*1 requested that he be through attorney, his leave
paroled upon the condition he release,
Taylor Money- county. After his county
hun and was ar- returned Moneyhun’s Ruling subsequent
rested.
complaint that the order of release was
invalid, appel- the court wrote: “When release, attorney requested
lant’s he moving
became factor and cannot now advantage part
take of a void order on the county judge.” Id. facts, particular we hold
Under these
appellant invited the error he now identi-
fies. We therefore overrule his two issues.
Accordingly, judgment below is af-
firmed. McCLAIN, Syble
James H. and Wife H.
McClain and Children of James
McClain, Jacque- Mac McClain and Birdman, Appellants,
line OF TEXAS UNIVERSITY
HEALTH CENTER AT
TYLER, Appellee.
No. 12-01-00363-CV. Texas, Appeals
Court
Tyler. 9, 2002.
Oct.
Rehearing Overruled Nov. *2 Background
Procedural arising negligence suit a medical This is of James H. and care out of the treatment patient at he was a while McClain 1990, 27, Mr. McClain June Hospital. On was dis- surgery. He heart underwent 10, Hospital July on from the charged thereafter, Mr. McClain Shortly infection. surgical incision contracted hospital July to the He was readmitted until for the infection and treated 4,1990. In discharge on October his Hospital and others sued the treatment. negligence medical alleging it entity, Hospital governmental is a As the immuni- doctrine of invoked ty- jurisdic- plea to the Hospital filed as- and sever and motion to dismiss
tion petition failed serting that Mr. McClain’s had, to the Hospital pursuant show Act, govern- waived its Texas Tort Claims immunity from suit. mental jurisdic- to the granted trial court the Hos- tion, against the claims dismissed against the claims pital, and severed remaining de- against the from the claims Adkison, Wellborn, Houston, Adki- Ron fendants. LLC, Mann, Hill, son, Sadler & Henderson, Immunity appellants. for Waiver of Grounds issue, Appellants assert first In their Batsell, appellee.
Cherie granting trial court erred and dis- Hospital’s plea to GOHMERT, JR., consisted of Panel against missing the claims WORTHEN, GRIFFITH, C.J., J., and J. properly invoked the petition their because asserting jurisdiction by trial court’s WORTHEN, Justice. JIM Act’s re- the Tort Claims meeting claims govern- McClain, showing waiver Syble quirements Appellants, James H. peti- They contend McClain, immunity. McClain, Jacqueline mental Mac against the claims Birdman, or- tion described appeal from the trial court’s tangible on the use misuse against based dismissing their cause of action der that an They assert personal property. of Texas Health Center University equip- (the among the instruments item jurisdic- want of Tyler “Hospital”) for of Mr. during the course issues, ment used the trial In three assert tion. caused infected and surgery was Hospital McClain’s concluding court erred infection- by introducing the infection affirm. is immune from suit. We subject causing Appel- jurisdiction. bacteria into Mr. McClain. lacks matter subject jurisdic argue inappropri- lants that the trial court Id. The absence of matter ately jurisdictional may juris tion be raised dismissed their suit on diction, procedural as well as other grounds Hospital’s argument based on the *3 vehicles, summary such as a motion for negligence its did not cause Mr. judgment. Indep. Bland Sch. Dist. v. argument, McClain’s infection. an Such (Tex.2000). Blue, 547, 34 S.W.3d 554 assert, Be they improperly requires them to subject jurisdiction presents matter cause claim, prove the causation element of their law, a question of we review the trial they required allege when all are to do is a grant court’s a decision to the causal connection between the use of the jurisdiction Mayhew de novo. v. Town property injury. of (Tex. 922, Sunnyvale, 964 S.W.2d 928 issue, Appellants In their second assert 1998). improperly the trial court dismissed their tangible claims based the condition of reviewing juris In a to the personal property per- tangible because diction, pleadings any we review the property operate sonal used to on Mr. jurisdictional is evidence relevant was contaminated with McClain bacteria. Dep’t sue. Texas Crim. Justice v. They assert that the bacterial contamina- (Tex.2001). Miller, 583, 51 S.W.3d 587 tion equipment of the instruments and Further, the trial court must consider ev operating used room rendered these necessary ju idence when to resolve the equipment instruments inadequate Blue, risdictional issues raised. 34 inadequacy this was a condition that at 555. Because a court must not S.W.3d injured Mr. McClain. determining act without has sub so, ject jurisdiction matter to do it should issue, Appellants In their third contend necessary hear evidence as to determine the trial in dismissing court erred their proceeding the issue before with the against claims based on the Id. a determina case. at 554. Whether property, spe- use of and condition real subject tion of matter can be cifically, operating They argue room. preliminary hearing in a or should made operating room was contaminated development await a of the merits fuller bacteria, by infectious that use of that largely of the case must be left room was the cause of Mr. trial court’s sound exercise discretion. and, alternatively, McClain’s infection party suing governmental Id. The en the contamination constitutes a condition consent, tity must establish State’s property on the which caused harm. may alleged either reference which be Applicable per express legislative to a statute or to Law Jones, at 8 mission. S.W.3d Sovereign immunity is an affir jurisdictional allegations considering the pleaded mative defense that must be petition, in a are to be contained Antonio, proved. City Davis v. San 752 plaintiff’s favor. liberally construed (Tex.1988). Immunity S.W.2d 520 Air Texas Ass’n Bus. v. Texas Control from an against suit bars action the State (Tex.1993). Bd., 440, 446 expressly unless the State consents to the Trans, (the “Act”) Jones, pro- Tort Act Dep’t suit. Texas 8 Claims immu- early S.W.3d Since as vides limited waiver of that, personal injury when is “caused the law Texas has been suit, tangible personal or absent the State’s consent to a trial condition or use of “Argu- Bossley, 968 at 341. governmental if the unit ed. S.W.2d Act would, person, applications of the private it a be liable ments for were according law.” be- essentially Texas in its waiver claimant result reject- be ANN. must therefore Tex. Prac. & coming absolute Civ. Rem.Code 101.021(2) (Vernon 1997). § To sue the contrary to the Act’s fundamental ed as tort, Further, State must state while the Id. at 342. purpose.” Jones, claim the Act. under S.W.3d may now evidence on trial court consider reference the Act is 689. Mere jurisdiction, trial court is the issue Miller, 51 at 587. We enough. underlying of the not to assess merits Act, to the terms consid must look ju- determining the of action when *4 of particular the facts together ered with Blue, issue. See 34 S.W.3d at risdictional case, immunity the to determine if has 554. put Id. “Use” “to or waived. means service; or for
bring employ into action The Petition given purpose.” or a Id. at 588. apply to Appellants’ petition, VII paragraph In of use, involving the the Claims failure to or brought is they assert their suit property, of are not within the non-use Hospital to the Texas against pursuant the sovereign immunity. waiver of Id. at 587- Act, allege that Mr. Tort Claims and Further, information not consti does personal injuries caused McClain’s were personal the tangible property tute tangible personal or by a condition use of governmental immu State has not waived allege that, property. They further use, mis negligence involving party, Hospital private if the were a use, University or nonuse of information. according Appellants liable to would be York, Branch v. 871 S.W.2d Tex. Med. of X, In paragraph Appellants law. Texas (Tex.1994). 175, 179 injury was that Mr. a allege McClain’s negli- proximate direct result Act, immunity and/or Under agents, representatives gence of waived, and/or proxi be personal injury must be They further employees Hospital. mately by caused or use of condition times, that, at all the Hos- assert relevant property. County Mental tangible Dallas Appellants duty to use the pital owed v. Boss Health Mental Retardation ordinarily used care which skill and was ley, Prop 968 S.W.2d reasonably prudent rea- person and/or erty if injury does not it does provider in sonably prudent health care more than furnish the condition that circum- cases under similar similar injury possible. re Id. The makes XI, they allege paragraph stances. quirement of causation more than mere is through acts and omis- Hospital, involvement; im otherwise the waiver sions, to treat Mr. McClain failed munity virtually be unlimited. Id. accepted stan- consistent with the manner immunity To has been establish thereby patients, care for breach- dard of waived, must a cause of plaintiff allege ing duties owed him. tangible is the property action in which the 342; instrumentality of the harm. Id. at XTV entitled “Plaintiffs’ Paragraph Isabel, City Port Baston v. Defendant, University Against Claims (Tex. App.-Corpus n. 4 Christi Tyler, Based on Health Center at Texas denied). 2001, pet. Property or Real Tangible Personal Use of Paragraph XV is entitled recognize Legislature Property.” must that the We Defendant, The Against limit- to be “Plaintiffs’ Claims intended the waiver the Act University of Texas Ty- surgical Health Center at of the named instruments is the ler, Based on Misuse Tangible Personal Mr. cause of McClain’s infection Property Property.” or Real Under these property injury because does not cause if paragraphs, Appellants allege that the acts it does no more than furnish the condition Hospital prox- and omissions of the were a injury possible. that makes the 1) injuries imate cause of Mr. Hospital contended that property, the use and misuse of real being what, if any, piece not established operating surgery room and area for equipment caused Mr. McClain’s infection. 2) patients; cardiac in the use and misuse Further, argued Appel- twenty-one tangible per- named items of allegation allowing lants’ nurse Ellen property sonal in the operating room and Thompson, eventually posi- who cultured area, surgery all well as attachments tive same bacterium as Mr. 3) equipment; related the use and McClain, to work in the operating room twenty-one misuse of named items of does not amount to a use of tangible property referred to in Finally, regarding Appel- under the Act. 4) Record; Operative in the use and allegation lants’ neg- *5 tangible personal prop- misuse of items of ligent following in not infection control erty referred to and described records policies, Hospital the asserted that infor- 5) petition; attached as exhibits to the and personal mation is not tangible or real antibiotics, in the use and misuse of gloves, and, therefore, sovereign immu- masks, gauze, dressings dressing and solu- by is not waived or using, misusing, tions to treat the infection. using sup- not information. The was ported by affidavits of three defendant Plea the to Jurisdiction portions deposition and of nurses the of Hospital jurisdic- The filed a Appellants’ expert. tion and motion to dismiss and sever Hospital presented The the affidavits of based on entitlement to immuni- Thompson, Ellen a staff nurse the sur- ty under the Texas Tort Claims Act. It Gee, gery department, Pat operating room Appellants asserted that failed to state a nurse, Peters, nurse, charge and Odelia prop- claim based on a condition or use of Room, Operating Director of the and mem- Rather, erty. it argued, Appellants simply ber Infection Control Committee. asserted that Mr. an McClain contracted Hospital policies Ms. that Peters stated subsequent surgery Ap- infection and compliance infection control were with pellants point oper- to an exhaustive list of community Explaining standards. ating potential culprits. room materials as no indicia of on there were visible infection Asserting that Mr. physi- McClain was not Thompson’s person, Ms. both Ms. Peters injured cally by equipment provided the being and Ms. Gee denied aware that Ms. by Hospital operative in terms of its Thompson had a skin infection. Ms. Gee use, Hospital argued that failure to Hospital policies proce- stated use, act, failure to or non-use claims do in compliance dures were with established satisfy not the use-of-property require- that, Thompson explained guidelines. Ms. Hospital ment. The further asserted that surgery, at the time of Mr. McClain’s she any neg- failed to establish that any had to believe no evidence of or reason ligence part any employees on the of its any infection-causing bacte- was the of Mr. she had McClain’s injuries. Ap- body. surgery, ria on her Prior to she disagreed The with pellants’ completely assertion that of one or more scrubbed from hands elbows use their personnel perform an struct how with iodine betadine and antibi- and/or patients. infecting at otic wore all duties without cleanser. She scrubs times, mask, hair, her covered wore briefly in Discussion only
covered her shoes.
She
suite,
the sterile
surgical
never invaded
immunity is waived
Hospital’s
The
during
physical
field
surgery,
had
if
Appellants’
evidence
contact with Mr. McClain.
that Mr.
before the trial
show
injury,
post-surgery
infec
McClain’s
portions
The
presented
also
of,
tion,
or the
by
was caused
condition
Appellants’ expert,
Dr.
deposition
of,
Hospital’s
personal
use
misuse
or
Zaki A.
Dr. Sheikh testified that
Sheikh.
property.
paragraph
Appel
VII
patients
infections can be incurred
de-
pleadings,
lants’
invoked
Act
spite
surgeons
operating
and all
room
requirements
out
of section
setting
personnel
following the standard of care
101.021(2).
But such
reference is
technique.
explained
sterile
He also
that a
to state a claim under
Act.
sufficient
patient
body
can
bacteria
Miller,
Paragraphs
at 586.
XIV
him
could cause
to have an infection. Ad-
bare
again
XV
make
assertions
ditionally,
possible
he
that it
testified
Hospital’s
use and misuse
get an
infection either
the time
sur-
property caused
and real
Mr.
gery or at a later
if
date. When asked
injuries.
petition
operating
names the
bacterium,
diptheroid, a
can
found
be
com-
area,
surgical
forty-eight
room and
lists
infection,
monly
an
on skin without
he
others,
items,
alleg
and refers
countless
answered,
He
if
*6
“Probably.”
agreed that
ing
the room and all of these items
that
dipther-
Ms. Thompson
positive for
tested
use of
all
were used and that
the room and
oid three weeks after Mr. McClain’s sur-
proximate
of these items was a
developed
gery,
possible
it is
she
injuries.
allegations
Mr.
McClain’s
period.
sometime within that three week
however,
petition,
not include a
do
condition, any
description
any
defective
Appellants’ Response
any
explanation of
the room or
how
used,
whom,
way
items were
what
Along
response
with their
to
to
any
or
specific
negligently
item was
used
jurisdiction, Appellants
filed Dr.
misused,
way any
one
or
what
explained
Sheikh’s affidavit. Dr. Sheikh
caused the infection. Because of its
items
Thompson
that Ms.
was tested and found
generality,
petition
not establish
does
to
her
have on
hands a bacterium which
immunity
has
waived under
type
was the same
as that
involved Mr.
or “use” of
or real
“condition”
McClain’s infection. He
that the
averred
provisions of the Act. We now
property
conduct of the individual
fell
defendants
jurisdictional
consider the
evidence before
practice
duty
below the standards of
and
immunity
court to
if
trial
determine
community
preven-
in the
for
and
control
was waived.
tion of
in the operating
infection
room.
affidavit,
in-
provides
He
Dr. Sheikh
stated
the defendants committed
negligent
sight
Appellants’ theory
acts
in their
into
of causation
and omissions
care
McClain,
injury
explaining
Thompson
of Mr.
caused
to him
that Ms.
suffered
Mr.
by failing
policy
to
from the same infection as
McClain.
enforce
negli-
He
defendants were
regarding
prevention
the control and
contends the
injury by
by failing
gent
to train and in-
and caused Mr. McClain’s
infection
failing
101.021(2);
policy
§
to have and enforce a
Bossley,
Although
presents
Dr. Sheikh’s affidavit
Appellants’
causation,
theory of
it falls
To the extent
contend the
short
explaining
piece
what
of tangible Hospital
proper
faded to use
sterilization
personal or real property
Thompson,
Ms.
techniques,
that contention falls into the
anyone
or
Hospital,
behalf of the
used
category
property
of non-use of
which is
misused,
or
or how she did so. The mere
not within
the waiver of
immuni
allegation that a Hospital employee used
Miller,
ty.
Appellants’
11 distinguish its well Bossley, attempted to be at reasoned waived. opinion in Brannon case from Firemen’s, up in a case in follow logical Conclusion felt comfortable highest which us, exactly on the record before Based application for deny 1995 enough infected, how Mr. McClain became or writ. condition, through what use or mis- in pleas of evidence Consideration prop- use of what item of or real apparently jurisdiction, is now author- as infection, conjecture. erty caused the is all many situations, ized in confuses law Thus, Appellants ask the court to assume jurisdiction pleas to the into merging Appellants have causation. not shown summary As judgment. ap- motions tangible property
what was the “instru- courts, pellate endeavor to make we should mentality of the harm.” id. 342. In See logical. Bleeding the law consistent and sum, Appellants’ arguments sup- are not concept slowly one into another can legal in ported by allegations the factual bleed the life out of the law. At time pleadings or extrinsic evidence in the rec- two, one, laymen yearn- alike lawyers ord. We overrule and when are issues law, three. ing clarity graying areas clear not acutely helpful. once were is the trial We affirm court’s order dis- missal. to, effect, litigant prove Requiring a worthy being himself court with evi- JR., GOHMERT, C.J., LOUIS con- dence on concurring. of open Though founds the notion courts. JR., GOHMERT, Justice, LOUIS Chief appropriately it ad- would seem more concurring. summary as judg- dressed a no-evidence I in the majority concur result of the matter, justification evidentiary ment opinion because it is consistent with the required now apparently in court is being latest, However, highest authority. In the a scenario as before us. bears noting opinions such case, present summary judgment motion expressed in Employ Brannon v. Pacific ruling certainly thereon would Co., ers Ins. 148 Tex. years nine understandable after (1949) including and others Firemen’s litigation a trial. without Regents, Insurance Co. v. Board vein, In another when lack (Tex.App.-Austin S.W.2d 540 writ *8 specificity, special exceptions are clarity or denied) logically were well conceived and Special exceptions might available. have stating written when that in a anticipated years ago in case as been this jurisdiction, trial ordinarily court must allegations some of the are solely base its decision pleadings. on the obscure, general, or insufficient on their Blue, Indep. Bland Sch. Dist. v. 34 exception an face. Others do involve (Tex.2000), supreme sovereign immunity. may. Some How- disapproved language ever, on a ruling this case involves the Insurance case to the ex Firemen’s Co. ruling jurisdiction. Were this it, precedent, cited limited a tent its summary there judgment, trial court’s consideration opinion, concurring but rather one deciding plea jurisdiction. Cit issue, ing opinion decision unanimous this case. damage Bland Nonetheless, the learned trial court fol-
lowed, required of it as well as our
court, ruling Bland Indep. Sch. Dist. Blue,
v.
Until such time as may the law be modi- above, again by
fied the court we must
affirm. Contreras,
Maria BURNAM and Jessica
Individually and as Next Friend of
Ashley Johnson, Child, Appel- a Minor
lants, PATTERSON, Appellee.
Lois Wallis
No. 07-01-0461-CV. Texas, Appeals
Court of
Amarillo.
Jan.