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The University of Texas MD Anderson Cancer Center v. Contreras

Court of Appeals of Texas, First District

May 7, 2019

THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Appellant
v.
ROGER CONTRERAS, Appellee

          On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2016-70606.

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          OPINION

          Gordon Goodman, Justice.

         The 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 § 51.014(a)(8).

         We reverse and render a judgment dismissing the suit for lack of jurisdiction.

         BACKGROUND

         Roger 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.

         MD 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.

         Contreras 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.

         Will 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.

         Contreras's 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.

         The trial court denied MD Anderson's jurisdictional plea.

         DISCUSSION

         It is undisputed that MD Anderson is a state entity shielded from suit by sovereign immunity unless its ...


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