Opinion issued August 30, 2012




                                  In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-11-01105-CV
                         ———————————
 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                        Appellant
                                    V.
 LOLA TATUM, INDIVIDUALLY AND AS NEXT FRIEND OF DWIGHT
   TATUM, SANDY TATUM, LOLA PRISCILLA TATUM, DWIGHT
         TATUM, JR., AND DWAYNE TATUM, Appellees



                 On Appeal from the 212th District Court
                        Galveston County, Texas
                    Trial Court Case No. 10-CV-1877


                       OPINION ON REHEARING

     Appellees, Lola Tatum, individually and as next friend of Dwight Tatum,

Sandy Tatum, Lola Priscilla Tatum, Dwight Tatum, Jr., and Dwayne Tatum
(collectively, “the Tatums”), filed a motion for rehearing of our June 21, 2012

opinion. We deny the Tatums’ motion for rehearing, withdraw our opinion and

judgment of June 21, 2012, and substitute this opinion and judgment in their place.

      The Tatums sued appellant, The University of Texas Medical Branch at

Galveston (“UTMB”), for medical malpractice for the loss of a bone flap removed

from Dwight Tatum’s skull. UTMB filed a plea to the jurisdiction and motion to

dismiss arguing that the Tatums failed to establish waiver of immunity under the

Texas Torts Claim Act, and the trial court denied the plea. In two issues on appeal,

UTMB argues that (1) the Tatums’ claims do not involve the use of tangible

personal property and (2) the Tatums failed to plead and prove personal injuries

proximately caused by a condition or use of tangible personal property.

      We reverse and render judgment dismissing the suit against UTMB for lack

of subject-matter jurisdiction.

                                   Background

      In July 2008, Dwight Tatum fell and hit his head, causing swelling of his

brain. UTMB physicians performed a craniotomy to remove a bone flap from

Dwight’s skull to relieve the pressure on his brain caused by the swelling. In

September 2008, Galveston Island, where UTMB is located, suffered extensive

flooding and loss of power as a result of Hurricane Ike. In May 2009, Dwight’s

swelling had subsided and physicians decided to perform a cranioplasty to replace


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the previously removed bone flap. However, UTMB was unable to locate the bone

flap taken from Dwight’s skull, so physicians used titanium mesh in performing

the cranioplasty.

      The Tatums filed a healthcare liability suit against UTMB alleging negligent

mishandling and misuse of Dwight’s bone flap. Specifically, their live pleading

alleged that UTMB’s agents and employees “negligently mishandled and misused

[Dwight’s removed bone flap] . . . in such a manner that it was no longer available

in May 2009 when his surgeons wanted to replace it in his skull” and that such

negligence was the proximate cause of his injury, asserting that Dwight “will have

an artificial plate in his skull until the day he dies.” The Tatums also filed the

expert report of John Hyde, Ph.D., identifying the following “areas of negligence”:

      1.     Failure to provide a safe, secure, standardized and bi-
             directionally traceable tissue storage system.

      2.     Failure to develop and maintain appropriate strategies for
             managing safety and security during emergencies.

      UTMB subsequently filed a plea to the jurisdiction and motion to dismiss

arguing that the Tatums had failed to adequately establish that UTMB had waived

its immunity to suit under the Tort Claims Act because they failed to state a claim

based on the negligent use of tangible personal property by any UTMB employee.

UTMB sought dismissal of the Tatums’ claims against it, arguing that “there are




                                         3
absolutely no waivers of governmental immunity which can arise against [UTMB]

as a result of [the Tatums’] allegations.”

      The Tatums responded, asserting that UTMB “took into its possession,

control and care a piece of tangible personal property belonging to Mr. Tatum: a

piece of his skull. . . . UTMB negligently failed to care for Mr. Tatum’s tangible

personal property and it was lost.” The Tatums argued that the bone flap was used

because “UTMB employed the piece of skull in its medical treatment for the

purpose of alleviating the effects of Mr. Tatum’s swelling brain. . . .”

      Following a hearing on the plea, the trial court denied the plea to the

jurisdiction and motion to dismiss. This appeal followed.1

                              Plea to the Jurisdiction

      A plea to the jurisdiction challenges a trial court’s subject-matter jurisdiction

to hear the case. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per

curiam); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Subject-matter jurisdiction is essential to the authority of a court to decide a case

and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 443–44 (Tex. 1993). The existence of subject-matter jurisdiction is a question

of law that we review de novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625

1
      Civil Practice and Remedies Code section 51.014(a) permits a party to appeal an
      interlocutory order that grants or denies a governmental unit’s plea to the
      jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp.
      2011).
                                             4
(Tex. 2010) (per curiam); State Dep’t of Highways & Pub. Transp. v. Gonzales, 82

S.W.3d 322, 327 (Tex. 2002).

      The plaintiff has the burden to allege facts affirmatively demonstrating that

the trial court has subject-matter jurisdiction. Cnty. of Cameron v. Brown, 80

S.W.3d 549, 555 (Tex. 2002); Tex. Ass’n of Bus., 852 S.W.2d at 446. In reviewing

a plea to the jurisdiction, we must construe the pleadings liberally in favor of the

pleader and look to the pleader’s intent.      Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the facts affirmatively demonstrate

the trial court’s jurisdiction to hear the case, the plea to the jurisdiction must be

denied. See id. 22–27; see also Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston,

333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“[W]e

are required to construe the allegations in favor of jurisdiction unless, on its face,

the petition affirmatively demonstrates a lack of jurisdiction.”). If the pleadings do

not demonstrate incurable defects in the jurisdiction, but also fail to allege

sufficient facts to demonstrate the trial court’s jurisdiction, the issue is one of

pleading sufficiency and the plaintiff should be afforded an opportunity to amend.

Miranda, 133 S.W.3d at 226–27.          If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted without

allowing an opportunity to amend. See id. at 227.




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            Waiver of Immunity Under the Texas Tort Claims Act

      Sovereign immunity deprives a trial court of subject-matter jurisdiction in

lawsuits against the state or certain governmental units unless the state consents to

suit. Id. at 224. It is undisputed that UTMB is a governmental entity that generally

enjoys governmental immunity from tort liability unless immunity has been

waived. See Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767,

777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (recognizing that

that UTMB is state agency). When a claimant asserts a healthcare-liability claim

against a governmental entity that is a healthcare provider, the claimant must

comply with both the Medical Liability Act and the Texas Tort Claims Act. Univ.

of Tex. Med. Branch at Galveston v. Simmons, No. 14-11-00215-CV, 2012 WL

19665, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.) (mem. op.).

      The Texas Tort Claims Act provides a limited waiver of governmental

liability from suit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 2011).

The Tatums argue that UTMB’s governmental immunity has been waived under

section 101.021(2), which provides that “[a] governmental unit in the state is liable

for . . . 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.” Id. § 101.021(2). The Tatums

allege that Dwight Tatum suffered personal injury as a result of UTMB’s negligent


                                         6
mishandling and misuse of his bone flap, which they contend is tangible personal

property.

      The Texas Supreme Court has defined “use” as “to put or to bring into

action or service; to employ for or apply to a given purpose.” Tex. Dep’t of

Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001); Simmons, 2012 WL

19665, at *3. Furthermore, the plaintiff’s injury must be proximately caused by

the use of tangible personal property. Dallas Cnty. Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998). “The requirement of

causation is more than mere involvement,” and the “[p]roperty does not cause

injury if it does no more than furnish the condition that makes the injury possible.”

Id. at 343; see also Miller, 51 S.W.3d at 588 (holding that it is not sufficient for

waiver purposes “that some property is merely involved” and concluding that

property used might have furnished condition that made injury possible, but did not

hurt patient or make him worse in and of itself).

      Claims that involve failure to use and non-use of tangible personal property

are not within the waiver provided in section 101.021(2). Miller, 51 S.W.3d at

587–88. Likewise, general medical malpractice claims or claims for errors in

medical judgment, such as claims of negligent supervision, failure to perform the

necessary medical treatment, and failure to use acceptable practices, do not fall

within the waiver in section 101.021(2). Kamel, 333 S.W.3d at 686 (citing Arnold

                                          7
v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 469 (Tex. App.—Dallas

2009, no pet.)). We look to the true nature of the pleadings to determine whether a

plaintiff’s claims are an attempt to artfully plead around the requirements of the

TTCA. Id. (citing Arnold, 279 S.W.3d at 470).

      Our sister court has recently considered a similar fact pattern. See Simmons,

2012 WL 19665, at *3.         In Simmons, the plaintiff alleged that the hospital

negligently failed to properly train and credential its physicians, staff, and nurses,

failed to safeguard his bone flap removed during a craniotomy, failed to develop

and implement proper procedures for safeguarding the bone flap, and failed to

ensure that its employees followed proper procedures and policies.             Id.   The

Simmons court stated, “Presuming for the sake of argument that a bone flap is

tangible personal property,2 none of Simmons’ allegations are based upon a

negligent use of tangible personal property.”        Id. (citing Univ. of Tex. M.D.

Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 880 (Tex. App.—Houston [14th

Dist.] 2010, pet. denied) (holding that allegations of “failure to develop, employ,

monitor, and follow” policies and procedures, “failure to assure the competence of

2
      Although the Fourteenth Court of Appeals “[p]resum[ed] for the sake of argument
      that a bone flap is personal property,” it cited Dominguez ex rel. Ramirez v. Bexar
      County Medical Examiner’s Office, No. 10-06-00109-CV, 2007 WL 613792, at *3
      (Tex. App.—Waco Feb. 28, 2007, no pet.) (mem. op.), which concluded that
      bodily remains do not constitute personal property for which party a may sue the
      state. Univ. of Tex. Med. Branch at Galveston v. Simmons, No. 14-11-00215-CV,
      2012 WL 19665, at *3 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.)
      (mem. op.).
                                           8
medical staff,” and “failure to monitor and oversee quality treatment” are not

allegations under section 101.021(2) for which immunity is waived)).              The

Simmons court further concluded that Simmons’ pleadings did not amount to a

claim of misuse of tangible personal property. Id.

      Here, the Tatums alleged that UTMB’s agents and employees “negligently

mishandled and misused [Dwight’s removed bone flap] . . . in such a manner that it

was no longer available in May 2009 when his surgeons wanted to replace it in his

skull.” They argued that UTMB “took into its possession, control and care a piece

of tangible personal property belonging to Mr. Tatum: a piece of his skull. . . .

UTMB negligently failed to care for Mr. Tatum’s tangible personal property and it

was lost.” The Tatums argued that the bone flap was used because “UTMB

employed the piece of skull in its medical treatment for the purpose of alleviating

the effects of Mr. Tatum’s swelling brain. . . .” Likewise, their expert report stated

that UTMB was negligent for failing “to provide a safe, secure, standardized and

bi-directionally traceable tissue storage system” and failing “to develop and

maintain appropriate strategies for managing safety and security during

emergencies.”

      Assuming, without deciding, that a bone flap is tangible personal property,

none of the Tatums’ pleadings allege a negligent use of tangible personal




                                          9
property.3   The allegations of failure to provide an appropriate tissue storage

system and failure to maintain appropriate strategies during an emergency are

claims for errors in medical judgment or general medical negligence and do not

involve the use of tangible personal property to proximately cause an injury.

Kamel, 333 S.W.3d at 686; see also Miller, 51 S.W.3d at 588 (holding that it is not

sufficient for waiver purposes “that some property is merely involved”); Bossley,

968 S.W.2d at 343 (holding that “[t]he requirement of causation is more than mere

involvement,” and the “[p]roperty does not cause injury if it does no more than

furnish the condition that makes the injury possible”); Simmons, 2012 WL 19665,

at *3 (holding allegations of failure to properly train staff, failure to safeguard bone

flap, and failure to implement proper procedures for safeguarding bone flap were

not based upon negligent use of personal property).          Nothing in the Tatums’

pleadings indicate that UTMB’s use of the bone flap itself caused Tatum harm:



3
      On rehearing, the Tatums argue that they alleged that “a particular piece of
      property, the freezer [where the bone flap was stored], was itself defective and
      used in a negligent manner.” Thus, they argue that misuse of the freezer is an
      allegation that falls within the waiver provided in section 101.021(2). See
      Freeman v. Harris Cnty., 183 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.]
      2006, pet. denied) (holding that use of incinerator to negligently dispose of body
      following autopsy was sufficient to waive immunity under section 101.021).
      However, the Tatums’ live pleading contained no such allegation and only
      indirectly stated that UTMB “stored the [bone flap] in such a way that it could not
      be found.” Furthermore, the facts pled by the parties affirmatively negate such a
      claim, as UTMB asserted that the bone flap was lost because the bone bank where
      the flap was stored lost power following Hurricane Ike, and the Tatums concurred
      that the bone flap was lost in the course of the storm.
                                          10
they do not argue that UTMB was negligent in removing it to alleviate swelling.

They allege that it was removed and then never used again.

      The allegation that UTMB “misused” the bone flap because it was not

available for reinsertion during the cranioplasty is likewise not an allegation in

which the use of the property—the bone flap—proximately caused the injury. The

true nature of this allegation is actually one of failure to use or non-use, which are

not within the waiver provided in section 101.021(2). See Miller, 51 S.W.3d at

587–88; Simmons, 2012 WL 19665, at *3; Kamel, 333 S.W.3d at 686.

      We conclude that the Tatums failed to plead sufficient factual allegations

that the negligent use of tangible property by UTMB caused their injuries within

the waiver provided by section 101.021(2). See Simmons, 2012 WL 19665 at *3–

4. We further conclude that the Tatums’ pleadings are incurably defective and

affirmatively negate the existence of jurisdiction. The trial court erred in denying

UTMB’s plea to the jurisdiction and in failing to dismiss the Tatums’ claims

against UTMB. See Miranda, 133 S.W.3d at 227.

      We sustain UTMB’s first issue.4




4
      Because of our holding on this issue, it is unnecessary to address the remaining
      issue.
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                                       Conclusion

      We reverse the order of the trial court denying UTMB’s plea to the

jurisdiction and render judgment dismissing the Tatums’ claims against UTMB for

want of subject-matter jurisdiction.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.




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