Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-24-00001-CV
BEXAR COUNTY HOSPITAL DISTRICT d/b/a University Health f/k/a University Health System, Appellant
v.
Brandon ROBERTS, Appellee
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2021CI00455 Honorable Nadine Melissa Nieto, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
Delivered and Filed: November 6, 2024
AFFIRMED
In this interlocutory appeal, appellant Bexar County Hospital District challenges the trial
court’s December 8, 2023 order granting reconsideration, vacating the previous order granting its
plea to the jurisdiction, and denying the plea to the jurisdiction. We affirm. 04-24-00001-CV
BACKGROUND
Dr. Sarah Abang-Hayes prescribed the medication Trazodone to Appellee Brandon
Roberts, resulting in prolonged priapism that required multiple surgeries and ultimately developing
permanent erectile dysfunction. On January 8, 2021, Roberts filed suit against Bexar County
Hospital District, Medical Center Pavilion Pharmacy, Accord Healthcare Inc., and Dr. Abang-
Hayes. 1 Accord filed a Rule 91a motion to dismiss the case against it; the trial court granted the
motion on August 25, 2021. In March 2022, Roberts filed his third amended petition, adding as a
defendant Community Medicine Associates (CMA)—the doctor’s employer along with BCHD.
Roberts nonsuited Dr. Abang-Hayes on January 24, 2023.
On May 11, 2023, BCHD filed a plea to the jurisdiction. The trial court held a hearing on
May 22, 2023; Roberts did not attend the hearing or file a timely response. Later that day,
Roberts filed “Plaintiff’s Response to Defendant’s Plea to the Jurisdiction and Motion for
Reconsideration/Extension of Time.” On July 10, 2023, the trial court granted BCHD’s plea to the
jurisdiction. 2
The trial court then heard Roberts’s motion on July 26, 2023 and September 26, 2023. 3 By
that time, Roberts had also filed a fourth amended petition. On December 8, 2023, the trial court
granted Roberts’s motion for reconsideration, vacated its July 10, 2023 order granting BCHD’s
plea to the jurisdiction, and denied the plea to the jurisdiction. This appeal followed.
1 Bexar County Hospital District (BCHD) identifies itself as “Bexar County Hospital District d/b/a University Health f/k/a as University Health System.” It explained in a motion to dismiss Roberts incorrectly identified it as Medical Center Pavilion Pharmacy and University Hospital and further explained it owns and operates both entities. It is undisputed BCHD owns and operates both entities, and for ease of reference, we refer to these entities collectively as BCHD. 2 Roberts’s claims against CMA remained pending. 3 On August 8, 2023, Roberts also filed a motion for new trial incorporating, by reference, the contentions he made in the motion for reconsideration. On September 22, 2023, Roberts also filed an identical pleading to the May 22, 2023 filing.
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PLEA TO THE JURISDICTION
BCHD argues the trial court erred by granting the motion for reconsideration, vacating the
order dismissing Roberts’s claims, and denying its plea to the jurisdiction.
A. Standard of Review
We review a trial court’s ruling on a motion for reconsideration for an abuse of discretion.
See, e.g., Foussadier v. Triple B Servs., LLP, No. 01-18-00106-CV, 2019 WL 2127604, at *3 (Tex.
App.—Houston [1st Dist.] May 16, 2019, pet. denied) (mem. op.). “A trial court abuses its
discretion when it acts without reference to any guiding rules or principles.” Id.
“Because governmental immunity is jurisdictional, it is properly raised through a plea to
the jurisdiction, which we review de novo.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528
(Tex. 2022). (“Governmental units are immune from suit unless immunity is waived by state
law.”). “[T]o prevail on a claim of immunity, the governmental defendant may challenge whether
the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the
case, the existence of those very jurisdictional facts, or both.” City of San Antonio v. Riojas, 640
S.W.3d 534, 536 n.8 (Tex. 2022) (quoting Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex.
2021)) (internal quotation marks omitted). “When the pleadings are challenged, we review whether
the alleged facts, if true, affirmatively demonstrate jurisdiction; because we construe pleadings
liberally in favor of the pleader, we will grant a plea to the jurisdiction without an opportunity to
replead only if the pleadings affirmatively negate jurisdiction.” Jones v. Turner, 646 S.W.3d 319,
325 (Tex. 2022). “In determining whether a plaintiff has stated a claim[,] . . . we look to the true
nature of the dispute—a plaintiff may not expand the [Texas Tort Claims] Act’s limited waiver
through artful pleading.” Univ. of Texas M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d
506, 513 (Tex. 2019).
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When a plea challenges the existence of jurisdictional facts, we “must move beyond the
pleadings and consider evidence.” Riojas, 640 S.W.3d at 536 n.8 (quoting Lara, 625 S.W.3d at
52) (internal quotation marks omitted). “The analysis then mirrors that of a traditional summary
judgment.” Riojas, 640 S.W.3d at 536 n.8 (quoting Lara, 625 S.W.3d at 52) (internal quotation
marks omitted). The defendant therefore has the burden to demonstrate there is no genuine issue
as to any material fact, and it is entitled to judgment as a matter of law. See Texas Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 221, 227–28 (Tex. 2004); see also TEX. R. CIV. P. 166a(c).
If the defendant carries this burden, the plaintiff must then demonstrate the existence of a disputed
material fact on the jurisdictional issue. See, e.g., Texas Health & Hum. Servs. Comm’n v. Pope,
674 S.W.3d 273, 281 (Tex. 2023). If “the pleadings and evidence generate a ‘fact question on
jurisdiction,’ dismissal on a plea to the jurisdiction is improper.” Maspero, 640 S.W.3d at 529
(quoting Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)). “‘[I]n determining
whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff,
indulging every reasonable inference and resolving any doubts in the plaintiff’s favor.’” Pope, 674
S.W.3d at 281 (alteration in original) (quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 771 (Tex. 2018)). “In doing so, ‘we cannot disregard evidence necessary to show
context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable
jurors could not.’” Id. (quoting Alamo Heights, 544 S.W.3d at 771).
B. Texas Tort Claims Act
Section 101.021 of the Texas Tort Claims Act provides: “[a] governmental unit in the state
is liable for: . . . personal injury and death so caused by a condition or use of tangible
personal . . . 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(2). The Texas
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Supreme Court has explained subsection (2) immunity waiver “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.” McKenzie, 578 S.W.3d at 513 (alteration in
original) (quoting Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983)) (internal
quotation marks omitted).
“For immunity to be waived under section 101.021(2), the injury must [] be ‘so caused’ by
the use of tangible personal property that the governmental unit would, ‘were it a private person,
be liable to the claimant according to Texas law.’” Univ. of Texas M.D. Anderson Cancer Ctr. v.
Jones, 485 S.W.3d 145, 151 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (quoting section
101.021(2)). “The requirement of causation is more than mere involvement”; “a nexus between
the use of tangible property and the plaintiff’s injuries is required.” Id. In other words, a plaintiff
must allege and prove the use proximately caused his personal injury. See id.
Turning to the condition or use requirement, the Texas Supreme Court “ha[s] defined
‘condition’ as ‘either an intentional or an inadvertent state of being.’” Sampson v. Univ. of Texas
at Austin, 500 S.W.3d 380, 388 (Tex. 2016) (quoting Abutahoun v. Dow Chem. Co., 463 S.W.3d
42, 49 (Tex. 2015)). “To state a ‘condition’ claim under the Tort Claims Act, there must be an
allegation of ‘defective or inadequate property.’” Id. (quoting Salcedo, 659 S.W.2d at 32).
“Furthermore, [the Texas Supreme Court] ha[s] defined ‘use’ to mean ‘to put or bring into action
or service; to employ for or apply to a given purpose.’” Id. (quoting Tex. Dep’t of Crim. Justice v.
Miller, 51 S.W.3d 583, 588 (Tex. 2001)); see also Texas Dep’t of Crim. Just. v. Rangel, 595
S.W.3d 198, 207 (Tex. 2020) (“[O]ur interpretation of ‘use’ is consistent with the ordinary
meaning of the word.”). However, “the plain meaning of ‘use’ does not necessarily require
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physical manipulation of an object.” Rangel, 595 S.W.3d at 207. “As with negligent activity claims
under common law, to state a ‘use’ of tangible personal property claim under the Tort Claims Act,
the injury must be contemporaneous with the use of the tangible personal property—‘[u]sing that
property must have actually caused the injury.’” Sampson, 500 S.W.3d at 388–89 (alteration in
original) (quoting Miller, 51 S.W.3d at 588). Moreover, the Texas Supreme Court has explained
“a governmental unit does not use tangible personal property . . . within the meaning of section
101.021(2) by merely providing, furnishing, or allowing . . . access to it,” id. at 389 (alterations in
original) (quoting Rusk State Hosp. v. Black, 392 S.W.3d 88, 98 (Tex. 2012)) (internal quotation
marks omitted), or by making the property available to the government official without instructing
or ordering them to use it. See Rangel, 595 S.W.3d at 207–08. However, “[w]here . . . a
governmental unit authorizes or orders an employee to use tangible personal property for a specific
purpose, that governmental unit has ‘used’ the tangible personal property for purposes of the Act’s
waiver.” Id. at 206.
C. The Record
Roberts’s Third Amended Petition alleged, among other things, the doctor prescribed
Trazodone to him, failed to disclose the side effects of Trazodone, failed to provide him with
informed consent, allowed Roberts to fill the prescription without counseling at BCHD, and was
medically negligent. Roberts’s medical negligence claim specifically alleged BCHD (1) failed to
assess the competence of medical staff to prescribe medication and disclose serious and permanent
side effects; (2) failed to oversee the quality of treatment rendered by medical staff members to
Roberts; (3) failed to develop, employ, and/or enforce policies and procedures for the disclosure
of serious and permanent side effects to prescribed medication; (4) knowingly, willfully and
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wantonly concealed the serious and permanent side effects of Trazodone from Roberts; and
(5) failed to promulgate a system to provide informed consent to patients.
BCHD’s May 2023 plea to the jurisdiction challenged Roberts’s jurisdictional allegations
in the Third Amended Petition along with the existence of jurisdictional facts. BCHD contended
the true nature of the claim involved the treating doctor’s exercising of medical judgment in
prescribing Trazodone and her alleged failure to inform Roberts of its side effects—neither of
which arose out of or involved a condition or use of tangible personal property. It further contended
its evidence—the deposition testimony by plaintiff’s expert, Dr. Lige B. Rushing Jr.—proved the
alleged acts or omissions involved the use of information, not tangible personal property. On July
10, 2023, the trial court granted the plea to the jurisdiction.
After the May 2023 hearing, but before issuing the July 10 order, Roberts filed the Fourth
Amended Petition, reiterating his allegations but emphasizing his allegations the doctor prescribed
the medication and BCHD dispensed it. 4 On September 22, 2023, Roberts filed a pleading referred
to as “Plaintiff’s Response to Defendant’s Plea to the Jurisdiction and Motion for
Reconsideration/Extension of Time.” In the response and motion, Roberts contended he properly
pled the prescribing and dispensing of medication constituted a use of tangible personal property
under the Act. Roberts also argued he presented evidence supporting these allegations, including
expert reports opining that failing to advise of the secondary effects, coupled with the negligent
prescribing and dispensing of the medication caused his injuries.
4 Although we must consider the jurisdictional evidence, we cannot conclude, as BCHD argues, the true nature of the dispute does not involve the use of tangible personal property because the dispute’s focus is negligent hiring, negligent supervision, failure to develop policies, failure to provide informed consent, and intentionally withholding information. We must view Roberts’s live petition in its entirety, see Jones, 485 S.W.3d at 149, and although Roberts never uses the phrase “prescribing and dispensing” medication in the third amended petition, he plainly alleges the prescribing of Trazodone and BCHD’s dispensing of it caused his injuries. See id.
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Roberts also argued he had good cause for failing to file a response to the motion and attend
the hearing.
D. Analysis
The trial court heard argument on Roberts’s motion on July 26 and September 26, 2023.
During the hearings, BCHD argued the Third Amended Petition alleged the true nature of
Roberts’s claim, pleading an emphasis in the use of medical judgment and its intangible nature—
in contrast to the Fourth Amended Petition’s allegations about the prescribing and dispensing of
medication. BCHD also emphasized Roberts, not BCHD or his treating doctor, administered the
medication. As evidence, it attached transcript excerpts of Dr. Rushing’s October 2021 deposition
and the expert report of Roberts’s expert Dr. Michael Coburn.
During his deposition, Dr. Rushing testified he believed the standard of care required of
the doctor treating Roberts was to inform him of the potential side effect of priapism while taking
Trazodone, and he saw no proof showing the doctor informed Roberts of the potential side effect.
Dr. Rushing further testified this breached the standard of care and caused Roberts to suffer
damages. During cross-examination, Dr. Rushing agreed the treating doctor did not actually
administer the medication. But he also testified he believed the treating doctor wrote the
prescription for Roberts, Roberts filled the prescription at the pharmacy, and then Roberts took the
medication as prescribed. Dr. Rushing agreed the decision to prescribe and the failure to give
certain information about side effects, along with the exercise of medical judgment did not involve
the use of tangible property. He further testified the treating doctor should have used her medical
judgment to prescribe a different medication.
In his expert report, Dr. Coburn explained Roberts was prescribed Trazodone for insomnia,
but his medical records did not show he was cautioned about the potential risk of Trazodone
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causing priapism. He further opined the standard of care required the treating doctor inform
Roberts about that risk and the need to seek urgent medical care if the side effect endured more
than four hours. Dr. Coburn also opined the delay in treatment for Roberts’s prolonged priapism
proximately caused Roberts to require certain medical interventions, as well as developing
permanent erectile dysfunction.
Roberts largely reiterated his arguments in his response to the plea and motion for
reconsideration. He specifically focused on the allegations and evidence supporting the prescribing
and dispensing of Trazodone. Roberts opposed the plea supported by the following evidence:
(1) an FDA list of drugs used for treating insomnia, (2) Dr. Rushing’s expert report, and (3) a copy
of the Fourth Amended Petition. 5
Dr. Rushing’s expert report explained the doctor’s care and treatment fell below the
accepted standards of care because the doctor (1) “[f]ailed to inform Mr. Roberts of the potential
adverse affect [sic] of priapism secondary to taking trazodone” and (2) “[p]rescribed a more
hazardous/risky medication for insomnia when there were multiple alternative medications
available without the potential side effect of priapism.” The report further provided Roberts’s
treating doctor “should have ordered a less risky medication for Mr. Roberts’[s] insomnia.”
On December 8, 2023, the trial court granted Roberts’s motion for reconsideration, vacated
its July 10 order dismissing Roberts’s petition against BCHD on plea to the jurisdiction grounds,
and denied BCHD’s plea to the jurisdiction.
BCHD argues on appeal the evidence fails to show there was any use of tangible personal
property by BCHD, and even if there was, Roberts self-administered his Trazodone medication,
and BCHD merely furnished it. However, the Tort Claims Act “does not narrow the definition of
5 The list of drugs did not include Trazodone.
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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 (quoting San
Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)). “While [the Texas Supreme
Court] ha[s] never addressed the issue directly, [it] ha[s] indicated that the use of medication that
is improper under the circumstances and causes harm constitutes negligent ‘use’ under the Tort
Claims Act.” Id. at 514 (quoting Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996))
(providing plaintiffs “allege and have presented evidence that the Hospital used property [a sugar
water solution carrier agent for a medication] that should not have been used and that the [solution]
is what harmed [the plaintiff],” and this “is sufficient to waive immunity”); see, e.g., Jones, 485
S.W.3d at 150 (“This Court has previously held that the dispensing of a drug by UTMDA’s
pharmacy was a use of tangible personal property for purposes of the section 101.021(2) waiver.”)
(cited with approval in McKenzie). 6
Specifically, “prescribing and dispensing” a drug to a claimant and directing him to use it
for medical purposes “put[s] the drug into service and employ[s] it for a given purpose as those
concepts are commonly understood,” and therefore constitutes “sufficient ‘use of tangible personal
property’ to satisfy that requirement of the section 101.021(2) waiver.” Jones, 485 S.W.3d at 151;
see, e.g., id. at 150 (“dispensing or administering a drug is a use of tangible personal property for
purposes of section 101.021(2),” and further citing cases and quoting Texas Tech Univ. Health
Science Ctr. v. Buford, 334 S.W.3d 334, 338 (Tex. App.–Eastland 2010, no pet.) for proposition
that “common thread running through those cases [finding a waiver] is that, in each one, the
6 See also McKenzie, 578 S.W.3d at 514 (providing any “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.”); Id. (“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 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.”).
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governmental unit being sued was the entity that employed those who used, by administering or
dispensing, the drugs that were alleged to have caused the damages” (alteration in original)).
Turning to the evidence, we must determine whether BCHD carried its burden of
demonstrating there is no genuine issue as to any material fact, and if so, whether it is entitled to
judgment as a matter of law. See Miranda, 133 S.W.3d 217, 227–28; see also TEX. R. CIV. P.
166a(c). In evaluating the parties’ evidence, we must take as true all evidence favorable to Roberts,
we must indulge every reasonable inference and resolve any doubts in Roberts’s favor, we must
not disregard evidence necessary to show context, and we must not disregard evidence and
inferences unfavorable to Roberts if reasonable jurors could not. See Pope, 674 S.W.3d at 281;
Maspero, 640 S.W.3d at 529.
Here, Dr. Rushing testified the treating doctor’s exercise of medical judgment to prescribe
Trazodone, and the failure to give certain information about its side effects did not involve the use
of tangible property. And Dr. Coburn testified the treating doctor fell below the accepted standard
of care by failing to inform Roberts about the risks of Trazodone. However, Dr. Rushing and Dr.
Coburn also explained, in pertinent part: (1) BCHD, through the treating doctor, prescribed
Trazodone to Roberts, (2) BCHD’s pharmacy filled Roberts’s prescription, (3) Roberts took
Trazodone as prescribed, and (4) Roberts’s taking of Trazodone and delays in seeking urgent
medical care proximately caused Roberts’s priapism to result in permanent erectile dysfunction.
Cf. Jones, 485 S.W.3d at 151 (holding “Jones alleged and offered expert evidence [including two
expert reports from her medical doctors] that her suicide attempt was ‘proximately caused by the
use of tangible personal property, namely the [Chantix] that was prescribed and dispensed’ by
UTMDA” (second alteration in original)). Because prescribing and dispensing medication causing
Roberts personal injury constitutes a use of tangible personal property that satisfies the
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requirements of section 101.021(2) waiver, we cannot conclude that BCHD carried its burden of
demonstrating there was no genuine issue of material fact, or that it was entitled to judgment as a
matter of law. See McKenzie, 578 S.W.3d at 514 (“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 State Hospital v.
Clark], this is sufficient to waive immunity.”).
Even if BCHD had carried its burden, Roberts showed a disputed material fact exists
regarding the jurisdictional issue. See Pope, 674 S.W.3d at 281. Dr. Rushing’s expert report
explained the treating doctor’s care and treatment fell below the accepted standard of care because
the doctor prescribed Trazodone—a more hazardous/risky medication for insomnia—when there
were multiple alternatives without the potential side effect of priapism. The report further provided
the treating doctor failed to inform Roberts of the potential side effect of priapism, and Trazodone
ultimately caused Roberts prolonged priapism requiring surgery. Such evidence is sufficient to
raise a fact question as to whether the prescribing of Trazodone and it causing prolonged priapism
resulting in surgery sufficiently constituted a use of tangible personal property satisfying the
requirements of a section 101.021(2) waiver. See Maspero, 640 S.W.3d at 529.
Viewing the pleadings and evidence in the light most favorable to Roberts, including the
testimony and expert reports of Dr. Rushing and Dr. Coburn, BCHD failed to carry its burden to
conclusively establish that there is no genuine issue as to any material fact or that it was entitled
to judgment as a matter of law. See Maspero, 640 S.W.3d at 529; Riojas, 640 S.W.3d at 536 n.8.
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Accordingly, we cannot conclude the trial court abused its discretion by granting Roberts’s motion
for reconsideration. See Foussadier, 2019 WL 2127604, at *3. 7
Luz Elena D. Chapa, Justice
7 We need not consider BCHD’s argument regarding whether the trial court erred by concluding Roberts showed good cause for his absence at the initial hearing. See TEX. R. APP. P. 47.1. Roberts argued good cause in support of his motion for extension of time—a motion he made in the alternative to the motion for reconsideration. The trial court’s December 8, 2023 order did not specifically grant the extension and provided “[a]ll other relief not specifically granted herein is denied.” The trial court therefore denied the extension of time. Accord TEX. CIV. PRAC. & REM. CODE § 51.014 (identifying certain appealable interlocutory orders and not including motions for extensions of time); Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides such jurisdiction.”); Morrison v. Profanchik, 578 S.W.3d 676, 681 n.2 (Tex. App.—Austin 2019, no pet.) (concluding no jurisdiction to consider trial court’s decision to grant extension of time to file motion to dismiss because no statute explicitly providing review of interlocutory order granting extension of time).
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