Appeal from the 152nd District Court Harris County, Texas
Trial Court Case No. 2016-70606.
consists of Chief Justice Radack and Justices Goodman and
University of Texas MD Anderson Cancer Center filed a plea to
the jurisdiction based on the doctrine of sovereign immunity.
The trial court denied the plea, and MD Anderson appeals.
See Tex. Civ. Prac. & Rem. Code §
reverse and render a judgment dismissing the suit for lack of
Contreras alleges that he was injured in a fall after
undergoing knee-replacement surgery at MD Anderson. According
to Contreras, he went to MD Anderson's barbershop with
the assistance of a nurse, a walker, and a rolling IV pole.
The nurse left him there so that he could get a haircut. When
the nurse left the barbershop, she took Contreras's
walker with her and told Contreras to use his IV pole
"as a mobility assistance device when he needed to move
around." While using the IV pole as instructed, it
caused him to fall. Contreras asserts a single cause of
action for negligence, alleging that MD Anderson negligently
used the rolling IV pole as a walking aid, mobility device,
or fall-prevention mechanism.
Anderson filed a plea to the jurisdiction, asserting that it
has not waived its sovereign immunity from suit. The parties
submitted evidence to the trial court. This evidence included
Contreras's deposition, his medical expert's report,
and the deposition of Contreras's treating surgeon.
testified that the nurse told him that he "could use the
IV pole" to move about the barbershop and that he did
not have any other means of doing so. When he later got up to
go to the shampoo station after his haircut, he used his IV
pole "as a walker." He took two steps and then his
knee "weakened and buckled." At that point, the IV
pole "just rolled," and he "fell down."
When asked to clarify whether his knee buckled or the IV pole
rolled first, Contreras stated that his "knee would have
done it and that's when" he tried to steady himself
and couldn't. He agreed that his knee buckled first,
causing him to fall to the ground, and that the IV pole did
not cause his knee to buckle. So far as Contreras knew, the
IV pole was not defective.
Moorhead, M.D., Contreras's medical expert, opined that
an IV pole is not a proper walking aid. Indeed, he opined
that a rolling IV pole "is contraindicated for use as an
assisted ambulatory device." Moorhead concluded that MD
Anderson should have provided Contreras with a proper
ambulatory device, such as an actual walker instead of the
rolling IV pole.
treating surgeon, Bryan Moon, M.D., likewise testified that
he did not consider a rolling IV pole to be an assistive
device. While Moon sees patients use IV poles for this
purpose, he agreed that an IV pole is not what he has in mind
when he orders that his patients receive an assistive device.
As to Contreras, Moon testified that he "would
anticipate that he would need more than" a rolling IV
pole for assistance in walking. Moon also said that he was
surprised that Contreras did not have a walker with him in
the barbershop because a patient who has had knee surgery
typically would have one.
trial court denied MD Anderson's jurisdictional plea.
undisputed that MD Anderson is a state entity shielded from
suit by sovereign immunity unless its ...