                                   NO. 07-07-0451-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    AUGUST 6, 2008

                          ______________________________


              TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER
                AND UNIVERSITY MEDICAL CENTER, APPELLANTS

                                            V.

           CARITA ELIZABETH WARD AND DUSTIN WARD, APPELLEES

                        _________________________________

            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2006-536,174; HONORABLE SAM MEDINA, JUDGE

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                         OPINION


       Appellants, Texas Tech University Health Sciences Center (TTUHSC) and

University Medical Center (UMC) appeal from the trial court’s order denying their respective

pleas to the jurisdiction in a medical malpractice suit brought by Appellees, Carita and

Dustin Ward, arising from the death of their stillborn child. We reverse and render.
       TTUHSC and UMC contend the Texas Tort Claims Act1 bars the Wards’ claim. In

response, the Wards contend that TTUHSC’s and UMC’s claims of sovereign immunity are

inapposite because the death of their son comes within the limited waiver of immunity

provided by the Act2 where the death is caused by a condition or use of tangible personal

property, to-wit: an external fetal heart rate monitor.3


       By two issues, TTUHSC maintains the trial court lacked subject matter jurisdiction

because (1) the injury was not caused by tangible personal property and (2) the information

produced by a fetal heart rate monitor is not tangible personal property. Presenting three

issues, UMC contends (1) the use of information from a fetal heart rate monitor operated

by its nurse does not constitute a condition or use of tangible property; (2) an improper

interpretation of information from a fetal heart rate monitor is not harm caused by a

condition or use of tangible property; and (3) UMC’s failure to continue to monitor Carita

(or take other affirmative action) was not the cause of the stillbirth of her unborn child.

Accordingly, both TTUHSC and UMC contend the Wards’ claim does not fall within the

limited waiver of immunity created by § 101.021(2) of the Act.




       1
       See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 - 101.109 (Vernon 2005 &
Supp. 2007) (hereinafter referred to as the Act).
       2
           See Tex. Civ. Prac. & Rem. Code Ann. §101.021(2) (Vernon 2005 & Supp. 2007).
       3
        A fetal heart rate monitor is an apparatus for observing and recording the heart rate
of a fetus and for keeping track of the frequency, length, and strength of the mother’s
uterine contractions.

                                              2
                                   Background Facts


       In their pleadings, the Wards allege that on January 10, 2006, Carita arrived at UMC

complaining of labor pains. The initial examination revealed that her cervix was dilated and

nurses attached a monitor to assess the fetal heart rate. Several hours passed until a

doctor re-examined her condition.      Although her labor had not progressed, Carita

requested to be transferred to a labor and delivery room. At 8:10 p.m., Dr. Carol Tracy

Suit, TTUHSC’s resident physician, examined Carita and also determined that her labor

status had not changed. As a result, Dr. Suit informed Carita that she was going to be

discharged. Carita, however, requested additional time to see if there would be a change

in her condition. Approximately three hours later, Dr. Suit examined Carita for a second

time. Observing no change in her labor status, Dr. Suit ordered that Carita be discharged.

Carita left UMC at 12:30 a.m. and went home. One day later, on January 12, Carita

returned to UMC complaining of labor pains. After numerous attempts, doctors were

unable to detect the fetus’s heartbeat and the infant was delivered stillborn. Doctors

concluded that the ultimate cause of death was a “true knot” in the fetus’s umbilical cord.

The Wards sued TTUHSC and UMC for negligence.


       TTUHSC and UMC filed pleas to the jurisdiction alleging that the Wards’ pleading

failed to allege that use of tangible personal property caused the death of their unborn son

and thus, their suit was barred by sovereign immunity. Following a hearing, the trial court




                                             3
denied the pleas to the jurisdiction. TTUHSC and UMC filed this interlocutory appeal

pursuant to § 51.014(a)(8) of the Texas Civil Practice and Remedies Code.


                                   Standards of Review


I. Plea to the jurisdiction.


       When a claim is barred by sovereign immunity, the trial court lacks jurisdiction, and

dismissal with prejudice is proper. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752

(Tex.App.–Austin 1998, no pet.). A plea to the jurisdiction is a dilatory plea by which a

party challenges a court’s authority to determine the subject matter of the action. Bland

Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo

the trial court’s ruling on a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When reviewing a plea to the jurisdiction in

which the pleading requirement has been met and evidence has been submitted to support

the plea that implicates the merits of the case, we take as true all evidence favorable to the

nonmovant. Miranda, 133 S.W.3d at 228.


       The party suing the governmental entity bears the burden of affirmatively showing

that the trial court has jurisdiction to hear the cause. Tex. Dept. of Criminal Justice v.

Miller, 51 S.W.3d 583, 587 (Tex. 2001). In so doing, we are not required to look solely to

the pleadings but may consider evidence and must do so when necessary to resolve the

jurisdictional issue raised. Id., citing Bland Independent School Dist., 34 S.W.3d at 555.


                                              4
We are, however, prohibited from considering an expert report as evidence. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(k)(1) & (2) (Vernon Supp. 2007).


II. Sovereign Immunity Under the Texas Tort Claims Act


       TTUHSC and UMC are institutions, the status and authority of which are derived

from the Constitution of Texas or from laws passed by the Legislature under the

Constitution, and as such, they are “governmental units” as defined by section

101.001(3)(D) of the Texas Civil Practices and Remedies Code. Cox v. Klug, 855 S.W.2d

276, 277 (Tex.App.–Amarillo 1993, no pet.); See also Huckabay v. Irving Hosp. Auth., 879

S.W,2d 64, 66 (Tex.App.–Dallas 1993, writ dism’d by agr.). As a governmental unit, they

are each entitled to the protections of sovereign immunity.4


       Sovereign immunity protects a governmental unit from lawsuits for damages. Tex.

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 83 (Tex. 2002). When a

claim is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and

dismissal with prejudice is the appropriate remedy. El Paso Mental Health and Mental

Retardation Center v. Crissman, 241 S.W.3d 578, 581 (Tex.App.–El Paso 2007, no pet.).

Section 101.021(2) of the Act provides a limited waiver of sovereign immunity when death



       4
        Courts often use the terms sovereign immunity and governmental immunity
interchangeably; however, they involve two distinct concepts. Sovereign immunity refers
to the State’s immunity from suit and liability, while governmental immunity protects political
subdivisions of the State. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 693
fn.3 (Tex. 2003). Thus, we will use the term “sovereign immunity” throughout this opinion.

                                              5
is caused by a condition or use of tangible personal property, if the governmental unit

would, were it a private person, be liable to the claimant according to Texas law. See §

1.021(2); Salas v. Wilson Memorial Hosp. Dist., 139 S.W.3d 398, 403 (Tex.App.–San

Antonio 2004, no pet.). Because the Act provides a limited waiver in certain, narrowly

defined circumstances, to come within this exception a claimant must allege that (1) the

use or misuse of tangible personal property (2) proximately caused the personal injury or

death. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d

339, 341 (Tex. 1998).


       TTUHSC and UMC contend the Wards have failed to demonstrate that the death

of their child was caused by the use or misuse of tangible personal property, thereby

depriving the trial court of subject matter jurisdiction. The Wards respond with Salcedo v.

El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983), noting that their facts are squarely

on point (use of an electrocardiogram instead of a fetal heart rate monitor) and that it has

never been overruled by the Texas Supreme Court. They also rely on several intermediate

appellate court decisions in support of their position. See Texas Tech University Health

Sciences Center v. Lucero, 234 S.W.3d 158 (Tex.App.–El Paso 2007, pet. denied)

(applying Salcedo on misuse of an abdominal CT scan). See also University of Texas

Medical Branch at Galveston v. Estate of Blackmon, 169 S.W.3d 712, 721-22

(Tex.App.–Waco 2005) (finding Salcedo authoritative in cases involving negligent use or

misuse of diagnostic medical equipment), vacated, 195 S.W.3d 98 (Tex. 2006); Baston v.

City of Port Isabel, 49 S.W.3d 425, 428-29 (Tex.App.–Corpus Christi 2001, pet. denied)

                                             6
(acknowledging Salcedo is limited to its facts but applying it to analogous case of misuse

of electrocardiogram); University of Texas Medical Branch Hosp. at Galveston v. Hardy,

2 S.W.3d 607, 609-10 (Tex.App.–Houston [14th Dist.] 1999, pet. denied) (relying on

Salcedo in hospital staff’s failure to properly monitor cardiac monitor).


                          Salcedo v. El Paso Hospital District


       In Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983), Mr. Salcedo was

examined in the emergency room for severe chest pains. An electrocardiogram test

showed a classic pattern of myocardial infarction, but Mr. Salcedo was released. Id. at 31.

After returning home, he collapsed and died from myocardial infarction. Id. His widow

sued and alleged that hospital employees had misused the electrocardiographic equipment

by improperly reading and interpreting the graphs and charts produced by it. The hospital

filed special exceptions contending that Mrs. Salcedo had failed to state a cause of action

within the waiver provisions of the Act, and the trial court struck her pleadings and

dismissed the case. Id.


       The Supreme Court held that an allegation of defective or inadequate tangible

property was not necessary to state a cause of action under the Act if some use of the

property was alleged to be a contributing factor to the injury. Id. at 32. (Emphasis added).

It noted, however, that “some condition,” required an allegation of defective or inadequate

property when it was a contributing factor to the injury. Id. It concluded that reading and

interpreting are purposes for which an electrocardiogram graph is used in diagnosing

                                             7
myocardial infarction and held that Mrs. Salcedo had alleged her loss was proximately

caused by the negligence of the hospital’s employees in using tangible personal property.

Id. at 33.


        When Salcedo was decided on October 26, 1983, the Act provided for waiver of

sovereign immunity for death or personal injuries so caused from some condition or some

use of tangible property . . . .” (Emphasis added).5 At that time, the Act also provided,

“[t]he provisions of this Act shall be liberally construed to achieve the purposes hereof.”6

However, when the Legislature codified the Act and adopted the Texas Civil Practice and

Remedies Code in 1985, two years after Salcedo, the word “some” was deleted preceding

“condition” and “use.”7 Additionally, the mandate for liberal construction of provisions of

the Act was repealed and not carried forward in the codification.8




        5
            See Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Tex. Gen. Laws 3084,
3085.
        6
       See Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 13, 1969 Tex. Gen. Laws 874,
877. The Act’s basic purpose was to waive immunity only to a limited degree. See Lowe
v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976).
        7
            See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242,
3303.
        8
            See fn.6 at 3322.

                                                8
                                 Salcedo Distinguished


       To distinguish Salcedo we must examine significant Supreme Court decisions

before and after Salcedo, together with intermediate appellate decisions wherein the courts

have expressed considerable frustration with the application of the waiver provisions of the

Act. We will also address changes in the Act and interpret those changes in light of more

recent Supreme Court decisions.


I. Supreme Court Decisions


       The Texas Tort Claims Act was enacted in 1969 to become effective January 1,

1970.9 The Court decided in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976),

that the plaintiff’s allegations pertaining to the failure to use available tangible personal

property (protective equipment) were sufficient to invoke the waiver of sovereign immunity

provisions of the Act and reversed the Court of Civil Appeals, which had affirmed the trial

court’s order sustaining pleas to the jurisdiction. Lowe, a football player, alleged among

other things, negligence on the part of Texas Tech by failing to furnish proper protective

items of personal property to be used as a part of his uniform. Id. at 298. The Court held

that the allegation brought the case within the statutory waiver of immunity arising from

“some condition or some use of personal property.” Id. at 300.




       9
     See Act of May 14, 1969, 61st Leg., R.S., ch. 292 1969 Tex. Gen. Laws 874, 879,
amended by, Act of April 11, 1973, 63rd Leg., R.S., ch. 50 § 1, 1973 Tex. Gen. Laws 77.

                                             9
       In a concurring opinion, Chief Justice Greenhill urged a reexamination by the

Legislature of sovereign immunity citing the difficulty in ascertaining the legislative intent.

Id. at 301. Specifically, he was troubled by the section on waiver of immunity where there

is personal injury or death caused “from some condition or use” of tangible property. If the

waiver provision was intended to be confined to cases involving injury proximately caused

by some condition or use of property, certain results were reached. (Emphasis added).

On the other hand, different results were reached if the Legislature intended the State to

be liable in every tort case in which personal property was either used or not used. Justice

Greenhill reasoned the latter interpretation would virtually lead to an unrestricted waiver of

immunity, which the Legislature could not have intended. Id. at 302.


       In Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex. 1989), a patient

who the defendant’s employees knew suffered from epileptic seizures that occasionally

caused him to lose consciousness was not supplied with a life preserver and drowned at

a lake while under the defendant’s care. Id. at 170. The plaintiff alleged that MHMR’s

failure to provide a life preserver brought the case within the purview of § 101.021(2). Id.

at 169. MHMR alleged that the mere failure to provide a life preserver did not constitute

a “condition or use of tangible property” and was not actionable. Id. at 170.


       Notwithstanding the Court’s acknowledgment that the Legislature repealed the

original Act and reenacted it with language changes and deletions in 1985, it decided the

case under the interpretation set forth in Lowe v. Texas Tech University. Robinson, 780


                                              10
S.W.2d at 170 n.2 and 171. It reasoned that the Legislature’s preservation of the

“condition and use” language considered in Lowe and Salcedo indicated an adoption of the

construction given in those cases. Applying Lowe, the Court held that the plaintiff stated

a cause of action which invoked the waiver of immunity based on the defendant’s failure

to provide a life preserver.    Id. In reaching its decision, the Court recognized the

“troublesome waiver provision” and called upon the Legislature to clarify the extent to which

it intended to waive sovereign immunity. Id. at 170.


       Five years later, the Court decided University of Texas Medical Branch at Galveston

v. York, 871 S.W.2d 175 (Tex. 1994). In York, the patient, who was improving from severe

injuries he sustained in a car accident that left him partially paralyzed, was admitted to

UTMB for an inpatient program. Shortly after his admission, the patient broke his hip which

went undiagnosed for approximately eight days. He suffered severe pain, withdrawal,

depression, and regression in his rehabilitation.


       York sued UTMB and alleged misuse of tangible personal property by “failing to note

in [his] medical records” the events of the day he broke his hip and in “failing to

memorialize in writing numerous other observations concerning [his] condition . . . .” He

further alleged misuse of his medical records by “failing to follow a recommendation noted

in the records for an x-ray of [his] hip.” A jury returned a verdict in York’s favor, which was

affirmed by the court of appeals.




                                              11
       Recognizing that the codified version of the Act eliminated the mandate for liberal

construction and instead called for construction subject to the general principles of

statutory construction in § 311.023 of the Code Construction Act, the Court held that mere

information, which may or may not be recorded in a patient’s medical records, does not

constitute use, misuse, or non-use of tangible personal property under § 101.021(2) of the

Act. York, 871 S.W.2d at 179. York’s judgment was reversed and judgment was rendered

in favor of UTMB. While paper itself can be touched, handled, and seen, the Court

reasoned that medical information recorded on paper is not tangible personal property.

Id at 176. Information is intangible. Id. at 179. York had not alleged any misuse of any

hospital device or equipment. Id. at 178.


       In 1998, the Supreme Court limited Salcedo to its facts.10 See Dallas County Mental

Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998). Bossley

involved a patient who escaped from a mental health facility, where patients were free to

come and go, through unlocked doors and committed suicide by throwing himself in front

of a truck. Id. at 340-41. The patient’s parents sued for wrongful death “caused by a

condition or use of tangible personal property,” i.e., the unlocked doors to the facility.


       The trial court granted summary judgment in favor of MHMR based on sovereign

immunity, and the plaintiffs appealed. The appellate court applied Salcedo reasoning that


       10
          See Jeff Todd, Undead Precedent: The Curse of a Holding “Limited to Its Facts,”
40 Tex. Tech L. Rev. 67 (2007) (regarding the precedential value of an opinion “limited to
its facts”).

                                             12
the involvement of “some condition or use of tangible property is enough” for waiver of

immunity and reversed the trial court. The Supreme Court reversed the appellate court

and rendered judgment that plaintiffs take nothing. In explaining its earlier holding in

Salcedo, the Court declared that while some involvement of property was necessary, mere

involvement, without causation, was insufficient. Id. at 342. The Court went on to note that

exactly how much more involvement was required was difficult for courts to define. “If only

involvement were required, the waiver of immunity would be virtually unlimited . . . .” Id.

at 343. Requiring only that a condition or use of property be involved would conflict the

Act’s basic purpose of waiving immunity only to a limited degree. Id. (quoting Lowe, 540

S.W.2d at 302-03) (Greenhill, C.J., concurring). Property does not cause injury if it does

no more than furnish the condition that makes the injury possible. Id. The Court found that

the patient’s death was too attenuated from a use or condition of the doors as to constitute

a waiver of sovereign immunity. Id.


       The Supreme Court requires a nexus between the use of tangible property and the

plaintiff’s injuries. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542-43 (Tex.

2003) (plaintiff’s injuries did not arise from use of the bus, but from the bus driver’s failure

to supervise the public, which is insufficient to waive immunity under the Act).


       The last Supreme Court decision we will examine is Texas Department of Criminal

Justice v. Miller, 51 S.W.3d 583 (Tex. 2001). In finding that the plaintiff’s claim did not fall

within § 101.021(2), the Court narrowed application of the Act’s waiver provision. Id. at


                                              13
588. Miller, an inmate, was treated by TDCJ’s staff for nausea and severe headaches.

He was given pain medication and other medications for fifteen days, after which he was

hospitalized and diagnosed with cryptococcal meningitis, which caused his death. Id. at

585. His widow filed suit alleging that Miller’s death was caused by misuse of tangible

property by (1) improperly administering pain medications and fluids which masked the

symptoms of meningitis, (2) improperly reading and interpreting fever-detecting equipment,

and (3) improperly using clinic facilities and equipment in diagnosing and treating Miller.

She further alleged that TDCJ staff were negligent in “failing to practice medicine in an

acceptable manner . . . ,” failing to evaluate Miller in a timely manner, failing to make a

proper diagnosis, failing to order appropriate laboratory tests, and failing to treat Miller’s

true condition. Id. TDCJ filed a plea to the jurisdiction asserting that Mrs. Miller failed to

bring her claim within the waiver provision of the Act and alternatively, filed a motion for

summary judgment. The trial court denied TDCJ relief and the court of appeals affirmed.

Id. at 586.


       TDCJ contended in the Supreme Court that Mrs. Miller, in essence, alleged only the

non-use of tangible personal property and an error in medical judgment, which do not fall

within the statutory waiver. Id. at 588. Mrs. Miller responded that not only did she allege

failure to use tangible property, but also simultaneous misuse of pain medication and other

medications and diagnostic equipment. The Court described her contention as “an

attractive attempt to distinguish” non-use cases, but was not persuaded. Id.



                                             14
       Defining “use” as “to put or bring into action or service, to employ for or apply to a

given purpose,” the Court noted that while TDCJ did “bring into . . . service” and “employ”

various drugs and medical equipment to treat Miller, the mere involvement of some

property was not enough. See id. at 588. See also Kerrville State Hosp. v. Clark, 923

S.W.2d 582, 584 (Tex. 1996). “Using that property must have actually caused the injury.”

Miller, 51 S.W.3d at 588. Recognizing the problematic distinction it drew, the Court

nevertheless concluded that because the property used to treat Miller did not actually

cause his death, there was no waiver of sovereign immunity. Id. at 588-89.


II. Significant Intermediate Appellate Decisions


       Recently, the Texarkana Court of Appeals, in affirming a trial court’s order denying

two nurses’ motion to dismiss, analyzed § 101.021(2) and discussed contrasting decisions

from other intermediate appellate courts. See Lanphier, R.N., v. Avis, 244 S.W.3d 596

(Tex.App.–Texarkana 2008, pet. filed). In that case, Avis filed a health care liability suit

against two nurses alleging negligence in failing to properly carry out their nursing

responsibilities. Notwithstanding that a fetal monitor strip showed Avis’s fetus to be in

distress after she had vomited and had a 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

surgery was performed and Avis’s baby was delivered stillborn.


       In reviewing this Court’s opinion in Clark v. Sell, 228 S.W.3d 873 (Tex.App.–Amarillo

2007, pet. filed), in which we held that suit could not be maintained under any available

                                             15
waiver provision of the Act, the Texarkana Court of Appeals noticed the importance of the

absence of a nexus between the use of tangible personal property and the injury

sustained. Lanphier, 244 S.W.3d at 602.


       Kelso v. Gonzales Heathcare Systems, 136 S.W.3d 377 (Tex.App.–Corpus Christi

2004, no pet.), involved delayed treatment following results of an EKG which indicated the

patient was having a heart attack. The plaintiff alleged that the delay in treatment caused

permanent injuries and the injuries were caused by misuse of the EKG machine. Id. at

380. The court concluded that the patient’s allegations did not bring the claims within the

waiver provisions of the Act because the plaintiff had not made an affirmative allegation

that the EKG machine was incorrectly used or that its results were erroneous. Id. 382.

The court reasoned that misuse of information produced by the EKG machine caused the

injuries rather than misuse of the device itself. Id.


       By contrast, in University of Texas Medical Branch Hosp. at Galveston v. Hardy, 2

S.W.3d 607, 609-10 (Tex.App.–Houston [14th Dist.] 1999, pet. denied), a cardiac monitor

alarm indicated heart stoppage, but resuscitation efforts were not commenced until at least

five minutes after the first alarm. Id. 608-09. The patient suffered severe brain damage

and was eventually removed from life support systems. The plaintiff sued for wrongful

death alleging the hospital staff failed to properly oversee the monitor. The court relied

heavily on Salcedo and concluded that the use of the cardiac monitor, like the EKG,




                                             16
directly affected and impacted the person whose heart condition was being monitored. Id.

at 610.


       In recognizing conflicting results, the Court in Lanphier was persuaded by the

reasoning in Kelso and Clark, finding that the substance of Avis’s allegations did not

concern use of tangible property but were more akin to misuse of information provided by

the monitor, which is not considered tangible property under the Act. The court quoted

from Turner v. Zellers, 232 S.W.3d 414 (Tex.App.–Dallas 2007, no pet.):


       the mere use of tangible personal property by Dr. Zellers in connection with
       his diagnosis and treatment of [patient] does not mean the State has waived
       sovereign immunity for any health care liability claim arising from that
       diagnosis and treatment. To hold otherwise would render a governmental
       unit subject to suit any time a physician employed by it picked up a tongue
       depressor and examined a patient.


       Four years after Hardy, the San Antonio Court of Appeals found that Salcedo was

no longer controlling in a case involving the use of an electrocardiogram. See Anderson

v. City of San Antonio, 120 S.W.3d 5 (Tex.App.–San Antonio 2003, pet. denied). In that

case, emergency medical technicians were dispatched to Anderson’s home because he

was suffering from severe chest pains. Id. at 6. Two electrocardiogram tests were

performed, and the EMTs determined that Anderson did not need to be taken to the

hospital. Id. Later that day, Anderson again suffered chest pains and EMTs were

dispatched to his home. This time, he was transported to the hospital where he died that

night. Id.


                                           17
       Relying on Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003), the

San Antonio Court of Appeals concluded that Anderson’s death was caused by his cardiac

condition and the EMTs’ alleged negligence, and not by use of the electrocardiogram

machine. Anderson, 120 S.W.3d at 9.


III.   Statutory Construction


       We acknowledge that in 1985, a legislative comment following the Act stated that

the “Act [was] intended as a recodification only, and no substantive change in the law [was]

intended . . . .”11 However, comments following code provisions, while instructive, are not

law. Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683, 687 (Tex.App.–Houston

[14th Dist.] 2003, no pet.); Lockhart Sav. & Loan Ass’n v. RepublicBank Austin, 720

S.W.2d 193, 195 (Tex.App.–Austin 1986, writ ref’d n.r.e.). Thus, a legislative comment

cannot be construed as altering clear and unambiguous language of a statute.


       Courts take statutes as they find them. RepublicBank Dallas, N.A. v. Interkal, Inc.,

691 S.W.2d 605, 607 (Tex. 1985) (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66,

70 (1920)). When construing a statute, every word, phrase, and expression is read as if

it were deliberately chosen, and we presume the words excluded from a statute were done

so purposefully. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981).

See also Mid-Century Ins. Co. v. Texas Workers’ Compensation Com’n, 187 S.W.3d 754,



       11
            See fn.7 at 3322.

                                            18
758 (Tex.App.–Austin 2006, no pet.); Gables Realty Ltd. P’ship v. Travis Cent. Appraisal

Dist., 81 S.W.3d 869, 873 (Tex.App.–Austin 2002, pet. denied).


       The word “some,” which was excluded from § 101.021(2) by the Legislature in 1985,

means: being an unknown, undetermined, or unspecified unit or thing. Webster’s New

Collegiate Dictionary 1099 (1981). When Salcedo was decided, “use” and “condition” were

both modified by the word “some.” Under the holding in Salcedo, an allegation of “some

use” of tangible property was sufficient if the property was alleged to be a contributing

factor. Years later, the Court in Miller concluded that mere involvement of “some” property

was not enough to fall within the waiver provision. 51 S.W.3d at 588. Instead, using the

property must have actually caused the injury. Id. Unlike the “failing to” allegations in Lowe

v. Texas Tech University, which was decided under the Act when the word “some” modified

use and condition, Mrs. Miller’s allegations, which were couched in terms of “failing to,” were

found insufficient to demonstrate a waiver of sovereign immunity.12




        12
         We recognize that Robinson, which was decided in 1989 after the changes to the
Act, also involved “failing to” allegations. The Court, however, based its decision on the
preservation of “condition and use.” Later decisions have, however, narrowed or limited
Salcedo.

                                              19
                                          Analysis


I. Application of § 101.021(2) to the Wards’ Claim


       Considering the similarity of the arguments raised by TTUHSC and UMC, we will

address their issues simultaneously. Under § 101.021(2) of the Act, a governmental unit

waives sovereign immunity for death (1) caused by (2) a condition or use of tangible

personal property. We first turn to an examination of the Wards’ pleadings and relevant

jurisdictional evidence to determine whether their claims fall within the limited waiver of

sovereign immunity. At the time of the hearing on the pleas to the jurisdiction, the Wards

had filed their Fourth Amended Petition. They alleged that UMC, through its nurse, was

negligent as follows:


       a. [m]isuse of the external fetal monitor attached to Carita Ward by failing to
       recognize and respond to a non-reassuring heart rate pattern of her fetus;
       b. [n]on-use of the external fetal monitor attached to Carita Ward by failing to
       recognize and respond to a non-reassuring heart rate pattern for her fetus.


They further alleged that the “misuse and non-use of the fetal heart rate monitor was a

foreseeable and proximate cause of injuries and damages . . . .”


       As for TTUHSC, the Wards alleged negligence by its resident physician, Dr. Carol

Tracy Suit, as follows:


       a. [n]on-use of the external fetal heart rate monitor to access the status of the
       unborn child before ordering Carita Ward discharged;


                                              20
       b. [m]isuse of the external fetal heart rate monitor by failing to recognize and
       respond to a non-assuring heart rate pattern of Carita Ward’s fetus;
       c. [n]on-use of the external heart rate monitor by failing to recognize non-
       assuring fetal heart rate patterns prior to discharging Carita Ward.


They further alleged that Dr. Suit’s negligence was “a foreseeable and proximate cause of

injuries and damages . . . .”


       In support of their pleading, the Wards attached expert reports13 and deposition

excerpts from a nurse employed by UMC. The limited excerpts show that the nurse

responsible for Carita was a recent graduate with only four and one-half months experience.

She testified that it was her job to notify the physician if she felt there were non-reassuring

signs on the tracings from the external monitor.


       UMC filed its plea to the jurisdiction alleging that the Wards had not raised claims

that fell within the limited waiver of sovereign immunity under the Act. To support its plea,

UMC attached Carita’s sealed medical records. Those documents establish that there was

a “tight true knot” in the umbilical cord. TTUHSC filed its plea to the jurisdiction after being

added as a defendant by the Wards’ Third Amended Petition and also filed a supplemental

plea to the jurisdiction after the Wards filed their Fourth Amended Petition. It asserted that

the Wards had failed to allege adequate grounds for waiver of sovereign immunity.




        13
        As previously noted, we are prohibited from considering expert reports in the
underlying proceeding, even for the purpose of determining jurisdiction. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(k).

                                              21
       During the hearing on the pleas to the jurisdiction, defense counsel for UMC argued

that the “non-use” paragraph of the Wards’ allegations against UMC be stricken. See

Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (non-use of tangible

personal property does not fall under the waiver provisions of the Act). See also Kassen

v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) (non-use of property does not trigger waiver of

sovereign immunity under the Act). In response, counsel for the Wards suggested that

“non-use” and “misuse” were a matter of semantics and offered to amend the Wards’

pleadings. The trial court replied, “[a]ll right.” Three days after the hearing, the Wards filed

their Fifth Amended Petition alleging only misuse of the external fetal monitor against UMC

and TTUHSC and eliminating any “non-use” paragraphs. A month after the Fifth Amended

Petition was filed, the trial court signed its order denying the pleas to the jurisdiction.


       At first glance, the Wards’ allegations that TTUHSC and UMC were negligent in

misuse of the external fetal heart monitor seem to fit under the Court’s analysis in Salcedo

that “some” use of tangible personal property was involved. However, the Wards also

alleged that TTUHSC and UMC were negligent in “failing to recognize and respond to a

non-assuring heart rate pattern of Carita Ward’s fetus.”


       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




                                              22
provisions.   Since then, the mandate for liberal construction has been repealed.14

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. They did not 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 medical staff. They have

also failed to establish a nexus between use of the monitor and the stillborn birth of their

child. Additionally, the evidence indicates that the cause of death was a true knot in the

umbilical cord. Resultantly, the Wards have failed to state a claim under § 101.021(2) of

the Act. The two issues presented by TTUHSC are sustained and the three issues raised

by UMC are likewise sustained.




        14
        See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws
3242, 3322.

                                              23
II. The Wards’ Opportunity to Amend Pleadings


       When a plaintiff fails to plead facts that establish jurisdiction, but the petition does

not demonstrate incurable defects, the issue is one of pleading sufficiency and the plaintiff

should be afforded the opportunity to amend. See Miranda, 133 S.W.3d at 226-27. See

also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend. Brown, 80 S.W.3d at 555.

Despite having failed to affirmatively plead facts establishing jurisdiction, the Wards were

afforded an opportunity to amend their Fourth Amended Petition after the hearing on the

pleas to the jurisdiction. By their Fifth Amended Petition, they deleted the “non-use”

paragraphs and alleged only misuse of the external fetal heart monitor.             Practically

speaking, the Wards have already had an opportunity to replead to no avail. A plaintiff

should not be permitted to relitigate jurisdiction once that issue has been finally determined.

See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). Thus, we are required to

render the judgment the trial court should have rendered. Tex. R. App. P. 43.3.


                                        Conclusion


       Consequently, the trial court’s order denying Texas Tech University Health Sciences

Center’s and University Medical Center’s respective pleas to the jurisdiction is reversed.

Rendering the judgment the trial court should have rendered, we grant Texas Tech



                                              24
University Health Sciences Center’s and University Medical Center’s pleas to the jurisdiction

and dismiss Carita Elizabeth Ward and Dustin Ward’s claim for want of jurisdiction.




                                                  Patrick A. Pirtle
                                                      Justice


Quinn, C.J., not participating.




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