                                      NO. 12-18-00270-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 UNIVERSITY OF TEXAS HEALTH                             §       APPEAL FROM THE 114TH
 SCIENCE CENTER AT TYLER,
 APPELLANT
                                                        §       JUDICIAL DISTRICT COURT
 V.

 NORMA LYNN SMITH,                                      §       SMITH COUNTY, TEXAS
 APPELLEE

                                      MEMORANDUM OPINION
       The University of Texas Health Science Center at Tyler (UTHSC) appeals from the trial
court’s denial of its plea to the jurisdiction in Norma Lynn Smith’s negligence action. 1 In its sole
issue, UTHSC contends the trial court erred in denying the plea because Smith’s pleading does not
demonstrate that UTHSC waived immunity to suit. We reverse and render judgment dismissing
Smith’s claims for want of jurisdiction.


                                               BACKGROUND
       Dr. Steven Cox, an employee of UTHSC, surgically removed Smith’s gall bladder. She
experienced post-operative complications. Smith sued UTHSC for medical negligence, alleging
waiver of immunity for injuries caused by use and/or misuse of tangible personal property, an
electrocautery instrument.
       UTHSC filed a plea to the jurisdiction asserting that Smith’s petition fails to establish a
waiver of UTHSC’s sovereign immunity as required by the Texas Tort Claims Act 2 and moved



       1
           See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2018).
       2
           TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-101.109 (West 2019).
for a dismissal for want of subject matter jurisdiction. 3 After a hearing, the trial court denied the
plea. UTHSC appealed the interlocutory order.


                                                 JURISDICTION
         In its sole issue, UTHSC asserts that Smith’s petition does not establish that UTHSC
waived its sovereign immunity. It argues that Smith alleged that her post-operative complications
were proximately caused by Dr. Cox’s use/misuse of an electrocautery instrument but does not
establish that he used or misused any surgical instrument in a negligent manner or that he damaged
her biliary system. It further argues that Smith’s allegation that Dr. Cox failed to repair the injury
is an allegation of non-use of property which is not actionable under the statute. Additionally,
UTHSC asserts that Smith’s allegation that Dr. Cox negligently performed a surgery that was not
medically indicated is an allegation of an error in medical judgment which is not actionable under
the statute.
Standard of Review
         Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A plea to the jurisdiction
challenges the trial court’s authority to determine the subject matter of a specific cause of action.
Starkey ex rel. Ragsdale v. Andrews Ctr., 104 S.W.3d 626, 628 (Tex. App.−Tyler 2003, no pet.).
If a party believes that the plaintiff’s petition does not show jurisdiction and cannot be amended
to allege jurisdiction, the party may file a plea to the jurisdiction at any time. Id.
         Because subject matter jurisdiction presents a question of law, we review the trial court’s
ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998). In reviewing a plea to the jurisdiction, we review the pleadings and any evidence
relevant to the jurisdictional issue. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587
(Tex. 2001). We accord the trial court’s decision no deference. Quick v. City of Austin, 7 S.W.3d
109, 116 (Tex. 1998). We construe the plaintiff’s pleadings liberally in the plaintiff’s favor and
look to the pleader’s intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). We take as true all evidence favorable to the non-movant and indulge every
reasonable inference and resolve any doubts in the non-movant’s favor. Id. at 228.


         3
          After UTHSC filed its plea to the jurisdiction and a supplemental plea to the jurisdiction, Smith filed her
first amended petition. Thereafter, UTHSC filed a second supplemental plea to the jurisdiction.


                                                         2
Applicable Law
       Pursuant to the doctrine of sovereign immunity, the State of Texas cannot be sued in her
own courts without her consent and then only in the manner indicated by that consent. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003). Absent the State’s consent to suit,
a trial court lacks subject matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638
(Tex. 1999) (per curiam). The Texas Tort Claims Act provides a limited waiver of immunity,
allowing suits against governmental units under certain, narrowly defined circumstances. Miller,
51 S.W.3d at 587. The Act provides that a governmental unit is liable for personal injuries 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. TEX. CIV. PRAC. & REM. CODE ANN.
§ 01.021(2). The Act also waives immunity from suit to the same extent. Id. § 101.025(a); Miller,
51 S.W.3d at 587.
       Pleadings in a suit against a governmental unit must affirmatively demonstrate, either by
reference to a statute or express legislative permission, that the legislature consented to the suit.
Jones, 8 S.W.3d at 638. To state a claim involving the use of nondefective property, a plaintiff
must allege the property was used or misused by a government employee. See Lacy v. Rusk State
Hosp., 31 S.W.3d 625, 629 (Tex. App.−Tyler 2000, no pet.). The plaintiff must allege that her
injury was proximately caused by the use of tangible personal property. See Dallas Cty. 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). Claims involving the failure
to use, or the non-use of property, do not waive sovereign immunity. Miller, 51 S.W.3d at 587.
That some property is merely involved is not enough. Id. at 588. Using that property must have
actually caused the injury. Id. Allegations involving the misuse of information or medical
judgment, without more, are insufficient to waive immunity. Id. at 589; Univ. of Tex. Med.
Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994).
Analysis
       Relying on a trial court scheduling order, Smith initially argues that UTHSC’s plea to the
jurisdiction was not timely filed. The argument has no merit. Subject matter jurisdiction is never
presumed and cannot be waived. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 448 n.2
(Tex. 1996). A plea to the jurisdiction may be filed at any time. Starkey ex rel. Ragsdale, 104
S.W.3d at 628.



                                                 3
       In her first amended petition, Smith alleged that Dr. Cox damaged her biliary system
through the use and/or misuse of an electrocautery instrument. She more specifically alleged that
he was negligent in damaging the biliary system, performing a surgery that was not medically
indicated, and failing to repair the damage to the biliary system.
       Smith’s expert, Dr. Lawrence Boyle, testified by deposition that he reviewed Smith’s
records. Because the pathology report did not state that there were signs of acute or chronic
inflammation in the gallbladder wall, he believed it was a normal gallbladder. He also stated that
Smith’s medical history was not diagnostic for gallbladder disease, and the preoperative workup
was inadequate and insufficient to subject her to the surgery. He explained that the ultrasound
revealed there were no inflammatory changes, it was a normal thickness, there was no fluid, and
there was possibly a two-millimeter polyp on the wall of the gallbladder. Many of her symptoms
were not specific to the gallbladder. He stated that Dr. Cox had only subjective circumstantial
evidence, no objective evidence. He testified that the gallbladder surgery was unnecessary. When
asked if he found “any operative issues with the surgery itself” he responded that the only issue he
had was that the surgery was unnecessary. He also testified that he had no issues with the
postoperative care and management of the bile leak. He explained there are “mainly three
etiologies of a bile leak,” two of which can occur in the absence of injury. He never made a
determination as to the source of the leak. His subsequent affidavit reiterated his conclusion that
there was no medical indication to operate on Smith.
       Dr. Cox testified that Smith had classic symptoms of cholecystitis, inflammation of the
gallbladder, so he performed surgery to remove the gallbladder. Smith developed a post-surgical
leak of bile. To the best of his knowledge, the leak came from the gallbladder fossa, the area where
the gallbladder had been attached to the liver. He testified that there was no leak from any other
structure and no evidence of any form of injury.
       We first address Smith’s allegations that Dr. Cox was negligent in damaging the biliary
system and failing to repair that damage. Dr. Boyle did not determine the source of the bile leak.
He had no complaint about how the surgery was performed. Further, two of the three most
common causes of post-surgical bile leaks are not caused by injury. Dr. Cox explained that the
gallbladder is dissected from the liver creating a raw surface which, in a small number of patients,
“will leak in the natural course of things in gallbladder surgery.” He testified that there was no
evidence of any surgical injury and that the leak was not caused by an injury. While he addressed



                                                   4
the post-surgery leak with drainage, he stated that “the body just heals,” and nothing required
repairs.
           For waiver to occur, the alleged injury must be caused by the manner in which property
was used. Miller, 51 S.W.3d at 588. There is no evidence that Dr. Cox negligently used the
electrocautery instrument in the surgery. The fact that tangible personal property was used during
the procedure does not establish that its use was the proximate cause of Smith’s alleged injury.
See Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686 (Tex. App.−Houston
[1st Dist.] 2010, pet. denied).
           The only evidence on the source of the leak indicates that use of the electrocautery
instrument to remove the gallbladder did nothing more than furnish the condition that made the
bile leak possible. For purposes of determining if a waiver of immunity has occurred, property
does not cause injury if it does no more than furnish the condition that makes injury possible.
Bossley, 968 S.W.2d at 343. Therefore, Smith has not shown a nexus between the alleged injury,
the bile leak, and the use of an electrocautery instrument. Miller, 51 S.W.3d at 588. Further, an
allegation of the failure to repair damage is an allegation of the non-use of property which does
not satisfy the statute. Id. at 587.
           Additionally, Smith pleaded that Dr. Cox performed a surgery to remove her gallbladder,
using tangible personal property, “which was not medically indicated.” This allegation focused
on the determination to perform surgery. In their respective depositions, Dr. Cox and Dr. Boyle
considered Smith’s medical history and symptoms and the pre-operative testing. Based on their
expertise as trained physicians, in the exercise of medical judgment, the two doctors reached
opposing conclusions regarding the necessity of the surgery.
           Whether surgery is indicated is determined by medical judgment, and that determination
did not involve the use of an electrocautery instrument. Errors in medical judgment do not waive
immunity under the Act. Miller, 51 S.W.3d at 588 (concluding hospital did not waive immunity
for failing to use different drugs to treat meningitis when passage of time and error in medical
judgment resulted in death); see also Kamel, 333 S.W.3d at 686 (held that crux of plaintiff’s claim
is the surgeon made an erroneous medical judgment in determining that patient’s testicle needed
to be removed, and allegations do not fall within limited waiver of the Act); Miers v. Tex. A&M
Univ. Sys. Health Sci. Ctr., 311 S.W.3d 577, 580 (Tex. App.−Waco 2009, no pet.) (held there is




                                                  5
no waiver of sovereign immunity where plaintiff’s complaint arose from oral surgeon’s decision
to remove additional teeth).
         Accordingly, Smith’s allegation that Dr. Cox removed her gallbladder unnecessarily is an
allegation of an error in medical judgment, and her pleading does not demonstrate that UTHSC
waived its sovereign immunity. Therefore, the trial court erred in denying the plea to the
jurisdiction. See Jones, 8 S.W.3d at 638. We sustain UTHSC’s sole issue.


                                                  DISPOSITION
         Having determined that UTHSC did not waive sovereign immunity, we reverse the trial
court’s order and render judgment that UTHSC’s plea to the jurisdiction is granted and the cause
is dismissed, with prejudice, for want of jurisdiction. See Harris Cty. v. Sykes, 136 S.W.3d 635,
639 (Tex. 2004) (held that where plaintiff has been provided a reasonable opportunity to amend
after a governmental entity files its plea to the jurisdiction, and the amended pleading does not
allege facts that would constitute a waiver of immunity, the trial court should dismiss the action
with prejudice).

                                                                GREG NEELEY
                                                                   Justice

Opinion delivered April 30, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2019


                                         NO. 12-18-00270-CV


          UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT TYLER,
                                Appellant
                                   V.
                           NORMA LYNN SMITH,
                                 Appellee


                                Appeal from the 114th District Court
                          of Smith County, Texas (Tr.Ct.No. 16-0813-B)

                     THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, it is the opinion of this court that there was
error in the trial court’s order denying the University of Texas Health Science Center at Tyler’s
plea to the jurisdiction.
                     It is therefore ORDERED, ADJUDGED and DECREED by this court that the
trial court’s order denying the University of Texas Health Science Center at Tyler’s plea to the
jurisdiction be, and the same is, hereby reversed and judgment is rendered granting the plea to
the jurisdiction and dismissing Norma Lynn Smith’s claims against University of Texas Health
Science Center at Tyler, with prejudice, for want of jurisdiction. It is further ORDERED that all
costs in this cause expended in this court be, and the same are, hereby adjudged against the
Appellee, NORMA LYNN SMITH, for which let execution issue; and that this decision be
certified to the court below for observance.
                     Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
