Birdo v. Williams

859 S.W.2d 571, 1993 Tex. App. LEXIS 2131, 1993 WL 282641

• Court: Court of Appeals of Texas
• Decided: July 29, 1993
• Docket: 01-91-00294-CV
• Status: Published

Opinions

MIRABAL, Justice,

concurring.

I concur.

I disagree with the majority’s conclusion that appellant stated a claim under the Texas Tort Claims Act. Tex.Civ.PRAC. & Rem.Code Ann. § 101.021 (Vernon 1986).

It is true that the failure to record an essential entry into a medical chart has been held to be a “use” of tangible personal property for purposes of section 101.-021(2). University of Texas Medical Branch at Galveston v. York, 808 S.W.2d 106, 108 (Tex.App.—Houston [1st Dist.] 1991, writ granted). However, the present case is distinguishable from York. There, the medical staff failed to record important observations in the plaintiff’s medical records. In the present case, appellant does not allege a failure to record relevant observations in the report. Rather, appellant alleges the TDCJ employee did record her observations in the report; appellant’s complaint is that he disagrees with what she wrote. According to appellant’s allegations, the TDCJ employee wrote in the injury report that “no injuries were noted.” Although, the employee may have been negligent in not noticing the injuries appellant claims he suffered, her recording of her observations does not constitute a “misuse of the report.”

Further, the recent Texas Supreme Court case of Texas Department of Mental Retardation v. Petty, 848 S.W.2d 680 (Tex.1992), does not support the ruling of the majority in the present case. In Petty, the plaintiff spent most of her life in state mental health facilities, from the time' she was 16 years old until she was almost 70. Petty, 848 S.W.2d at 681. Ms. Petty alleged that the Texas Department of Mental Health and Mental Retardation misused her medical records by effectively ignoring them, resulting in continued misdiagnosis and improper treatment. The allegations were:

Over time, the State’s diagnosis for Ms. Petty ranged from hebephrenic schizophrenic, mentally ill, not mentally ill, mildly mentally retarded, moderately mentally retarded, to not mentally retarded at all. Her treatment, however, was never affected. For five decades, her treatment consisted of only “custodial” care, the principal rehabilitative therapy being 35 years of work in the hospital laundry at a salary of $2.00 per week.

Petty, 848 S.W.2d at 681. In the present case, there is no allegation that the TDCJ employee misread or ignored appellant’s medical file.

I would hold that appellant has not stated a claim arising from a “use” of tangible personal property, and therefore appellant’s claim is not covered by the Texas Tort Claims Act.