only to plead sufficient facts to affirmatively demonstrate the trial
court’s subject matter jurisdiction. Miranda, 133 S.W.3d at 227. On review, we are required to
construe Oaxaca’s pleadings liberally and take all factual allegations as true. McKenzie, 578
S.W.3d at 512. Moreover, when pleadings are found insufficient, we are further required to
consider whether to afford a plaintiff an opportunity to amend the deficient pleading. See Miranda,
133 S.W.3d at 226–27 (“If the pleadings do not contain sufficient facts to affirmatively
9
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the
opportunity to amend.”). Thus, amended pleadings are ordinarily permitted and we find no basis
for disregarding allegations contained within Oaxaca’s second amended petition.
Moving beyond the challenge raised against the live pleading, we next consider the
additional arguments. TTUHSC does not dispute that it actually used tangible personal property
during the relevant care and treatment. On that score, it points out that Oaxaca herself did not
allege that a temporary catheter should not have been used at all. The parties agree, then, that a
catheter was used during the relevant medical treatment. For immunity to be waived, however,
§ 101.021(2) requires that the alleged injury must be proximately caused by the condition or use
of tangible property. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). Moreover, the Supreme
Court of Texas instructs that we must look to the true nature of the dispute to determine whether a
plaintiff has stated a claim for use of tangible personal property. Dallas Cnty. Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Here, the crux of the parties’
dispute centers on the true nature of the claim.
TTUHSC contends, however, that the undisputed evidence demonstrates the temporary
dialysis catheter was used properly when initially placed. To that extent, it asserts Oaxaca’s actual
claims are not of a use or misuse of tangible property, but instead, of a failure to medically
determine when the catheter should have been removed or otherwise a failure to take action to do
so. Specifically, it characterizes the true nature of the claims as alleging a failure to monitor and
diagnose a catheter infection, a failure to remove an allegedly infected catheter, and a failure to
treat an alleged infection.
10
To support its position, TTUHSC cites to numerous cases from differing courts of appeals.
First, TTUHSC cites to cases involving a defendant’s misuse of information produced by tangible
personal property asserting such claims fail to waive immunity. See Redden v. Denton County, 335
S.W.3d 743, 751 (Tex. App.—Fort Worth 2011, no pet.) (holding a misinterpretation of
electrocardiogram machine, which ultimately lead to claimant’s death, was not a use or misuse of
tangible property); Kelso v. Gonzales Healthcare Sys., 136 S.W.3d 377, 382 (Tex. App.—Corpus
Christi 2004, no pet.) (holding delayed treatment of a heart condition based on a misuse of
information from an electrocardiogram machine was not a “use” of tangible property). We
conclude, however, that these cases are distinguishable. Oaxaca’s claims are not alleging nonuse
and do not allege that physicians of TTUHSC misinterpreted or otherwise misused any information
leading to his injury. In fact, the tangible property at issue—a nontunneled temporary dialysis
catheter—was not itself capable of producing information at all.
Second, TTUHSC cites to cases involving either a failure to act or an erroneous medical
decision, which neither waive immunity. See Kamel v. Univ. of Texas Health Sci. Ctr. at Houston,
333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding allegations that
doctors negligently used tangible personal property—scalpel, scissors, and other surgical
equipment—to injure and remove plaintiff’s testicle after wrongly determining it was cancerous
were not sufficient to establish waiver because there was no allegation the surgical instruments
were themselves defective or negligently used but rather that the doctor made an erroneous medical
judgment in determining the testicle needed to be removed); Arnold v. Univ. of Texas Sw. Med.
Ctr. at Dallas, 279 S.W.3d 464, 470 (Tex. App.—Dallas 2009, no pet.) (holding the allegations
that identified a breast implant as a piece of tangible personal property used during the procedure
did not waive immunity when the true substance of plaintiff’s claim was that the doctor
11
miscalculated or misdiagnosed the necessary size of replacement breast implants, and such was
not a claim for the negligent use of tangible personal property); Somervell Cnty. Healthcare Auth.
v. Sanders, 169 S.W.3d 724, 726 (Tex. App.—Waco 2005, no pet.) (holding allegations that a
nursing home was negligent in failing to address plaintiff’s high risk for falls and negligently
prescribing medication that worsened plaintiff’s condition failed to state a claim involving the
condition or use of tangible property); Univ. of Texas Med. Branch v. Thompson, No. 14-06-
00014-CV, 2006 WL 1675401, at *3–4 (Tex. App.—Houston [14th Dist.] June 20, 2006, no pet.)
(mem. op.) (concluding allegations of improperly using medical diagnostic tools, including an x-
ray, did not waive immunity because none of the property involved in treatment actually caused
harm). We conclude, however, that these cases all found that the true nature of the claims were not
derived from alleged negligent use of property, but rather, they arose from errors of medical
judgment which only then prompted the non-negligent use of property.
Third and lastly, TTUHSC points to a case involving a claim alleging that physicians had
failed to develop adequate procedures for tissue storage, resulting in the loss of a bone flap taken
from plaintiff’s skull. See Univ. of Texas Med. Branch at Galveston v. Tatum, 389 S.W.3d 457,
460 (Tex. App.—Houston [1st Dist.] 2012, no pet.). But there, the court held the claim in fact
alleged a failure to use tangible property, or a nonuse of property, which does not waive immunity.
Id. at 463. TTUHSC asserts Oaxaca’s allegations are similar because the undisputed evidence
shows the temporary catheter was used properly when it was initially placed, and the true allegation
of a failure to remove an infected catheter does not actually involve a use of tangible property.
TTUHSC points to the deposition of two of its doctors who treated Oaxaca, Angelica
Nunez, M.D., and Pedro Blandon, M.D. Dr. Nunez testified that she did not think the catheter was
infected when she viewed it and it never showed signs of any concern. Dr. Blandon testified that
12
Oaxaca showed no signs of sepsis at the time of his discharge from UMC. He also testified that
the use of a temporary catheter was proper and their decision to replace it with another temporary
catheter prior to Oaxaca’s discharge was also proper. TTUHSC argues the testimony of both
doctors demonstrate that Oaxaca’s claims are ones of negligent medical judgment, which cannot
support a waiver of immunity.
We disagree with TTUHSC’s characterization of Oaxaca’s claims and its reliance on the
cited authorities. More on point to the circumstances are McKenzie, 578 S.W.3d at 511 and Univ.
of Texas Sw. Med. Ctr. v. Rhoades, 605 S.W.3d 853, 860 (Tex. App.—Dallas 2020, pet. denied).
First, in McKenzie, the plaintiff alleged 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 [the patient] died.” McKenzie, 578 S.W.3d at 510. The hospital
argued that because the carrier agent was administered properly during surgery, the crux of
plaintiff’s claim was that of negligent medical judgment for which immunity was not waived. Id.
at 509.
Second, in McKenzie, the Supreme Court of Texas reiterated that a complaint about
medical judgment, without more, is insufficient to waive immunity. Id. at 515. Rejecting the
plaintiff’s claim, the Court found it lacking as it did not allege that the carrier agent was used
improperly, but rather, that it should have never been used at all. Id. Given the full nature of the
claim, however, McKenzie found the allegations involved more than mere medical judgment. Id.
The Court explained, “it was the use itself that caused the injury, and the fact that the property was
administered properly or that the use of the [carrier agent] was preceded by medical judgment does
not affect the analysis.” Id. Thus, although the use of the carrier agent had begun due to medical
13
judgment, the Court found that judgment still “led to the use of property that was allegedly
improper under the circumstances and caused harm.” Id.
In Rhoades, the undisputed evidence established that one surgical sponge could not be
accounted for after a breast reconstruction surgery. Rhoades, 605 S.W.3d at 855. The surgical staff
searched visually for the sponge as well as by use of a mobile x-ray machine. Id. at 856. Views
were taken of the patient’s chest and abdomen area, but not her pelvic area. Id. After hours of
searching, one of the doctors called off the search, concluding the sponge count had not been
correctly performed. Id. Eventually, post-operative x-rays revealed the sponge had been left in the
patient’s pelvic area, requiring a second surgery for its retrieval. Id. Due to other issues that later
developed, the patient had four additional surgeries. Id.
In the suit that followed, the plaintiff alleged the second surgery to retrieve the sponge had
caused her post-operative complications. Id. Plaintiff’s claim alleged the physicians had
negligently failed to remove a surgical sponge and failed in ensuring that “an appropriate
intraoperative x-ray was taken delineating the entire surgical field.” Id. at 859. Although no
allegation claimed that the sponge or x-ray machine were used in a manner in which they were not
designed or intended, the claims otherwise alleged the hospital negligently used tangible personal
property in such a way that it failed to prevent retention of the sponge in the patient’s body, which
caused harm. Id.
Asserting a plea to the jurisdiction, the defendant argued that plaintiff’s claims actually
arose from an alleged negligent medical judgment in calling off the search for the missing sponge
and a negligent interpretation of the x-ray films, neither of which waived its immunity. Id. at 859,
862. Rejecting that argument, the Fifth Court of Appeals held that the doctor’s erroneous medical
decision to call off the search for the missing sponge merely followed the allegedly negligent use
14
of the sponge, and that singular decision did not otherwise transform the misuse of such property
into an allegation of mere medical judgment. Id. at 861. Although bound up with medical
judgment, the court found the claim had further alleged the surgical staff had misused the x-ray
equipment by not initially scanning the entire surgical field when the equipment functioned
properly in producing accurate film of the area imaged. Id. at 865. Given the full extent of the
claim, the court held it sufficiently pleaded, and the jurisdictional evidence supported, the
allegation that the hospital negligently misused the sponge and negligently failed to use the
involved x-ray machine. Id. at 861, 865.
TTUHSC attempts to distinguish McKenzie and Rhoades by asserting those cases hold that
a TTCA waiver “require[s] the negligent use or [misuse] of medical equipment [to] occur at the
inception of its use or before the alleged errant medical judgment.” Relying on its view of those
cases, TTUHSC asserts that because the catheter at issue here was initially used properly,
everything occurring after its initial placement resulted solely from medical judgment, if at all.
Accordingly, TTUHSC contends that Oaxaca brings allegations limited by their nature to the mere
use of medical judgment. We disagree.
Rather, Oaxaca’s live pleading alleged the negligent use or misuse of the temporary
dialysis catheter directly caused Oaxaca’s injury and harm, contending it was the source of the
resulting infection. As McKenzie explained, “[t]he [TTCA] 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.” McKenzie, 578 S.W.3d at 513–14. And there, the
Supreme Court further noted that any “suggestion that ‘use’ of property transforms into medical
judgment so long as the property is administered correctly simply is not supported by the statute’s
plain language[.]” Id. at 514. Similar to McKenzie and Rhoades, Oaxaca alleged TTUHSC
15
negligently misused the temporary dialysis catheter by not removing it when there were signs of
sepsis, that is, alleging the treating physicians kept the temporary catheter in place more than two
weeks, failing to replace it when necessary to prevent sepsis.
Thus, Oaxaca sufficiently alleged that an error in judgment in not removing the catheter
earlier, or in not replacing it with another temporary catheter, occurred after the alleged negligent
use of such tangible property. Oaxaca’s pleadings clearly allege injury by the use or misuse of
tangible property, that is, the catheter. McKenzie, 578 S.W.3d at 518 (holding allegations that
hospital used property improperly under the circumstances causing harm was sufficient to waive
immunity under § 101.021(2)). Construing the pleadings liberally and in favor of Oaxaca’s intent,
as we must, we conclude she has pleaded sufficient facts to bring a claim under the TTCA’s waiver
of immunity. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).
Furthermore, Dr. Nunez’s and Dr. Blandon’s testimony asserting they believed their
choices were properly made goes to the ultimate question of liability, which we give no opinion at
this point in the litigation. Whether the doctors complied with the applicable standard of care is
not relevant to our analysis today. The question is, looking at the gravamen of Oaxaca’s complaint,
whether a fact issue exists regarding whether Oaxaca’s injury was proximately caused by
TTUHSC’s use of tangible personal property. See McKenzie, 578 S.W.3d at 518. TTUHSC failed
to establish its actions did not constitute a use of tangible property. Id. at 512. Upon consideration
of the pleadings, the assertions of fact, and the evidence presented, we hold the trial court’s denial
of TTUHSC’s plea to the jurisdiction to be proper. Miranda, 133 S.W.3d at 227; McKenzie, 578
S.W.3d at 518.
We overrule TTUHSC’s sole issue.
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III. CONCLUSION
We affirm the trial court’s denial of TTUHSC’s plea to the jurisdiction and motion to
dismiss.
GINA M. PALAFOX, Justice
June 22, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
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