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University of Texas M.D. Anderson Cancer Center v. McKenzie

Court of Appeals of Texas, Fourteenth District

August 3, 2017


         On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2013-74868

          Panel consists of Justices Christopher, Busby, and Jewell.



         In this 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").[1] Concluding that the family's allegations, coupled with the evidence presented, are sufficient to support a waiver of immunity, we affirm.


         Courtney 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.

         The Wake Forest protocol calls for a multi-part procedure. First, the surgical oncologist opens the peritoneal cavity[2] 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"[3]-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.

         In 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.

         McKenzie-Thue 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 surgical/chemotherapeutic regimen.

         After 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 Courtney;
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 negligence.

         To 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.[4] 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 the circumstances.

         Dr. 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.

         MDACC filed a plea to the jurisdiction, asserting that the trial court lacked jurisdiction because it was immune from suit under the TTCA.[5] MDACC asserted that this lawsuit should be dismissed due to the ...

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