                    NUMBER 13-18-00485-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION D/B/A
CHRISTUS HOSPITAL CORPUS
CHRISTI-SHORELINE,                                      Appellant,

                                v.

JAMIE DANIEL GRACIA AND
RACHEL GRACIA,                                          Appellees.


              On appeal from the 214th District Court
                    of Nueces County, Texas.



                 MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
         This is an interlocutory appeal from an order denying appellant Christus Spohn

Health System Corporation d/b/a Christus Hospital Corpus Christi-Shoreline’s (Spohn)

plea to the jurisdiction. We reverse and render judgment dismissing the case.

                                        I.      BACKGROUND

         Appellees Jamie Daniel Gracia and Rachel Gracia brought a health care liability

claim against Spohn 1 alleging negligence in the post-surgical care and treatment of

Jamie.      Spohn filed a plea to the jurisdiction asserting that it is a “hospital district

management contractor.” See TEX. HEALTH & SAFETY CODE ANN. § 285.071. Spohn

argued that as a hospital district management contractor, it is entitled to governmental

immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3). Spohn urged that the

Gracias failed to prove that their claims fell within the waiver of immunity under the Texas

Tort Claims Act (TTCA) and as such, Spohn is entitled to dismissal. See id. § 101.021.

The Gracias filed their response in opposition to Spohn’s plea to the jurisdiction arguing

that Spohn’s contract with Nueces County Hospital District (NCHD) did not include

operation of the Christus Hospital Corpus Christi-Shoreline (Shoreline) hospital, where

Jamie received his care.

         After hearing argument and reviewing the evidence attached to each parties’

pleadings, the trial court denied the plea to the jurisdiction. This interlocutory appeal

followed.

                                 II.     PLEA TO THE JURISDICTION

A.       Standard of Review and Applicable Law


        1 Appellees’ original petition also included claims against Patience Sterner McKeever, as Personal

Representative and Administrator of the Estate of Clark Dickson McKeever, M.D.; Clark D. McKeever, M.D.,
P.A.; and McKeever Clinic, P.L.L.C. The appellees have settled their claims with these defendants, and
they are not parties to this appeal.

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       The question of whether a party is entitled to governmental immunity implicates

the trial court’s subject matter jurisdiction. See Harris Cty. Hosp. Dist., v. Tomball Reg’l

Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Whether a trial court has subject matter jurisdiction over a

claim is a question of law that this Court reviews de novo. Tomball, 283 S.W.3d at 842.

       Spohn argues that its contractual relationship with NCHD entitles it to immunity

pursuant to §§ 285.071 and 285.072 of the health and safety code. TEX. HEALTH & SAFETY

CODE ANN. §§ 285.071, 285.072. It is undisputed that hospital districts are governmental

units entitled to immunity, and individuals filing suit against a hospital district must comply

with the notice requirements for filing suit against a governmental unit under the

TTCA. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3); Martinez v. Val Verde Cty. Hosp.

Dist., 140 S.W.3d 370, 371 (Tex. 2004). Section 285.071 of the health and safety code

defines a “hospital district management contractor” as a “nonprofit corporation,

partnership, or sole proprietorship that manages or operates a hospital or provides

services under contract with a hospital district that was created by general or special

law.” TEX. HEALTH & SAFETY CODE ANN. § 285.071. The statute also states that:

       A hospital district management contractor in its management or operation
       of a hospital under a contract with a hospital district is considered a
       governmental unit for purposes of Chapters 101, 102, and 108, Civil
       Practice and Remedies Code, and any employee of the contractor is, while
       performing services under the contract for the benefit of the hospital, an
       employee of the hospital district for the purpose of Chapters 101, 102, and
       108, Civil Practice and Remedies Code.

Id. § 285.072; see also Christus Spohn Health Sys. Corp. v. Ven Huizen, No. 13-10-

00400-CV, 2011 WL 1900174, at *2–3 (Tex. App.—Corpus Christi–Edinburg May 19,

2011, pet. denied) (mem. op.).



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B.     Analysis

       1.     Entitlement to Immunity

       An entity must satisfy three requirements to achieve status as a “hospital district

management contractor” under the statute. TEX. HEALTH & SAFETY CODE ANN. § 285.071.

First, the entity must be a non-profit corporation, partnership, or sole proprietorship. Id.

Second, the entity must manage or operate a hospital or provide services under a contract

with a hospital district. Id. Third, the hospital district must have been created by general

or special law. Id.

       There is no dispute that Spohn presented uncontroverted evidence that it is a

Texas non-profit corporation, meeting the first requirement.           As to the second

requirement, the evidence presented in support of Spohn’s plea to the jurisdiction

included an affidavit of Jonny F. Hipp, the Administrator/Chief Executive Officer of NCHD.

He stated that, in 1996, NCHD and Spohn entered into a master agreement and a lease

agreement whereby Spohn agreed to operate and manage NCHD’s hospitals. Per the

1996 master agreement, attached to Spohn’s motion, the term “hospitals” did not include

Shoreline. According to Hipp, the 1996 master agreement was amended four times

between 1996 and 2012, and the lease agreement was amended twice between 1996

and 2012.

       In conjunction with the master agreement and the lease agreement, Spohn and

NCHD also entered into an indigent care agreement, wherein Spohn is recognized as the

exclusive provider of medical aid and hospital care to the indigent residents of Nueces

County.     Hipp averred that the NCHD Indigent Health Care Program Handbook is

referenced in the indigent care agreement, and that the handbook designates the



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hospitals “as providers for inpatient, outpatient, and emergency care,” collectively referred

to as “the Nueces County Facilities,” to include Shoreline.

       In 2012, NCHD and Spohn entered into a membership agreement wherein the

master agreement, lease agreement, and indigent care agreement were all terminated.

The membership agreement provided that:

       [T]he parties determined that it is in their mutual interest to transition to a
       joint membership structure of [CHRISTUS Spohn Health System
       Corporation (Spohn)] by CHRISTUS Health and [NCHD], such that
       CHRISTUS Health and [NCHD] will be Members of Spohn, consistent with
       the related amended organizational documents of Spohn and the continued
       operation of Spohn as the public, safety-net hospital in Nueces County,
       Texas.

       ...

               WHEREAS, Spohn serves as the public, safety-net hospital in
       Nueces County, Texas by providing care to the low-income and indigent
       population in Nueces County at the CHRISTUS Spohn Hospital Corpus
       Christi–Memorial, CHRISTUS Spohn Hospital Corpus Christi–Shoreline
       and CHRISTUS Spohn Hospital Corpus Christi–South hospital facilities
       (these Spohn hospital facilities along with the clinics, medical offices, and
       other health care facilities on the campuses of or affiliated with such Spohn
       hospital facilities that share common Medicare and Medicaid provider
       agreements are collectively referred to herein as the “Nueces County
       Facilities”) consistent with the provisions set forth in [Chapter 281 of the
       Texas Health and Safety Code], the Indigent Health Care Act, and in
       accordance with the [Indigent Care Agreement] and [NCHD’s] policies.

       Spohn argues that the membership agreement provides for Spohn’s operation and

management of Shoreline as a hospital district management contractor. The Gracias,

however, respond that Shoreline was owned and operated by Spohn prior to any

agreements with NCHD, and that the membership agreement does not alter that

ownership right. Their argument is that Shoreline “cannot somehow become operated

pursuant to an agreement where there is no change in its operation.” Specifically, they




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contend that Spohn is not a hospital district management contractor because its operation

of Shoreline was not “exclusively pursuant to its contract with [NCHD].”

       The statute states that a “hospital management contractor . . . provides services

under a contract with a hospital district . . . .” TEX. HEALTH & SAFETY CODE ANN. § 285.072

(emphasis added); see also Ven Huizen, 2011 WL 1900174, at *6. There is nothing in

the statute that states that a hospital management contractor cannot own the hospital that

is being operated under the contract in order to come within the purview of the statute.

The Gracias assert that Spohn’s ownership and operation of Shoreline, before and after

the contract between Spohn and NCHD was entered into, means that Spohn did not

operate or manage Shoreline “under a contract” with NCHD as required by the statute.

See TEX. HEALTH & SAFETY CODE ANN. § 285.072. The Gracias do not cite authority

establishing that Spohn cannot own Shoreline and simultaneously operate it under a

contract with NCHD. Instead, Spohn established that there were contracts in existence

between Spohn and NCHD that vested Spohn with the duty and responsibility of

assuming sole control of the management of Shoreline. See id.; see also Ven Huizen,

2011 WL 1900174, at *5.

       The Gracias also argue that Spohn’s contract with NCHD to provide indigent care

to residents of Nueces County, including at Shoreline, does not extend to the services

provided to Jamie. Jamie was not an indigent patient, and therefore, the Gracias urge

that his care does not fall within the contracted services between Spohn and NCHD. We

have previously declined to make an exception to the statute with respect to the treatment

of indigent and non-indigent patients in stating that

       [t]here is nothing in the plain language of the statute that delineates between
       the types of care received at a hospital that is being managed for the

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      hospital district. The record shows that Spohn was solely responsible for
      managing, operating and providing services at Memorial to both indigent
      and non-indigent patients. We see no language excepting those patients
      who pay for their care from the statute, and it is not our province to create
      such an exception when the statutory language is not ambiguous or unclear.

Ven Huizen, 2011 WL 1900174, at *8. Here, according to the evidence, Spohn is solely

responsible for the management, operation, and services provided at Shoreline,

consistent with its contract with NCHD. As such, Spohn established its right to immunity

pursuant to §§ 285.071 and 285.072. See id.

      2.        Waiver of Immunity

      Spohn argues that the Gracias did not plead any claims that would come within

the purview of the TTCA’s waiver of immunity. The only relevant provision of the TTCA

is § 101.021(2), which states that a governmental entity is liable for personal injury and

death caused by a condition or use of tangible personal or real property if the government

would be liable to a claimant if it were a private person. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021(2). The Gracias pleaded that Spohn and nurses were negligent by failing

to recognize, report, or timely treat Jamie’s post-operative bleeding, causing Jamie’s

global hypo-perfusion. They did not plead that the injuries were caused by the condition

or use of tangible personal or real property. The failure to properly assess a patient’s

condition is not a claim based on the use of tangible personal or real property. See

Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 468 (Tex. App.—Corpus Christi–Edinburg

2001, no pet.); see also Ven Huizen, 2011 WL 1900174, at *9. As such, the Gracias did

not establish that Spohn’s immunity was waived. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.021(2).

      3.        Opportunity to Amend Pleadings



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      Having determined that the Gracias failed to state a claim for which Spohn’s

sovereign immunity is waived, this Court must decide whether the Gracias’s petition is

incurably defective or whether it may be amended to allege a cause of action within the

trial court’s jurisdiction. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002);

Kelso v. Gonzales Healthcare Sys., 136 S.W.3d 377, 383 (Tex. App.—Corpus Christi–

Edinburg 2004, no pet.). Claims that are incurably defective or affirmatively negate the

existence of jurisdiction may be dismissed without allowing the plaintiff an opportunity to

amend. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

      The Gracias contend that they should be given an opportunity to amend their

pleadings “to allege additional facts regarding the care in the post anesthesia care unit

which involved the use of tangible personal property.” The Gracias do not provide any

additional information about what, if any, tangible personal property may have been used.

Their live pleading alleged negligence based on the “acts and omissions” of Spohn and

its nurses. No allegation in their pleadings references the use of any tangible personal

property. Accordingly, these allegations are incurably defective; the Gracias cannot cure

them by pleading more detailed facts. See id. at 840; Univ. of Texas M.D. Anderson

Cancer Ctr. v. King, 329 S.W.3d 876, 880–81 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied); see also Univ. of Texas at Brownsville v. Ramos, No. 13-11-00302-CV, 2012 WL

256137, at *7 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2012, pet. denied) (mem.

op.). Consequently, no purpose would be served by remanding these claims to the trial

court. See Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006).




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       Spohn’s sole issue is sustained. 2

                                       III.    CONCLUSION

       The order of the trial court denying Spohn’s plea to the jurisdiction is reversed

and we render judgment dismissing this case. See TEX. R. APP. P. 43.2(c).




                                                                      NORA L. LONGORIA
                                                                      Justice
Delivered and filed the
26th day of August, 2019.




       2 Because we have found that Spohn did not waive its sovereign immunity, we need not address
the issue of notice under the TTCA as raised by the Gracias in their appellate brief. See Cervantes v.
McKellar, 424 S.W.3d 226, 237 (Tex. App.—Texarkana 2014, no pet.).

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