UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellant
LANCE MCKENZIE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF COURTNEY MCKENZIE-THUE (DECEASED), DEBORAH DIVER, INDIVIDUALLY AND AS NEXT FRIEND OF J.O., A MINOR, Appellees
Appeal from the 165th District Court Harris County, Texas
Trial Court Cause No. 2013-74868
consists of Justices Christopher, Busby, and Jewell.
medical malpractice case, the family of a patient who died
after participating in a clinical trial at the University of
Texas M.D. Anderson Cancer Center ("MDACC") alleges
that the patient died because of MDACC's negligence.
MDACC brings this interlocutory appeal challenging the trial
court's denial of its plea to the jurisdiction. MDACC
contends that the family's allegations and jurisdictional
evidence do not establish a negligent use of tangible
personal property as required to waive its governmental
immunity under section 101.021 of the Texas Tort Claims Act
("TTCA"). Concluding that the family's
allegations, coupled with the evidence presented, are
sufficient to support a waiver of immunity, we affirm.
McKenzie-Thue suffered from advanced stage IV cancer of the
appendix and received treatment from MDACC in December 2011.
The treatment involved a surgical/chemotherapeutic protocol
originally developed by Wake Forest University School of
Medicine and Wake Forest Baptist Medical Center (the
"Wake Forest protocol"). At MDACC, McKenzie-Thue
participated in phase two clinical trials of the Wake Forest
protocol. The purpose of the Wake Forest protocol was to
compare the efficacy of two chemotherapeutic agents:
mitomycin C and oxaliplatin. McKenzie-Thue was randomized to
the group receiving oxaliplatin in the study.
Wake Forest protocol calls for a multi-part procedure. First,
the surgical oncologist opens the peritoneal
cavity of the patient and resects all visible
signs of cancer. Then, the patient's abdominal skin is
sutured closed and the patient's peritoneal cavity is
flushed-or "perfused"-with a chemotherapeutic agent
mixed with fluid, using a heart/lung bypass machine acting as
a pump to heat the fluid and circulate it throughout the
peritoneal cavity. This portion of the procedure is called
intraperitoneal hyperthermic chemotherapy ("IPHC").
Finally, the bypass machine is disconnected, and the
patient's peritoneal cavity is "washed out"
with fluid to remove the chemotherapeutic agent.
McKenzie-Thue's case, the chemotherapeutic agent,
oxaliplatin, was combined with a water solution containing
dextrose, called "D5W." MDACC provided both the
oxaliplatin and the D5W. A total of 9 liters of fluid was
perfused into McKenzie-Thue's abdominal cavity, but only
7.2 liters of fluid were accounted for after the procedure.
MDACC surgeon Dr. Paul Mansfield was McKenzie-Thue's
surgical oncologist and oversaw the details of the procedure.
The procedure was performed at MDACC using MDACC personnel
and equipment. However, a medical technician called a
"perfusionist" perfused-under Mansfield's
direction- the chemotherapeutic agent and the D5W into
McKenzie-Thue's body. The perfusionist, Dwight Crawford,
was employed by independent contractor Specialty Care, Inc.,
which MDACC engaged to perform such services. Dr. Mansfield
performed the final step of McKenzie-Thue's procedure by
washing out her peritoneal cavity with D5W.
developed hyponatremia following completion of the procedure.
Hyponatremia is a condition that occurs when the blood sodium
level becomes abnormally low. This drop in sodium causes the
body's water level to rise, leading to swelling of the
cells. McKenzie-Thue was unresponsive following the procedure
and was moved to MDACC's intensive care unit. Despite
MDACC's efforts to counteract the hyponatremia, her brain
swelled, resulting in her death two days after her
her death, McKenzie-Thue's family (collectively,
"appellees") sued MDACC, among others.
Specifically, appellees alleged MDACC was negligent based on:
a) [MDACC]'s employees, including physicians and nursing
and other personnel misusing a fluid, tangible personal
property, for chemotherapy under circumstances where it was
reasonably obvious that it was not the appropriate fluid and
posed a significant risk of harm to the patient, including
the exact condition from which Courtney died;
b) [MDACC]'s actions perfusing Courtney's body with
tangible personal property, a substance known as D5W,
basically a water solution also containing dextrose, causing
injury and death;
c) [MDACC]'s using tangible personal and/or real property
in treatment of Courtney, causing injury and death;
d) [MDACC]'s failure to conform to standards of
"ordinary care", causing harm and death of
e) [MDACC]'s negligent use of tangible personal property
that was defective and/or inadequate;
f) [MDACC]'s and its employees negligently using suction
and other equipment and failing to remove excessive fluid
from Courtney post-treatment such that too much fluid was
left to be re-absorbed into the bloodstream, aggravating
hyponatremia and leading to brain herniation and death;
g) [MDACC]'s proceeding to apply a treatment to Courtney
that was known to defendant's physicians to pose an
extreme risk under which Texas law constitutes gross
support their suit, appellees retained Dr. David Miller as a
medical expert. Dr. Miller opined in an expert report that
McKenzie-Thue developed hyponatremia and her death was
caused, in reasonable medical probability, by the use or
misuse of fluid that was perfused into her
body. He stated:
The perfusion of D5W fluid in association with any drug,
including a chemotherapy agent, in large volumes to the
abdominal cavity is known to be likely to cause an imbalance
in sodium levels that leads to absorption of water into the
blood stream, diluting the level of sodium in the blood,
increasing the volume of water and causing edema (swelling)
of the brain that poses an imminent danger of death. This
misuse of the D5W solution should have been obvious to those
treating her at M.D. Anderson Cancer Center, regardless of
Miller also opined:
Use of a large dose of D5W in perfusion of a patient in any
condition exposes the patient to the danger of hyponatremia
and death because this creates a situation where the
patient's body is subjected to an imbalance of sodium in
relation to blood, resulting in low sodium and too much water
in the bloodstream, diluting the sodium in the bloodstream,
causing edema that is critical in the area of the brain and
causes death as what happened in this case.
filed a plea to the jurisdiction, asserting that the trial
court lacked jurisdiction because it was immune from suit
under the TTCA. MDACC asserted that this lawsuit should be
dismissed due to the ...