*1
582
attorney’s
client.
Savings
See
Bank v.
specifically
who are
identified on the face of
Ward,
195,
(1879).
100 U.S.
Lucas v. 56 Cal.Rptr. Cal.2d 15 policy, I dissent. 821, 825, 685, (1961), 364 P.2d 689 cert. de- nied, 987, 603, 368 U.S. 82 S.Ct. 7 L.Ed.2d (1962); Smith, 194,
525 Stowe v. 184 Conn. 81, (1981);
441 A.2d 83 Needham v. Hamil
ton, 1060, (D.C.1983); 459 A.2d 1062 DeMar (Fla.Dist.Ct. 1153, is v. 426 So.2d 1154 Asti Fuiten,
App.1983); Ogle 356, v. 102 Ill.2d 80 772, 774-75, 224,
Ill.Dec. 466 N.E.2d 226-27 (1984); Lawson, 968, Walker v. 526 N.E.2d HOSPITAL, KERRVILLE STATE (Ind.1988); Scoville, 968 v. Schreiner 410 Petitioner, (Iowa 679, 1987); N.W.2d 682 Pizel v. Zus 54, 42, pann, (1990); 247 Kan. 795 P.2d 51 (La. Killingsworth, 536, re So.2d James O. CLARK and Genevie 1973); Groce, 281, Hale v. 304 Or. 744 P.2d Clark, Respondents. 1289, 1292-93 (1987); Liederbach, Guy v. No. 95-0773. 47, 744, (1983);
Pa. 459 A.2d 751-53 Auric v. Co., 507, Continental Cas. Wis.2d Supreme Texas. 325, (1983). N.W.2d 12, Argued Dec. 1995. I recognizing believe that such a cause of Decided 1996. public action would policy by requir- further Rehearing July Overruled 1996. ing attorneys imple- to exercise due care in menting plan. a testator’s estate Under cur- law, only attorney’s
rent client has
standing negligent preparation sue for Although
the will or trust. the testator’s representative would succeed to upon
this cause of action the testator’s
death, may the estate damage itself suffer no
from an invalid orwill trust that frustrates Heyer
the testator’s intentions. 225, 228,
Flaig, Cal.Rptr. 70 Cal.2d (1969); Guy,
449 P.2d 459 A.2d at Consequently, attorney negli- who
gently drafts a orwill trust that is discover-
ed to be invalid after the testator’s death is
accountable no one.
I go would not so far as to hold that
attorneys who draft wills and trusts have a persons who are not beneficiaries Recognizing
named the will or trust. such likely
a broad cause of action is as to frus- carry
trate the testator’s as it is to it intent would, however, I
out. beneficiaries ¡allow *2 in ex- damages
A
awarded the Clarks
court,
trial
million dollars. The
cess
two
judgment
MHMR
n.o.v. for
entered
against
for
judgment
and rendered
$250,000,
un-
maximum amount allowable
the
Act.
the
Tort Claims
der
Texas
Tex.Civ.
101.023(a).
PRAC. & Rem.Code
The court
For the
appeals affirmed.
I. Rebecca, mar- daughter, was The Clarks’ history of Gary Ligón, who had a ried to problems. April after mental arrest, Li- threatening resisting and his wife gón for treatment. was taken to KSH Review Board determined Institutional dangerous” Ligón “manifestly and there- was he be fore transferred recommended security at unit State a maximum Vernon However, Hospital. because State Vernon vacancy, Ligón Hospital no remained for one month. The Institutional about again met and deter- Review Board then manifestly longer mined that was no began an com- dangerous. Ligón outpatient KSH, or- pursuant to a court mitment with der, his medi- so could monitor regimen included cation. medication intake, lithi- his alcohol Antabuse to control Smith, Austin, Allan for David Petitioner. carbonate, Tegretol, um Boerne, Sydney Ewing, B. S. Randall antipsychotic given that was medicine Richards, Boerne, Respondents. gón in an form. oral 22, 1990, Ligón voluntarily May On GONZALEZ, Justice, delivered ap- It checked treatment. into KSH HECHT, opinion of Court which drinking and had peared Ligón had been ENOCH, BAKER, Justices, join. OWEN and proper taking his medication at not been wrongful brought by This is a death action Ligón at On KSH released levels. to recover dam- and Genevie Clark James request, reinstating outpatient com- his daughter, ages for the death of their Rebecca 1, Ligón brutally mur- mitment. June On Ligón, who murdered her hus- was Clark wife, decapitating, dis- estranged dered band, Gary Ligón. sued The Clarks Kerr- membering, burning body. her He then (KSH) Hospital negligently ville State attempted her remains in a field.1 to hide Gary, releasing patient, from its mental earlier, the trial rendered Department court They As stated care. also sued the KSH, against judgment for the Clarks Health and Mental Retardation of Mental now (MHMR) court affirmed. KSH adequately for failure to ensure judgment to reverse the petitions compliance MHMR standards. with KSH’s murder, security Vernon charged unit at but de- ferred the maximum Hospital. incompetent State trial and was trans- clared to stand (1) appeals, claiming of the court of that: the Texas Tort Claims Act. Kassen v. Hat Clarks’ by sovereign immunity; suit is barred ley, 887 S.W.2d We have (2) (3) Clarks; KSH owed no to the recognized for “use” of actions proximate of KSH were not the to occur under the terms of the “ death; (4) of Rebecca Clark’s venue was ‘put bring property] one must or [the into *3 proper County. in Travis Because we service; employ apply action or for or to a conclude that the Clarks’ action was barred given purpose.’” Indep. Mount Pleasant by sovereign immunity, judg- we reverse the Lindburg, Sch. Dist. v. Estate of ment of the court of and render 208, (Tex.1989) (quoting Beggs 211 v. Texas judgment for KSH.2 Dept. Mental Health & Mental Retarda of tion, 252, (Tex.Civ.App. 254 —San II. 1973, refd)). Antonio writ The decisions of governmental KSH is a entity enti Court, however, always this have fallen However, sovereign immunity. tled to under neatly applying within this definition when entity Texas Tort Claims a state can difficulty the terms of the Act. The of inter sovereign immunity waive its under limited preting provisions the Act’s waiver has led circumstances. The Act did not sov abolish request this Court on several occasions to ereign immunity, and we must look to the guidance Legislature interpreting scope terms of the Act to determine the of its See, provisions. e.g., these Salcedo v. El University waiver. Texas Medical of Dist., (Tex. 30, Hosp. Paso 32 York, 175, Branch v. 177 1983); Univ., Lowe v. Texas Tech 1994). Specifically, sovereign the Act waives (Greenhill, C.J., 303 concur- “personal injury and death so however, ring). Legislature, The has re- caused condition or use of result, mained silent on this issue. As a our property or real governmental attempts provi- to construe the Act’s waiver would, private person, unit were it a be liable “long sions have resulted in a and arduous according to the claimant to Texas law.” history” University of cases. Texas Medi- 101.021(2). The Tex.Civ.PRAC. & Rem.Code York, cal Branch v. S.W.2d KSH, by giving Ligón Clarks claim that (Tex.1994). cases, in particular, Two of these oral form of Thorazine when he left difficulty interpreting illustrate the hospital, injectiona- rather than an available provisions. drug Haldol, ble such as Prolixin or used or Univ., In Lowe v. Texas Tech tangible personal property misused under (Tex.1976), alleged that he Lowe They the terms of the Act. claim that KSH injured playing his knee while football injectionable should have administered an university. injury allegedly occurred because KSH knew that had not him when a coach ordered to remove his been his oral Thorazine and that he brace, previous knee worn because of a knee Thus, became violent when not medicated.3 injury, game and reenter a without it. Id. at the issue is whether KSH’s administration of (Greenhill, C.J., concurring). This Court an oral form rather than an concluded that the knee brace was as inte- injectionable drug, constitutes use or misuse gral part of Lowe’s uniform as his helmet tangible personal property under pads. or shoulder Id. at 300. The Court terms of the Texas Tort Claims Act. We immuni- therefore held that the State waived hold that KSH’s failure to administer an ty by providing with a football uniform Lowe injectionable drug tangible per is non-use of that was defective due to its lack of a knee property sonal and therefore does not fall brace. Id. provisions under the waiver of the Act. applied
This Court has never held that mere non- This rationale was also to invoke support provisions use of can a claim under the Act’s waiver Robinson presented expert testimony 2. Because we hold that the Clarks’ claims are 3. The Clarks that in- by sovereign immunity, jectionable barred can be effective need con- Prolixin and Haldol grounds alleged up injection. sider KSH’s other for reversal. to one month after the initial Center, apply, we assume MHMR must Central MHMR (Tex.1989). Robinson, if it sovereign immunity even MHMR have its waived Robinson, patients, including provided preserver several Robinson life took employees that MHMR should swimming. Id. at 169. The of Robinson could show Thus, provided epileptic knew that him with better one. MHMR Robinson seizures, occasionally those causing facts case are different than suffered of this him Id. MHMR and in Lowe Robinson. to lose consciousness. provide employees, failed to III. preserver, with a life and he subse-
Robinson quently drowned. Id. This concluded parallels cáse The factual scenario preserver just life as much a “[a] Hatley, Kassen swimming attire of Robinson’s as the *4 a Kassen, patient to In a mental admitted in was the uniform knee brace of Lowe." taking hospital medication state was seen her The Id. at 171. Court therefore held that Hospital quantities. in Id. at 7. excessive immunity. its Id. MHMR waived medi- employees patient’s took the therefore hospital away cation from her. Id. The represent perhaps the These cases outer pa- refused to return the medication to the of what we as bounds have defined use of hospital, the and she tient when she left tangible personal property. did not in- We a short later. Id. committed suicide time tend, eases, deciding in to allow both patient’s parents hospital sued The the property use and non-use of to result in death, claiming employees wrongful its for immunity Act. waiver of under the Such a pro- employees’ the failure to hospital that abolishing result would be tantamount to the when she patient vide with medication contrary governmental immunity, to lim- hospital left the caused her Id. We death. Legislature clearly waiver the ited intended. sequence concluded of events “[t]his precedential The value of these is cases injury allege arising an does limited to in a plain- therefore claims which ‘use’of It states a claim the medication. alleges provided that a has tiff state actor trigger property non-use of that does not property integral safety that lacks compo- an immunity sovereign of the Tex- waiver under integral compo- nent and that the this lack of Here, as Tort Act.” Id. at 14. Claims plaintiffs injuries. For nent led to exam- gave Ligón form of employees KSH’s an oral ple, hospital provided patient if a a awith just hospital, left the as Thorazine when he lacking bed the lack of bed rails and this they Ligon’s beginning had since the done protective equipment patient’s led to the in- outpatient The Clarks commitment order. jury, provisions the Act’s waiver would be an allege have that KSH should administered Lowe, implicated. injectionable drug compli- to ensure case, present facts of the are ance, They given. oral than the form rather distinguishable from Lowe and Robinson. injectionable had claim that if an medication alleged have not that KSH The Clarks failed used, murdered Ligón been would have Ligón provide property lacking an to with pleadings and evidence wife. The Clark’s fact, safety they integral component. ac- any do not that oral Thorazine caused show knowledge prescribed gave to is gravamen complaint harm. The their anti-psychotic Ligón an medi- injectionable drug an non-use of KSH’s contrary, argue To the the Clarks cation. daughter’s of their death. prescribed the treatment just drug a form of as This failure to use as not as effective an alternative method hospi- as much a of a was the non-use would been. For Lowe to treatment have in patient give tal’s its her medicine failure claims, must apply to the Clarks’ assume Kassen. university have would waived sovereign immunity provided if it Lowe a There cannot waiver even every medical long case which as Lowe could show that knee brace as facility. public provided treatment type of knee brace would better another Likewise, use some Doctors in medical facilities protected him. for Robinson to state tangible personal form of property nearly of medications.” KSH was aware that every they patient. time treat a Because of was not his medications and that he fact, patient suing negligence could became violent not medication-compli- when always complain Nonetheless, that a different prescribed form of ant. the oral employed medication, Thorazine, treatment than the one would have Ligón. and released Schultheis, been more effective and still claim waiver Dr. physician who treated under If complaint KSH, Coons, the Act. such a gón were expert and Dr. an enough KSH, to constitute tangible per- the use of testified that Haldol and Prolixin are sonal injectable under the antipsychotic the doctrine of medications which sovereign immunity would be rendered a nul- could be used instead of Thorazine and could lity. imagine “It is difficult to a tort case up be effective for to one month. Dr. Rosen- use, nonuse, thal, Clarks, expert does not involve the or an for the testified that some item of property; long lasting injections real or of Prolixin or Hal- me, if there is waiver all cases where dol should have been used instead of the oral personal property some item of is either used form of Thorazine. Dr. Rosenthal further used, virtually or not there is long lasting, inject- unrestricted testified that the use of a immunity.” medication, waiver of antipsychotic Lowe v. Texas Tech able rather than Univ., medication, inappropriate oral *5 (Greenhill, C.J., concurring). Abolition kept Ligón medication-compliant of have immunity release, Legislature is not what the preventing tragic intend- safe for the mur- enacting evidence, ed in the Texas Tort Claims Act. Ligón. der of Rebecca This indi- cating sovereign misuse of waived prescribe Because the failure to a certain immunity. Similarly, the condition of the drug simply form of does not fall within .the injectable— medication —oral rather than definition of use under the did not sovereign immunity. causes a waiver of sovereign immunity. waive its For the fore- reasons, going judgment we reverse the I. judgment the court of and render for (Act) KSH. The Texas Tort Claims Act waives sovereign immunity “personal injury ABBOTT, J., by death so caused or dissenting opinion filed a condition use of PHILLIPS, J., tangible personal property gov- which or real C. and CORNYN and would, SPECTOR, JJ„ join. private per- ernmental unit were it a son, according liable to the claimant ABBOTT, Justice, PHILLIPS, joined by Texas law.” & Rem.Code Tex.Civ.PRAC. Justice, SPECTOR, Chief CORNYN and 101.021(2). tangible The “use” of Justices, dissenting. property property occurs when the is incorrectly I dissent because brought employed the Court into action or is interprets precedent. the facts and abandons given purpose. Indep. Mount Pleasant Sch. (Tex. erroneously Lindburg, classifies this as a Dist. 1989). “non-use” case under the Texas Tort Claims sovereign immunity Act and concludes that Clearly, prescription drugs tangible are reality, not waived. In this case involves a personal property. Hatley, See Kassen drugs. “misuse” of Evidence showed that (Tex.1994) C.J., (Phillips, (KSH) Hospital prescribed Kerrville State dissenting). Sovereign immunity was waived drugs inappropriate pur- which were for the Ligon’s psy drugs when used to treat
pose
prece-
intended. Under this Court’s
Quinn
chotic behavior. See
v. Memorial
dent,
inappropriate drug
use of an
consti-
Ctr.,
Medical
tangible personal property
tutes misuse of
1989, writ);
App. Corpus
no
see also
Christi
—
sovereign immunity.
and waives
Kassen,
C.J.,
(Phillips,
at 15
dis
Quinn,
plan
Gary
senting).
In
that the
The treatment
KSH created for
the court held
Ligón required
dispensing
tangible
him to meet with a KSH staff
of a
is the use of
delivery
personal property
immunity
at
un-
member
least once a month “for
and waives
Lowe,
the failure
held that
In
In
this Court
this
der the Act.
S.W.2d
a foot-
providing
a knee brace when
case,
include
delivery
by
of medications
a KSH
tangi-
or use of
a condition
ball uniform was
member
likewise constitutes use
staff
Lowe,
personal property.
medications,
ble
immunity
waiving
under
that the fail-
Similarly, this Court held
majority in
Act. The Court’s reliance on the
preserver,
life
as
an available
ure to furnish
since,
ease, the
misplaced
in that
Kassen
uniform,
MHMR
swimming
to an
part of a
away
patient
hospital took medicine
from a
immunity
sovereign
when
patient waived
pre-
misusing medicine it was
rather than
epileptic
from
patient
suffered
staff knew
scribing
patient.
to a
pass out. Rob-
him to
which caused
seizures
inju
“Liability
imposed
has been
when
inson,
circum-
at 171. The
alleged
proximately
are
to have
resulted
ries
supporting a waiver
stances
negligent
use of
in some
stronger
in Lowe
than
here are even
respect
inappropriate
or
for the
deficient
Robinson,
drugs specifi-
furnished
as KSH
Hopkins v.
purpose for
it was used.”
It
Ligon’s psychotic behavior.
cally
treat
Dist.,
Indep.
Spring
Sch.
S.W.2d
inap-
furnished an
as if the
would be
State
1986), aff'd,
(Tex.App.
[14th Dist.]
Lowe,
inappro-
or an
propriate
—Houston
knee brace
(Tex.1987);
also LeLeaux
he would be violent towards Rebecca again, especially considering ongoing sep- his III. Ligón admitted to the aration and divorce. argues KSH next that there is no evidence doctors that he was not his any action on its caused Rebecca’s Rosenthal, expert medication. Dr. for the deciding point death. When no evidence Clarks, testified KSH could have as- only we must consider the evidence and all Ligon’s compliance with his treatment sured support jury reasonable inferences which plan by administering long-acting forms Sander, finding. See Orozco by injection, and antipsychotic medication (Tex.1992). If there is more than a injections the absence of such was a support finding, scintilla of evidence to This, plan. deficiency” “real in his treatment challenge the no evidence must fail. Id. history coupled Ligon’s the evidence of elements, Proximate cause has two fore- antipsychotic when off violent behavior seeability City and cause-in-fact. Travis medication, violent murder of Mesquite, 830 S.W.2d days only being Rebecca seven after dis- Foreseeability person is satisfied of ordi- charged, is some evidence from which the nary intelligence anticipated should have hospital’s that the misuse of could infer danger negligent caused act. Id. The medication caused Rebecca’s death. particular injury manner of the need not be IV.
foreseeable to establish this element. Id. “Although the criminal conduct of a third I is some evi- While conclude there party may superseding be a cause which tangible personal dence that KSH misused liability, negligent relieves the actor from meaning within the of the Tort negligence superseded actor’s is not and will correctly that the Claims contends *8 not be excused when the criminal conduct is liability submitting trial court erred negligence.” Id. a foreseeable result of such jury. Question jury issue to the which the affirmatively, provided as follows: answered earlier, discussed there are notes in As Hospital negligent Was Kerrville State discussing file his homicidal medical Gary Ligón discharging on tendencies, his assaultive behavior towards 1990? family, to medication- his failure remain determining that in You are instructed compliant, and his violent behavior when negligence, any, of the officers Further, medication-compliant. Ligón Hospital, employees of Kerrville State con- assaulting originally to committed KSH only of medical sider their use or misuse This is some evidence that KSH his wife. records, discharge docu- admission and should have known that knew or ments, Gary Ligón, medications of and/or being if released assault Rebecca without added). such, objected to this (emphasis As the foresee- properly medicated. “the question, arguing to the trial court that ability prong is satisfied. particular properties attempted that are to question listed 1] do not come within [in tangible personal property,
the definition of the exception of medications.” The objection.
court overruled this argues jury that the should permitted
been to consider the use or misuse documents,
of medical records or other over timely objection. I agree. While the
paper on medical and other records printed are
documents constitutes
personal property, the information contained intangible.
in the records and documents is University Branch Med. v. York, (Tex.1994). The
Tort Act Claims does waive information, intangible
misuse even writing.
information is reduced Id. Be question .erroneously allowed the hospital’s misuse of the consider in Ligon’s
information contained medical rec
ords, KSH is entitled a new trial. See Co.,
Spencer Eagle Star Ins. reasons, foregoing
For the I would reverse judgment of the court
remand cause to trial court for new
trial.
The INDEMNITY COMPA- TRAVELERS Relator, CONNECTICUT,
NY OF MAYFIELD, Alan Honorable
Judge, Respondent.
No. 95-1209.
Supreme Court of Texas.
Argued April 1996.
Decided 1996. July
Rehearing Overruled