Kamel v. University of Texas Health Science Center at Houston
333 S.W.3d 676
| Tex. App. | 2010Background
- Kamel sued Dr. Wang, Dr. Sotelo, and institutions for medical malpractice after hydrocelectomy resulted in removal of his right testicle.
- Wang moved to dismiss under TTCA 101.106(f); Kamel later amended to add UTHSCH as defendant, dismissing Wang.
- Sotelo moved to dismiss under TTCA 101.106(a) and (f); the trial court dismissed Sotelo and severed Wang and Sotelo’s claims.
- UTHSCH filed a second amended plea to the jurisdiction asserting immunity; Kamel’s live pleading alleged negligence in the use of tangible personal property (surgical instruments).
- The trial court granted UTHSCH’s plea to the jurisdiction for lack of TTCA waiver, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 101.021(2) waiver extend to alleged use of tangible property? | Kamel argues use of instruments caused injury and waives immunity. | Wang/UTHSCH contend medical judgment/claims do not involve tangible property causation. | No waiver; use of instruments not proximate cause. |
| Do Kamel's failure-to-disclose/consent and supervision claims fall within 101.021(2)? | Claims arise from use of tangible property in surgery. | Those are medical-negligence/express errors, not tangibles. | They do not fall within 101.021(2). |
| Was the trial court bound by its prior dismissal ruling on Sotelo regarding TTCA 101.106? | Record shows a chain of rulings binding subsequent jurisdictional determinations. | Ruling on Sotelo did not decide TTCA applicability to UTHSCH; substitution changed posture. | Second and third issues overruled; not bound to earlier ruling. |
| Did dismissal under 101.106(a)/(f) violate the Open Courts provision? | TTCA amendments restrict remedies; violates open courts. | Open Courts does not apply to TTCA claims as the TTCA broadens remedies. | No Open Courts violation. |
Key Cases Cited
- Salcedo v. El Paso Hospital Dist., 659 S.W.2d 30 (Tex. 1983) (liberal construction of 101.021(2) up to some use of tangible property)
- Bossley v. Dallas County, 968 S.W.2d 339 (Tex. 1998) (causation nexus between property use and injury required)
- Texas Tech Univ. Health Sci. Ctr. v. Ward, 280 S.W.3d 345 (Tex.App.-Amarillo 2008) (limitations on 101.021(2) waiver; deliberated liberal-construct rationale)
- Univ. of Tex. Med. Branch Hosp. v. Hardy, 2 S.W.3d 607 (Tex.App.-Houston [14th Dist.] 1999) (misuse of hospital information versus tangible property)
- Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (not every medical treatment activity triggers TTCA waiver; actual injury caused by property must be shown)
- Kamel v. Sotelo, No. 01-07-00366-CV, 2009 WL 793742 (Tex.App.-Houston [1st Dist.] 2009) (whether Sotelo was an employee under 101.106; not dispositive for 101.106 grounds here)