Reversed and Rendered and Majority and Dissenting Opinions filed March
21, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00620-CV


       THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER
                    AT HOUSTON, Appellant

                                          V.
             RUSSELL DESOTO AND JUDY DESOTO, Appellees


                    On Appeal from the 152nd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2009-61332


                      MAJORITY OPINION

      Russell DeSoto and Judy DeSoto filed a negligence suit against The
University of Texas Health Science Center at Houston (“UTHSCH”) for injuries a
UTHSCH doctor allegedly caused to Judy. UTHSCH moved for dismissal of the
suit via a plea to the jurisdiction, arguing the DeSotos’ claims do not fall within the
limited waiver of sovereign immunity afforded under the Texas Tort Claims Act
(“TTCA”). The trial court denied UTHSCH’s plea.

      On interlocutory appeal, we consider whether the TTCA waives sovereign
immunity for claims stemming from injuries caused by a state surgeon’s
purportedly negligent failure to properly address complications caused by the non-
negligent use of non-defective tangible personal property. We hold that the TTCA
does not waive sovereign immunity for such claims and reverse and render
judgment dismissing the DeSoto’s claims against UTHSCH for want of
jurisdiction.

                                       I. BACKGROUND

      On October 3, 2007,1 Judy underwent anterior-approach spinal surgery,
meaning the surgeon accessed her spine through an incision in her abdomen as she
lay facing upward. The surgery was performed by Amir S. Malik, M.D., a board
certified neurosurgeon employed by UTHSCH.                     Dr. Malik requested Phillip
Adams, M.D., a board certified cardiovascular surgeon not employed by
UTHSCH, to attend the surgery and provide the abdominal opening, retraction of
organs to expose the spine, and closure of the opening.

      After Dr. Adams had provided the abdominal opening and retracted organs,
and while Dr. Malik was performing the spinal surgery, Dr. Adams noticed a
“nick” on Judy’s left ureter (the tube which carries urine from the kidney to the
bladder), causing a fluid leak. According to Dr. Malik, he relied on Dr. Adams to
remedy the ureter injury and asked him if a urologist should be consulted. Without
consulting a urologist, Dr. Adams sutured the ureter.                 After the surgery was



      1
          All dates mentioned in this opinion occurred in 2007 unless specified otherwise.

                                                 2
complete, Dr. Adams removed the retraction instruments and closed the abdominal
opening.

       On October 4, Dr. Malik met with Judy and noticed a large amount of urine
draining from a surgical port. Dr. Malik ordered a urology consult. Steven E.
Canfield, M.D., the consulting urologist, examined Judy and placed a stent in her
ureter. On October 11, Dr. Malik discharged Judy.

       Judy was admitted to a rehabilitative center where she was under the care of
new physicians.      While a patient at the rehabilitative center, Judy developed
internal bleeding, which caused a hematoma to form and compress her left ureter.2
Initially, the internal bleeding was detectable because bruising appeared on Judy’s
body. However, the bruising was no longer visible when Judy was discharged
from the rehabilitative center sometime in October.

       On October 31, Dr. Canfield removed the stent from Judy’s ureter. The
same day, Dr. Canfield drafted a letter to Dr. Malik in which Dr. Canfield
explained that Judy complained about several recent episodes of extreme
abdominal and back pain. On November 27, Judy met with Dr. Malik and reported
back pain and fullness on the left side of her abdomen.

       Judy later met with her general practitioner, who discovered the hematoma
and referred Judy to urologist Robert A. Bass, M.D. Dr. Bass determined that the
hematoma pressed on the ureter, causing urine to leak interiorly and obstructing
Judy’s kidney. This condition caused Judy’s kidney to become nonfunctioning,
and necessitated Dr. Bass to remove it.



       2
          The DeSotos’ expert opined that the internal bleeding came from the surgical site.
Nevertheless, the DeSotos admit that this bleeding did not stem from Dr. Malik’s negligent use
of a surgical instrument.

                                              3
       The DeSotos filed suit against UTHSCH, alleging that Dr. Malik committed
the following negligent acts:

       Failure to recognize the obvious and palpable presence of a large mass
       following surgery in [Judy’s] left lower abdomen and thus failure to
       immediately evacuate the blood or fluid collection percutaneously or
       surgically;
       Failure to obtain the consult of an appropriate specialist;
       Failing to follow up with his patient or to respond to repeated attempts
       by her to communicate with him;
       Performing the surgery in an unskilled and inattentive fashion;
       Failure to realize that when a stent placed because of the urologic
       injury was removed, the significant pain nonetheless continued and
       the palpable mass remained.3
       The DeSotos retained Dr. Bass as their medical expert. In sum, Dr. Bass
opined that Dr. Malik erred by (1) failing to order a urology consult when he
learned of the ureter injury, (2) failing to use a stent to repair the ureter injury, (3)
failing to supervise Dr. Adams properly, (4) delegating responsibility for the ureter
injury to Dr. Adams, (5) failing to monitor Judy’s recovery following the surgery
despite knowing of her complications, and (6) failing to identify and treat the
hematoma. As discussed below, the DeSotos do not claim that Dr. Malik or Dr.
Adams negligently used any surgical instruments.

        UTHSCH filed a plea to the jurisdiction, and later a supplemental plea to
the jurisdiction, contending the DeSotos failed to plead a claim for which
UTHSCH’s sovereign immunity is waived and presenting evidence which
purportedly establishes that Judy’s injuries were not caused by the negligent use of
any instrumentality.       The DeSotos filed a response to the plea and a post-

       3
        The DeSotos asserted several other claims, including claims against Dr. Canfield.
However, the DeSotos unequivocally state in their brief that they “no longer assert” these claims.

                                                4
submission memorandum. The trial court denied the plea, and UTHSCH filed this
interlocutory appeal.4

                              II. SOVEREIGN IMMUNITY

       In a single issue, UTHSCH contends the trial court erred by denying the plea
to the jurisdiction.

A. Standard of Review

       If a governmental unit has immunity from suit, the trial court lacks subject
matter jurisdiction. Rusk State Hosp. v. Black, No. 10-0548, --- S.W.3d ---, 2012
WL 3800218, at *5 (Tex. Aug. 31, 2012). Whether a court has subject matter
jurisdiction is a question of law we review de novo. Tex. Dep’t of Wildlife v.
Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). When a plea to the jurisdiction
challenges the pleadings, we determine if the plaintiff has alleged facts that
affirmatively demonstrate the court’s jurisdiction. Id. at 226. We should glean the
plaintiff’s intent and construe the pleadings liberally in favor of jurisdiction. Id.

       If a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised. Id. at 227. If the evidence creates a fact question
regarding the jurisdictional issue, then a plea to the jurisdiction should not be
granted, and the fact issue must be resolved by the fact finder. Id. at 227–28.
However, if the relevant evidence fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at




       4
         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West. Supp. 2012) (permitting
interlocutory appeal from order granting or denying government’s plea to the jurisdiction).

                                            5
228. We take as true all evidence favorable to the plaintiff and indulge every
reasonable inference and resolve any doubts in the plaintiff’s favor. Id.5

B. Analysis

       The TTCA provides a limited waiver of sovereign immunity for

       (1) property damage, personal injury, and death proximately caused
       by the wrongful act or omission or the negligence of an employee
       acting within his scope of employment if:
               (A) the property damage, personal injury, or death arises from
               the operation or use of a motor-driven vehicle or motor-driven
               equipment; and
               (B) the employee would be personally liable to the claimant
               according to Texas law; and
       (2) 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.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011).

       The parties agree that subsection (2) of section 101.021 is the relevant
immunity-waiver provision for purposes of this litigation. UTHSCH argues that
the DeSotos’ claims do not meet the requirements of subsection (2) because the
evidence conclusively establishes that Judy’s injuries were not caused by the
negligent use of tangible personal property. UTHSCH contends the DeSotos’
claims are actually based on Dr. Malik’s negligent failure to use proper medical
judgment in treating Judy’s ureter injury and post-surgery complications and in
supervising and delegating duties to Dr. Adams—claims for which there is no
waiver of immunity under subsection (2). See, e.g., Tex. Dep’t of Crim. Justice v.

       5
         The DeSotos incorrectly assert that the de novo standard of review does not apply when
a plea to the jurisdiction involves an evidentiary challenge to jurisdictional facts. See Miranda,
133 S.W.3d at 228 (explaining evidentiary challenge to jurisdictional facts is reviewed de novo).

                                                6
Miller, 51 S.W.3d 583, 588 (Tex. 2001); Univ. of Tex. M.D. Anderson Cancer
Center v. King, 329 S.W.3d 876, 880–81 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied).

       The DeSotos agree that their claim is not based upon any negligent use of
tangible personal property, explaining in their brief as follows:

       The occurrence of the initial injuries arose out of the use of
       instruments, but not the mis-use. However, the instruments were
       directly involved in an actionable injury, the loss of the patient’s
       kidney. But for the initial non-negligent infliction of wounds with
       surgical instruments and the ensuing negligent omissions of Dr. Malik
       the loss of the kidney would not have occurred. The tangible property
       was therefore directly involved in an actionable cause of action for the
       loss of an organ and the pain associated therewith.6
By this, the DeSotos interpret subsection (2) to mean that an injury caused by a
non-negligent use of tangible personal property but exacerbated by the physician’s
failure to take appropriate remedial actions falls within the immunity waiver of the
subsection.

       The DeSotos correctly note that courts have often recognized immunity is
waived under subsection (2) by a state employee’s “use or misuse” of tangible
personal property. See, e.g., Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584
(Tex. 1996) (“[T]he issue is whether [the government’s] administration of an oral
form of [a drug], rather than an injectionable drug, constitutes use or misuse of
tangible personal property under the terms of the [TTCA].”); Univ. of Tex. Med.
Branch at Galveston v. Malveaux, No. 14-09-00878-CV, 2010 WL 2968021, at *3


       6
         It appears the DeSotos do not contend that Dr. Malik’s and Dr. Adams’s negligent use
of surgical instruments caused the ureter injury or post-operative internal bleeding because the
evidence does not support such a finding and/or such complications are normal for this type of
surgery and do not by themselves establish acts or omissions below the applicable standard of
care.

                                               7
(Tex. App.—Houston [14th Dist.] July 29, 2010, pet. denied) (mem. op.)
(recognizing immunity may be waived for claims involving “use or misuse of
property”).     The DeSotos argue that reference to both “use” and “misuse” is
significant because “misuse” connotes a negligent use but “use” does not.
Nevertheless, the DeSotos do not cite any caselaw supporting the proposition that
an injury arising from a state employee’s non-negligent use of non-defective
personal property gives rise to the waiver of immunity under subsection (2).7
Instead, the DeSotos rather candidly admit there is no support—aside from their
interpretation of subsection (2)—for this proposition: “[S]tanding on no certain or
concrete premise, except the statute as written, we submit what we think could
make the law fair and evenly dispensed.”

       Looking to the statute, the DeSotos assert that the following language in
subsection (1) is an express negligence requirement: “property damage, personal
injury, and death proximately caused by the wrongful action or omission or the
negligence of an employee.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
According to the DeSotos, the absence of such language from subsection (2) means
that the “use of tangible personal . . . property” need not be negligent for the

       7
          Regarding the phrase “use and misuse,” “misuse” may refer to the negligent use of
personal property, such as a police officer negligently firing a gun, and “use” may refer to the
non-negligent use of defective personal property, such as providing a deficient football uniform.
Compare City of San Augustine v. Parrish, 10 S.W.3d 734, 738 (Tex. App.—Tyler 1999, pet.
dism’d w.o.j.) (officer negligently fired gun), with Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300
(Tex. 1976) (school provided deficient uniform); see also Salcedo v. El Paso Hosp. Dist., 659
S.W.2d 30, 31–32 (Tex. 1983) (holding predecessor to subsection (2) does not require allegation
that personal property is defective when plaintiff alleges the property was “wrongly used”). In
both situations, negligence is attached to use of the personal property, which is not alleged in the
present case.
       When “use” refers to the non-negligent use of defective personal property, the claim
seems indistinguishable from a claim based on the “condition” of the property (and perhaps is).
See Univ. of Tex M.D. v. Baker, --- S.W.3d ---, 14-11-01307-CV, 2012 WL 6014608, at *5 & n.9
(Tex. App.—Houston [14th Dist.] Dec. 4, 2012, no pet. h.) (noting that use-of-defective-
personal-property cases “may be better understood as ‘condition’ cases”).

                                                 8
subsection to apply, even when the property is not defective. Id. § 101.021(2). We
disagree.

      Subsection (2) does not expressly include the same negligence requirement
as subsection (1). However, waiver of immunity exists under subsection (2) only
“if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law.” Id. A private surgeon would not be held liable for an
injury caused by his non-negligent use of non-defective personal property. See
Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007) (explaining that “physician-
of-ordinary-prudence standard” is not a strict-liability standard).    Instead, the
private surgeon’s liability would stem from his subsequent failure to use proper
medical judgment in treating the injury caused by his non-negligent use of personal
property.   As noted above, the TTCA does not waive immunity for such
negligence. See Miller, 51 S.W.3d at 588; King, 329 S.W.3d at 880–81.

      We acknowledge that “use” is broadly defined as “to put or to bring into
action or service; to employ for or apply to a given purpose.” Miller, 51 S.W.3d at
588. However, the basic purpose of section 101.021 is to waive immunity “only to
a limited degree.”     Dallas Cnty. Mental Health & Mental Retardation v.
Bossley, 968 S.W.2d 339, 343 (Tex. 1998). To this end, the supreme court has
held that, for the waiver of immunity under subsection (2) to apply, the plaintiff’s
injury “must be proximately caused by the condition or use of tangible property.”
Id.   “The requirement of causation is more than mere involvement,” and
“[p]roperty does not cause injury if it does no more than furnish the condition that
makes the injury possible.” Id.; see also Miller, 51 S.W.3d at 588 (holding it is
insufficient for waiver purposes “that some property is merely involved” and
concluding the property used might have furnished condition that made injury
possible, but did not harm patient by itself). There must be a negligent act or

                                         9
omission that proximately caused the injury for negligence liability to exist.
Negligence liability does not exist if the injury is proximately caused by a non-
negligent act or omission. See Wansey v. Hole, 379 S.W.3d 246, 248 (Tex. 2012)
(“A negligence finding requires a duty, breach, and damages proximately caused
by that breach.”); Salcedo, 659 S.W.2d at 33 (“[T]he proximate cause of the
damages for death or personal injury [under predecessor statute to subsection (2)]
must be the negligence or wrongful act or omission of the [state employee].”); see
also Peek v. Oshman’s Sporting Goods, Inc., 768 S.W.2d 841, 848 (Tex. App.—
San Antonio 1989, writ denied) (“[Because] acts complained of were non-
negligent, we have no occasion to further inquire into a question of proximate
cause.”).

       Under the DeSotos’ interpretation of subsection (2), even the most skillful
and proper use of surgical instruments would be the basis for immunity waiver if
the state surgeon made an erroneous medical judgment during the surgery that
resulted in injury. See Clark, 923 S.W.2d at 585–86 (“There cannot be waiver of
sovereign immunity in every case in which medical treatment is provided by a
public facility.   Doctors in state medical facilities use some form of tangible
personal property nearly every time they treat a patient.”). “If there is waiver in all
[cases involving use of a medical instrument], the waiver of immunity is virtually
unrestricted, which is not what the Legislature intended.” Miller, 51 S.W.3d at
586.

       In an analogous case, the First Court of Appeals rejected the plaintiff’s
contention that subsection (2) waives immunity for an injury stemming from a
surgeon’s non-negligent use of non-defective surgical instruments coupled with a
purportedly negligent medical decision. See Kamel v. Univ. of Tex. Health Science
Center at Houston, 333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet.

                                          10
denied). In Kamel, a state surgeon performed surgery to remove fluid from around
the plaintiff’s right testicle.   Id. at 679.   During the procedure, the surgeon
allegedly negligently determined that the testicle should be removed, which he
accomplished using surgical instruments. Id. Holding immunity was not waived,
the court of appeals explained:

      [The plaintiff] has made no claim that the surgical instruments
      themselves were defective in any way or that they were used in a
      negligent manner. Rather, the crux of [the plaintiff’s] argument is that
      [the surgeon] made an erroneous medical judgment in determining
      that [the plaintiff’s] testicle needed to be removed. The fact that
      tangible personal property was used during the procedure conducted
      as a result of the allegedly erroneous judgment does not establish that
      the use of the surgical instruments itself was the proximate cause of
      [the plaintiff’s] injury, and, thus, these allegations do not fall within
      the limited waiver in section 101.021(2).

Id. at 686; see also Miers v. Tex. A & M Univ. Sys. Health Science Center, 311
S.W.3d 577, 579–80 (Tex. App.—Waco 2009, no pet.) (holding subsection (2) did
not waive immunity for an injury stemming from state dentist’s non-negligent use
of surgical instrumentality coupled with a purportedly negligent medical decision
to extract plaintiff’s teeth); Tex. Tech Univ. Health Science Center v. Lucero, 234
S.W.3d 158, 169 (Tex. App.—El Paso 2007, pet. denied) (holding subsection (2)
did not waive immunity for claims stemming from state surgeon’s non-negligent
use of stent coupled with purportedly negligent medical decision not to conduct
additional testing when plaintiff complained of pain after stent was placed).
Similarly, the crux of the DeSotos’ claims is that Judy was injured after Dr. Malik
made erroneous medical judgments following Dr. Malik’s and Dr. Adams’s non-
negligent use of surgical instruments. The TTCA does not waive immunity for
such claims.



                                          11
       Finally, the DeSotos argue that their interpretation of subsection (2) is the
only logical interpretation of a statute jurists have frequently called indecipherable.
See Miller, 51 S.W.3d at 592 (Hecht, J., concurring) (lamenting that the “use-of-
property standard” in subsection (2) “cannot be understood and consistently
applied”); Lowe, 540 S.W.2d at 301–03 (Greenhill, C.J., concurring) (requesting
the Legislature reconsider the arcane waiver of immunity provisions of TTCA).8
We agree that courts have struggled interpreting subsection (2). However, it is
clear the Legislature did not intend for sovereign immunity to be waived for a state
employee’s non-negligent use of non-defective personal property.

       Accordingly, we sustain UTHSCH’s sole issue. We reverse the trial court’s
order denying UTHSCH’s plea to the jurisdiction and render judgment dismissing
the DeSotos’ claims against UTHSCH for want of jurisdiction.




                                             /s/     John Donovan
                                                     Justice


Panel consists of Justices Boyce, McCally, and Donovan. (McCally, J., dissenting).




       8
          The DeSotos also contend their interpretation best complies with the Legislature’s
mandate that the TTCA “shall be liberally construed to achieve the purposes hereof.” Tex. Rev.
Civ. Stat. Ann. art. 6252-19, § 13 (repealed). However, this mandate has been repealed, and
courts are to follow the general principles of statutory construction in the Code Construction Act.
See Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 n.3 (Tex. 1994).
According to these principles, “[A] statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code
Ann. § 311.034 (West Supp. 2012).

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