the University of Texas M.D. Anderson Cancer Center v. Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-thue (Deceased), and Deborah Diver, Individually and as Next Friend of J.O., a Minor, 578 S.W.3d 506

Background

Courtney McKenzie‑Thue (33) underwent a two‑part HIPEC/IPHC cancer procedure at M.D. Anderson under a Wake Forest clinical‑trial protocol; oxaliplatin was selected and required D5W (5% dextrose) as the carrier solution.
D5W is known to risk hyponatremia; the hospital administered saline/insulin drips intraoperatively to counteract that risk.
After surgery Courtney developed hyponatremia, cerebral edema, brain herniation, and died two days later.
Her family sued M.D. Anderson alleging negligent use of tangible personal property (the D5W carrier) that was improper under the circumstances and proximately caused death; an expert opined the D5W perfusion caused the hyponatremia and death.
M.D. Anderson moved to dismiss on sovereign‑immunity grounds: it argued the claim is medical‑judgment (not waived) and that Courtney’s death was unforeseeable; trial court and court of appeals denied the plea; Texas Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether use of D5W constituted negligent "use" of tangible personal property under Tex. Civ. Prac. & Rem. Code §101.021(2)	McKenzies: hospital used a carrier (D5W) that was improper under the circumstances and that use caused injury, so Act waives immunity	M.D. Anderson: claim targets medical judgment (decision to use), not the manner of property use; medical‑judgment claims are not waived	Court: waiver applies where property was used although improper under the circumstances and caused harm; medical judgment preceding use does not negate "use" waiver
Whether the hospital retained immunity because the D5W was supplied/used by a third‑party perfusionist	McKenzies: hospital provided D5W, Dr. Mansfield used it during washout, and hospital personnel manipulated the body—so hospital "used" it	Hospital: third‑party perfusionist did the perfusion, not the hospital	Court agreed with court of appeals that hospital used the D5W and does not contest that holding here
Whether the use of D5W proximately caused Courtney's death (foreseeability)	McKenzies: expert and surgeon testimony link D5W → hyponatremia → cerebral edema → death; hyponatremia was a known risk, so foreseeability is a fact issue	Hospital: death was an unlikely, unpredictable outcome; precautions taken (saline/insulin) negate foreseeability	Court: foreseeability is broader than predictability; known risk of hyponatremia and testimony that D5W caused hyponatremia create a fact issue on foreseeability; plea properly denied
Whether recognizing this waiver would swallow sovereign immunity for medical decisions	McKenzies: limitation remains—plaintiff must show the property used was improper and caused injury; not every medical decision or use will waive immunity	Hospital/Dissent: decision converts many medical judgments into property‑use claims and risks a floodgate/strict‑liability effect	Court: rejects categorical rule; requires both improper use and causation to waive immunity, so the waiver remains limited; the outcome here is consistent with statutory text and precedent

Key Cases Cited

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for plea to jurisdiction; consider pleadings and evidence, construe plaintiff's pleadings liberally)
Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) (distinguishes "use" from "non‑use" of property; waiver not available where injury stems from a treatment choice rather than the property that caused injury)
Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175 (Tex. 1994) (narrow construction of waiver; immunity not waived for misuse/nonuse of medical information)
Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145 (Tex. App.—Houston [14th Dist.]) (use/dispensing of a drug that should not have been given can waive immunity)
Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010) (claims that are essentially medical‑judgment decisions—removal of an organ—do not become property‑use claims merely because instruments were used)
City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (to waive §101.021(2), the condition or use of property must be a proximate cause of the injury)
Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) (foreseeability requires reasonable anticipation of the general danger created by negligent conduct)
Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922 (Tex. 2015) (on plea to jurisdiction, court asks whether evidence raises a fact question on causation)
Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex. 1983) (waiver requires negligent conduct involving some condition or use of tangible personal property)
Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (medical‑judgment claims and non‑use of property do not waive immunity)