University of Texas M.D. Anderson Cancer Center v. Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), Deborah Diver, Individually and as Next Friend of Jensen O'Hara, a Minor
529 S.W.3d 177
| Tex. App. | 2017Background
- Courtney McKenzie-Thue underwent cytoreductive surgery and intraperitoneal hyperthermic chemotherapy (IPHC) at UT M.D. Anderson (MDACC) under a Wake Forest protocol; oxaliplatin was mixed with D5W (a dextrose solution) supplied by MDACC.
- A contracted perfusionist (Specialty Care employee) operated the pump and added fluid during perfusion under surgeon Dr. Mansfield’s directions; Dr. Mansfield performed the final washout with D5W.
- Postoperatively McKenzie-Thue developed severe hyponatremia, brain edema/herniation, and died two days after surgery; MDACC personnel acknowledged D5W use can lower sodium and that hyponatremia caused her death.
- Plaintiffs alleged MDACC negligently used tangible personal property (D5W), causing hyponatremia and death; they offered an expert (Dr. Miller) opining the D5W perfusion caused the sodium imbalance and death.
- MDACC filed a plea to the jurisdiction arguing sovereign immunity was not waived because (1) the D5W was used by an independent contractor (not MDACC employees) and (2) plaintiffs’ expert said death was possible but not foreseeable, so proximate cause under the TTCA wasn’t established.
- The trial court denied the plea; the court of appeals affirmed, holding plaintiffs presented evidence that MDACC used the D5W and that its use proximately caused the death, thereby triggering a waiver of immunity under Tex. Civ. Prac. & Rem. Code § 101.021(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MDACC’s immunity is waived under TTCA §101.021(2) for negligent use of tangible personal property | Plaintiffs: MDACC provided and used D5W (including surgeon washout and intraoperative maneuvers) so its immunity is waived | MDACC: Only an independent contractor perfusionist used the fluid; MDACC did not "use" the property | Held: Waiver applies — evidence shows MDACC used D5W (surgeon washout, personnel massaging abdomen, dispensing supplies) |
| Whether claims are barred as mere medical-judgment errors rather than negligent use of tangible personal property | Plaintiffs: Allegations go beyond judgment — they assert misuse of D5W and negligent handling of fluid as tangible property | MDACC: Claims are disguised medical-judgment malpractice and thus immune | Held: Plaintiffs alleged more than medical judgment; misuse/dispensing of D5W is actionable under TTCA |
| Whether plaintiffs established proximate cause under §101.021(2) (property must be instrumentality of harm, not merely make harm possible) | Plaintiffs: Expert and MDACC admissions show D5W caused hyponatremia which caused death | MDACC: Expert said death was not predictable/foreseeable; treatment only made death possible, not caused it | Held: There is evidence D5W caused hyponatremia and death (surgeon admitted D5W caused sodium drop); proximate-cause fact issue exists, so immunity waiver applies |
Key Cases Cited
- Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2016) (discussing use/dispensing of drugs as waiver under TTCA)
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (governmental immunity and limits on waiver when third parties use property)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for jurisdictional fact disputes on plea to the jurisdiction)
- San Antonio State Hosp. v. Cowan, 128 S.W.3d 244 (Tex. 2004) (definition of "use" of property under TTCA)
- Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998) (property that merely furnishes condition making injury possible does not waive immunity)
- Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 587 (Tex. 2001) (treatment that only masked symptoms did not proximately cause death for TTCA waiver)
- Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010) (medical-judgment claims do not invoke tangible-property waiver)
- Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799 (Tex. App.—Fort Worth 2008) (medication administration can constitute "use" of tangible property)