                              In The
                        Court of Appeals
          Sixth Appellate District of Texas at Texarkana


                            No. 06-13-00111-CV



MARIA CERVANTES, INDIVIDUALLY AND AS NEXT FRIEND OF ALEK GONZALEZ,
   AND OMAR GONZALEZ, INDIVIDUALLY AND AS NEXT FRIEND OF ALEK
                        GONZALEZ, Appellants

                                      V.

JOSEPH MORRIS MCKELLAR, M.D., D/B/A O.B. ASSOCIATES; CARTER J. MOORE,
   M.D.; CARTER J. MOORE, M.D., P.A.; REBECCA THOMAS, CRNA; CLINICAL
  PARTNERS, P.A.–MT. PLEASANT, AND TITUS REGIONAL MEDICAL CENTER,
                                  Appellees



                   On Appeal from the 276th District Court
                           Titus County, Texas
                          Trial Court No. 35429




                 Before Morriss, C.J., Carter and Moseley, JJ.
                         Opinion by Justice Moseley
                                                    OPINION
            In this medical negligence case, Maria Cervantes, Individually and as Next Friend of

Alek Gonzalez, and Omar Gonzalez, Individually and as Next Friend of Alek Gonzalez, 1 appeal

the trial court’s order granting Titus Regional Medical Center’s plea to the jurisdiction. We

affirm the judgment of the trial court.

I.          Factual and Procedural Background

            Cervantes was admitted to Titus Regional Medical Center (Titus) during the course of her

high-risk twin pregnancy in August 2008 with suspicion of preeclampsia. 2 Approximately

twenty-eight hours after her admission, a non-stress test was initiated at 5:43 p.m. The test

indicated that one of the fetus’ heart rate patterns was nonreassuring, indicating fetal distress. At

6:20 p.m., the administering nurse contacted Cervantes’ physician to inform him of the

nonreassuring fetal heart rate tracings. When the twin Alek was delivered via caesarian section

(at 7:28 p.m.), he was diagnosed with encephalopathy. 3

            Cervantes filed suit, asserting health-care liability claims against Titus, among others.

Specifically, Cervantes alleged that Titus was negligent in “monitoring the external fetal heart

rate monitor . . . overseeing the external fetal heart rate monitor . . . interpreting the external fetal

heart rate monitor, and . . . responding to the external fetal heart rate monitor.”


1
    Appellants will be identified as “Cervantes.”
2
 Preeclampsia is “a serious condition developing in late pregnancy that is characterized by a sudden rise in blood
pressure, excessive weight gain, generalized edema, proteinuria, severe headache, and visual disturbances and that
may result in eclampsia if untreated.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 978 (11th ed. 2006).
3
Encephalopathy is “a disease of the brain; esp : one involving alterations of brain structure.”        MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 410 (11th ed. 2006).

                                                        2
       Titus, a governmental unit of the State of Texas, filed a plea to the jurisdiction, alleging

Cervantes failed to demonstrate a use or misuse of property that caused the complained-of

injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2011). Titus further

alleged that Cervantes failed to provide notice as required during the six-month timeframe after

the occurrence of the alleged injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a)

(West 2011). Cervantes responded that the failure to adequately monitor the fetal heart rate

device was a “use” of tangible personal property which proximately caused Alek’s injuries and

that Titus had actual notice of the injuries at issue. The trial court recited two reasons why it

granted the plea to the jurisdiction: (1) it found that “failure to exercise sufficient care in

monitoring a patient is not use of tangible personal property. There was no showing that the

monitor itself was faulty or misused or that information from it was inaccurate” and (2) it ruled

that “the staff had a duty to report concerning the lack of quality of care rendered to a patient, but

there is no record of any report or review showing such lack of care.” Cervantes appeals,

claiming the plea was improperly granted. Specifically, Cervantes contends she adequately pled

(1) that misuse of tangible personal property proximately caused Alek’s injuries and (2) that

Titus had actual notice of her claims.

       Because we conclude the substance of Cervantes’ allegations do not concern the use of

tangible personal property and thus fall outside of the Texas Tort Claims Act’s (TTCA or Act)

waiver of sovereign immunity, we affirm the judgment of the trial court.




                                                  3
II.      Analysis

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

which the State or certain governmental units have been sued unless the State consents to suit.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In reviewing a

trial court’s ruling on a plea to the jurisdiction, we first look to the pleadings to determine if

jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). We construe

the pleadings in favor of the non-movant. Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Whether a trial court has subject-matter

jurisdiction is a question of law which is subject to de novo review.                          Tex. Natural Res.

Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In determining whether Cervantes has alleged

facts supporting a finding of a waiver of sovereign immunity, we look at the substance of her

pleadings rather than to her characterization of them. Univ. of Tex. Health Sci. Ctr. v. Schroeder,

190 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2005, no pet.). If a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence on that issue.

Kirwan, 298 S.W.3d at 622. If the relevant evidence is undisputed or fails to raise a fact question

on the jurisdictional issue, the plea to the jurisdiction is determined as a matter of law. Id.

         It is undisputed that Titus is a governmental unit. 4 The TTCA provides a limited waiver

of governmental liability from suit when personal injury or death is “caused by a condition or use

4
 Titus’ status as a political subdivision of the State of Texas protected by sovereign immunity is undisputed.
Dorothy Brightwell, Titus’ risk manager, testified by affidavit that Titus County Hospital District was created by the
Legislature and does business as Titus Regional Medical Center. See Act of May 9, 1963, 58th Leg., R.S., ch. 298,
§§ 1–20, 1963 Tex. Gen. Laws 771, 771–77 (creating Titus County Hospital District); TEX. CIV. PRAC. & REM.
                                                          4
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 ANN.

§ 101.021(2). In order to fall within this limited exception, Cervantes must allege the injuries

here were proximately caused by the use of tangible personal property. See Dallas Cnty. Mental

Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998); see also Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542–43 (Tex. 2003) (requiring nexus between

use of tangible property and plaintiff’s injuries). Incidental involvement of the property alone is

insufficient to waive sovereign immunity. Bossley, 968 S.W.2d at 343. Property does not cause

the injury if it simply furnishes the condition that makes the injury possible. Id. Instead, a

causal nexus must exist between the use of the property and the plaintiff’s injury. Whitley, 104

S.W.3d at 543; Bossley, 968 S.W.2d at 342–43. Further, “[a] governmental unit does not waive

its immunity by ‘using, misusing, or not using information.’” Cherry v. Tex. Dep’t of Criminal

Justice, 978 S.W.2d 240, 242–43 (Tex. App.—Texarkana 1998, no pet.) (quoting Kassen v.

Hatley, 887 S.W.2d 4, 14 (Tex. 1994)).

        Here, Cervantes relies on Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.

1983), for the proposition that it is not necessary to allege that tangible property is inadequate or

defective in order to state a claim under the TTCA, if some use of the property is a contributing

factor to the injury. In that case, Salcedo presented at El Paso Hospital District’s emergency


CODE ANN. § 101.001(3)(B) (West Supp. 2013) (“‘Governmental unit’ means . . . a political subdivision of this
state.”); TEX. HEALTH & SAFETY CODE ANN. § 571.003(19) (West Supp. 2013) (defining term “Political
Subdivision” to include hospital district); Gaskin v. Titus Cnty. Hosp. Dist., 978 S.W.2d 178, 180 (Tex. App.—
Texarkana 1998, pet. denied) (holding Titus County Hospital District is governmental unit under TTCA); Tex. Att’y
Gen. Op. No. GA-0757 (2010) (presuming Titus Regional Medical Center is operated by Titus County Hospital
District).
                                                       5
room with severe chest pain. An EKG was administered, and although classic patterns of a heart

attack could be seen, Salcedo was released. He died shortly after returning home. Salcedo’s

wife sued the hospital, alleging that it “misused the equipment and tangible property . . . by

improperly reading and interpreting the electrocardiogram graphs and charts produced by such

equipment.” Id. at 32. Finding that the allegations stated a cause of action under the TTCA, the

court reversed the trial court’s grant of the hospital’s plea. It reasoned that because “[r]eading

and interpreting are purposes for which an electrocardiogram graph is used or employed in

diagnosing myocardial infarction, . . . Mrs. Salcedo has alleged her loss was proximately caused

by the negligence of the hospital district’s employees in the use of tangible property.” Id. at 33.

The high court thus concluded that Salcedo’s allegations stated a cause of action within the scope

of the Act’s waiver provisions. Id.

       Cervantes appropriately recognizes that the breadth of the high court’s holding in Salcedo

has been limited during the three decades since that opinion was released. As discussed by

several appellate courts, at the time of the Salcedo decision,

       [T]he TTCA provided for a waiver of sovereign immunity for death or personal
       injuries caused from “some” condition or “some” use of tangible property.
       Redden v. Denton Cnty., 335 S.W.3d 743, 748 (Tex. App.—Fort Worth 2011, no
       pet.); Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 349–50 (Tex.
       App.—Amarillo 2008, pet. denied); see Act of May 28, 1983, 68th Leg., R.S., ch.
       530, § 1, 1983 Tex. Gen. Laws 3084, 3085 (repealed, recodified, and amended
       1985). At that time, the TTCA also provided, “[t]he provisions of this Act shall
       be liberally construed to achieve the purposes hereof.” Redden, 335 S.W.3d at
       748; Ward, 280 S.W.3d at 350; see Act of May 14, 1969, 61st Leg., R.S., ch. 292,
       § 13, 1969 Tex. Gen. Laws 874, 877, repealed by Act of May 17, 1985, 69th Leg.,
       R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322. When the legislature
       recodified the TTCA two years after Salcedo, it deleted the word “some” and
       repealed the provision mandating liberal construction. Redden, 335 S.W.3d at

                                                 6
       748; Ward, 280 S.W.3d at 350; see Act of May 17, 1985, 69th Leg., R.S., ch. 959,
       §§ 1, 9–10, 1985 Tex. Gen. Laws 3242, 3303, 3322.

Univ. of Tex. Med. Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 382 (Tex. App.—

Houston [14th Dist.] 2013, no pet.).

       Following the recodification of the TTCA in the wake of Salcedo, the high court

narrowed the scope of Salcedo’s holding in 1994 when it distinguished Salcedo from a scenario

in which the plaintiff alleged injury caused by the failure to memorialize symptoms in writing

and the failure to follow a recommendation noted in the medical records to order an x-ray. The

high court found that, unlike Salcedo, allegations of misuse of medical records did not constitute

the use or misuse of tangible property. “Information itself is an abstract concept, lacking

corporeal, physical, or palpable qualities.     Information, thus, is intangible; the fact that

information is recorded in writing does not render the information tangible property.” Univ. of

Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994). Thus, “Salcedo does

not permit claims against the State for misuse of information.” Id.

       Four years later, the Texas Supreme Court limited the Salcedo decision to its facts,

stating that for immunity to be waived, “personal injury or death must be proximately caused by

a condition or use of tangible personal or real property.” Bossley, 968 S.W.2d at 342–43. The

court explained that while involvement of property was necessary, such involvement, absent

causation, was insufficient. Id. at 342–43.

       In 2001, the Texas Supreme Court decided Texas Department of Criminal Justice v.

Miller, 51 S.W.3d 583 (Tex. 2001). In that case, Miller (a prison inmate) was treated with

various medications for nausea and severe headaches before he was diagnosed with meningitis
                                                7
and ultimately died. Id. at 585. Miller’s widow sued, claiming her husband died as a result of

the improper administration of pain medication, improperly reading and interpreting fever-

detecting equipment, and improperly using clinic facilities and equipment in her husband’s

diagnosis and treatment. Id. In reversing the court of appeals’ denial of TDCJ’s plea to the

jurisdiction, the Texas Supreme Court noted,

       “Use” means “to put or bring into action or service; to employ for or apply to a
       given purpose.” TDCJ did “bring into . . . service” and “employ” various drugs
       and medical equipment while treating Miller, but that some property is merely
       involved is not enough. Using that property must have actually caused the injury.
       The property “used” on Miller did not.

Id. at 588 (citations omitted).

       In 2003, the Texas Supreme Court held that sovereign immunity barred suit against the

Dallas Area Rapid Transit when a city bus driver resolved a dispute between two bus passengers

by depositing one of the passengers in a bad neighborhood. The passenger, who suffered from

cerebral palsy, was thereafter severely beaten by the other passenger, who disembarked at the

next stop. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003). Whitley sued,

arguing that “his injuries ar[o]se from a use of the bus because the bus driver wrongfully ejected

him in a remote and dangerous area of Dallas, allowed Burkley to deboard after she assaulted

and threatened him in the driver’s presence, and then failed to pick him up as promised.” Id. at

542.

       Noting first that it had consistently required “a nexus between the operation or use of a

motor-driven vehicle or equipment and a plaintiff’s injuries” that was more than mere

involvement of the property, the court ultimately held that Whitley’s injuries did not arise from

                                                8
the use of the bus but rather “from the bus driver’s failure to supervise the public, which is

insufficient to waive immunity under the Tort Claims Act.” Id. at 542–43. The court reasoned

that in this case, the use of the bus did no more than furnish the condition that made the injury

possible because “Burkley and her accomplices caused Whitley’s injuries . . . the driver’s failure

to supervise Burkley may have contributed, but the operation or use of the bus did not.” Id. at

543.

       Some appellate courts have continued to apply Salcedo to find waiver of immunity under

the Act based on use of cardiac monitors, CT scans, and other diagnostic medical equipment.

For example, in a case on which Cervantes relies here, the plaintiff alleged a failure to diagnose a

bile leak based on the negligent misuse of a CT scan that indicated liver abscess. Tex. Tech

Univ. Health Scis. Ctr. v. Lucero, 234 S.W.3d 158 (Tex. App.—El Paso 2007, pet. denied). The

hospital claimed that the allegation complained of non-use of medical information, a claim for

which sovereign immunity is not waived. The court found that the CT scan films like the EKG

in Salcedo could constitute tangible property and that plaintiff’s allegations of misuse were

sufficient to waive sovereign immunity.

       Other decisions relying on Salcedo (and cited by Cervantes) include University of Texas

Medical Branch at Galveston v. Estate of Blackmon ex. rel. Shultz, 169 S.W.3d 712 (Tex.

App.—Waco 2005, pet. granted), vacated on jurisdictional grounds, 195 S.W.3d 98 (Tex. 2006)

and University of Texas Medical Branch Hospital at Galveston v. Hardy, 2 S.W.3d 607 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied). Because the court of appeals’ judgment in

Blackmon has been vacated, we limit our discussion to Hardy.

                                                 9
       In the Hardy case, the plaintiff alleged that the failure to properly monitor a cardiac

monitor was the proximate cause of a patient’s injuries and death. Hardy, 2 S.W.3d at 608–09.

While recovering from bypass surgery, the decedent “was connected to a cardiac monitor which

was intended to monitor her heart’s activity and signal an alarm if any problem occurred.” Id. at

608. When the monitor signaled an alarm indicating heart stoppage, resuscitation efforts were

not commenced until at least five minutes following the first alarm from the monitor. Id. at 608–

09. The doctors were able to revive the patient, but not before oxygen deprivation left the patient

on life support with severe brain damage. Id. at 609. The patient never regained consciousness

and was eventually removed from life support systems. Id.

       The plaintiff brought a wrongful death and survival action against the hospital, alleging

that the negligent use of the cardiac monitor was the proximate cause of the death of the

decedent. Id. She alleged that the hospital’s staff failed to properly oversee the monitor. Id. In

affirming the trial court’s denial of the hospital’s plea to the jurisdiction, the court relied heavily

on Salcedo, 659 S.W.2d at 33. The court concluded that the use of the cardiac monitor in Hardy,

like the EKG machine in Salcedo, directly affected and impacted the person whose heart

condition was being monitored. See Hardy, 2 S.W.3d at 610.

       In 2008, this Court rejected the reasoning employed by the Hardy court in Lanphier v.

Avis, 244 S.W.3d 596 (Tex. App.—Texarkana 2008, pet. dism’d as moot), disapproved on other

grounds, Franka v. Velasquez, 332 S.W.3d 367, 382 n.67 (Tex. 2011). Avis involved a health-

care liability claim against the two nurses alleging negligence in failing to properly carry out

their nursing responsibilities. Even though a fetal monitor strip showed Avis’ fetus to be in

                                                  10
distress after she became extremely sick with high fever, her labor was allowed to proceed for

eight hours. After the nurses were unable to locate a fetal heart tone, a cesarean section was

performed, and the baby was delivered stillborn.

       Avis sued, alleging that “‘[the] nurses . . . allowed [Avis’s] labor to proceed over the next

eight (8) hours even though her fetal monitor strips showed that her baby was in distress,’” the

nurses “‘never inserted a fetal scalp electrode,’” and “‘[a] timely delivery would have allowed

[the] baby to survive.’” Avis, 244 S.W.3d at 606–07. In determining whether these allegations

effectively waived sovereign immunity under the TTCA, this Court examined two cases, in

particular, which apparently were in conflict.       We initially examined Kelso v. Gonzales

Healthcare Systems, 136 S.W.3d 377 (Tex. App.—Corpus Christi 2004, no pet.).

       In that case, Kelso presented to the emergency room with symptoms of a heart attack.

Although an EKG performed by hospital personnel indicated Kelso was suffering from a heart

attack, she did not receive treatment until two hours after these results were known. In her suit

for damages resulting from injuries caused by the delayed treatment, Kelso alleged that the

injuries were caused by the misuse of tangible personal property, i.e., the EKG testing machine.

Id. at 380. Kelso did not affirmatively allege that the EKG was incorrectly used or that its results

were erroneous. Instead, the injury occurred after the EKG was correctly used and provided

accurate results. In holding that immunity was not waived, the court noted that “[i]f an EKG

machine is correctly used, any subsequent misuse or nonuse of the information it reveals about a

patient’s medical condition does not waive immunity under the statute, as it was the use of the

information, not the tangible property, which was the proximate case of injury.” Id. at 382. The

                                                11
court noted that it was the misuse of the information produced by the EKG machine rather than

misuse of the device itself that represents the proximate cause of the injury. Id.

       We then contrasted the result in Kelso with that of Hardy, stating,

       A careful study of Kelso and Hardy reveals what may be the critical distinction
       between the two cases. In Kelso, the device generated information from which
       the doctor then had to make a diagnosis and plan a course of treatment. The
       apparent misinterpretation of the information would not qualify as use of tangible
       property within the TTCA. In Hardy, however, the purpose of the monitor was
       not necessarily limited to generating information. Rather, the monitor in Hardy
       was intended to signal complications and its purpose required that it be constantly
       monitored. In other words, the negligence in Kelso related to the proper
       interpretation, whereas the alleged negligence in Hardy was the failure to properly
       use the device for the very purpose it was intended. The distinction between the
       two fact circumstances seems so finite (an alarm on a monitor when a critical set
       of circumstances arises versus no alarm on an EKG machine to signal the
       examiner of the test results when irregularities are present) that the results appear
       to be in conflict. We believe the analysis in Kelso to be more persuasive.

Avis, 244 S.W.3d at 605.

       Having found the analysis in Kelso to be more persuasive, we determined that the

substance of Avis’ allegations did not concern the use of tangible property, but were more akin

to the misuse of information provided by the monitor, which is not considered tangible property

under the Act. Id. at 605–06. Avis’ allegations thus fell outside the TTCA’s waiver of sovereign

immunity. Id. at 606. We further noted,

       Avis does not allege that the nurses failed to watch the monitor or that they used
       the monitor improperly. Nor does she allege that the injuries to her infant were
       caused by a device used during delivery. Rather, her allegations seem to fall more
       in line with those in Kelso in that she alleges that the nurses should have taken
       alternate actions based on the information generated by the monitor.




                                                 12
Id.   We also stated, “Since Avis’s allegations here are more accurately characterized as

allegations that the nurses took the wrong course of action based on the information from the

monitor, we reiterate that information is not treated as tangible property under the TTCA.” Id.

        Other intermediate appellate courts have reached the same conclusion on similar facts.

For example, in Texas Tech University Health Sciences Center v. Ward, 280 S.W.3d 345 (Tex.

App.—Amarillo 2008, pet. denied), the parents of a stillborn child alleged that misuse of

information from a fetal heart rate monitor caused the child’s death, but failed to allege that the

monitor was incorrectly used or that its results were erroneous. “Rather, they couched their

allegations as ‘failing to recognize and respond,’ which are allegations of misuse of information

and negligence by the medical staff.” Id. at 356. As a result, the court held that the Wards failed

to state a claim under the Act. Id. In arriving at this conclusion, the court recognized the

legislative and judicial limitations on Salcedo:

        In conducting a de novo review, we conclude the following: Salcedo was decided
        under the pre-codified version of the Act which called for liberal construction of
        the waiver provisions. Since then, the mandate for liberal construction has been
        repealed. Additionally, the Supreme Court has interpreted the limited waiver
        provisions of the Act more narrowly. Intermediate appellate courts have struggled
        with the waiver provisions of the Act resulting in conflicting decisions. However,
        given the Legislature’s post-Salcedo changes to the Act in 1985, i.e., deletion of
        the word “some” before use and condition, elimination of the mandate to liberally
        construe the waiver provisions, and given the Supreme Court’s trend to limit
        Salcedo and narrowly apply § 101.021(2) to cases involving a causation nexus
        between the use of tangible property and complained of injury or death, we hold
        the Wards have not demonstrated that “use” of the fetal heart rate monitor caused
        their injury.

Id. at 356.




                                                   13
       The case of Anderson v. City of San Antonio, 120 S.W.3d 5 (Tex. App.—San Antonio

2003, pet. denied), involved a death caused by cardiac arrest.       After Emergency Medical

Technicians (EMTs) were dispatched to Anderson’s home to provide emergency assistance

following complaints of chest pain, they performed EKG tests and decided not to transport

Anderson to the hospital. Anderson died of a heart attack later that day. Id. at 6. The city was

sued for the EMTs’ failure to transport Anderson to the hospital because they “negligently

misinterpreted the EKG and ignored his pleas that he was having a heart attack.” Id. In the face

of a plea to the jurisdiction, the plaintiffs argued that the improper use of the EKG machine

constituted a misuse of tangible personal property under the Act. Id. at 6–7. Applying the

Whitley analysis, the court determined that Anderson’s death was caused by his cardiac condition

and the EMTs’ alleged negligence, but it was not caused by the use of the EKG machine itself.

“In light of Whitley, we no longer believe that Salcedo is controlling.” Id. at 9. The court thus

concluded that the plaintiffs’ lawsuit was barred by sovereign immunity. Id.

       Similarly, in Redden v. Denton County, 335 S.W.3d 743, 751 (Tex. App.—Fort Worth

2011, no pet.), EKGs were performed on Redden after repeated complaints of chest pains. After

Redden died of a heart attack, plaintiffs sued, alleging misuse of the EKG machine by

misinterpreting the data derived therefrom, which led to improper treatment and death. Id. at

744. The Redden court, “persuaded by the reasoning of our sister courts,” held that “the ‘use’ of

tangible property must involve the use of a medical machine, not the ‘use’ of information from

the medical machine.” Id. at 751. Because the EKG machine itself did not cause any injury, and




                                               14
because the plaintiffs only alleged misuse of the machine’s information, which is not tangible

property, the court held that the claim did not fall within the Act’s waiver provisions.

       More recently, the Houston 14th District Court reversed the trial court’s denial of the

hospital’s plea to the jurisdiction in Kai Hui Qi, 402 S.W.3d 376. In that case, Kai Hui Qi sued

the University of Texas Medical Branch (UTMB) after delivering a stillborn child. Qi alleged

that hospital “‘employees were negligent in the use of the blood pressure cuffs/testing equipment

and urine test strips, by improperly reading and interpreting the results produced by the testing

equipment’ which ‘led directly to [Qi]’s preeclampsia, which directly resulted in the death of

[Qi]’s unborn child and to the injuries’ Qi suffered.’” Id. at 377. The court concluded that Qi’s

suit

       does not invoke the limited waiver of sovereign immunity found in the Texas Tort
       Claims Act because Qi’s allegations do not meet the Act’s requirement that the
       use of tangible personal property caused the stillbirth and injury, and the
       substance of Qi’s claim is that UTMB’s employees failed to timely diagnose and
       treat Qi for preeclampsia and induce delivery of her baby.

Id. at 381. In arriving at this conclusion, the court noted that Qi’s reliance on Salcedo, Lucero,

and Hardy was misplaced in light of the caselaw developments after Salcedo. Id. at 382.

       Here, Cervantes’ pleadings complain that Titus’ nurses failed to properly use information

provided by a fetal heart monitor by negligently “monitoring,” “overseeing,” “interpreting,” and

“responding to the external fetal heart rate monitor.” Cervantes does not claim that a condition

or use of the fetal heart monitor caused injury. Instead, she complains that injury was caused by

delayed delivery due to the nurses’ failure to timely respond to information provided by the




                                                 15
monitor. The expert reports filed on Cervantes’ behalf confirm the nature of Cervantes’ claim

against Titus. Robert O. Atlas, M.D., stated in his report,

          Furthermore, failure by the nursing staff to promptly recognize a very abnormal
          fetal heart rate tracing was below the acceptable standard of care. The nursing
          staff did not rapidly notify Dr. McKellar in a timely manner further delaying the
          delivery of this twin gestation.

Atlas essentially opined that Titus’ nurses were negligent in failing to timely respond to the

information produced by the monitor, not that the device was defective or otherwise caused

injury.

          Cervantes’ second expert, Paul O. Gatewood, M.D., opined that Titus’ nurses fell below

the appropriate standard of care by failing to “properly read the fetal monitoring strip” and

failing to “respond in a timely manner to prepare and transport the patient to the OR.” In an

addendum to his report, Gatewood’s comments indicate that the monitor was, indeed,

functioning properly as it provided correct information that one fetus was in distress while the

other was not:

          On admission, when the fetal monitor was used starting at 17:43 on 8-9-08 . . . a
          matched control – namely Twin A and Twin B – existed for comparison. Twin
          A’s reactive strip and Twin B’s nonreactive strip with persistent recurring
          nonvariable decelerations and absent long-term variability, indicated decreased
          oxygenation levels – hypoxemia. This represents fetal intolerance to intrauterine
          environment, or the old term, fetal distress.

Gatewood further noted, “As a practicing obstetrician, I expect a labor and delivery nurse to

properly interpret a fetal monitor strip . . . and recognize the urgency of effectuating a rapid

response to prepare for the Caesarean section.”




                                                  16
       Cervantes’ pleadings and expert opinions indicate that her claim against Titus is for the

alleged misuse of accurate information provided by a fetal heart monitor, together with Titus’

alleged failure to provide prompt treatment in response to that information.

       For purposes of the TTCA, it is well-settled that “tangible personal property refers to

something that has a corporeal, concrete, and palpable existence.” York, 871 S.W.2d at 178. By

contrast, “information itself is an abstract concept, lacking corporeal, physical, or palpable

qualities.” Id. at 179. Information is, therefore, “intangible” and “the fact that information is

recorded in writing does not render the information tangible property.” Id. As the Texas

Supreme Court held, “In providing for waiver of governmental immunity for injuries caused by

the use of tangible personal property, the Legislature has not, by clear and unambiguous

language, eliminated governmental immunity for injuries resulting from the misuse of

information.” Id.

       Consistent with this principle, this and other Texas appellate courts have held that

allegations of failure to appropriately respond to information produced by medical monitoring

equipment—including fetal heart and other cardiac monitors—do not involve the use of tangible

property and thus do not fall within the Act’s limited waiver of immunity. See, e.g., Redden, 335

S.W.3d at 746; Ward, 280 S.W.3d at 356; Avis, 244 S.W.3d at 607; Anderson, 120 S.W.3d at 9.

       Cervantes’ allegations of negligent interpretation and delayed response to information do

not involve the use of tangible personal property and thus do not fall within the TTCA’s waiver

provisions.   Accordingly, Cervantes has failed to demonstrate that the trial court erred by

granting Titus’ plea to the jurisdiction.

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       Cervantes seeks the opportunity to amend her pleadings in the event we find that her

pleadings do not affirmatively negate the existence of jurisdiction. A plaintiff should generally

be afforded a reasonable opportunity to amend defective pleadings unless the pleadings

demonstrate incurable defects or negate the existence of jurisdiction. Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). Here, Cervantes has failed to plead sufficient facts

supporting her assertion that the negligent use of tangible personal property caused the injuries

alleged. Because Cervantes’ allegations are incurably defective, Cervantes cannot cure those

defects by pleading more detailed facts to support her assertions. See, e.g., Kai Hui Qi, 402

S.W.3d at 390.

       Because we find that the trial court properly granted Titus’ plea to the jurisdiction, we

need not address Cervantes’ claim that Titus received adequate notice required for waiver of

immunity under the Act.

III.   Conclusion

       We affirm the judgment of the trial court.




                                            Bailey C. Moseley
                                            Justice

Date Submitted:       January 28, 2014
Date Decided:         February 19, 2014




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