the University of Texas M.D. Anderson Cancer Center v. Karen Jones
14-15-00266-CV
| Tex. App. | May 29, 2015Background
- Plaintiff Karen Jones enrolled in U.T. M.D. Anderson’s blinded “Two 2 Quit” clinical trial (varenicline/ placebo arms) and was later assigned to the varenicline (Chantix) arm; she took the pills at home and attempted suicide.
- Jones sued UTMDA alleging health‑care negligence: faulty screening, failure to obtain/consider medical history, inadequate training/supervision of screeners, and that being admitted to the study (and thus prescribed/dispensed Chantix) caused her suicide attempt.
- Jones produced two § 74.351 expert reports tying the alleged breaches in screening/decisionmaking to causation.
- UTMDA filed a plea to the jurisdiction asserting sovereign immunity under the Texas Tort Claims Act (TTCA) was not waived because Jones’ claims do not allege the negligent “use” of tangible personal property that proximately caused injury.
- The trial court denied UTMDA’s plea to the jurisdiction; UTMDA appealed that denial, challenging whether Jones’ allegations invoke the TTCA waiver (tangible personal property use).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TTCA waives sovereign immunity because UTMDA prescribed/dispensed Chantix | Jones contends the prescribing/dispensing of Chantix is a use of tangible personal property that waives immunity | UTMDA argues mere prescribing/dispensing (and pills taken by plaintiff at home) is not a government employee’s use of tangible personal property that proximately caused injury | Trial court denied plea; on appeal UTMDA urges reversal (appellant brief) |
| Whether the gravamen of Jones’ claims is negligent use of tangible property vs. non‑tangible conduct (information, medical judgment, supervision) | Jones pleads that being admitted and exposed to Chantix was the operative harm | UTMDA notes experts and pleadings show claims target screening, medical judgment, record‑keeping, training/supervision—not a tangible‑property use | Trial court denied plea; UTMDA argues such allegations do not trigger TTCA waiver |
| Whether medication taken/administered by plaintiff (self‑administration at home) satisfies the TTCA “use” requirement | Jones relies on cases she says support medication dispensing as tangible use | UTMDA argues controlling authority requires that a governmental employee must have used/administered the tangible item (medication) and that self‑administration does not satisfy proximate‑cause use | Trial court denied plea; UTMDA argues controlling precedent requires employee use/administration for waiver |
| Whether artful pleading can convert medical‑judgment/screening claims into a TTCA tangible‑property claim | Jones contends phrasing prescribing/dispensing alleges tangible‑property use | UTMDA contends courts must examine the real substance of the claim and cannot allow artful pleading to evade immunity limits | Trial court denied plea; UTMDA argues courts should dismiss where gravamen is non‑tangible conduct |
Key Cases Cited
- U.T. M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876 (Tex. App.—Houston [14th Dist.] 2010) (claims grounded in medical judgment, use/misuse of information, or supervision do not implicate TTCA tangible‑property waiver)
- University of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994) (definition of “tangible” property; information/records are not tangible for TTCA waiver)
- Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (mere involvement of tangible property is insufficient; plaintiff must show negligent use of tangible property proximately caused injury)
- Dallas County MHMR v. Bossley, 968 S.W.2d 339 (Tex. 1998) (TTCA waiver limited to defined categories; medical judgment and non‑use of property do not fit tangible‑property waiver)
- Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) (failure to prescribe a particular form of drug does not itself constitute a use under the TTCA)
- Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standards for jurisdictional review and plaintiff’s burden to establish waiver under TTCA)
- Texas Tech Univ. Health Sci. Ctr. v. Buford, 334 S.W.3d 334 (Tex. App.—Eastland 2010) (prescribing/dispensing alone, where hospital employees did not administer medication, does not waive sovereign immunity)