University of Texas Medical Branch v. York

871 S.W.2d 175, 1994 WL 27027

• Court: Texas Supreme Court
• Decided: March 30, 1994
• Docket: D-1208
• Status: Published

Opinions

ENOCH, Justice,

delivered the opinion of the Court

in which PHILLIPS, Chief Justice, and GONZALEZ, HIGHTOWER, HECHT and CORNYN, Justices, join.

In this case, we revisit the issue of whether the use, misuse, or nonuse of information which is recorded in a patient’s medical records is a use of tangible personal property under § 101.021 of the Texas Tort Claims Act (Act) and thus satisfies a condition for waiver of governmental immunity. Tex.Civ. PRAC. & Rem.Code Ann. § 101.021(2) (Vernon 1986). While paper itself can be touched, handled, and seen, medical information recorded on paper is not tangible personal property. The State has not waived immunity from liability for negligence involving the use, misuse, or nonuse of medical information. We reverse and render judgment in favor of the University of Texas Medical Branch at Galveston.

Robert York as guardian for his son Richard, brought suit against the University of Texas Medical Branch at Galveston (UTMB) for negligence in failing to diagnose a broken hip. Richard was severely injured in a car accident that left him partially paralyzed and functionally impaired. After improving in outpatient therapy, Richard was admitted to a special inpatient program at UTMB for additional therapy. Shortly after he was admitted on August 13, 1984, Richard broke his hip. UTMB did not diagnose the broken hip until August 22. York alleges that UTMB’s failure to diagnose caused Richard to suffer severe pain, withdrawal, depression, and regression in his rehabilitation.

York asserts that UTMB misused tangible personal property by failing to note in Richard’s medical records the events of August 14, the day York alleges Richard broke his hip, and in failing to memorialize in writing numerous other observations concerning Richard’s condition made by Richard’s parents when visiting Richard at UTMB. York also asserts that UTMB misused Richard’s medical records by failing to follow a recommendation noted in the records for an x-ray of Richard’s hip. York contends that this misuse of Richard’s medical records prevented an earlier diagnosis of the broken hip. The jury returned a verdict for York, and the trial court rendered judgment on the verdict. The court of appeals affirmed, but reformed the judgment to reflect an award of post-judgment interest. 808 S.W.2d 106, 112.

UTMB contends that it is immune from liability under the Tort Claims Act. Tex.Civ. PRAC. & Rem.Code Ann. § 101.021(2). In addition, UTMB asserts that there is no evidence that its doctor relied on, or reviewed, the information contained in Richard’s records in formulating a diagnosis or that the standard of care required the doctor to review Richard’s medical records in conducting an examination or before making a diagnosis. UTMB also argues that the court of appeals erred in reforming the judgment to allow for post-judgment interest. We agree that UTMB has governmental immunity and therefore, do not reach UTMB’s remaining points of error.

I.'

This Court considered the scope of governmental immunity arising from alleged negligent use of a patient’s medical records in Texas Department of Mental Health and Mental Retardation v. Petty, 848 S.W.2d 680, 686 (Tex.1992). In that case, the plaintiff sued TDMHMR for negligence in misusing her institutional medical records, thereby misdiagnosing her mental condition and resulting in her prolonged confinement in mental institutions. In a plurality decision, a divided Court concurred in the judgment affirming the judgment of the court of appeals and the trial court awarding the plaintiff recovery under the Tort Claims Act. Id. at 685. However, no majority for the Court expressed a single rationale supporting the judgment rendered in that case. Rather, four justices concluded that the plaintiffs treatment records were tangible personal property, the misuse of which would subject the State to liability under the Tort Claims Act. Id. at 684. Four justices dissented, concluding that medical records are not tangible personal property and that the plurality had virtually eliminated any analysis of proximate cause in assessing waiver under section 101.021(2).¹ Id. at 682. In affirming the lower court’s judgment in Petty without a majority agreement on the reasons supporting the judgment, the judgment itself has very limited precedential value and would control the result only in identical cases. See Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756, 756-758 and 779 (1987). Because the principles of law involved have not been agreed upon by a majority of the sitting court, the plurality opinion is not authority for determination of other cases, either in this Court or lower courts.

Furthermore, because Petty was affirmed without a coherent majority rationale, it is our duty to endeavor to resolve issues as important as waiver of governmental immunity so as to provide a reasoning that may offer guidance not only for the parties, but for future litigants, the bench, the bar, and the general public in shaping their conduct and decisions. See Novak, supra, at 757-8 (footnotes omitted). While we may look to Petty for guidance, we are not bound by the result in that case and must consider anew the issue of governmental immunity for negligent use of information contained in a patient’s medical records.

II.

Under the doctrine of sovereign immunity, the State is not hable for the negligence of its employees absent constitutional or statutory provision for liability. Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976). In 1969, the Legislature enacted the Texas Tort Claims Act to waive governmental immunity only in certain circumstances. Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex.Gen.Laws p. 874.² The Texas Tort Claims Act did not abolish the doctrine of sovereign immunity.

Section 101.021 of the Tort Claims Act sets out the waiver of immunity. That section provides that a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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.

Tex.Civ.PRAC. & Rem.Code Ann. § 101.021 (Vernon 1986).

In construing this waiver of governmental immunity, we are guided by three principles. First, the waiver of governmental immunity is a matter addressed to the Legislature. Lowe, 540 S.W.2d at 298. Second, for the Legislature to waive sovereign immunity, it must do so by clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). Finally, in accordance with section 311.023 of the Code Construction Act, we must construe the waiver provisions of the Tort Claims Act to give effect to the object sought to be attained by the statute. Tex.Gov’t.Code Ann. § 311.023 (Vernon 1988).³

Our construction of section 101.021(2) of the Tort Claims Act and the scope of waiver expressed therein has a long and arduous history. See Lowe, 540 S.W.2d at 301 (Greenhill, C.J., concurring); Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 32 (Tex.1983). See also Robinson v. Central Texas MHMR, 780 S.W.2d 169 (Tex.1989).

In Lowe, this Court held that the State had waived immunity for providing a defective football uniform, in this case a uniform without a knee brace. Lowe, 540 S.W.2d at 300. The Court in Lowe also held that the alleged failure to furnish a knee brace was indistinguishable from providing a defective uniform and therefore, the alleged failure to furnish also brought this case within the waiver of immunity arising from some condition or use of personal property. Id. Chief Justice Greenhill concurred in the opinion on the grounds that the affirmative allegation that the university had furnished defective equipment stated a cause of action under the Tort Claims Act. Id. at 303. Chief Justice Greenhill, however, specifically questioned whether the Tort Claims Act required that the injury be proximately caused by some condition or use of tangible personal property and whether nonuse of a non-defective knee brace would be actionable under the Tort Claims Act. Id. at 302-03.⁴

Salcedo involved the alleged misuse of an electrocardiogram. Specifically, the plaintiff in Salcedo alleged that the defendant hospital “misused the [electrocardiogram] equipment and tangible property then and there, by improperly reading and interpreting the electrocardiogram graphs and charts produced by such equipment.” Salcedo, 659 S.W.2d at 32. The electrocardiogram charts allegedly showed a classic pattern for a heart attack. The government doctor failed to recognize the pattern and sent the patient home. The patient suffered a heart attack and died shortly after returning home. Id. at 31. The trial court sustained the hospital’s special exceptions on the grounds that the pleadings failed to allege the injuries were caused from some condition or use of tangible property that the hospital provided in defective condition. Id.

The Court, citing to Chief Justice Green-hill’s concurrence in Lowe, first noted that the “statutory language ‘condition or use’ of property implies that such property was furnished, was in bad or defective condition or was wrongly used.” Salcedo, 659 S.W.2d at 32. The Court held that an allegation of defective or inadequate tangible property is not necessary to state a cause of action under the Act if “some use” rather than “some condition” of the property is alleged to cause the injury. Id. In addition, the Court held that the plaintiff had alleged the misuse of tangible personal property in alleging misuse of the electrocardiogram equipment. Id. “Use,” the Court said, means to put or bring into service or action; to employ for or apply to a given purpose. Id. Because reading graphs produced by an electrocardiogram is a purpose for which such equipment is used, the Court held that the plaintiff stated a claim within the statutory waiver provisions of the Texas Tort Claims Act.⁵ Id.

York argues that the present ease is analogous to Salcedo. We disagree. In Sal-cedo, the plaintiff specifically alleged misuse of the electrocardiogram. Unquestionably, an electrocardiogram is tangible personal property. Although “tangible” is not defined in the Tort Claims Act, there can be little doubt that tangible personal property refers to something that has a corporeal, concrete, and palpable existence.⁶

Unlike Salcedo, York has not alleged any misuse of any hospital device or equipment. Rather, York complains that UTMB misused tangible personal property by failing to record the events of August 14 and the observations of Richard’s parents concerning Richard’s condition and further failed to rely on information that was recorded. While the paper on which doctors and nurses may record information about a patient’s condition is tangible in that paper can be seen and touched, information itself is an abstract concept, lacking corporeal, physical, or palpable qualities. Information thus, is intangible; the fact that information is recorded in writing does not render the information tangible property. See Jefferson County v. Sterk, 830 S.W.2d 260, 262 (Tex.App. — Beaumont 1992, writ denied); and Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex.App. — San Antonio 1987, writ ref'd n.r.e.). Salcedo does not permit claims against the State for misuse of information. Accord, Jefferson County, 830 S.W.2d at 262 (capias not tangible personal property); Eakle v. Texas Dept. of Human Services, 815 S.W.2d 869, 873 (Tex.App. — Austin 1991, writ denied) (papers memorializing discretionary acts do not waive immunity); Montoya v. John Peter Smith Hospital, 760 S.W.2d 361, 364 (Tex.App.— Fort Worth 1988, writ denied) (blank triage form not tangible property because triage form unlike electrocardiograph, did not record a tangible condition); Russell v. Texas Dep’t of Human Resources, 746 S.W.2d 510, 513 (Tex.App. — Texarkana 1988, writ denied) (use of child abuse forms not use of tangible property); Robinson, 727 S.W.2d at 43 (protective order not tangible personal property because the order was a decision of the court and fact that it had been reduced to writing did not transform the decision into tangible property); Wilkins v. State, 716 S.W.2d 96, 98 (Tex.App. — Waco 1986, writ ref'd n.r.e.) (issuance of permit for trailer not use of tangible property). But see, City of Houston v. Arney, 680 S.W.2d 867, 874 (Tex.App.— Houston [1st Dist.] 1984, no writ) (failure to keep documentation in medical records actionable under Tort Claims Act); Jenkins v. State, 570 S.W.2d 175, 177-78 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ) (medical record tangible property).

York’s position, and that espoused by the plurality in Petty, goes beyond Salcedo. Such a position effectively eliminates the tangible property requirement of section 101.021(2). The State would be subject to liability in all cases in which the State has used, misused, or failed to use information that has been reduced to wilting. Waiver of governmental immunity, and imposition of the financial burden resulting from waiver on the taxpayers of this State, is a determination to be made by the Legislature. Lowe, 540 S.W.2d at 298. In providing for waiver of governmental immunity for injuries caused by the use of tangible personal property, the Legislature has not, by clear and unambiguous language, eliminated governmental immunity for injuries resulting from the misuse of information, even if that information is recorded in writing. See Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). We hold that information, which may or may not be recorded in a patient’s medical records, does not constitute tangible personal property under section 101.021(2) of the Texas Tort Claims Act and that the State has not waived governmental immunity for negligence involving the use, misuse, or nonuse of information in a patient’s medical records.⁷

The judgment of the court of appeals is reversed and judgment is rendered in favor of UTMB.

1 . The remaining justice, former Justice Eugene A. Cook, concurred in the judgment only without expressing any opinion.

2 . For a history of the Texas Tort Claims Act, see Texas Department of Mental Health and Mental Retardation Petty, 848 S.W.2d 680, 686 (Tex.1992) (Cornyn, J., dissenting).

3 . Prior to its codification, the Texas Tort Claims Act provided that its provisions "shall be liberally construed to achieve the purposes hereof." Tex. Rev.Civ.Stat.Ann. art. 6252-19, § 13 (Vernon 1970) (repealed). When the legislature codified the Tort Claims Act in the Civil Practices and Remedies Code, it did not include the same directive for liberal construction, but rather made the Act subject to the general principles of statutory construction provided in the Code Construction Act. Section 311.023 provides that in construing a statute, a court may consider the object sought to be attained, circumstances under which the statute was enacted, legislative history, common law or former statutory provisions, including laws on the same or similar subjects, consequences of a particular construction, administrative construction of the statute, and the title, preamble, and an emergency provision of the statute. Tex.Gov’t.Code Ann. § 311.023.

4 . Chief Justice Greenhill stated that he was writing his concurrence for the “purpose of encouraging the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived.” Lowe v. Texas Tech University, 540 S.W.2d 297, 301 (Tex.1976) (Green-hill, C.J., concurring).

5 . With regard to proximate cause, the Court went on to state that the negligent act of the state employee or officer must be the proximate cause of the injury and that the negligent conduct must involve "some condition or use” of tangible personal property. Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 33 (Tex.1983).

6 . See Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992) (when a term is not defined in a statute, courts give words their ordinary meaning).

7 . To the extent that City of Houston v. Amey, 680 S.W.2d at 874, and Jenkins v. State, 570 S.W.2d at 177-78, hold otherwise, these cases are expressly disapproved. See supra 871 S.W.2d at 179.