Cervantes v. McKellar

424 S.W.3d 226, 2014 WL 652315, 2014 Tex. App. LEXIS 1769
CourtCourt of Appeals of Texas
DecidedFebruary 19, 2014
DocketNo. 06-13-00111-CV
StatusPublished
Cited by3 cases

This text of 424 S.W.3d 226 (Cervantes v. McKellar) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cervantes v. McKellar, 424 S.W.3d 226, 2014 WL 652315, 2014 Tex. App. LEXIS 1769 (Tex. Ct. App. 2014).

Opinion

OPINION

Opinion by

Justice MOSELEY.

In this medical negligence case, Maria Cervantes, Individually and as Next Friend of Alek Gonzalez, and Omar Gonzalez, Individually and as Next Friend of Alek Gonzalez,1 appeal the trial court’s order granting Titus Regional Medical Center’s plea to the jurisdiction. We affirm the judgment of the trial court.

I. Factual and Procedural Background

Cervantes was admitted to Titus Regional Medical Center (Titus) during the course of her high-risk twin pregnancy in August 2008 with suspicion of preeclamp-sia.2 Approximately twenty-eight hours after her admission, a non-stress test was initiated at 5:43 p.m. The test indicated [229]*229that one of the fetus’ heart rate patterns was nonreassuring, indicating fetal distress. At 6:20 p.m., the administering nurse contacted Cervantes’ physician to inform him of the nonreassuring fetal heart rate tracings. When the twin Alek was delivered via caesarian section (at 7:28 p.m.), he was diagnosed with encephalopathy.3

Cervantes filed suit, asserting healthcare liability claims against Titus, among others. Specifically, Cervantes alleged that Titus was negligent in “monitoring the external fetal heart rate monitor ... overseeing the external fetal heart rate monitor ... interpreting the external fetal heart rate monitor, and ... responding to the external fetal heart rate monitor.”

Titus, a governmental unit of the State of Texas, filed a plea to the jurisdiction, alleging Cervantes failed to demonstrate a use or misuse of property that caused the complained-of injuries. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (West 2011). Titus further alleged that Cervantes failed to provide notice as required during the six-month timeframe after the occurrence of the alleged injury. See Tex. Civ. Prac. & Rem.Code Ann. § 101.101(a) (West 2011). Cervantes responded that the failure to adequately monitor the fetal heart rate device was a “use” of tangible personal property which proximately caused Alek’s injuries and that Titus had actual notice of the injuries at issue. The trial court recited two reasons why it granted the plea to the jurisdiction: (1) it found that “failure to exercise sufficient care in monitoring a patient is not use of tangible personal property. There was no showing that the monitor itself was faulty or misused or that information from it was inaccurate” and (2) it ruled that “the staff had a duty to report concerning the lack of quality of care rendered to a patient, but there is no record of any report or review showing such lack of care.” Cervantes appeals, claiming the plea was improperly granted. Specifically, Cervantes contends she adequately pled (1) that misuse of tangible personal property proximately caused Alek’s injuries and (2) that Titus had actual notice of her claims.

Because we conclude the substance of Cervantes’ allegations do not concern the use of tangible personal property and thus fall outside of the Texas Tort Claims Act’s (TTCA or Act) waiver of sovereign immunity, we affirm the judgment of the trial court.

II. Analysis

Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). In reviewing a trial court’s ruling on a plea to the jurisdiction, we first look to the pleadings to determine if jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex.2009). We construe the pleadings in favor of the non-movant. Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Whether a trial court has subject-matter jurisdiction is a question of law which is subject to de novo review. Tex. Natural Res. Conservation, Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In determining whether Cervantes has alleged facts supporting a finding of a waiver of sovereign immunity, we look at the substance of her pleadings rather than to [230]*230her characterization of them. Univ. of Tex. Health Sci Ctr. v. Schroeder, 190 S.W.3d 102, 106 (Tex.App.-Houston [1st Dist.] 2005, no pet.). If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence on that issue. Kirwan, 298 S.W.3d at 622. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction is determined as a matter of law. Id.

It is undisputed that Titus is a governmental unit.4 The TTCA provides a limited waiver of governmental liability from suit when personal injury or death is “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.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2). In order to fall within this limited exception, Cervantes must allege the injuries here were proximately caused by the use of tangible personal property. See Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex.1998); see also Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542-43 (Tex.2003) (requiring nexus between use of tangible property and plaintiffs injuries). Incidental involvement of the property alone is insufficient to waive sovereign immunity. Bossley, 968 S.W.2d at 343. Property does not cause the injury if it simply furnishes the condition that makes the injury possible. Id. Instead, a causal nexus must exist between the use of the property and the plaintiffs injury. Whitley, 104 S.W.3d at 543; Bossley, 968 S.W.2d at 342-43. Further, “[a] governmental unit does not waive its immunity by ‘using, misusing, or not using information.’ ” Cherry v. Tex. Dep’t of Criminal Justice, 978 S.W.2d 240, 242-43 (Tex.App.-Texarkana 1998, no pet.) (quoting Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994)).

Here, Cervantes relies on Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.1983), for the proposition that it is not necessary to allege that tangible property is inadequate or defective in order to state a claim under the TTCA, if some use of the property is a contributing factor to the injury.

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424 S.W.3d 226, 2014 WL 652315, 2014 Tex. App. LEXIS 1769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervantes-v-mckellar-texapp-2014.