Appeal from the 122nd District Court Galveston County, Texas
Trial Court Cause No. 16-CV-1419
consists of Justices Christopher, Wise, and Hassan.
medical-malpractice wrongful-death case, the University of
Texas Medical Branch at Galveston ("UTMB")
challenged the trial court's jurisdiction on the ground
that appellee Jayson Crawford's claims do not fall within
the Texas Tort Claims Act's waiver of immunity from suit
for personal injury and death proximately caused by the use
of tangible personal property. See Tex. Civ. Prac.
& Rem. Code Ann. § 101.021(2). Because the gravamen
of Crawford's complaint is that the diagnosis and
treatment of decedent Tracy Crawford were delayed by
UTMB's negligent failure to obtain and act upon
intangible information, the trial court reversibly erred in
denying UTMB's plea and motion to dismiss. We further
conclude that no repleading can bring the claims within the
Act's ambit. We therefore reverse the trial court's
denial of UTMB's plea to the jurisdiction and remand the
case with instructions to dismiss the claims against UTMB.
Crawford presented to UTMB's emergency room at around
9:30 a.m. complaining of chest pain and shortness of breath
that began "just prior" to her arrival. She was
placed under the care of Drs. Wakili Yarima and Jonathan
Soto, and an electrocardiogram was immediately performed,
with normal results. Dr. Soto ordered a blood test to
determine the level of the muscle protein troponin in
Tracy's blood. A blood sample was drawn at 10:00 a.m.,
and when the lab reported the results forty-five minutes
later, Tracy's troponin level was normal. A note on the
lab report states, "Cardiac troponin begins to rise 3-4
hours after the onset of ischemia. Repeat in 4-6 hours if the
sample was drawn within 3-4 hours of the onset of the symptom
and found normal."
x-ray also did not reveal the cause of Tracy's pain, and
doctors began ruling out other non-cardiac causes.
Tracy's urine tested negative for drugs,  and an abdominal
scan did not explain her symptoms.
pain continued, and at 4:17 p.m., Dr. Yarima ordered another
troponin test. The blood sample was collected twenty minutes
later, but before the laboratory reported the results, Tracy
underwent a second electrocardiogram, which revealed her
acute myocardial infarction. Tracy was taken to the cardiac
catheterization lab at around 5:45 p.m., and about twenty
minutes later, the laboratory analyzing Tracy's most
recent blood sample reported that she had extremely elevated
cardiac catheterization showed that Tracy's proximal
anterior descending artery was completely blocked. Doctors
removed the clots and placed a stent, but two days later, the
damage to her heart had progressed to the point of
cardiogenic shock. She died five days later from multiple
husband Jayson, individually and on behalf of Tracy's
estate, sued Dr. Yarima and UTMB for medical
malpractice. He alleged that UTMB was negligent
"[i]n its misuse of the tangible personal property,
specifically the troponin tests," and in "failing
to diagnose and treat the myocardial infarction in a timely
manner using tangible property, which would have ultimately
saved her life." UTMB filed a combined plea to the
jurisdiction and motion to dismiss on the ground that
Jayson's claims did not fall within the Texas Tort Claims
Act's waiver of sovereign immunity from suit for injuries
and deaths caused by the use of tangible personal
property. According to UTMB, Jayson's claims
were really about the use of medical judgment and the failure
to collect and use diagnostic information. Jayson argued in
response and on appeal that UTMB caused Tracy's death by
misusing her blood.
trial court denied UTMB's plea to the jurisdiction and
motion to dismiss, and UTMB timely filed this interlocutory
Standard of Review
waived or abrogated, sovereign immunity shields the state and
its agencies from a lawsuit for damages by depriving the
trial court of subject-matter jurisdiction. See Univ. of
Hous. v. Barth, 403 S.W.3d 851, 853 (Tex. 2013) (per
curiam) (dismissing case for lack of subject-matter
jurisdiction where sovereign immunity was not waived);
Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d
468, 476 (Tex. 2012) (sovereign immunity applies to lawsuits
for damages). The plaintiff bears the burden to establish the
trial court's jurisdiction. See Heckman v. Williamson
County, 369 S.W.3d 137, 150 (Tex. 2012).
the trial court has subject-matter jurisdiction is a question
of law that can be challenged by a plea to the jurisdiction.
See Suarez v. City of Texas City, 465 S.W.3d 623,
632 (Tex. 2015). We review the trial court's ruling on a
plea to the jurisdiction by determining whether the
plaintiff's pleadings, construed in the plaintiff's
favor, allege facts sufficient to affirmatively demonstrate
the trial court's jurisdiction over the claim. See
Hearts Bluff, 381 S.W.3d at 476. If relevant to the
jurisdictional issue, we also consider the evidence submitted
by the parties. Tex. Nat. Res. Conservation Comm'n v.
White, 46 S.W.3d 864, 868 (Tex. 2001). In performing our
review, "we look to the true nature of the dispute"
rather than the plaintiff's characterization of the
claims. Univ. of Tex. M.D. Anderson Cancer Ctr. v.
McKenzie, 578 S.W.3d 506, 513 (Tex. 2019); see also
Univ. of Tex. Med. Branch at Galveston v. Kai Hui Qi,
402 S.W.3d 374, 389 (Tex. App.-Houston [14th Dist.] 2013, no
pet.). If the plaintiff's pleadings affirmatively negate
jurisdiction or are incurably defective, then the court may
grant the plea to the jurisdiction without giving the
plaintiff the opportunity to amend. See Heckman, 369
S.W.3d at 150; Univ. of Tex. M.D. Anderson Cancer Ctr. v.
King, 329 S.W.3d 876, 879-80 (Tex. App.-Houston [14th
Dist.] 2010, pet. denied).