The University of Texas M.D. Anderson Cancer Center, Petitioner,
Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), and Deborah Diver, Individually and as Next Friend of J.O., a Minor, Respondents
February 19, 2019
Petition for Review from the Court of Appeals for the
Fourteenth District of Texas
Justice Lehrmann delivered the opinion of the Court, in which
Justice Guzman, Justice Boyd, Justice Devine, and Justice
Justice Busby did not participate in the decision.
H. LEHRMANN JUSTICE
Texas Tort Claims Act waives governmental immunity for
personal injury and death proximately caused by a condition
or use of tangible personal property. In this case, before us
on the defendant hospital's plea to the jurisdiction, we
are asked whether the hospital's use of an allegedly
improper carrier agent during surgery constitutes negligent
"use" of tangible personal property and, if so,
whether sufficient evidence was presented that this use
proximately caused the patient's death. The trial court
found that the plaintiffs sufficiently demonstrated both use
and proximate cause and accordingly denied the plea. The
court of appeals agreed, affirmed the trial court's
order, and remanded the case to the trial court for further
Court the hospital argues that because the carrier agent was
administered properly during surgery, the plaintiffs complain
only of negligent medical judgment for which immunity is not
waived. However, when, as here, the claim is premised on the
hospital's use of property that was improper under the
circumstances and caused harm, this is sufficient to
establish negligent "use" under the Act, regardless
of the manner in which the property was administered. We
therefore affirm the court of appeals' judgment.
2011, Courtney McKenzie-Thue, then thirty-three years old,
began treatment at M.D. Anderson Cancer Center (the
"Hospital") for a rare cancer of the appendix. As
part of this treatment, Courtney agreed to undergo a two-part
procedure called a HIPEC (short for hyperthermic
intraperitoneal chemotherapy). The Hospital performed
the procedure pursuant to a clinical trial protocol designed
by Wake Forest Medical School (the Wake Forest protocol). The
purpose of the protocol was to test the efficacy of two
chemotherapy drugs: oxaliplatin and mitomycin C.
first part of the HIPEC procedure involves the surgical
removal of all visible cancer from the patient's
peritoneal cavity. The second part of the procedure
involves flushing out, or perfusing, the patient with a
chemotherapy drug mixed with another fluid. This second fluid
serves as a carrier agent, helping to disperse the
chemotherapy drug throughout the patient's peritoneal
cavity. When the perfusion is complete, the patient is washed
out with the carrier agent alone to remove any trace of the
was randomly selected to receive the chemotherapy drug
oxaliplatin. Pursuant to the Wake Forest protocol, the
Hospital used a sugar water solution, called D5W, as the
carrier agent. Dr. Paul Mansfield, an M.D. Anderson surgical
oncologist, oversaw the procedure.
Hospital acknowledges, D5W can cause hyponatremia, a
condition that occurs when the body's blood sodium level
becomes too low. This drop in sodium levels causes the
body's water level to rise, which leads to swelling of
the cells. To counteract this electrolyte imbalance, the
Hospital administered an insulin and saline IV drip during
surgery. Despite these efforts, Courtney developed
hyponatremia following completion of the procedure. As a
result, she experienced swelling in her brain, which in turn
caused brain herniation. Courtney died from these injuries
two days after her surgery.
Courtney's death, her family sued the Hospital for
negligence. Specifically, the McKenzies alleged
that the Hospital was negligent in
misusing a fluid, tangible physical property, for
chemotherapy under circumstances where it was reasonably
obvious that it was not the appropriate fluid and posed a
significant risk of serious harm to the patient, including
the exact condition from which Courtney died.
McKenzies further alleged that the "conduct of MD
Anderson's employees that proximately caused
Courtney's death was misuse of tangible personal property
. . . for which the State of Texas has waived sovereign
support these claims, the McKenzies timely filed an expert
report prepared by Dr. David Miller, a board-certified
internal medicine specialist. See Tex. Civ. Prac.
& Rem. Code § 74.351 (requiring a health care
liability claimant to serve an expert report on each
defendant no later than 120 days after the date the
defendant's original answer is filed). Dr. Miller opined
that Courtney's death was caused, in reasonable medical
probability, by the "misuse of fluid that was perfused
into [her] body." He explained:
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.
[I]t is clear and in reasonable medical probability, that
this patient would not have died from brain herniation
secondary to hyponatremia secondary to intra-operative
complications as explained above had she not been perfused
with the wrong substance that led to hyponatremia and brain
herniation . . . . [T]he perfusion of a large volume of D5W
solution into a patient's abdominal cavity, regardless of
other circumstances and regardless of the reason for the
perfusion, exposes the patient to a risk of developing
hyponatremia and death from brain herniation.
Hospital filed a plea to the jurisdiction, asserting that the
Hospital is immune from suit. It argued that the McKenzies
failed to show waiver of immunity under the Tort Claims Act
because (1) the D5W was used by an independent contractor
(the perfusionist), not the Hospital, and (2) Courtney's
death was not foreseeable under the circumstances, so the
McKenzies could not show proximate cause. In support of its
plea, the Hospital attached the protocol documents
promulgated by Wake Forest, as well as the deposition
testimony of Dr. Miller and Dr. Mansfield.
a hearing, the trial court denied the Hospital's plea to
the jurisdiction. The Hospital then timely filed an
interlocutory appeal. See id. § 51.014(a)(8)
(authorizing an interlocutory appeal from an order that
grants or denies a plea to the jurisdiction by a governmental
unit). At the court of appeals, the Hospital again argued
that the D5W was used only by the third-party perfusionist
and not by Hospital employees. However, the Hospital
alternatively argued that the McKenzies' claims are not
for negligent use of property (for which immunity would be
waived), but rather are premised on errors in medical
judgment disguised as use of tangible personal property. The
court of appeals affirmed, holding that the "crux of
[the McKenzies'] allegations against [the Hospital]
involves more than complaints about medical judgment"
and that the McKenzies "alleged, and presented some
evidence, that [the Hospital] used D5W when it should not
have been used." 529 S.W.3d 177, 187 (Tex. App.-Houston
[14th Dist.] 2017).
proximate cause, the court of appeals held that the record
"contains evidence that D5W caused [Courtney's]
hyponatremia, which in turn caused her death."
Id. at 188. Specifically, the court of appeals cited
Dr. Mansfield's testimony that he knew D5W could cause a
patient's blood sodium level to decrease, and that he
expected such a drop to occur. Id. The court thus
concluded that a genuine issue of material fact exists as to
whether the use of the D5W proximately caused Courtney's
Court, the Hospital argues its immunity was not waived
because (1) the McKenzies failed to show that the Hospital
negligently "used" tangible personal property and
(2) Courtney's death as a result of the D5W's use was
unforeseeable. We will address each issue in turn.
Standard of Review
immunity generally protects municipalities and other state
subdivisions from suit unless the immunity has been waived by
the constitution or state law." City of Watauga v.
Gordon, 434 S.W.3d 586, 589 (Tex. 2014). A claim of
immunity is properly raised by a plea to the jurisdiction.
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 224 (Tex. 2004). The purpose of a plea to the
jurisdiction is to "defeat a cause of action without
regard to whether the claims asserted have merit."
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000). We review an appellate court's ruling on a
plea to the jurisdiction de novo. Miranda, 133
S.W.3d at 226.
Tort Claims Act waives the state's immunity for certain
negligent acts by governmental employees. See Tex.
Civ. Prac. & Rem. Code § 101.021. A party suing the
governmental unit bears the burden of affirmatively showing
waiver of immunity. See Tex. Dep't of Criminal
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). To
determine whether the party has met this burden, we may
consider the facts alleged by the plaintiff and the evidence
submitted by the parties. Tex. Nat. Res. &
Conservation Comm'n v. White, 46 S.W.3d 864, 868
(Tex. 2001). In doing so, we "construe the
plaintiff's pleadings liberally, taking all factual
assertions as true, and look to the plaintiff's
intent." Heckman v. Williamson County, 369
S.W.3d 137, 150 (Tex. 2012). "If the evidence raises a
fact question on jurisdiction," we cannot grant the
plea, "and the issue must be resolved by the trier of
fact." Univ. of Tex. at Austin v. Hayes, 327
S.W.3d 113, 116 (Tex. 2010). However, "if the evidence
is undisputed or fails to raise a fact question, the plea
must be granted." Id.
Use of Tangible Personal Property
Tort Claims Act waives immunity for:
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if:
(A)the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or
motor-driven equipment; and
(B)the employee would be personally liable to the claimant
according to Texas law; and
(2)personal injury and death so caused by a condition or use
of tangible personal or real property if the governmental
unit would, were it a private person, be liable to the
claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code § 101.021. Construing
section 101.021's substantively similar predecessor
statute, we have explained that waiver of immunity under
subsection (2) requires negligence or a wrongful act or
omission of an officer or employee acting within the scope of
his employment, where the negligent conduct "involve[s]
'some condition or some use' of tangible personal
property under circumstances where there would be private
liability." Salcedo v. El Paso Hosp.
Dist., 659 S.W.2d 30, 33 (Tex. 1983).
speaking, then, immunity may be waived when an employee (1)
furnishes property in a defective or inadequate condition
causing injury or (2) improperly uses otherwise non-defective
property to cause injury. See id. at 32. To
"use" property in this context means "to put
or bring [the property] into action or service; to employ for
or apply to a given purpose." San Antonio State
Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). A claim
of "mere non-use" is insufficient to waive
immunity; actual use is required. See Kerrville State
Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). Here,
the Hospital does not dispute that it actually used tangible
personal property. Rather, the issue presented in this case
is whether actual use of non-defective property is sufficient
to establish waiver where the complaint is not that the
property was administered incorrectly, but that it should not
have been used in the first place.
determining whether a plaintiff has stated a claim for use of
tangible personal property, we look to the true nature of the
dispute-a plaintiff may not expand the Act's limited
waiver through artful pleading. See Dallas Cty. Mental
Health & Mental Retardation v. Bossley, 968 S.W.2d
339, 343 (Tex. 1998) (holding that the "real substance
of plaintiffs' complaint [was] that [the patient's]
death was caused, not by the condition or use of property,
but by the failure of [the hospital's] staff to restrain
him" and thus was a claim of non-use for which immunity
was not waived); see also Kerrville, 923 S.W.2d at
585-86 (holding that the claim involved non-use because the
"gravamen" of the plaintiff's complaint was
that "a different form of treatment . . . would have
been more effective," not that the property that was
actually used caused any harm).
instant case, the McKenzies claim that the Hospital's
actual use of tangible personal property caused harm.
However, the Hospital argues that the gravamen of the
McKenzies' complaint is that the Hospital negligently
exercised its medical judgment, not that it
negligently used property. That is, because the McKenzies do
not complain about the manner in which the Hospital
administered the D5W-but instead allege that the decision to
use the D5W in the first place was improper-this is a claim
regarding medical judgment, and the Tort Claims Act does not
waive immunity for such claims. The dissent similarly opines
that "[b]ecause the McKenzies' negligence claim
centers on [the Hospital's] decision to use D5W . . .
[and] not the manner in which [the Hospital] administered the
D5W," the alleged error is one of medical judgment for
which immunity is not waived. Post at .
neither the dissent nor the Hospital offers an explanation
grounded in the Tort Claims Act's language to support
this assertion. The Act does not narrow the definition of use
to encompass only the manner of administration, nor does it
limit the scope of the waiver to "use" that is not
preceded by medical judgment. See Cowan, 128 S.W.3d
at 246 (explaining that the ordinary meaning of
"use" is "to put or bring into action or
service; to employ for or apply to a given purpose").
The suggestion that "use" of property transforms
into medical judgment so long as the property is administered
correctly simply is not supported either by the statute's
plain language or, as discussed below, by our precedent.
such, we disagree with the Hospital's characterization of
the McKenzies' claims as being unrelated to its use of
property. While the McKenzies do not allege the D5W was
administered incorrectly during surgery, they do allege that
the Hospital was negligent in using the D5W in the first
instance "under circumstances where it was reasonably
obvious that it was not the appropriate fluid and posed a
significant risk of serious harm." In other words, the
McKenzies complain about the Hospital's use of property
under circumstances where it (1) should not have been used at
all and (2) caused harm. This is as much a claim for
negligent use of property as a claim that the D5W was
improperly administered would have been. That the subsequent
administration followed protocol does not somehow negate any
negligence in using the property in the first place.
we have never addressed the issue directly, we have indicated
that the use of medication that is improper under the
circumstances and causes harm constitutes negligent
"use" under the Tort Claims Act. See Kerrville
State Hosp., 923 S.W.2d at 584. Although
Kerrville involved the distinction between use and
non-use of property, we nevertheless find it instructive. In
that case, we were asked to determine whether immunity was
waived for a claim involving the hospital's dispensing an
oral, rather than injectable, form of medication to a
patient. Id. In holding that immunity was not
waived, we focused on the fact that the plaintiffs had
neither alleged nor presented evidence that the oral form of
medication provided caused any harm. Id. at 585. We
concluded that "the gravamen of their complaint [was]
that [the hospital's] non-use of an injectionable drug
was the cause of" the harm. Id. This
distinction-that the property actually used (the oral form of
the drug) did not cause the injury at issue-is what rendered
the waiver for injuries caused by the use of tangible
personal property inapplicable. See
contrast, here the McKenzies allege and have presented
evidence that the Hospital used property (the D5W) that
should not have been used and that the D5W is what
harmed Courtney. Under our reasoning in Kerrville,
this is sufficient to waive immunity. See Univ. of Tex.
M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d 145, 149
(Tex. App.-Houston [14th Dist.] 2016, pet. denied) (holding
that immunity was waived for a claim that the hospital
negligently prescribed and dispensed a drug that should not
have been provided to the patient due to her history with
depression); see also Wise Reg'l Health Sys. v.
Brittain, 268 S.W.3d 799, 805-07 (Tex. App.- Fort Worth
2008, no pet.) (holding that immunity was waived for a
patient's claims that nurses administered medication when
they should not have done so).
Hospital relies extensively on Kamel v. University of
Texas Health Science Center at Houston for the
proposition that this case concerns only a medical decision
that is insulated from suit. 333 S.W.3d 676, 679 (Tex.
App.-Houston [1st Dist.] 2010, pet. denied). In
Kamel, a patient underwent surgery to remove an
accumulation of fluid around his testicle. Id.
However, during the surgery, the doctor decided to remove the
testicle altogether because he believed it was cancerous.
Id. Tests later revealed that the doctor was wrong;
the testicle was not cancerous. Id. The patient sued
and alleged that immunity was waived because the doctor
"negligently used tangible personal property, namely a
scalpel, scissors, and/or other surgical instruments to
negligently . . . remov[e] plaintiff's right
testicle." Id. at 680. The court of appeals
held that the true nature of the patient's claim was not
that the surgical instruments were defective or used
improperly, but that the doctor made an erroneous medical
judgment in removing the testicle. Id. at 686.
Importantly, the injury would have occurred regardless of the
method used-i.e., whether the surgeon used "a scalpel,
scissors . . . or other surgical instrument" to remove
the testicle. Id. at 680, 686. Accordingly, the
patient's claims did not fall within section
101.021(2)'s limited waiver. Id. at 686.
we agree that a complaint about medical judgment, without
more, is insufficient to waive immunity, the negligence
alleged here does not involve only medical judgment. In this
regard Kamel is distinguishable. There, the
negligence complained of was the surgeon's decision to
remove the testicle, not his choice of property to accomplish
that task. Indeed, as stated above, the injury-removal of the
non-cancerous testicle-would have occurred regardless of the
method or instrument used to carry out that decision. That
is, the fact that some form of tangible personal property had
to be used to effectuate the improper medical decision is
simply not relevant; it was the decision itself, regardless
of whether property was used or whether it was administered
properly, that caused the injury. See id.; see
also Univ. of Tex. Health Sci. Ctr. at Tyler v. Smith,
No. 12-18-00270-CV, 2019 WL 1960251, at *4 (Tex. App.-Tyler
Apr. 30, 2019, no pet.) (mem. op.) (finding no waiver where
the patient's complaint was not that the surgical
instrument was used incorrectly, but that removal of her
gallbladder was unnecessary).
contrast, the negligence complained of in this case is that
the Hospital's use of a specific carrier agent was
improper under the circumstances and caused harm; absent the
use of that particular carrier agent, the injury would not
have occurred. See Hopkins v. Spring Indep. Sch.
Dist., 706 S.W.2d 325, 327 (Tex. App.-Houston [14th
Dist.] 1986) (noting that waiver has been found "when
the injuries are alleged to have proximately resulted from
the negligent use of property in some respect deficient or
inappropriate for the purpose for which it was used"),
aff'd, 736 S.W.2d 617 (Tex. 1987). In other
words, it was the use itself that caused the injury, and the
fact that the property was administered properly or that the
use of the D5W was preceded by medical judgment does not
affect the analysis.
distinction is further illustrated in University of Texas
M.D. Anderson Cancer Center v. Jones. 485 S.W.3d at
147-49. In that case, a patient participated in a
hospital's smoking cessation study designed to test the
efficacy of two medications, Chantix and Zyban, to help
people quit smoking. Id. at 147. Both medications
carried possible side effects, including depression and
suicidal ideation. Id. Before participating in the
study, the patient disclosed that she had previously
struggled with depression. Id. The hospital
nonetheless accepted the patient into the study and
instructed her to take the drug Chantix. Id. After a
few weeks of taking the drug as directed, the patient
attempted suicide and suffered permanent nerve and renal
damage as a result. Id.
patient filed suit against the hospital and alleged that her
injuries were caused by the hospital's "negligently
screening her, admitting her into the study, and prescribing
and dispensing Chantix when it knew or should have known that
she should not be given the drug due to her history of
depression." Id. at 148. In response, the
hospital claimed the patient failed to establish waiver under
section 101.021(2) because the true nature of her allegations
was that the hospital negligently exercised its medical
judgment when it allowed her to participate in the study.
Id. at 148-49. The court of appeals disagreed,
holding that although the patient "include[d]
allegations of negligent medical judgment . . . in her
pleadings, she also allege[d] that the consequence of those
errors was the negligent prescribing and dispensing of a drug
that caused her injuries." Id. In other words,
the Jones patient did not merely challenge the
hospital's judgment in screening her; she challenged the
hospital's dispensing of medication that allegedly should
not have been provided to her at all and caused her injury.
here, the McKenzies allege that the Hospital should never
have used the D5W as a carrier agent given the large doses
required for the HIPEC procedure. The fact that the use of
the agent was preceded by a medical professional's
decision to do so is of no consequence given that virtually
every action (or inaction) taken by a medical professional is
preceded by medical judgment. The key is that while medical
judgment was involved, it led to the use of property that was
allegedly improper under the circumstances and caused harm.
This is sufficient to establish waiver under the Tort Claims
Act, as any other reading would effectively write the
use-of-property waiver out of the statute.
Hospital further insists that because the McKenzies do not
complain about how the D5W was administered-only that is was
used at all-this is a case of "mere involvement" of
tangible personal property that is insufficient to waive
immunity. See Bossley, 968 S.W.2d at 343. However,
in the cases from which the Hospital extracts this language
we were explaining that the "requirement of
causation is more than mere involvement."
See id. (emphasis added) (holding that a
patient's death "was caused, not by the condition or
use of property" but by the hospital's failure to
restrain the patient); see also Miller, 51 S.W.3d at
588 (holding that while the governmental unit used various
drugs while treating a patient, the use of these drugs did
not cause his injury). In other words, a plaintiff cannot
invoke waiver merely by alleging use of tangible personal
property; the use of the property must also cause his injury.
However, this well-settled proposition does not affect our
analysis here. No one contends that the Hospital's use of
a stethoscope during Courtney's treatment waived its
immunity, because no one contends that the use of this
instrument was causally related to Courtney's death.
Rather, the carrier agent allegedly caused the injury.
the Hospital argues that allowing waiver for the
McKenzies' claims would "effectively eliminate the
State's sovereign immunity in claims challenging medical
judgment" and thus "expose the State to
considerable liability, given the countless medical decisions
that take place every day involving non-negligent use of
tangible property." The dissent echoes this assertion,
contending that our decision renders the sovereign immunity
doctrine a "nullity." Post at (quoting
Kerrville, 923 S.W.2d at 586).
floodgate argument is unsupported and paints our holding in
overly broad strokes. As our jurisprudence demonstrates, not
every tort claim involving medical providers will arise from
the improper use of tangible personal property that causes
harm. See, e.g., Univ. of Tex. Med. Branch at
Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994)
(holding that immunity is not waived for negligence involving
the use, misuse, or nonuse of information in a patient's
medical record); see also Kerrville, 923 S.W.2d at
586 (holding that the alleged failure to prescribe a specific
form of medication is not "use"). As discussed, a
patient cannot merely allege that a medical provider used
tangible personal property during treatment; the patient must
also demonstrate that the use of the particular property at
issue was both improper under the circumstances and caused
injury. See Miller, 51 S.W.3d at 588 (holding that
immunity was not waived because "[n]either the drugs nor
the treatment afforded" to the inmate "actually
cause[d] his death," as the inmate's condition
became fatal due to the doctor's incorrect diagnosis);
Kamel, 333 S.W.3d at 686 (finding no waiver for
negligent removal of a testicle where the negligent
conduct-the decision to remove the non-cancerous testicle-was
unrelated to the property used to carry out that decision).
Causation is key because it forecloses the flood of liability
the dissent fears will ensue.
contrary, it is the dissent's interpretation that has
overly broad implications and renders section 101.021(2)
largely useless. The dissent agrees with the Hospital that
for immunity purposes, we must separate the decision
to use particular property from the subsequent physical
manipulation of the property. That is, the dissent would hold
that causing harm by improperly administering the right
property does not involve medical judgment and thus
constitutes negligent or wrongful use of property under the
Act's use waiver, while causing harm by properly
administering the wrong property does involve medical
judgment and thus cannot be negligent use under the Act.
Post at . We fail to see the textual basis for that
we recently rejected a similar categorical analysis in
Tarrant Regional Water District v. Johnson. 572
S.W.3d 658 (Tex. 2019). In that case, we applied the Tort
Claims Act's discretionary function exception, under
which the government retains immunity for claims involving
discretionary decisions. Id. at 664-65; Tex. Civ.
Prac. & Rem. Code § 101.056. The court of appeals
applied a strict "design versus maintenance"
approach that had developed in our jurisprudence with respect
to the exception, wherein anything on the "design"
side of the line would be covered by the exception and
anything on the "maintenance" side would not.
Johnson, 572 S.W.3d at 665. While we recognized that
"[those] labels provide useful conceptual frameworks
that aid courts and litigants in the application of the
rather obscure text" of the Tort Claims Act, we
ultimately concluded that this "design versus
maintenance" framework was "not an element of the
statute"; accordingly, the court of appeals'
"[n]arrow consideration of whether the claim involve[d]
a design function or a maintenance function" could not
displace the statute's "textual touchstone:
'discretion.'" Id. at 665, 667-68.
Similarly here, the Hospital's and the dissent's
proposal-that "use" transforms into medical
judgment when the property is administered properly but
nevertheless causes harm-adds language to section 101.021
that does not appear anywhere in its text. Our analysis must
be driven not by the Hospital's creative labeling, but by
the provision's "textual touchstone":
we reiterate that the issue before us today is immunity,
not liability. The Hospital's compliance with
the applicable standard of care has no bearing on our
analysis. We are called upon only to determine whether,
looking at the gravamen of the plaintiffs' complaint, a
fact issue exists regarding whether Courtney's injury was
proximately caused by the Hospital's "use" of
tangible personal property. For the reasons discussed, we
hold that the McKenzies' claim against the Hospital is
not premised solely on the exercise of medical judgment for
which immunity would not be waived. Rather, the McKenzies
adequately alleged that the Hospital used property that was
improper under the circumstances and that such use caused
harm. This constitutes a claim for which section 101.021(2)
Proximate Cause: Foreseeability
Hospital next argues that, even if the McKenzies have
adequately alleged negligent use of property, the Hospital
retains its immunity because the record evidence establishes
as a matter of law that the use of D5W did not proximately
cause Courtney's death. City of Dallas v.
Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (explaining
that to establish waiver under section 101.021(2), the
condition or use of the property must be a proximate cause of
the injury). Proximate cause has two components: cause in
fact and foreseeability. Id. Because proximate cause
is ultimately a question for the factfinder, on a plea to the
jurisdiction we need only determine whether the evidence
creates a fact question regarding the causal relationship
between the use of property and the resulting injury.
Ryder Integrated Logistics, Inc. v. Fayette County,
453 S.W.3d 922, 929 (Tex. 2015).
Hospital does not dispute that the D5W was a cause in fact of
Courtney's death, arguing only that proximate cause is
lacking because Courtney's death was not a foreseeable
result of using the D5W. The Hospital advances two
arguments that it claims foreclose foreseeability: (1)
Courtney's death was a "possibility" but was
not "predictable" and (2) the precautions taken to
prevent Courtney from developing hyponatremia rendered any
risk of death unforeseeable. Essentially, the Hospital
contends that Courtney's death was unforeseeable because
it was unlikely. We disagree.
making its argument, the Hospital relies almost exclusively
on an excerpt from the deposition of the McKenzies'
expert, Dr. Miller, in which he stated that he did not think
Courtney's death was foreseeable. However, this answer is
divorced from its context. The entirety of Dr. Miller's
testimony on this issue is as follows:
Q: Based on that statement [in the Hospital's expert
witness designation], you believe that Courtney's death
at M.D. Anderson was foreseeable to the doctors there?
A: Oh I don't think [it was] foreseeable. I think that
with her - the use of that amount of sugar water, that it was
a possibility; but I don't think it was predictable.
Q: They didn't expect her to die?
A: No. Not -
Q: But it was definitely a risk?
A: It was a risk, yes, or severe neurological damage,
permanent - permanent damage.
Q: And according to [the expert witness designation], they
were well aware of that risk?
Miller's testimony is consistent with his expert report,
in which he repeatedly explained how and why death can result
from hyponatremia. First, Dr. Miller opined that the
Hospital's use of the D5W breached the relevant standard
of care because it "expose[d] the patient to the danger
of developing hyponatremia and death [by] creat[ing] a
situation where the patient's body is subjected to an
imbalance of sodium . . . causing edema that is critical in
the area of the brain and causes death." Dr. Miller then
opined that this breach caused Courtney's death because
"the perfusion of a large volume of D5W solution into a
patient's abdominal cavity, regardless of other
circumstances . . . exposes the patient to a risk of
developing hyponatremia and death from brain
herniation." Thus, it is clear that, in Dr. Miller's
expert opinion, a recognized consequence of hyponatremia is
serious neurological damage or death, and that Courtney's
death was in fact caused as a result of her developing this
the testimony of Dr. Mansfield, the surgical oncologist who
performed the procedure, draws the same causal link as the
Q: What condition did [Courtney] have that led to her brain
A: She had cerebral edema.
Q: Okay. What caused [that]? . . . .
A: It was a result of her hyponatremia.
later point in his deposition, Dr. Mansfield again confirmed
that there was "no question" that Courtney died of
a brain herniation secondary to hyponatremia. He also
admitted that the D5W caused her hyponatremia and that D5W is
known to create electrolyte abnormalities- abnormalities that
would not have resulted had a saline solution been used.
does not necessarily equate to predictability. Rather,
"foreseeability" means that the actor should have
reasonably anticipated the dangers that his negligent conduct
created for others. Travis v. City of Mesquite, 830
S.W.2d 94, 98 (Tex. 1992); see also Ryder, 453
S.W.3d at 929. It "does not require that a person
anticipate the precise manner in which injury will occur once
he has created a dangerous situation through his
negligence." Travis, 830 S.W.2d at 98. It
requires only that "the general danger, not the exact
sequence of events that produced the harm, be
foreseeable." Walker v. Harris, 924 S.W.2d 375,
377 (Tex. 1996); see also Ryder, 452 S.W.3d at 929
(holding that the "injury [must] be of such a general
character as might reasonably have been anticipated").
Accordingly, the plaintiff need not always show that his
particular injury has occurred before in order to create a
fact question on foreseeability. See Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985) (holding that
evidence of previous sexual assaults was not necessary to
create a fact issue on foreseeability and that a history of
other violent crimes in the area was sufficient).
while the McKenzies' expert stated that he did not think
Courtney's death was predictable, he also testified that
the risks associated with ...