|||Texas Court of Appeals
|||2 S.W.3d 607, 1999.TX.0045714 <http://www.versuslaw.com>
|||August 31, 1999
|||THE UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL AT GALVESTON, APPELLANT
DARCY HARDY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DOROTHY WALSH, APPELLEE
|||On Appeal from the 212th District Court, Galveston County, Texas. Trial
Court Cause No. 97CV0416
|||Panel consists of Justices Yates, Fowler and Draughn. *fn1
|||The opinion of the court was delivered by: Joe L. Draughn, Justice
|||Affirmed and Opinion filed
|||Darcy Hardy, individually and as representative of the estate of Dorothy
Walsh, appellee, brought a wrongful death and survival suit against The
University of Texas Medical Branch Hospital at Galveston ("the hospital"),
appellant, for the death of Dorothy Walsh ("decedent"). Appellant filed
a plea to the jurisdiction based upon sovereign immunity. The trial court
denied the plea to the jurisdiction and the hospital brought this appeal.
|||On May 17, 1995, the decedent was admitted into the hospital for elective
surgery. The surgery consisted of a coronary angioplasty which was intended
to correct a 90% left anterior descending occlusion. During the procedure,
the physician was unable to open one of the decedent's coronary arteries
for placement of a stent, and the decedent was taken immediately to another
operating room where she underwent coronary artery bypass surgery. A few
days after the bypass surgery, the decedent was transferred to the hospital's
cardiothoracic care unit. While in the cardiothoracic care unit, the decedent
was connected to a cardiac monitor which was intended to monitor her heart's
activity and signal an alarm if any problems occurred. Just after midnight
on May 22, 1995, the decedent's cardiac monitor sounded an alarm due to
a complete heart block and heart stoppage. Resuscitation efforts, however,
were not commenced for at least five minutes following the first alarm from
the cardiac monitor. Although the resuscitation efforts were successful
in reviving the decedent's heart, the lack of oxygen caused severe damage
to her brain. The decedent never regained consciousness and was taken off
life support and died on June 5, 1995.
|||Appellee brought a wrongful death and survival action against the hospital,
asserting that the negligent use of the cardiac monitor resulted in the
death of the decedent. According to the appellee, the hospital employees
did not properly oversee the cardiac monitor, resulting in an unreasonable
amount of time passing between the cardiac monitor's initial alarm indicating
decedent's heart had stopped and the beginning of resuscitation efforts.
In response to appellee's suit, the hospital filed a plea to the jurisdiction
based on sovereign immunity claiming the appellee failed to raise a fact
issue as to whether decedent's death was caused by a condition or use of
tangible personal property. The trial court denied the plea to the jurisdiction
and appellant brought this interlocutory appeal pursuant to §51.014(8)
of the Texas Civil Practice and Remedies Code.
|||Generally, the state is immune from suit for the negligent or intentional
acts of its employees, unless a specific statutory exception exists. Appellee
asserts such a specific waiver of immunity exists under section 101.021(2)
of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(2). This section provides that "[a] governmental unit in
the state is liable for . . . personal injury and death so caused by a condition
or use of tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas law."
Id. The appellee contends that the hospital's employee was negligent in
monitoring the decedent's cardiac monitor. However, such negligence alone
does not automatically trigger a waiver of governmental immunity. To properly
determine whether a waiver of immunity under § 101.021(2) is proper
in this case, we must address two questions. First, did the alleged negligence
of appellant in failing to monitor the cardiac monitor constitute a use
of tangible personal property so as to implicate a waiver under the above
exception to sovereign immunity? See Texas Youth Com'n v. Ryan, 889 S.W.2d
340, 342-343 (Tex. App.-Houston [14th Dist.] 1994, no writ.). For "use"
of tangible personal property to occur, the actor must "`put or bring [the
property] into action or service; to employ for or apply to a given purpose.'"
Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (citations
omitted). Second, did the hospital employee's negligent use of the cardiac
monitor proximately cause the decedent's death? See Ryan, 889 S.W.2d at
342-43. In evaluating the existence of proximate cause, the involvement
of the property alone is not sufficient to waive immunity. See Dallas County
Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex.
1998). Instead, there must be a direct and immediate relationship between
the injury and the use of the property. See id. Although we have been given
varied and limited guidance by the courts and the legislature as to when
the relationship between the injury and the property becomes too attenuated
to impose liability, factors that we may consider include the geographic,
temporal, and causal distance between the property and the injury. See id.
|||The Texas Supreme Court considered the applicability of the TTCA under
a similar fact situation in Salcedo v. El Paso Hospital District., 659 S.W.2d
30 (Tex. 1983). In Salcedo, the plaintiff's husband went to the emergency
room of the hospital with chest pains, and was given an examination which
included an electrocardiogram. Id. at 31. The electrocardiogram charts showed
a classic pattern for a heart attack. The doctor who read the chart, however,
failed to recognize the pattern and sent the patient home. See id. Shortly
after returning home, the patient suffered a heart attack and died. See
id. The Supreme Court held that the improper reading and interpreting of
electrocardiogram charts constituted a use of tangible personal property
so as to allow a cause of action for wrongful death recovery under the TTCA.
See id. at 33.
|||The reasoning expressed by the Supreme Court in Salcedo is applicable
to the present case. In Salcedo, the use of the electrocardiogram machine
directly affected and impacted the person whose heart condition was being
traced. The primary purpose of using and interpreting the electrocardiogram
graph was to properly diagnose Mr. Salcedo, to treat him, and prevent him
from having a heart attack. By improperly using the graphs, Mr. Salcedo
was incorrectly treated, and he subsequently died of a heart attack, the
very result the proper use of the electrocardiogram was specifically intended
|||In the present case, the use of the cardiac monitor directly affected
the decedent by monitoring her heart's activity, and served as an early
warning device in case of a problem. The cardiac monitor could only be effective,
however, if it was properly monitored at all times. Unfortunately, the person
responsible for monitoring the cardiac monitor failed to do so, resulting
in the death of the decedent from the very condition that the proper use
of the cardiac monitor was intended to avoid.
|||We find no significant distinctions between the facts before us and the
facts of Salcedo insofar as the tangible personal property at issue is concerned.
The electrocardiogram in Salcedo and the cardiac monitor here were "put
into action or service" and "employed for a given purpose." There is little
doubt that the hospital's decision to put the cardiac monitor into service
for the purpose of monitoring the decedent's heart, and the hospital employee's
subsequent failure to pay proper attention to the monitor, constitute a
use or misuse, of tangible personal property. Furthermore, the relationship
between the alleged negligence of the employee and the death of the decedent
is in no way attenuated, or weak but rather, is contemporaneous and directly
|||The failure of the hospital personnel to respond timely to the cardiac
monitor caused a delay in the resuscitation of the decedent. Appellee presents
expert evidence that this delay was the proximate cause of the decedent's
death, due to injury to the brain from the lack of oxygen. There was some
evidence of a delay from five to eleven minutes before the decedent's heart
was resuscitated after it stopped. It was this deprivation of oxygen to
the brain that caused her subsequent death.
|||We make no judgment as to the weight of the evidence; that task remains
for the factfinder. However, we do find that appellee's allegations that
(1) the hospital employee was negligent in failing to properly monitor the
cardiac monitor, and (2) that such failure constituted a use of tangible
personal property which was the proximate cause of the decedent's death,
are sufficient to bring the case within the waiver of governmental immunity
under section 101.021(2) of the TTCA. Thus, we hold that the trial court
has jurisdiction over this cause of action.
|||The judgment of the trial court denying the plea to the jurisdiction is
|||Judgment rendered and Opinion filed August 31, 1999.
|||Publish - Tex. R. App. P. 47.3(b).
|||*fn1 Senior Justice Joe L. Draughn sitting by assignment.
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