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Suing State and Local Government

Brief - Is a state hospital entitled to sovereign immunity? - University of Texas Medical Branch Hosp. at Galveston v. Hardy, 2 S.W.3d 607 (Tex.App.-Hous. (14 Dist.) Aug 31, 1999), rehearing overruled (Oct 28, 1999), review denied (Oct 19, 2000)

On May 17, 1995 decedent was admitted into the hospital for elective surgery which consisted of a coronary angioplasty.  During the procedure the physician was unable to open one of the coronary arteries for placement of a stent and the decedent underwent coronary bypass surgery instead.  A few days later, decedent was transferred to the hospital's cardiothoracic care unit where he was connected to a cardiac monitor.  Just after midnight on May 22, 1995, the cardiac monitor sounded an alarm due to a complete heart block and heart stoppage.  Resuscitation efforts were not commenced for over 5 minutes following the first alarm from the cardiac monitor.  Although resuscitation successfully occurred in reviving the decedent's heart, the lack of oxygen caused severe brain damage.  The decedent never regained consciousness and was taken off life support on died on June 5, 1995.

Appellee brought suit asserting the negligent use of the cardiac monitor resulted in the death of decedent.  Accordingly, the Appellee argues that the hospital employees did not properly oversee the cardiac monitor.  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.  Generally the state is immune from suit for the negligence or intentional acts of its employees unless a specific statutory exception exist.  Appellee asserts such a specific waiver of immunity exists under 101.021(2) of the Texas Tort Claims Act (TTCA).  This section provides "a governmental unit in this 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."  The appellee contends that the hospital's employee was negligent in monitoring the decedent' s cardiac monitor.  The Court addresses two issues, first did the alleged negligence of appellant in failing to monitor the cardiac monitor constituting use of tangible personal property so as to implicate a waiver under the above exception to sovereign immunity..  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." Second did the hospital employees negligent use of the cardiac monitor proximately cause the decedent's death? The involvement of the property alone is not sufficient to waive immunity. There must be a direct and immediate relationship between the injury and the use of the property. 

The Texas Supreme Court considered the applicability of the TTCA under a similar set of facts and found that the improper reading and interpreting of electrocardiogram charts constituted a use of tangible personal property as to allow a cause of action for wrongful death recovery under the TTCA. The court in the instant case found that Appellee's expert gave evidence that the delay was the proximate cause of the decedent's death due to injury of the brain and lack of oxygen.  The court found 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 101.021(2) of the TTCA.

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