                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00111-CV


LINELL REDDEN, INDIVIDUALLY                                        APPELLANTS
AND AS REPRESENTATIVE OF
THE ESTATE OF ROBERT JONES
REDDEN, DECEASED; SABRE
MARIE REDDEN; AND SEAN
MICHAEL REDDEN

                                        V.

DENTON COUNTY                                                         APPELLEE


                                    ------------

         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                                   OPINION
                                     ----------

                                 I. Introduction

      In one issue, Appellants Linell Redden, individually and as representative

of the estate of Robert Jones Redden, deceased; Sabre Marie Redden; and

Sean Michael Redden (collectively, ―Appellants‖) complain that the trial court

erred by granting Appellee Denton County‘s plea to the jurisdiction. We affirm.
                                 II. Background

      Appellants sued Denton County under the Texas Tort Claims Act (TTCA)

after Redden died while incarcerated in the Denton County Jail, alleging misuse

of the county‘s electrocardiogram (EKG) machine by misinterpreting the data

derived from it that led to his improper treatment and death, among other

allegations not at issue here.1      See Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.001–.109 (Vernon 2005).

      In support of their claim, Appellants alleged that Redden, who was

incarcerated from May 1, 2006, until his death on July 9, 2006, informed jail

personnel of his history of coronary artery disease. On at least three occasions,

Redden complained of chest pains ―and other signs and symptoms of cardiac

ischemia for which EKG testing was performed but for which no EKG

assessment was made by qualified medical personnel,‖ and facility employees

―misused [the county‘s] EKG and the data derived from the EKG by failing to

properly assess‖ Redden‘s cardiac problems pursuant to the county‘s protocols.

On July 9, Redden‘s symptoms worsened and he had a heart attack in the jail

infirmary.

      Denton County filed a plea to the jurisdiction, adding these additional facts:

   Redden reported to jail medical staff that he had had a heart attack eleven
   years before but that he was not currently seeing any doctor for his past heart


      1
        In their response to Denton County‘s plea to the jurisdiction, Appellants
stated that they chose ―to continue on only their causes of action alleging misuse
of the EKG machine.‖

                                     2
   attack, had not taken any prescription medicine for a heart condition in the last
   eight years, and was just taking aspirin;

   Redden was evaluated and treated in the jail infirmary on at least six
   occasions: June 10, June 18, June 19, June 30, July 5, and July 9, involving
   a variety of matters, including discharge from his left ear, chest pain, left
   elbow pain, throat pain, acid reflux, and ―ultimately [a] heart attack‖;

   EKG tests were performed on June 10, June 19, and June 30 before Redden
   reported to the infirmary on July 9, complaining of ―sweating, arms tingling,
   chest hurting,‖ and received another EKG test.

   Redden suffered sudden cardiac arrest while in the infirmary;

   The medical examiner determined that Redden had experienced a sudden
   blood clot, and the medical cause of death was ―Coronary Artery Thrombosis
   Due to Atherosclerosis Cardiovascular Disease‖;

   Medical Officer Day testified that if the EKG machine is not operating properly,
   it will not run a ―strip,‖ and the machine will let the operator know that there is
   a problem. A ―strip‖ was printed each time the EKG machine was used on
   Redden.

In its plea, Denton County argued that it was protected by sovereign immunity,

that ―[t]he sole and very narrow issue . . . is whether tangible property was

misused and such misuse caused‖ Redden to have a heart attack, and that, even

though the EKG machine is tangible county property, there was no actionable

misuse because the machine was working properly and the only machine-related

complaint brought by Appellants pertained to the misinterpretation of the

printouts by infirmary personnel.2




      2
       Denton County argued that, ―[a]t best, the [Appellants‘] concerns go to
alleged errors in medical judgment and not the misuse of any tangible property
which caused Mr. Redden to have a heart attack.‖

                                     3
      In their response to Denton County‘s plea to the jurisdiction, Appellants

specifically alleged that Denton County employees ―found the [EKG] graphs

revealed normal activity instead of ischemic changes and, based on that

misinterpretation, treated Redden with antacids for heartburn rather than

providing him with immediate cardiac care.‖ They stated, ―Simply put, if Denton

County staff had not misinterpreted the EKG readings as acid reflux, Redden

would have received the immediate medical treatment he needed for his heart

and probably lived.‖ Appellants never alleged that the EKG machine itself was

not properly working. After a hearing, the trial court granted Denton County‘s

plea to the jurisdiction, and this appeal followed.

                            III. Plea to the Jurisdiction

      The issue presented to this court can be distilled to a single question: Is

Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 32 (Tex. 1983), which held

that an allegation of misuse of tangible property by improper reading and

interpretation of EKG graphs stated a claim under the TTCA, still good law

regarding the ―use‖ of an EKG machine, or has it been implicitly overruled by

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

A. Standard of Review

      A plea to the jurisdiction is a dilatory plea used to defeat a cause of action

without regard to whether the claims asserted have merit. Tarrant County v.

McQuary, 310 S.W.3d 170, 172 (Tex. App.—Fort Worth 2010, pet. denied) (citing

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

                                      4
challenges the trial court‘s subject matter jurisdiction. Id. Whether the trial court

had subject matter jurisdiction is a question of law that we review de novo. Id.

(citing Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855

(Tex. 2002)).

      The plaintiff has the burden of alleging facts that affirmatively establish the

trial court‘s subject matter jurisdiction. Id. at 173 (citing Tex. Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). We construe the pleadings

liberally in the plaintiff‘s favor, look to the pleader‘s intent, and accept the

pleadings‘ factual allegations as true. Id. (citing Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

B. Texas Tort Claims Act

      A governmental entity is immune from suit except to the extent waived by

the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001(3)(B), 101.021.

Under the current version of the TTCA, a governmental unit‘s sovereign immunity

is waived for ―personal injury and death so caused by a condition or use of

tangible personal or real property if the governmental unit would, were it a private

person, be liable to the claimant according to Texas law.‖ Id. § 101.021(2). That

is, to state a claim under section 101.021(2), the plaintiff must allege that (1)

property was used or misused by a governmental employee and (2) the use

proximately caused personal injury or death. Archibeque v. N. Tex. State Hosp.-

Wichita Falls Campus, 115 S.W.3d 154, 158 (Tex. App.—Fort Worth 2003, no

pet.). The supreme court has defined ―use‖ as ―to put or bring into action or

                                      5
service; to employ for or apply to a given purpose.‖ Whitley, 104 S.W.3d at 542

(citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208,

211 (Tex. 1989)).    Neither party disputes that the phrase ―tangible personal

property‖ includes EKG machines or that the EKG machine in question belonged

to Denton County.

C. “Use” of an EKG Machine

      There is currently a split in authority with regard to ―use‖ of an EKG

machine. Some courts of appeals have held, implicitly or explicitly, that Salcedo

is still the applicable law. See, e.g., Tex. Tech Univ. Health Sci. Ctr. v. Lucero,

234 S.W.3d 158 (Tex. App.—El Paso 2007, pet. denied); Univ. of Tex. Med.

Branch Hosp. at Galveston v. Estate of Blackmon, 169 S.W.3d 712 (Tex. App.—

Waco 2005, pet. granted) (op. on reh‘g), vacated on jurisdictional grounds, 195

S.W.3d 98 (Tex. 2006). Other courts have followed Whitley‘s reasoning and treat

Whitley as though it has overruled Salcedo. See, e.g., Tex. Tech Univ. Health

Sci. Ctr. v. Ward, 280 S.W.3d 345 (Tex. App.—Amarillo 2008, pet. denied);

Lanphier v. Avis, 244 S.W.3d 596 (Tex. App.—Texarkana 2008, pet. dism‘d as

moot); Kelso v. Gonzales Health Sys., 136 S.W.3d 377 (Tex. App.—Corpus

Christi 2004, no pet.); Anderson v. City of San Antonio, 120 S.W.3d 5 (Tex.

App.—San Antonio 2003, pet. denied). We must decide which path to follow.

      1. Salcedo v. El Paso Hospital District

      Everedo Salcedo died from a heart attack after he was given an EKG test

in the emergency room—the results of which allegedly showed a classic pattern

                                    6
for a heart attack—and then was released without treatment.           Salcedo, 659

S.W.2d at 31. Salcedo‘s widow alleged that the hospital district was liable for his

death under the TTCA based on misuse of the EKG equipment ―by improperly

reading and interpreting the electrocardiogram graphs and charts produced by

the equipment.‖ Id. at 32. The trial court dismissed her case for failure to state a

claim under the TTCA, and the court of appeals affirmed. Id. at 31.

       The supreme court reversed, first holding that ―an allegation of defective or

inadequate tangible property is not necessary to state a cause of action under

the Act if ‗some use‘ of the property, rather than ‗some condition‘ of the property,

is alleged to be a contributing factor to the injury.‖ Id. at 32. It then determined

that the widow‘s allegation that the hospital district was liable under the TTCA for

misuse in improperly reading and interpreting the EKG graphs stated a claim. Id.

at 31, 33 (stating, ―[r]eading and interpreting are purposes for which an

electrocardiogram graph is used or employed in diagnosing myocardial

infarction‖).

       To reach this holding, the supreme court construed language in an earlier

version of the TTCA—specifically, the word ―some‖ before ―condition‖ and ―use,‖3


       3
        The prior version of the TTCA states,

       Each unit of government in the state shall be liable for money
       damages for property damage or personal injuries or death when
       proximately caused by the negligence or wrongful act or omission of
       any officer or employee acting within the scope of his employment or
       office arising from the operation or use of a motor-driven vehicle and
       motor-driven equipment, other than motor-vehicle equipment used in

                                     7
and the provision requiring liberal construction. Id. at 32, 33. It relied on Chief

Justice Greenhill‘s concurring opinion in Lowe v. Texas Tech University, in which

he noted that the statutory language—some ―condition or use‖ of property—

―implies that such property was furnished, was in bad or defective condition or

was wrongly used‖ and in which he encouraged the legislature to express its

intent to waive immunity more clearly. Id. at 32 (citing Lowe v. Texas Tech Univ.,

540 S.W.2d 297, 301 (Tex. 1976) (Greenhill, C.J., concurring)). And the court

noted that a senate report to the 62nd legislature recognized the difficulty that the

language would cause courts4 and expressed frustration that the language


      connection with the operation of floodgates or water release
      equipment by river authorities created under the laws of this state,
      under circumstances where such officer or employee would be
      personally liable to the claimant in accordance with the law of this
      state, or death or personal injuries so caused from some condition or
      some use of tangible property, real or personal, under circumstances
      where such unit of government, if a private person would be liable to
      the claimant in accordance with the law of this state.

Act of May 28, 1983, 68th Leg., R.S., ch. 530, § 1, 1983 Tex. Gen. Laws
3084, 3085, repealed, recodified, and amended by Act of May 17, 1985,
69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (current
version at Tex. Civ. Prac. & Rem. Code Ann. § 101.021) (emphasis
added).
      4
       That is, the report by Dean Keeton to the legislature stated,

      Most negligent conduct that results in personal injury involves either
      the use of tangible property or the creation or maintenance of a
      dangerous condition on tangible property. So it seems to me that
      whereas this might appear to be a somewhat restrictive waiver of
      immunity it is not so in fact. It is a very general one but productive of
      undesirable litigation over its meaning.
      Salcedo, 659 S.W.2d at 32.

                                     8
continued to cause difficulty. Id. (―Seven years have passed since our opinion in

Lowe, yet the legislature has not changed the troublesome waiver provision.‖).

      The court then held that because reading and interpreting information are

the purposes for which the EKG graphs are used in diagnosing a heart attack,

this constituted use of tangible property and stated a claim under the TTCA. Id.;

see also Baston v. City of Port Isabel, 49 S.W.3d 425, 429 (Tex. App.—Corpus

Christi 2001, pet. denied) (holding that negligence in the use or misuse of an

EKG machine that causes inappropriate treatment resulting in injury or death

constitutes a permissible cause of action under the TTCA); Univ. of Tex. Med.

Branch Hosp. at Galveston v. Hardy, 2 S.W.3d 607, 610 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied) (stating that the failure to monitor a cardiac monitor

is indistinguishable from Salcedo as far as the use or misuse of tangible personal

property is concerned); Montoya v. John Peter Smith Hosp., 760 S.W.2d 361,

364 (Tex. App.—Fort Worth 1988, writ denied) (indicating a written record like the

print out from an EKG machine may be tangible personal property ―when it

records a tangible situation, as in Salcedo‖).      However, the court has since

limited Salcedo to its facts. Dallas Cnty. Mental Health & Mental Retardation v.

Bossley, 968 S.W.2d 339, 342 (Tex. 1998), cert. denied, 525 U.S. 1017 (1998).

      2. Revision and Recodification of the TTCA

      When Salcedo was decided on October 26, 1983, the TTCA provided for a

waiver of sovereign immunity for death or personal injuries caused from ―some‖

condition or ―some‖ use of tangible property. See Act of May 28, 1983, 68th

                                      9
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.‖ 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, even though it also included a legislative comment that the ―Act

[was] intended as a recodification only,‖ with no substantive change in the law

intended. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9–10, 1985

Tex. Gen. Laws 3242, 3303, 3322.

      Prior to Whitley, but after this amendment, the supreme court began to

narrow Salcedo.    See Univ. of Tex. Med. Branch at Galveston v. York, 871

S.W.2d 175, 178–79 (Tex. 1994). In York, a patient sued for negligence under

the TTCA after he broke his hip during in-patient physical therapy and the

hospital failed to diagnose the broken hip for nine days. Id. at 176. He alleged

that the hospital misused tangible personal property by failing to note in his

medical records about the broken hip or to follow a recommendation noted in the

record for an x-ray of the hip to determine whether it was broken. Id. The court

stated that information is intangible and ―the fact that information is recorded in

writing does not render the information tangible property.‖ Id. at 179. It held that

Salcedo did not permit claims against the State for misuse of information and that

                                     10
―[w]hile paper itself can be touched, handled, and seen, medical information

recorded on paper is not tangible personal property.‖ Id. at 176, 179. Therefore,

York failed to state a claim under the TTCA because there is no waiver of

immunity for negligence involving the use, misuse, or nonuse of medical

information. Id. at 176

      3. Dallas Area Rapid Transit v. Whitley

      Whitley, a cerebral palsy sufferer, sued the Dallas Area Rapid Transit

Authority (DART) under the TTCA after a fellow bus passenger, Burkley, severely

beat him and put him in the hospital for ten days. 104 S.W.3d at 542. Whitley

had been verbally harassed and threatened by Burkley, and the bus driver

resolved the dispute by depositing Whitley in a bad neighborhood and telling him

he would return for him in a few minutes. Id. at 541–42. The bus did not return,

and Burkley disembarked at the next stop, recruited her son and his friends to

join her vendetta, and attacked Whitley. Id. at 542. Whitley sued DART for

negligence, 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.

      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 the use of the bus but rather ―from the bus

                                    11
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 motor vehicle 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. Hence, there exists an argument

that an EKG machine‘s readings furnish only a condition—information—that

makes an injury possible and that, if the EKG machine is operated properly, it is

not ―misused‖ if its readings are improperly interpreted. See id.

      4. Recent Case Law

      As previously stated, some courts have taken Whitley‘s reasoning and

reached a result that would not have been reached under Salcedo. That is,

considering the legislature‘s 1985 amendment of the TTCA, the supreme court‘s

post-amendment narrowing of the scope of the TTCA‘s immunity waiver, and

Whitley, these courts follow the rule that a medical machine‘s use—not its

generated information—must cause injury because generated information does

not constitute ―use‖ under the TTCA.

      In Anderson, for example, the San Antonio Court of Appeals held that the

use of an EKG machine did not cause Richard Anderson‘s death by heart attack

after he received two EKGs—the results of which were disputed—and was not

transported to the emergency room despite his pleas that he was having a heart

attack. 120 S.W.3d at 6–7, 9. Rather, Anderson‘s death was caused by his

                                     12
cardiac condition and the alleged negligence of the emergency medical

technicians. Id. at 9. A majority of the court stated that ―in light of Whitley, we no

longer believe that Salcedo is controlling.‖ Id.5

      Similarly, in Kelso, the Corpus Christi Court of Appeals distinguished

proper use of an EKG machine from the subsequent misuse or nonuse of

information provided by it to uphold the trial court‘s grant of a hospital‘s plea to

the jurisdiction, although it reversed and remanded to allow the Kelsos the

opportunity to amend their pleading. 136 S.W.3d at 380, 382. Daisy Kelso had

an EKG performed but did not immediately receive medical treatment for her

acute myocardial infarction until two hours after the EKG results showed that she

was having a heart attack. Id. at 380. The court held that ―the use or misuse of

an EKG [machine] is distinguishable from the use or misuse of information.‖ Id.

at 382. That is, if the 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 [TTCA], as it was the use of the information, not the

tangible property, which was the proximate cause of injury.‖ Id.

      Further, in Ward, the Amarillo Court of Appeals held that a stillborn child‘s

parents, who sued a hospital alleging that misuse of information from the fetal

heart rate monitor caused the child‘s death, failed to allege that the monitor itself


      5
      The concurrence observed, ―We are bound to follow Salcedo unless the
Texas Supreme Court overrules it. Although having ample opportunity to do so,
the Supreme Court has not overruled its holding in Salcedo.‖ Anderson, 120
S.W.3d at 9 (Marion, J., concurring).

                                      13
was incorrectly used or that its results were erroneous, and therefore failed to

state a claim under the TTCA. 280 S.W.3d at 356 (―Rather, they couched their

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

of information and negligence by medical staff.‖). The court reached this result

by reviewing the TTCA, its revisions following Salcedo, and the numerous cases

after Salcedo, including Whitley. Id. at 349–55. It observed that the supreme

court‘s trend has been to limit Salcedo and to apply section 101.021(2) narrowly

regarding use of tangible personal property. Id. at 351–53; see also Lanphier,

244 S.W.3d at 606–07 (holding that stillborn‘s mother failed to state a claim

under the TTCA when she alleged that the nurses should have taken alternate

actions based on the information contained in the fetal monitor strips and not that

they misused the fetal monitor itself because information is not ―tangible

property‖).

      On the other hand, some courts continue to follow Salcedo. The tenor of

these cases is that the supreme court has had opportunities to overrule Salcedo

and has not done so; thus, the misuse of information from medical machines

continues to constitute ―use‖ under the TTCA.

      In Blackmon, for example, the Waco Court of Appeals held that allegations

that a prison nurse failed to properly use diagnostic medical tools stated a claim

under the TTCA. 169 S.W.3d at 716, 722–23. An inmate died of pneumonia

following an examination by a prison nurse using a pulse oxymeter, stethoscope,

and thermometer, and the results of the examination did not, but allegedly should

                                    14
have, resulted in a referral to a physician for treatment. Id. at 714–15. The court

stated, ―[W]e do not believe that the supreme court—without telling us so, despite

many opportunities—has . . . fashioned a new rule of law in TTCA cases that the

property itself must be the actual instrument that physically caused the harm.‖ Id.

at 721. It reasoned that although the actual physical instruments themselves did

not kill Blackmon, the fact that her immediate and direct cause of death was

untreated pneumonia did not foreclose the alleged negligent use or misuse of the

stethoscope and pulse oxymeter from being a proximate cause of her death

under the TTCA because they were tangible personal property whose purposes

were to assist in the assessment of Blackmon‘s lung functioning, and if they had

been properly used, she would have received life-saving treatment. Id. at 721–

22.

      Likewise, in Lucero, the El Paso Court of Appeals applied Salcedo to hold

that misuse of an abdominal CT scan and the related failure to diagnose a bile

leak that resulted in the patient‘s death stated a claim under the TTCA. 234

S.W.3d at 163–64, 172. The court disagreed with the San Antonio court‘s refusal

to apply Salcedo in Anderson, distinguished Whitley as not involving misuse of

diagnostic medical equipment, and held that ―[l]ike the [EKG] graph in Salcedo,

an abdominal CT scan and its films are used in diagnosing various conditions of

the abdomen. The Lucero plaintiffs alleged and offered evidence to prove that

there was a misuse of the abdominal CT scan[;]‖ therefore, sovereign immunity

was waived. Id. at 171–72.

                                    15
      5. Analysis

      We are persuaded by the reasoning of our sister courts in holding that the

―use‖ of tangible property must involve the use of a medical machine, not the

―use‖ of information from the medical machine. See Ward, 280 S.W.3d at 356;

Kelso, 136 S.W.3d at 380, 382; Anderson, 120 S.W.3d at 6–7, 9. We base our

decision on the following factors. First, a plain reading of the TTCA requires that

the use of tangible property cause personal injury or death. Tex. Civ. Prac. &

Rem. Code Ann. § 101.021(2). It is undisputed here that the EKG machine itself

did not injure Redden. Nor was it alleged that the machine produced inaccurate

information that led to his death.     Rather, Appellants alleged only that the

accurate information produced by the machine was misused by the medical staff.

Therefore, it is the medical staff that allegedly caused Redden‘s death, not the

machine or the machine‘s use.

      Second, as noted above, information is not tangible property. York, 871

S.W.2d at 178–79; see also Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994)

(stating that information in an emergency room procedures manual is not tangible

property). In Gainesville Memorial Hospital v. Tomlinson, we stated,

      Tomlinson‘s allegation is that GMH used, misused, or failed to use
      laboratory results. Laboratory results are not tangible property
      merely because they are recorded on paper which is tangible. This
      constitutes an allegation of use or misuse of information.
      Information itself is an abstract concept, lacking corporeal, physical,
      or palpable qualities, and therefore, intangible. Because this claim
      does not demonstrate the use or misuse of tangible property, it must
      fail.



                                     16
48 S.W.3d 511, 514 (Tex. App.—Fort Worth 2001, pet. denied) (citing York, 871

S.W.2d at 178–79); see also Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279

S.W.3d 464, 469 (Tex. App.—Dallas 2009, no pet.) (―[I]nformation that may or

may not be documented in a patient‘s medical records does not constitute

tangible personal property for waiver under the TTCA‖); Gipson v. City of Dallas,

247 S.W.3d 465, 471–72 (Tex. App.—Dallas 2008, pet. denied) (holding that

because information is not tangible personal property but rather ―an abstract

concept that lacks corporeal, physical, or palpable qualities,‖ immunity was not

waived under TTCA based on allegation that delay resulting from ambulance

driver‘s failure to timely respond to dispatcher‘s announcement caused patient‘s

death).

      Third, while we acknowledge that Whitley involved a bus and not a medical

machine, and that the supreme court did not explicitly overrule Salcedo in that

case or in any other to-date, the supreme court clearly distinguished the use of

the bus, which involved the use of tangible property, from the improper actions of

the bus driver, which did not. See Whitley, 104 S.W.3d at 543. Therefore, while

Redden‘s treatment involved the use of the EKG machine, it was only the alleged

misuse of the machine‘s information, which is not tangible property, that caused

his death. We therefore hold that the claim as alleged does not fall under the

TTCA and that the trial court properly granted the plea to the jurisdiction. We

overrule Appellants‘ sole issue.




                                    17
                            IV. Conclusion

     Having overruled Appellants‘ sole issue, we affirm the trial court‘s

judgment.




                                             BOB MCCOY
                                             JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: February 17, 2011




                               18
