Reversed and Rendered and Memorandum Opinion filed January 5, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00215-CV

     THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                            Appellant

                                           V.

                            MARVIN SIMMONS, Appellee

                      On Appeal from the 122nd District Court
                             Galveston County, Texas
                         Trial Court Cause No. 08CV0832



                        MEMORANDUM OPINION

      This interlocutory appeal arises from the trial court’s denial of a plea to the
jurisdiction, in which a state university hospital claimed it was entitled to sovereign
immunity in a medical malpractice suit. Because the patient-claimant failed to allege a
claim within the waiver of sovereign immunity under the Texas Tort Claims Act, the trial
court erred in denying the healthcare provider’s plea. Accordingly, we reverse and
render judgment dismissing the claims for want of subject matter jurisdiction.
                     I. FACTUAL AND PROCEDURAL BACKGROUND

       The facts are undisputed that, in January 2007, appellee/plaintiff Marvin Simmons
was admitted to the hospital operated by appellant/defendant The University of Texas
Medical Branch at Galveston (the ―Hospital‖) after suffering a stroke in which he
presented with brain swelling. During a craniotomy, a bone flap was removed from
Simmons’s skull to reduce pressure on his brain from the swelling. Several months later,
in October 2007, Simmons underwent a procedure to replace the bone flap. Healthcare
workers at the Hospital were unable to locate the original bone flap that had been
removed in Simmons’s January 2007 craniotomy. A surgeon instead utilized titanium
mesh to successfully mend the defect in Simmons’s skull.

       Simmons brought suit against the Hospital, alleging negligence, gross negligence,
and breach of fiduciary duty arising from the treatment and care he received as a patient
at the Hospital. Specifically, Simmons alleged that the Hospital was negligent in failing
to safeguard the bone flap.     Simmons alleged that the Hospital breached a duty to
exercise ordinary care in the following ways:       failing to ―properly train, staff, and
credential physicians;‖ failing to ―properly train, staff, and credential‖ its staff and
nurses; failing to safeguard the bone flap taken from Simmons’s skull; failing to develop
and implement proper procedures for safeguarding the bone flap removed from
Simmons’s skull; and failing to ensure that the Hospital’s employees followed proper
procedures and policies. Simmons alleged that these actions and omissions caused him
damages and he sought to recover for physical pain and suffering, mental anguish,
physical disfigurement, and physical impairment.

       In responding to the suit, the Hospital claimed to have full sovereign immunity
from suit and liability under the Texas Tort Claims Act. The Hospital filed a plea to the
jurisdiction in which it asserted that the suit should be dismissed because Simons failed to
establish a waiver of sovereign immunity from suit or liability under the Texas Tort
Claims Act. Simmons responded that he alleged misuse of tangible personal property.

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      The trial court denied the Hospital’s plea, which the Hospital now appeals. This
court has jurisdiction to consider this interlocutory appeal. See TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(a)(8), (5) (West 2008); Univ. of Texas M.D. Anderson Cancer
Center v. King, 329 S.W.3d 876, 879 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied).

                                 II. ISSUES PRESENTED

      In three issues, the Hospital seeks reversal of the trial court’s order denying the
plea to the jurisdiction. The Hospital claims that no waiver of sovereign immunity exists
under the Texas Tort Claims Act for Simmons’s allegations of failure to act and
negligence.   The Hospital also asserts dismissal is warranted because Simmons is
impermissibly seeking recovery of property damages arising from an alleged negligent
use of tangible property, which is not actionable under the Texas Tort Claims Act.
According to the Hospital, Simmons’s claims are incurably defective and warrant
dismissal. Finally, the Hospital asserts that Simmons presented no evidence to establish
the necessary elements of a healthcare-liability claim within the limited waiver of
sovereign immunity under the Texas Tort Claims Act.

                                     III. ANALYSIS

      It is undisputed that the Hospital is a governmental entity that generally enjoys
sovereign immunity from tort liability unless immunity has been waived. See Wesela v.
University of Texas Medical Branch at Galveston, 899 S.W.2d 292, 293 (Tex. App.—
Houston [14th] 1995, no writ). As the claimant, Simmons bears the burden of pleading
facts demonstrating a waiver of immunity. Cnty. of Cameron v. Brown, 80 S.W.3d 549,
554-55 (Tex. 2002); Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876,
879 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).           Simmons argues that
sovereign immunity has been waived under the Texas Tort Claims Act.

      When, as in this case, a claimant sues a governmental entity that is a healthcare
provider asserting a healthcare-liability claim, the claimant must comply with both the
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Medical Liability Act and the Texas Tort Claims Act. The Texas Tort Claims Act
provides a waiver of sovereign immunity, allowing suits to be brought against a
governmental entity in limited circumstances. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 101.021, 101.022, 101.025(a) (West 2005). Accordingly, the Hospital is immune
from suit unless Simmons has pleaded facts demonstrating a waiver of immunity under
the Texas Tort Claims Act. See City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex.
1986).

                 Does sovereign immunity bar the patient-claimant’s claims?

          In its first two issues, the Hospital asserts that the trial court erred by denying its
plea to the jurisdiction because Simmons failed to establish waiver of sovereign
immunity for his claims under the Texas Tort Claims Act. A plea to the jurisdiction
challenges a trial court’s subject matter jurisdiction. City of Dallas v. Carbajal, 324
S.W.3d 537, 538 (Tex. 2010) (per curiam). Whether a court has jurisdiction is a question
of law that is reviewed de novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex.
2010) (per curiam). When a party has filed a plea to the jurisdiction challenging the
pleadings, a reviewing court construes the pleadings liberally in favor of the pleader and
looks to the pleader’s intent. See Tex. Dep’t of Parks and Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004). If the facts alleged affirmatively demonstrate the trial
court’s jurisdiction to hear the cause, the plea to the jurisdiction must be denied. See id.
If the pleadings do not contain sufficient facts to demonstrate affirmatively the trial
court’s jurisdiction, but do not demonstrate incurable defects in the jurisdiction, the issue
is one of pleading sufficiency and the claimant should be afforded an opportunity to
amend. See id. 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.

          As reflected in the live pleadings, Simmons alleged that the Hospital was
negligent in the following ways:

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           (a) failing to properly train, staff, and credential its physicians;
           (b) failing to properly train, staff, and credential its staff and nurses;
           (c) failing to safeguard the bone flap;
           (d) failing to develop and implement proper procedures for safeguarding
               the bone flap;
           (e) failing to ensure that the Hospital’s employees follow proper policies
               and procedures.
Simmons has alleged that his claims fall within the waiver of immunity provided in
section 101.021(2) of the Texas Civil Practice and Remedies Code. This section, entitled
―Governmental Liability,‖ 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.‖ See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2)
(West 2011). To successfully plead a claim within the waiver of sovereign immunity
under section 101.021(2), Simmons had to allege that his injuries were proximately
caused by a condition or use of tangible personal or real property and that the Hospital, if
it were a private person, would be liable to him under Texas law. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.021(2); Wise Regional Health Sys. v. Brittain, 268 S.W.3d 799
(Tex. App.—Fort Worth 2008, no pet.).

       The Hospital claims that Simmons did not allege negligent use of tangible
personal property within the purview of section 101.021(2). Presuming for the sake of
argument that a bone flap is tangible personal property, 1 none of Simmons’s allegations
are based upon a negligent use of tangible personal property. See King, 329 S.W.3d at
880 (concluding that allegations of ―failure to develop, employ, monitor, and follow‖
policies and procedures, ―failure to assure the competence of medical staff,‖ ―failure to
monitor and oversee quality treatment rendered by medical staff,‖ and ―failure to assure

       1
          See Dominguez v. City of San Antonio, No. 10-06-00109-CV, 2007 WL 613792, at *3 (Tex.
App.—Waco Feb. 28, 2007, no pet.) (mem. op.) (concluding that bodily remains do not constitute
personal property for which a party may sue the state).
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competence of the medical staff,‖ among other claims, are not allegations under section
101.021(2) for which sovereign immunity is waived); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021(2). ―Use‖ has been defined as ―to put or to bring into action or
service; to employ for or apply to a given purpose.‖ See Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 588 (Tex. 2001). Simmons claims that the Hospital’s actions
amounted to misuse within the waiver of immunity provided in section 101.021(2).2 For
misuse to be pleaded within the waiver of immunity, the nexus between condition or use
of the property and the injury requires more than involvement of the property; the
condition or use actually must cause the injury. See Dallas Cnty. Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Additionally, property
does not cause the injury if it does nothing more than furnish the condition that makes the
injury possible. See Miller, 51 S.W.3d at 588; Bossley, 968 S.W.2d at 343.                         But,
Simmons’s pleadings do not amount to a claim of use or misuse; claims that involve
failure to use and non-use are not within the waiver provided in section 101.021(2). See
Miller, 51 S.W.3d at 587–88.             Sovereign immunity is not waived under section
101.021(2) for injuries proximately caused by the negligent failure to act or failure to use
property. See Miller, 51 S.W.3d at 587; King, 329 S.W.3d at 881 & n.5.

       Although normally a claimant should be afforded an opportunity to amend
pleadings, when pleadings affirmatively negate the existence of jurisdiction they are
considered incurably defective and cannot be cured by a claimant’s assertion of more
detailed facts. See King, 329 S.W.3d at 881. Simmons has failed to plead sufficient
factual allegations that the negligent use of tangible property by a state employee caused
his injuries within the waiver of sovereign immunity contained in section 101.021(2).


       2
          Simmons relies on Univ. of Tex. Medical Branch at Galveston v. Malveaux, No. 14-09-00878-
CV, 2010 WL 2968021, at *3 (Tex. App.—Houston [14th Dist.] Jul. 29, 2010, pet. denied) (mem. op.).
In that case the court concluded that a patient’s claims that ―misuse of equipment in excising tissue,‖
―using improper pattern to excise tissue,‖ and ―failure to properly use supplies‖ did not involve use of
tangible personal property within the waiver of immunity contemplated by the Tort Claims Act. See id. at
*3–4. The case does not support Simmons’s claim of misuse.
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See King, 329 S.W.3d at 881. Simmons’s allegations are incurably defective; therefore,
Simmons cannot cure the defects by pleading more detailed facts to support his assertion
that his injuries were caused by the acts or omissions such as those listed above. See id.
         When suit is barred by governmental immunity, dismissal with prejudice for want
of jurisdiction is proper. Liberty Mutual Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.
App.—Austin 1994, no writ). The trial court erred in denying the Hospital’s plea to the
jurisdiction and in failing to dismiss Simmons’ claims. We sustain the Hospital’s first
issue.

         Through our disposition of the Hospital’s first issue, we have determined the trial
court has no subject matter jurisdiction over the claims in this case.          Thus, it is
unnecessary to address the Hospital’s remaining issues. For the forgoing reasons, we
reverse the trial court’s order and render judgment dismissing Simmons’s claims for want
of subject matter jurisdiction.




                                           /s/       Kem Thompson Frost
                                                     Justice



Panel consists of Justices Frost, Seymore, and Jamison.




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