                                                                                        ACCEPTED
                                                                                   01-14-00767-CV
                                                                          FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                              4/3/2015 10:50:40 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK

                             NO. 01-14-00767-CV
                            In the Court of Appeals
                         for the First Judicial District   FILED IN
                                                    1st COURT OF APPEALS
                                 Houston, Texas         HOUSTON, TEXAS
                                                    4/3/2015 10:50:40 AM
 SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
                                                    CHRISTOPHER
                                                            Clerk
                                                                 OFA.  PRINE
                                                                     THE
 ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND
                 AS NEXT FRIEND OF NAYLA MCKNIGHT
                                                   Appellants,
VS.

                                U. T. PHYSICIANS

                                                             Appellee.


    On Appeal From the 164th Judicial District Court of Harris County, Texas
                     Trial Court Cause No. 2012-35806
          The Honorable Alexandra Smoots-Hogan, Judge Presiding


                       APPELLANTS’ REPLY BRIEF


THE GOURRIER LAW FIRM, LLP
Joseph M. Gourrier
joseph@gourrierlaw.com
Texas State Bar No. 24007258
530 Lovett Boulevard, Suite B
Houston, Texas 77006
Telephone: 713-533-9077
Facsimile: 713-533-9376

Attorney for Appellants Shirley Lenoir, Individually and as Personal
Representative of the Estate of Shana Lenoir and Christopher McKnight,
Individually and as Next Friend of Nayla McKnight

                     ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS

                                                                                                                PAGE

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES........................................................................................ iii

ARGUMENT ............................................................................................................... 1

I.       UT Physicians Failed to Prove that it is a Governmental Unit and the
         Appellants Created Fact Issues Regarding the Court’s Jurisdiction ................. 1

         A.       The Lenoirs Did Not Make a Judicial Admission that UT Physicians
                  is a Governmental Unit ........................................................................... 1

         B.       The Legislature Did Not Authorize the Creation and Control of UT
                  Physicians by the UT System Board of Regents ..................................... 3

         C.       UT Physicians Cannot Indirectly Assert Sovereign Immunity as an
                  Independent Contractor According to KDF v. Rex, 878 S.W. 2d 589
                  (Tex. 1994). ............................................................................................. 5

II.      The Trial Court Erred in Granting the Plea to the Jurisdiction Because the
         Lenoirs Alleged that Shana Lenoir’s Death Was Proximately Caused By An
         Employee’s Use of Tangible Physical Property ................................................ 9

CONCLUSION ............................................................................................................ 15

CERTIFICATE OF COMPLIANCE ........................................................................... 16

CERTIFICATE OF SERVICE ................................................................................... 16




                                                            ii
                                    INDEX OF AUTHORITIES
                                                                                                   PAGE(S)

CASES

Adams v. Rios,
     No. 14-95-00239-CV, 1996 WL 337108 (Tex. App.—Houston [14th Dist.]
     June 20, 1996, no pet.) ....................................................................................... 13

Ambulatory Infusion Therapy Specialist, Inc. v. N. Amer. Adm’s, Inc.,
     262 S.W.3d 107 (Tex. App.—Houston [1st Dist.] 2008, no pet.)...................... 11

Angleton Danbury Hosp. Dist. v. Chavana,
      120 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ................... 13

Baylor Univ. v. Sonnichsen,
      221 S.W.3d 632 (Tex.2007) .............................................................................. 11

Cnty. of Cameron v. Brown,
      80 S.W.3d 549 (Tex. 2002) ............................................................................... 12

Edinburg Hosp. Auth. v. Trevino,
     904 S.W.2d 831 (Tex. App.—Corpus Christi 1995), rev’d on other grounds,
     941 S.W.2d 76 (Tex.1997) ................................................................................ 12

Holy Cross Church of God in Christ v. Wolf,
      44 S.W.3d 562 (Tex. 2001) ............................................................................... 3

Horizon/CMS Healthcare Corp. v. Auld,
      34 S.W.3d 887 (Tex.2000) ................................................................................ 1

Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston,
     333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) .............. 11

KDF v. Rex,
     878 S.W. 2d 589 (Tex. 1994)............................................................................. 5, 6, 7

Quinn v. Mem'l Med. Ctr.,
      764 S.W.2d 915 (Tex. App.—Corpus Christi 1989, no writ)........................... 12


                                                        iii
Rusk Sate Hosp. v. Black,
     392 S.W.3d 88 (Tex. 2012)................................................................................. 9

Tex. Dep’t of Criminal Justice v. Miller,
     51 S.W.3d 583 (Tex. 2001)................................................................................. 9, 10

Tex. Tech. Univ. Health Sci. Ctr. v. Buford,
      334 S.W.3d 334 (Tex. App.-Eastland 2010, no pet.) ........................................ 13

TRST Corpus, Inc. v. Fin. Ctr., Inc.,
     9 S.W.3d 316 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ................. 5

Wise Reg’l Health Sys. v. Brittain,
      268 S.W.3d 799 (Tex. App.—Fort Worth 2008, no pet.) ................................. 12

STATUTES & RULES

TEX. CIV. PRAC. & REM. CODE §101.001(3) ................................................................ 5

TEX. CIV. PRAC. & REM. CODE §101.021 (2) ............................................................... 9

TEX. EDUC. CODE §65.02 ............................................................................................. 3, 5

TEX. EDUC. CODE §65.11 ............................................................................................. 4

TEX. EDUC. CODE §65.35 (a) ........................................................................................ 4

TEX. EDUC. CODE §73.001 ........................................................................................... 3, 4, 5

TEX. EDUC. CODE §73.057 ........................................................................................... 1




                                                        iv
                                     ARGUMENT

I.     UT Physicians Failed to Prove that it is a Governmental Unit and the
       Appellants Created Fact Issues Regarding the Court’s Jurisdiction.

       As the movant on a plea to the jurisdiction, Appellee UT Physicians

(“UTP”) had the burden of establishing that it is a governmental unit entitled to

raise sovereign immunity. UTP failed to meet this burden and the trial court erred

in granting its plea to the jurisdiction.

       A.     The Lenoirs Did Not Make a Judicial Admission that UT
              Physicians is a Governmental Unit.

       UTP’s first argument in its response brief is that the Lenoirs made a judicial

admission that it is a governmental unit in response to a motion to dismiss filed by

Nurse Matthews. UTP is mistaken.

       A judicial admission is an assertion of fact that is conclusively established in

live pleadings. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905

(Tex.2000).     Further, a judicial admission “must be a clear, deliberate, and

unequivocal statement.” Id.

       In its original answer filed on July 20 2012, UTP asserted that it was a

governmental unit entitled to sovereign immunity in response to the Lenoirs’

claims for respondeat superior based upon Nurse Matthews’ negligent conduct.

Second Supp. CR 6.




                                            1
      Contrary to UTP’s argument, the Lenoirs have always disputed UTP’s

contention that it is a governmental unit and did so their response to Nurse

Matthews’ motion to dismiss filed on October 29, 2013.

           “Defendant Matthews and her alleged governmental employer became
            parties to the lawsuit when Plaintiffs’ Original Petition was filed on
            June 20, 2012.” Second Supp. CR 637. (emphasis added)

           “Since Defendant UT Physicians alleged that it was a governmental
            entity and Defendant Matthews was its alleged employee, the Office
            of Attorney General was required to defend Matthews…” Second
            Supp. CR 643. (emphasis added)

           “The Office of Attorney General is Defendant Matthews’ attorney as a
            matter of law and fact because she was allegedly a public servant at
            the time of the negligence alleged by Plaintiffs.” Second Supp. CR
            646. (emphasis added)

           “Since Defendant UT Physicians claims that it is a state institution
            and Defendant Matthews was its former employee…” Second Supp.
            CR 647. (emphasis added)

      The Lenoirs also denied that UTP was a governmental unit is other

responses filed in the trial court.

           “Defendant UT Physicians alleges that it is part of The University of
            Texas Health Science – Houston.            Plaintiffs deny that is a
            governmental unit or part of UTHSCH, but are merely arguing in the
            alternative for the purpose of this response.” Second Supp. CR 93 at
            fn. 4.

      Finally and most importantly for purposes of this appeal, the Lenoirs pled a

waiver claim under the TTCA, in the alternative, if the trial court determined that

UTP was a governmental unit in their Second Amended Original Petition. See,

                                        2
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)

(“Assertions of fact, not plead in the alternative, in the live pleadings of a party are

regarded as formal judicial admissions.”).

            “54. Pleading in the alternative in the event the Court determines
             that Defendant U.T. Physicians is a governmental unit…” CR 126.

      The Lenoirs have not judicially admitted that UTP is a governmental unit

and their statements above are not the type of “clear, deliberate, and unequivocal

statements” sufficient under Texas law to constitute judicial admissions. See,

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000).

Therefore, the court should reject UTP’s judicial admission argument made in a

desperate attempt to bolster its governmental unit argument on appeal.

      B.     The Legislature Did Not Authorize the Creation and Control of
             UT Physicians by the UT System Board of Regents.

      In their opening brief, the Lenoirs conclusively established that UTP is a

private, non-profit corporation and not a governmental unit entitled to raise

sovereign immunity because the Legislature did not authorize its creation or

addition to the UT System in the statutes creating the UT System and its

components. See, TEX. EDUC. CODE §§65.02; 73.001. Indeed, in TEX. EDUC.

CODE 65.02 (b), the Legislature expressly reserved for itself the power to add

entities to the governance, control, jurisdiction or management of the UT System

stating:

                                           3
       (b) The University of Texas System shall also be composed of such
       other institutions and entities as from time to time may be assigned by
       specific legislative act to the governance, control, jurisdiction, or
       management of The University of Texas System.

       The Legislature did not pass a specific legislative act authorizing UTP to be

created and added to the UT System and without such a statute, UTP cannot claim

that it is part of the UT System. The same is also true under TEX. EDUC. CODE

§73.001(7), the Legislature did not authorize the creation or addition of UTP to the

University of Texas at Houston when it created the other medical institutions in

Houston.1

       UTP cites TEX. EDUC. CODE §65.11 as authority for its creation, but that

statute only authorizes the UT Board of Regents to administer, organize and name

the institutions and entities in the UT System for maximum operating efficiency.

Section 65.11 does not authorize the creation of any entities, it merely identifies

that the UT System has the power to organize the entities created by the

Legislature and made part of the UT System.

       Similarly, TEX. EDUC. CODE §65.35 (a) does not authorize the creation of

any entities as part of the UT System either, instead, the statute merely authorizes




1
  UTP claims that TEX. EDUC. CODE §73.057 does not apply because it is not a “hospital”,
however, the term “teaching hospital” is not defined in the statutes. It is clear from the record
that medical residents, like Dr. Gonski, were being taught at the UTP facility by UTHSCH
faculty, like Dr. Huang, which is why Gonski provided medical care to Shana Lenoir at the time
of the incident. UTP is clearly a teaching hospital under the plain meaning of the term.
                                               4
the UT Board of Regents to govern, operate and support the entities made a part of

the UT System by the Legislature in §§65.02 and 73.001.

      Therefore, UTP cannot be a governmental unit, under TEX. CIV. PRAC. &

REM. CODE §101.001(3)(A) or (D), for purposes of the TTCA because it is not a

government agency and has no status or authority under either the Texas

Constitution or Texas law because its creation was not authorized by these legal

authorities.     UTP has failed to meet its burden of establishing that it is a

government unit under the TTCA and the trial court erred in granting its plea to the

jurisdiction.

      C.        UT Physicians Cannot Indirectly Assert Sovereign Immunity as
                an Independent Contractor According to KDF v. Rex, 878 S.W. 2d
                589 (Tex. 1994).

      UTP cites TRST Corpus, Inc. v. Fin. Ctr., Inc., 9 S.W.3d 316, 320 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied), in support of its argument that it is a

government unit. However, the court determined that TRST was entitled to assert

sovereign immunity because it was created and controlled by a governmental unit,

TRS, and its sole purpose was to hold title to property for the benefit of TRS

members, not because it was a governmental unit. However, in reaching this

conclusion, the court cited KDF v. Rex, 878 S.W. 2d 589, 596-97 (Tex. 1994) for

the proposition that a suit against a Kansas partnership operated by a Kansas state




                                         5
agency was a lawsuit against the state where the two entities were not

distinguishable.

      The Lenoirs relied upon KDF in the trial court and their opening brief, but

UTP made no real attempt to distinguish this controlling case. In KDF, the Texas

Supreme Court determined that KPERS was a Kansas governmental entity created

by statute, but that the Kansas Debt Fund (KDF) and Pacholder, an Ohio

corporation acting as an investment advisor to KPERS, were not.               KDF, 878

S.W.2d at 596, (“Unlike KPERS, however, K.D.F. and Pacholder are not Kansas

governmental entities.”). Thus, the Court had to determine whether or not KDF

and Pacholder could assert sovereign immunity indirectly, even though they were

not governmental entities.

      To begin its analysis, the Court first looked at what types of acts would

create indirect liability on the part of the state and which acts would not, stating:

      Thus, in either state, indirect liability on the part of the state will arise
      from the performance of ministerial functions by a state employee
      under the control or direction of the state, and not from (1)
      discretionary acts of the employee, (2) acts of independent
      contractors, or (3) intentional, grossly negligent, fraudulent, or
      malicious conduct by the employee.

      Id. at 597.

      Applying these principles to the facts of the case, the Court determined that

KDF, “operates solely upon the direction of KPERS, and exercises no discretion in



                                           6
its activities.” Id. Therefore, KDF was entitled to assert immunity for performing

essentially ministerial functions under the control and direction of KPERS.

      However, the Court found that, “Pacholder operates as an independent

contractor. Its activities necessarily involve considerable discretion.” Id. Thus, the

Court held that Pacholder, as an independent contractor, was not entitled to assert

immunity, stating:

      While sovereign immunity protects the activities of government
      entities, no sovereign is entitled to extend that protection ad infinitum
      through nothing more than private contracts. Pacholder is not entitled
      to sovereign immunity protection unless it can demonstrate its actions
      were actions of the Kansas government, executed subject to the
      control of KPERS.

      Id.

      Here, UTP is not a governmental unit because it was not created by law, as

set forth above. Therefore, the court must determine whether UTP is entitled to

assert sovereign immunity indirectly through either the UT System or UTHSCH

because it is subject to their direction and control, like KDF, or whether UTP

cannot assert immunity because it is an independent contractor, like Pacholder.

      Further, the court must conduct this analysis within the context of this

specific case where the Lenoirs seek to hold UTP liable in respondeat superior for

the negligent conduct of its former employee, Nurse Matthews. In short, the court

must determine whether UTP is entitled to indirectly assert sovereign immunity

because either the UT System or UTHSCH directed or controlled the nursing
                                          7
activity performed by Nurse Matthews at the UTP clinic. The evidence in this case

conclusively negates any such conclusion.

      The Lenoirs offered evidence that UTP was an independent contractor to

UTHSCH because it entered into an agreement with UTHSCH to administer

certain business operations, including but not limited to, strategic development,

marketing, billing for and collection of professional fees, contracting for

professional services, clinic operations, credentialing, and managed care

operations.   See, “Management Agreement” between The University of Texas

Health Science Center at Houston and UT Physicians, CR 88-95. UT Physicians is

required by the Management Agreement to provide offices, furnishings and

equipment, personnel (including nursing personnel), supplies, and management

services to UTHSCH. Id.

      More importantly for purposes of UT Physicians’ plea to the jurisdiction and

motion to dismiss under the TTCA, the Management Agreement required UT

Physicians to provide nursing staff for use by UTHSCH physicians, but the nursing

staff, including Nurse Matthews, remained under UT Physicians’ direction and

control. See, Management Agreement, at ¶1.4 (B) (“Nursing and Other Clinical

Personnel.”). CR 89. UT Physicians is paid a “management fee” for the use of its

medical care facilities and services rendered. Id. at ¶3.1, (“Amount of Fee.”). CR

91.


                                        8
      Since Angela Matthews was the employee of UT Physicians, an independent

contractor, and UTHSCH did not have the right to control the details of her work

under the plain language of the Management Agreement, UT Physicians cannot

assert the UT System’s or UTHSCH’s sovereign immunity based on her negligent

conduct.

II.   The Trial Court Erred in Granting the Plea to the Jurisdiction Because
      the Lenoirs Alleged that Shana Lenoir’s Death Was Proximately
      Caused By An Employee’s Use of Tangible Personal Property.

      Alternatively, if the Court determines that UT Physicians is a governmental

unit entitled to raise sovereign immunity, the trial court erred in granting UTP’s

plea to the jurisdiction because the Lenoirs pled a waiver of sovereign immunity

based upon the use of tangible personal property by an alleged government

employee that caused Shana Lenoir’s death.

      Under the TTCA, immunity is waived if injury or death is caused by a

“condition or use of tangible personal or real property.” TEX. CIV. PRAC. & REM.

CODE §101.021 (2). But, immunity is waived “only when the governmental unit

itself uses the property.” Rusk Sate Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012).

“A governmental unit does not ‘use’ property within the meaning of the [Texas

Tort Claims Act] when it merely allows someone else to use it.” Id. Further,

merely “furnish[ing] the condition that [makes] the injury possible” does not waive

immunity. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex.


                                        9
2001). Rather, it is the use of tangible property that must have actually caused the

injury. Id.

      The case at bar is not one where someone else used the medication, as in

Black, nor is it a case where the use of medication merely furnished the condition

that made injury possible, like Miller. Here, it was Nurse Matthews’ use of the

property—i.e., the progesterone injection—that allegedly caused Shana Lenoir’s

death, not her medical records or some nursing judgment. Therefore, immunity has

been waived and the trial court erred in dismissing the Lenoirs’ claims against

Matthews’ alleged governmental employer, UTP.

      The Lenoirs’ live pleading at the time of the hearing on UTP’s plea to the

jurisdiction was Plaintiffs’ Second Amended Original Petition. CR 118-130. The

Lenoirs specifically alleged that the injection of progesterone by Nurse Matthews

actually caused Shana Lenoir’s death and that the administration of the injection

was negligent because:     (1) it was contraindicated because of Lenoir’s twin

pregnancy, (2) medically unnecessary because Lenoir was at least eight (8) months

pregnant, (3) considered off-label use because progesterone is not approved to

prevent pre-term labor by the FDA and (4) it was not ordered by a physician. CR

121,123,127 at ¶¶17-19, 38-49 and 54-57. Therefore, the Lenoirs properly pled a

waiver of immunity against UTP under the TTCA for negligent use of tangible




                                        10
personal property by Nurse Matthews and the trial court erred in granting its plea

to the jurisdiction.

       In its appellate brief, UTP continues to mischaracterize the Lenoirs’ claims

against its former employee, Angela Matthews, in an attempt to bar any claims

under the TTCA. UTP argues that the progesterone injection administered by

Nurse Matthews that caused Shana Lenoir’s death was not use of tangible personal

property, but rather the exercise of nursing judgment or use/non-use of information

in her medical record. Not surprisingly, UTP spends several pages of its response

brief citing cases where the courts held that immunity was not waived because the

cases involved the application of medical judgment or use/non-use of information

in medical records. Resp. Br. at 46-53.

       It is well established that the treatment of claims under Texas law focuses on

the true nature of disputes rather than allowing artful pleading to gain favorable

redress under the law. See, Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636

(Tex.2007); Ambulatory Infusion Therapy Specialist, Inc. v. N. Amer. Adm’s, Inc.,

262 S.W.3d 107, 112 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The court is

“required to construe the allegations in favor of jurisdiction unless, on its face, the

petition affirmatively demonstrates a lack of jurisdiction.” Kamel v. Univ. of Tex.

Health Sci. Ctr. at Houston, 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). Further, in deciding a plea to the jurisdiction, a court may not


                                          11
consider the merits of the case, but only the plaintiff's pleadings and the evidence

pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549,

555 (Tex. 2002).

      The cases cited by UTP are inapplicable because this is not a medical

judgment claim since the Lenoirs have alleged that the progesterone injection by

Matthews actually caused Shana Lenoir’s death, not some mental thought process

or a piece of paper. Indeed, Shana Lenoir received an injection from Nurse

Matthews and approximately 12 hours later, she and her unborn twins were dead

from an allergic reaction. First Supp. CR 21-22; 27-29.

      The present case is more akin to the cases involving the dispensing of

medication which has been held to be a use of tangible personal property. See,

Quinn v. Mem'l Med. Ctr., 764 S.W.2d 915, 917 (Tex. App.—Corpus Christi 1989,

no writ) (“We hold that the dispensing of a drug by a hospital pharmacy is a use of

tangible personal property and falls within the waiver provisions of the statute.”);

Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 807 (Tex. App.—Fort Worth

2008, no pet.) (holding that the plaintiff’s allegations that a nurse administered

medications, when she should have refused to do so in light of the patient's

condition, constituted use of medication and waiver of immunity); Edinburg Hosp.

Auth. v. Trevino, 904 S.W.2d 831, 838 (Tex. App.—Corpus Christi 1995), rev’d on

other grounds, 941 S.W.2d 76 (Tex.1997) (determining that the dispensing of drug


                                        12
by hospital pharmacy was “use”); Adams v. Rios, No. 14-95-00239-CV, 1996 WL

337108, at *4 (Tex. App.—Houston [14th Dist.] June 20, 1996, no pet.) (not

designated for publication).

      In Tex. Tech. Univ. Health Sci. Ctr. v. Buford, 334 S.W.3d 334, 338 (Tex.

App.-Eastland 2010, no pet.), after the court cited the cases listed above, it stated:

      The common thread running through those cases is that, in each one,
      the governmental unit being sued was the entity that employed those
      who used, by administering or dispensing, the drugs that were alleged
      to have caused the damages.

      Here, there is no dispute that the alleged governmental unit being sued,

UTP: (1) employed Nurse Matthews and (2) supplied the progesterone hormone

that Matthews injected into Shana Lenoir [CR 121, ¶18], and the injection is

alleged to have caused Shana Lenoir’s death. Thus, the Lenoirs properly pled a

waiver of immunity against UTP under Texas law and the trial court erred in

granting the plea to the jurisdiction.

      In its brief, UTP admits that Angleton Danbury Hosp. Dist. v. Chavana, 120

S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2003, no pet.) presented a case

where waiver was proper because it involved the mistaken injection of the wrong

medication.    Resp. Br. at 56. However, UTP claims, “[I]n this case, there is no

pleading or evidence that Ms. Lenoir’s death was caused by Nurse Matthews’

negligent injection of a medication different from the one prescribed.” Id. But, the

Lenoirs did allege that Nurse Matthews negligently injected a different medication
                                          13
than what was ordered by Dr. Gonski and that the injection caused Shana Lenoir’s

death, as set forth below.

      Dr. Gonski’s order for the progesterone injection is quoted in ¶17 of the

petition, but the order does not specify what kind of progesterone was supposed to

be administered to Shana Lenoir.

      17. Plaintiffs allege that in the physician’s orders, Gonski wrote,
      “Progesterone shot IM weekly” and signed her name. CR 121, ¶17.

      Instead, Nurse Matthews decided on her own what progesterone to

administer and it turned out not to be the right one. CR 121, ¶19.

      19. Plaintiffs allege that a 250 mg injection of progesterone was
      administered to Shana Lenoir by Defendant ANGELA MATHEWS,
      an LVN who signed her initials on the medical record.

      Although 17-alpha hydroxyprogesterone caproate (17P) has been used

to prevent pre-term labor, this was not the drug Nurse Matthews injected

into Shana Lenoir.     CR 123, ¶39.     Instead, Nurse Matthews allegedly

injected 17-hydroxyprogesterone (17-OHP), which is not the same

medication. CR 123, ¶38.

      39. Plaintiffs allege that although the American College of
      Obstetricians and Gynecologists (ACOG) has recommended the use
      of 17-alpha hydroxyprogesterone caproate (17P) for the prevention of
      pre-term labor, this is not the drug that was administered to Shana
      Lenoir.

      Thus, the Lenoirs alleged that Nurse Matthews administered the

progesterone injection without a physician’s order. CR 124, ¶46 (A).
                                         14
      46. Plaintiffs allege that Defendant ANGELA MATHEWS
      engaged in several acts and omissions constituting negligence
      including:

                A.   Administering an injection without a physician order;

      The Lenoirs pled a waiver of immunity because Matthews injected a

different medication than was ordered by Dr. Gonski and it is alleged to have

caused Shana Lenoir’s death and the trial court erred in granting the plea to the

jurisdiction.

                                  CONCLUSION

      WHEREFORE PREMISES CONSIDERED, the Appellants respectfully

request an order overruling the trial court’s order granting Appellees UT

Physicians plea to the jurisdiction, remanding this case to the trial court for further

proceedings and awarding the Appellants their costs and any and all other general

and equitable relief to which they may justly be entitled.

                                        Respectfully submitted,

                                        THE GOURRIER LAW FIRM, PLLC
                                        By: /s/ Joseph M. Gourrier      .
                                          JOSEPH M. GOURRIER
                                          Texas State Bar No. 24007258
                                          530 Lovett Boulevard, Suite B
                                          Houston, Texas 77006
                                          Telephone: 713-533-9077
                                          Facsimile: 713-533-9376
                                          joseph@gourrierlaw.com

                                        ATTORNEY FOR APPELLANTS


                                          15
                      CERTIFICATE OF COMPLIANCE

       As required by Texas Rule of Appellate Procedure 9.4(i)(3), Appellants
certify that this brief is 3,452 words which is in compliance with Texas Rule of
Appellate Procedure 9.4(i)(2).
                                       By: /s/ Joseph M. Gourrier
                                            JOSEPH M. GOURRIER
                                            Texas State Bar No. 24007258

                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument has been
served upon all parties of record via certified mail return receipt requested and/or
facsimile on the 3rd day of April, 2015.

 Ken Paxton                                  David Iler
 Daniel T. Hodge                             Jaqualine McMillan
 David C. Mattax                             Fulbright & Jaworski, LLP
 John P. Giberson                            1301 McKinney, Suite 5100
 Jason Warner                                Houston, TX 77010-3095
 OFFICE OF THE ATTORNEY GENERAL              Telephone: (713) 651-5151
 Tort Litigation Division, MC-030            Facsimile: (713) 651-5246
 P.O. Box 12548, Capitol Station             Attorneys     for    Appellee     U.T.
 Austin, Texas 78711-2548                    Physicians
 Telephone: (512) 463-2197
 Facsimile: (512) 463-2224
 Attorneys     for     Appellee   U.T.
 Physicians



                                         /s/ Joseph M. Gourrier      .
                                      Joseph M. Gourrier




                                        16
