Respondent Brief on the Merits Supreme Court of Texas

Document Sample
Respondent Brief on the Merits Supreme Court of Texas Powered By Docstoc
					                                                                                                      FILED
                                                                                                      IN THE SUPREME COURT
                                                                                                      OF TEXAS
                                                                                                      12 March 6 P12:56
                                                                                                       BLAKE. A. HAWTHORNE
                                                                                                      CLERK
                                                  NO. 11-0619
---------------------------------------------------------------------------------------------------
                                        In the Supreme Court of Texas
                                                  Austin, Texas
---------------------------------------------------------------------------------------------------

                                TITUS REGIONAL MEDICAL CENTER,

                                                               PETITIONER

                                                        VS.

                                       GLENNA VIRGINIA ROACH,

                                                               RESPONDENT

--------------------------------------------------------------------------------------------------------
                               RESPONDENT’S BRIEF ON THE MERITS
--------------------------------------------------------------------------------------------------------

                                                                        Lori Chism
                                                                        SBN 24031308

                                                                        Lori Chism, Attorney at Law
                                                                        100 West Alabama
                                                                        Mt. Pleasant, Texas 75455
                                                                        (903) 575-9005
                                                                        (903) 575-9021 FAX

                                                                       ATTORNEY FOR RESPONDENT
                                                                       GLENNA VIRGINIA ROACH
                                                  TABLE OF CONTENTS
                                                                                                                                    Page

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

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

LIST OF PARTIES ........................................................................................................................ vi

STATEMENT OF THE
CASE……………………..………………………………………..………………………...…..vii

STATEMENT OF JURISDICTION.............................................................................................. ix

REPLY ISSUE……………………………………………………………………………………xi

STATEMENT OF FACTS………………………………………………………………………..1

SUMMARY OF ARGUMENT…………………………………………………………………...3

ARGUMENT……………………………………………………………………………………...4

      I. RESPONSE TO ISSUE NO. 1…………………………………………………………...4

            A. The court of appeals did not misconstrue
               the TTCA’s limited waiver of sovereign
               immunity……………………………………………………………………………...4

            B. “Use” under the TTCA and its limit.…………………………………………….......7

            C. The Sixth Court of Appeals holding does
               Follow this Court’s precedent……………………………………………………....10

            D. Other Court of Appeals’ cases are consistent
               with the Sixth Court of Appeals opinion…………………………………………...13

CONCLUSION AND PRAYER………………………………………………………………...15




                                                                    ii
                            INDEX OF AUTHORITIES


Cases

City of Houston v. Stephon Lamar Davis
294 S.W.3d 609 (Tex. App. – Houston [1st Dist.] 2009)……………………………………14,15

Dallas County MHMR v. Bossley
968 S.W.2d 339 (Tex. 1998)…………………………………………………………………….5

Exito Elecs. Co., Ltd. v. Trejo
142 S.W.3d 302, 305 (Tex. 2004)………………………………………………………………ix

Gainsville Mem. Hosp. v. Tomlinson
48 S.W.3d 511 (Tex. App. – Fort Worth 2001, pet. denied)……………………………………13

Green v. City of Dallas,
665 S.W.2d 567 (Tex. App. – El Paso 1984, no writ)………………………………………….…9

Hampton v. University of Texas – M.D. Anderson Cancer Center,
6 S.W. 3d 627 (Tex. App. – Houston [1 Dist.] 1999)……………..……………….…...…....7,9,15

Kassen v. Hatley,
887 S.W.2d 4 (Tex. 1994)………………………………………………………….…………….9

Kerrville State Hosp. v. Clark
923 S.W.2d 582 (Tex. 1996)……………………………………………………………...6,9,10,11

Lowe v. Texas Tech Univ.
540 S.W. 2d 297 (Tex. 1976)………………………………………………………...…....7,8,9,12

McCall v. Dallas Cnty. Hosp. Dist.
997 S.W.2d 287 (Tex. App. – Eastland 1999, no pet.)…………………………………….…13,14

Mokry v. University of Tex. Health Science Ctr.,
529 S.W. 2d 802 (Tex. Civ. App. – Dallas 1975, writ ref’d n.r.e.)…………………...………..…9

Overton Mem’l Hosp. v. McGuire,
518 S.W. 2d 528 (Tex. 1975)……………….………………………………………….…7,8,9,12

Resendez v. Johnson
52 S.W.3d 689, 691 (Tex. 2001)………………………………………………………………..ix

                                        iii
Robinson v. Central Tex. MHMR Ctr.,
780 S.W.2d 169 (Tex. 1989)…………………………………………………….…………7,8,9,12

Salcedo v. El Paso Hosp. Dist.,
 659 S.W. 2d 30 (Tex.1983)...………………………………………………………………..7,9,10

Salinas v. City of Brownsville
No. 13-08-00146-CV, 2010 WL 672885, *5 (Tex. App. – Corpus Christi
Feb 25, 2010, no pet.)(mem.op.)…………………………………………………………………14

San Antonio State Hosp. v. Cowan
128 S.W.3d 244 (Tex. 2004)………………………………………………………………………8

Southwestern Ref’g Co. v. Bernal
22 S.W.3d 425, 430 (Tex.2000)…………………………………………………………………..ix

Spindletop MHMR Center v. Beauchamp
130 S.W.3d 368, 369-72 (Tex. App. –Beaumont 2004, pet. denied)…………………………....14

Texas A&M University v. Bishop
156 S.W.3d 580, 584 (Tex. 2005)…………………………………………………………..9,10,11

Texas Ass’n of Bus. V. Texas Air Control Bd.,
852 S.W.2d 440 (Tex. 1993)…………………………………..……………………………..……6

Texas Med. Branch Hosp. at Galveston v. Hardy,
2 S.W.3d 607 (Tex. App. –Houston [14th Dist.] 1999, pet. denied)……………………………..15

Texas State Technical College v. Beavers
218 S.W.3d 258, 263 (Tex. App. –Texarkana 2007, no pet.)……………………………………14

Titus Regional Medical Center v. Roach,
No. 06-11-00022-CV, 2011 WL 2517198
(Tex. App.- Texarkana June 24, 2011, pet. filed)…………………………...…viii,1,2,10,11,12,15

Wheeler v. Yettie Kersting Mem’l Hosp.,
866 S.W.2d 32(Tex. App. – Houston [1st Dist] 1993, no writ)…………………...……………….9


Statutes:

Tex. Civ. Prac. & Rem. Code § 101.021……………………………………………………3,4,5,8

Tex. R. Civ. P. 45………………………………………………………………….………………5
                              iv
Tex. R. Civ. P. 47……………………………………………………………….…………………5

Tex. Govt. Code 22.001(a)(1)(2)(3)&(6)…………………………………………………………ix

Tex. Govt. Code 22.001(e)…………………………………………………………………….....ix

Tex. Govt. Code 22.225(b)(c)(e)…………………………………………………………………ix




                              v
                                LIST OF PARTIES


Petitioner:                                Counsel:

Titus Regional Medical Center              Katherine Elrich
                                           Frank Alvarez
                                           Arlene A. Wiese

                                           HERMES SARGENT BATES, L.L.P.
                                           901 Main Street, Suite 5200
                                           Dallas, Texas 75202
                                           214-749-6000
                                           214-749-6100 (facsimile)

Respondent:                                Counsel:

Glenna Virginia Roach                      Lori Chism

                                           Lori Chism, Attorney at Law
                                           100 West Alabama
                                           Mt. Pleasant, Texas 78455
                                           903-575-9005
                                           903-575-9021(facsimile)




                                      vi
                                STATEMENT OF THE CASE



Nature of the Case:                Plaintiff/Respondent Glenna Virginia Roach (“Roach”)
                                   brought a personal injury claim against Petitioner Titus
                                   Regional Medical Center(“Titus”) stating that she was
                                   injured by the use and/or misuse of the bed involving the
                                   side bedrails on her hospital bed after surgery and as a
                                   result of the use and/or misuse, she fell out of the bed and
                                   was injured. (CR at 1-7).1

Name of Trial Judge:               The Honorable Robert Rolston

Designation of Trial
Court and County:                  76th/276th Judicial District Court, Titus County, Texas

Disposition of the Case:           The District Court denied the plea to the jurisdiction filed
                                   by Titus by written order, signed on February 8, 2011. (CR
                                   at 113).

Parties in Court of Appeals:       Titus Regional Medical Center and Glenna Virginia Roach

District of Court of Appeals:      The Sixth District Court of Appeals at Texarkana

Names of Justices Participating
in Court of Appeals Decision:      Chief Justice Morriss and Justices Carter and Moseley

Author of Court of Appeals
Opinion:                           Justice Moseley




_________________________
1
 Roach will cite to the one-volume Clerk’s Record by page number as (CR___) and one-volume
Reporter’s Record by page number as (RR___). Roach will cite to the materials found in the
Appendix to the Respondent’s Response to Petition for Review as (App.___).

                                             vii
Opinion citation:               Titus Regional Medical Center v. Roach, No. 06-11-00022-
                                CV, 2011 WL 2517198 (Tex. App.- Texarkana June 24,
                                2011, pet. filed); (App. A).

Court of appeals disposition:   The Court of Appeals for the Sixth District affirmed in part
                                and dismissed in part the trial court’s order. The Court held
                                that Roach’s non-use-of-bed-rails allegation stated a claim
                                under the Texas Tort Claims Act (“TTCA”), but her
                                failure-to-use-information allegation did not state a claim
                                and it was conceded by Roach at argument. (App. A).




                                             viii
                                  STATEMENT OF JURISDICTION

       TRMC erroneously argues that this Court has jurisdiction to review the Texarkana Court

of Appeals’ for the Sixth District decision under Tex. Govt. Code §§22.001(a)(2),(3)&(6) and

§§22.225(b),(c). As this was an interlocutory appeal, jurisdiction is not proper as the Court of

Appeals for Sixth District opinion does not: 1) reflect the “…justices of [the] Court of Appeals

disagree on a question of law material to the decision,” 2) conflict with any prior decision of

another Court of Appeals or of the Supreme Court on a question of law material to a decision in

the case, or 3) exhibit an error of law or error in the construction of a statute, Tex. Gov’t. Code

Ann. §§22.001(a)(1),(2),(3) & (6)(Vernon 2004).

       Tex. Gov’t. Code Ann. §22.225(b)(c) disallows the filing of petitions for review from

cases involving “interlocutory appeals that are allowed by law”. For this reason, “[j]urisdiction

over interlocutory appeals is generally final in the courts of appeals.” Southwestern Ref’g Co. v.

Bernal, 22 S.W.3d 425, 430 (Tex.2000). An exception to this rule exists for cases in which

conflicts jurisdiction exists, such as when the decision conflicts with decisions of this Court or of

other courts of appeals.       Tex. Gov’t. Code Ann. §22.225(b)(c).         Thus, absent conflicts

jurisdiction, the court of appeals' judgment below cannot be challenged in a petition for review--

even if the Court believes the court of appeals erred. Resendez v. Johnson, 52 S.W.3d 689, 691

(Tex. 2001). “[O]ne court holds differently from another when there is inconsistency in their

respective decisions that should be clarified to remove unnecessary uncertainty in the law and

unfairness to litigants.” Tex. Gov't Code §§22.001(e), 22.225(e). The holdings of the cases must

directly conflict. Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2004) (“The court of

appeals' holding on this issue directly conflicts with Angelou v. African Overseas Union, giving

                                                 ix
us conflicts jurisdiction to review this interlocutory appeal.”) (citation omitted) (per curiam).

          TRMC alleges jurisdiction based on conflicts with this Courts prior decisions and other

courts of appeals decisions, however, none of the cases cited presents a conflict sufficient to

confer jurisdiction on this Court. The Court of Appeals for the Sixth District followed this

Courts meaning of “use of tangible property” in the hospital bed and hospital-bed-rail context in

applying it to the facts of this case. The cases cited by TRMC, in addition to further cases cited

by Roach and discussed in more detail below, show that the Court of Appeals for the Sixth

District opinion does not conflict or hold differently from a prior decision of this Court or

another court of Appeals. Accordingly, the Court lacks jurisdiction to grant TRMC's petition for

review.




                                                  x
                                        REPLY ISSUE

       The Court of Appeals for the Sixth District did not err by holding that Roach’s allegation

of the use of the hospital bed (with its safety rails) was a use of tangible personal property as

contemplated in the statute and therefore stated a claim under the TTCA as sovereign immunity

was waived.




                                               xi
TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

       Respondent Roach files this Brief on the Merits in response to Petitioner TRMC's Brief

on the Merits. The Sixth District Court of Appeals correctly affirmed the ruling of the trial court

when it held that Roach stated a claim under the TTCA and that TRMC’s sovereign immunity

was waived under the facts asserted by Roach. (App. A) Moreover, the Court lacks conflicts

jurisdiction over the court of appeals' disposition of an interlocutory appeal. Accordingly, the

Court should deny the petition for review.

                                   STATEMENT OF FACTS

       Roach underwent surgery at TRMC. (CR at 2). After surgery, personnel for TRMC took

Roach to her hospital room without notifying family members that were waiting in the surgery

waiting room of the hospital. (CR at 2). TRMC personnel then left Roach alone in her hospital

bed without ensuring that both of the bed rails “were in the required position.” (CR at 2). As a

result of the actual use of the hospital bed by placing Roach in it and the misuse of the bed by the

fact that both of the bed rails were not in the required position, Roach fell out of the bed and

suffered injuries. (CR at 2).

       Roach filed suit against TRMC under the TTCA claiming that TRMC was negligent in

(1) failing to “notify family members that Plaintiff was returned to her room post-surgery” and

(2) failing to “ensur[e] that the bed rails of the bed were in the required position prior to

Defendant leaving the hospital room.” (CR at 3). In addition, Roach provided and referred to

two expert reports from a doctor and a nurse. (CR at 28). These reports opined that TRMC had

breached the same types of duties as stated in the petition. (CR at 40, 0-52).

       TRMC filed a plea to the jurisdiction asserting that governmental immunity precluded

                                                 1
subject matter jurisdiction and that Roach failed to state a claim under the TTCA that would

waive TRMC’s governmental immunity. (CR at 13-22). Roach responded and the district court

held a hearing. (CR at 67-73; RR at 1-9). The district court denied the plea. (CR at 113).

TRMC filed an interlocutory appeal. CR at 114).

       The Texarkana Court of Appeals for the Sixth District entered judgment and issued its

decision on June 24, 2011 affirming in part and reversing in part the trial court’s order. (App.

A). The Court of Appeals for the Sixth District held that Roach’s failure-to-notify claim did not

waive immunity under the TTCA and noted this was conceded by Roach at argument. Titus

Regional Med. Ctr. v. Roach, 06-11-00022-CV, 2011 WL 2517198, at *1 (Tex.App.—Texarkana

June 24, 2011). The Court of Appeals affirmed the trial court’s decision that Roach’s failure-to-

use-bed-rails claim did state a valid TTCA claim. Id. at *5.

               TRMC filed a petition for review with this Honorable Court.




                                                2
                                SUMMARY OF ARGUMENT

       The Sixth District Court of Appeals did not misapply the law and statutes regarding Tex.

Civ. Prac. & Rem. Code § 101.021(2).

       The TTCA provides a limited waiver of sovereign immunity and Roach’s pleadings,

expert reports and discovery responses prove that such immunity has been waived. Roach

alleged facts that some use and/or misuse of tangible personal or real property proximately

caused the injuries.

       Under Texas law, when determining whether jurisdiction exists, a court must accept the

allegations in the pleadings as true and construe them liberally in favor of the plaintiff. Roach’s

Petition, expert reports and discovery responses assert facts that, when construed under this

standard, demonstrates a waiver of sovereign immunity under the TTCA, and TRMC provided

no evidence to contradict those allegations. Accordingly, the Court of Appeals for the Sixth

District decision and its interpretation of case law and statutes was unanimous and was not

improper and such interpretation does not conflict with this Court’s prior holdings or of prior

holdings of other court of appeals.




                                                3
                                          ARGUMENT

                                    Response to Issue No. 1

       The Court of Appeals for the Sixth District did not misapply the law and statues

regarding Tex. Civ. Prac. & Rem. Code § 101.021(2). Under Texas law, the trial court was

required to take the allegations of Roach’s pleadings as true, and construe them liberally in her

favor. Under this standard, Roach’s Petition clearly alleged facts that would constitute a waiver

of TRMC's sovereign immunity under the TTCA. (CR at 1-7). As a result, the court of appeals

correctly affirmed the trial court’s decision and this Court should not grant a review of the court

of appeals’ opinion.

A.     The court of appeals did not misconstrue the TTCA’s limited waiver of sovereign

       immunity.

       TRMC is correct in its statement that the TTCA provides only a limited waiver of

sovereign immunity. It is Roach’s contention that her claims fall under this limited waiver.


       TTCA waives the sovereign immunity of a governmental unit in the state 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

                                                4
               Texas law.

Tex. Civ. Prac. & Rem. Code § 101.021.

       To state a claim under § 101.021, the Plaintiff must allege that (1) the property was used

or misused by a governmental employee and (2) the use proximately caused personal injury or

death. Dallas County MHMR v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).

       Pursuant to Texas Rule of Civil Procedure 45, a petition shall consist of a statement in

“plain and concise language” of the plaintiff’s cause of action. Tex. R. Civ. P. 45. Texas Rule

of Civil Procedure 47 provides that an original pleading shall contain a “short statement of the

cause of action sufficient to give fair notice of the claim involved[.]” Tex. R. Civ. P. 47.

Roach’s Original Petition provides facts sufficient enough to demonstrate the Court’s jurisdiction

over this matter. (CR at 1-7). As well, Roach’s expert reports and responses to discovery

requests provide facts sufficient enough to demonstrate the Court’s jurisdiction over this matter.

(CR at 28, 38-41, 44-54). In compliance with the fair notice requirement of the Rules, Roach

provided a short statement of the facts relating to the cause of action. The Petition clearly

describes the purpose of Roach’s being a patient of TRMC, the manner in which Roach was

injured, the use or misuse of tangible personal or real property of TRMC and that such use or

misuse of tangible personal or real property proximately caused Roach’s injuries. Roach’s

Original Petition provides sufficient information for TRMC and their attorneys to determine the

nature of the controversy, in order to prepare an adequate defense. (CR at 1-7). The TTCA does

not impose a heightened standard for pleading, beyond the fair notice requirement.

       TRMC’s entire argument is that Roach has not plead any allegations or stated a claim that

waive sovereign immunity. TRMC attempts to persuade this Court that Roach’s petition states

                                                5
only a non-use of the bedrail. Further TRMC wants this Court to believe that the court of

appeals misapplied this Court’s prior rulings to the case at hand. TRMC is completely inaccurate

in its argument.

       This Court has recognized that for “use” of tangible personal property to occur under the

terms of the Act, one 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)

(citation omitted). Roach’s Original Petition, expert reports, and discovery responses all include

facts that support a waiver of immunity on the part of TRMC. (CR at 1-7, 28, 38-41, 44-54).

Roach was admitted to TRMC for surgery. (CR at 2). TRMC provided a hospital bed to Roach

that had safety equipment that included bed rails. (CR at 2). After surgery and transferring

Roach to her room and placing her in the hospital bed, TRMC misused the hospital bed when it

failed to activate the safety equipment, both of the bed rails, upon the employee of TRMC

leaving the room. (CR at 2). Roach fell out of the hospital bed as a result of the use and misuse

of the hospital bed. (CR at 2). Roach was injured as a result of the TRMC’s use and misuse of

the hospital bed by placing her in it and failing to activate the safety equipment which included

both bed rails on the bed.

       Sovereign immunity in this case has been waived by TRMC. Roach has alleged that

some use and/or misuse of tangible personal or real property proximately caused her injuries.

The reviewing court must accept the allegations of the plaintiff’s petition as true and construe

those allegations in the plaintiff’s favor. Texas Ass’n of Bus. V. Texas Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). TRMC clearly put or brought the property, the bed, into action or

service; employed for or applied to a given purpose as set out in the act. The Sixth District Court

                                                6
of Appeals correctly applied the set of facts in the case to this Court’s definition of “use” in

finding waiver of sovereign immunity on the part of TRMC.

B.         “Use” under the TTCA and its limits.

           Roach’s facts in this case before the Court are significantly the same as the facts in

Hampton v. University of Texas – M.D. Anderson Cancer Center, 6 S.W. 3d 627 (Tex. App. –

Houston [1 Dist.] 1999). In Hampton, the Plaintiff underwent surgery for cancer and three days

after the surgery fell from his hospital bed due to the rails not being raised and was found on the

floor bleeding significantly. The Plaintiffs, in Hampton, alleged that the Defendant failed to

provide Plaintiff with a bed with properly raised rails, failed to monitor the Plaintiff as he was

left unattended for an excessive amount of time, as well as other allegations. The Hampton court

applied three prior cases of this Court, Robinson, Lowe and Overton, discussed in detail below,

to their case and found that the “condition” of the hospital bed was “defectively incomplete”

because it did not have either raised safety rails or an activated alarm sensor. Hampton at 630.

In addition, the failure of the hospital to activate the safety features constitutes a “misuse” of

property within the waiver provisions. Id. See Salcedo v. El Paso Hosp. Dist., 659 S.W. 2d 30,

32-33 (Tex. 1983) (failing to properly use an electrocardiogram graph in diagnosing a heart

attack).

           Robinson v. Central Tex. MHMR Ctr.         dealt with a mentally disabled patient that

drowned when he was not provided a life preserver and in that case the Court found that

immunity was waived. 780 S.W.2d 169, 170-71 (Tex. 1989).              In Robinson, employees of

MHMR took patients to swim at a local lake. These employees were aware that Robinson

suffered from epileptic seizures that occasionally caused him to lose consciousness and although

                                                  7
life preservers were available, Robinson was not equipped with one, and he subsequently

drowned. The Court found that MHMR's failure to provide a life preserver brings this case

within the purview of section 101.021(2) so that governmental immunity is waived. Id.

       Lowe v. Texas Tech Univ., dealt with a football uniform that did not include a knee brace

and the Court found that the because of the lack of the knee brace immunity was waived. 540

S.W. 2d 297, 299-300 (Tex. 1976). In Lowe, a football player allegedly entered the game with a

knee brace, but took it off during the game on the coach's orders. He was thereafter injured. The

court held that both the standard and specially designed protective devices are integral parts of

the football uniform, e.g., special taping or knee braces furnished a player with an injured knee

are as much a part of his uniform as his helmet, or shoulder pads, or whatever. So we also hold

that Lowe's allegations of a negligent failure to furnish him proper protective items of personal

property, to be used as a part of the uniform furnished him, bring his case within the statutory

waiver of immunity arising from some condition or some use of personal property. Id at 300.

       Overton Mem’l Hosp. v. McGuire, was a case in which the hospital bed was not equipped

with bed rails and the Court found that the plaintiff’s injury was due to the lack of the bed rails.

518 S.W. 2d 528, 529 (Tex. 1975). This Court found that the “injuries proximately caused by

negligently providing a bed without bed rails are proximately caused from some condition or

some use of tangible property under circumstances where a private person would be liable.

Therefore, if the Hospital is found negligent in providing a bed without guard rails, it may not

assert governmental immunity to avoid liability”. Id. In later years, this Court, in San Antonio

State Hosp. v. Cowan, found that “the hospital did not merely allow the patient access to the bed;

it actually put the patient in the bed as part of his treatment.” 128 S.W.3d 244, 246 (Tex.2004).

                                                 8
        The hospital’s argument in Hampton is the same argument that TRMC is trying to make

in this case in such that the failure to activate the safety equipment constitutes a simple “non-

use” of the property and/or non-use of the bed rail and there is no proximate cause to waive

immunity. This case clearly involves a use and a misuse of the property as opposed to a non-use

and therefore falls within the limited waiver of the TTCA. Hampton found that if the hospital

had really not used the bed, it would have retained possession and not have provided the bed to

Plaintiff.    Id at 631.   See Kassen v. Hatley, 887 S.W.2d 4, 15 (Tex. 1994)(Phillips, C.J.,

concurring in relevant part). Defendant provided a dangerously defective bed to the Plaintiff

because its safety equipment had not been activated and there was a misuse of the property by

the hospital because the hospital did not activate the safety equipment after providing the bed to

Plaintiff. Id. See Salcedo 659 S.W. 2d at 32-33 (failure to properly use an electrocardiogram

graph); Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 45-46 (Tex. App. – Houston [1st

Dist] 1993, no writ) (failure to use information in a medical chart); Green v. City of Dallas, 665

S.W.2d 567, 570 (Tex. App. – El Paso 1984, no writ) (failure to properly use medical

equipment); Mokry v. University of Tex. Health Science Ctr., 529 S.W. 2d 802, 804 (Tex. Civ.

App. – Dallas 1975, writ ref’d n.r.e.) (failure to use certain laboratory equipment during

treatment).

        TRMC is correct in its argument that in Texas A&M University v. Bishop, this Court

characterized Overton, Lowe and Robinson as the outer limits of the meaning of “use” under the

TTCA. 156 S.W.3d 580, 584 (Tex. 2005); Kerrville, 923 S.W.2d at 585. This Court further

limited the precedential value of these cases to claims in which a plaintiff alleges that a state

actor provided property that lacked an integral safety component, and the lack of this integral

                                                 9
component led to the plaintiff’s injuries. Id. See also Bishop, 136 S.W.3d at 584. Even with

these cases being the outer limits of “use”, the facts of Roach still fall within those limits.

Providing the bed, i.e. the tangible personal property, to Roach without activating the integral

safety component yields the same result as providing the bed without an integral safety

component at all. There is no purpose in an integral safety component if it is not activated or if

the safety component is misused in some way. Analyzing the argument made by TRMC to a set

of facts would be such that a state actor could claim immunity in a case in which he/she was

driving a government vehicle and simply chose not to engage the brakes, the integral safety

component, and had an accident injuring people.

C.     The Sixth District Court of Appeals holding does follow this Court’s precedent

       Not only does the Sixth District Court of Appeals acknowledge and discuss this Court’s

controlling cases, it also applies them to the case at hand and reached a conclusion that is in line

with this Court’s precedent.

       In addition to the cases of this Court discussed above, Roach would also remind this

Court of its holding in Salcedo where it found waiver wherein the hospital failed to properly use

an electrocardiogram graph in diagnosing a heart attack. Salcedo, 659 S.W. 2d 30, 32-33. This

Court found the plaintiff stated a cause of action under the TTCA because it alleged a misuse of

tangible personal property. Id. This case has not been overruled and has continued to be applied

by intermediate appellate courts.

       TRMC relies on Kerrville to support its argument that this is merely a non-use case. 923

S.W.2d 582. Kerrville involved prescribing one medication over another and as noted by the

Sixth Court of Appeals, “situations involving failure to give medication or give medication in a

                                                10
particular format are distinguishable from situations where equipment (which would qualify as

tangible property) is used by a state actor hospital, but not used according to the equipment’s

contemplated purposes” Titus Regional Med. Ctr. v. Roach, 06-11-00022-CV, 2011 WL

2517198, at *4 (Tex.App.—Texarkana June 24, 2011) See Kerrville, 923 S.W.2d 582. Those set

of facts cannot be compared to the set of facts in this present case. However, it is remarkable to

note that in Kerrville, this Court stated, “[I]f a hospital provided a patient with a bed lacking bed

rails and the lack of this protective equipment led to the patient’s injury, the [TTCA’s] waiver

provisions would be implicated.” See Kerrville, 923 S.W.2d at 585. In the case at hand, TRMC

did provide Roach a bed lacking bed rails due to the fact that if the bedrail is not raised, it is

simply a bed without a bedrail and therefore TTCA waiver provisions are implicated. TRMC

used the bed when it placed Roach in the bed post-surgery and such bed proximately caused the

injury, thereby waiving TRMC’s immunity. TRMC misused the bed by not raising both of the

bedrails and such misuse proximately caused the injury, thereby waiving TRMC’s immunity.

Therefore, there is no conflict between the holding of Kerrville and this case.

       TRMC also relies on Bishop to support its argument that an integral safety component

must be “entirely lacking”. Bishop, 156 S.W.3d 584. Bishop dealt with a plaintiff that was

injured due to being inadvertently stabbed in the chest while acting in a university drama club

production and sued for failing to provide a stab pad. Id at 581. TRMC fails to remind this

Court that it was not the state actor that made the decision to use a real knife in the production, as

opposed to a fake knife, and therefore the immunity could not be waived since the state actor did

not themselves ‘put or bring into action or service’ or ‘employ for or apply to a given purpose’ as

defined by this Court.

                                                 11
       TRMC provided a hospital bed with two bed rails to Roach, which she was put into by

TRMC, and TRMC failed to activate and/or raise both of the bed rails upon exiting the room.

Roach was injured as a result of the tangible property, i.e. the bed. Not only did TRMC “use”

the bed by placing Roach in it, so as to state a claim under the TTCA, TRMC also “misused” the

bed by failing to activate both of the bed rails and as a result of such use and misuse Roach

suffered personal injuries thereby waiving TRMC’s sovereign immunity. Even though Overton,

Lowe and Robinson are the “outer bounds” of waiver of governmental immunity, the case of

Roach falls within those bounds and it consistent to this Court’s precedent. As found by the

Sixth District Court of Appeals, “it is difficult for us to contemplate how, when a patient is

placed in a bed as part of the hospital’s treatment of that patient, the bed is not being used in the

treatment.” Titus Regional Med. Ctr. v. Roach, 06-11-00022-CV, 2011 WL 2517198, at *4

(Tex.App.—Texarkana June 24, 2011). “Therefore, the examination of whether there is a use of

property as contemplated in the statute, the ‘property’ in question is the entire bed and not its

adjunctive safety rails. Where the bed is equipped with safety rails, it is likewise difficult to

conjure how those rails were not meant to be used; positioned so as to effectuate their protective

purposes. The safety rails on a hospital bed are integral parts of the bed, just as the brakes on a

wheel chair would be parts of the chair, or the doors on an automobile would be parts of the car.”

Id.

       TRMC incorrectly interprets this Court’s precedent to hold that immunity can only be

waived in a case where there is not an integral safety component at all. Further, TRMC argues

that immunity is not waived as long as you have an integral safety component, even if you do not

use the integral safety component or even if you misuse it. This interpretation of this Court’s

                                                 12
holding is illogical and incorrect. This Court’s precedent has clearly found that a misuse of

tangible personal property would fall in the limited waiver of the TTCA and therefore a misuse

of the integral safety component would fall in the waiver as well. The Sixth District Court of

Appeals was correct in their opinion.

D.     Other court of appeals cases are consistent with the Sixth District Court of Appeals

       opinion.

       The Sixth District Court of Appeals opinion does not conflict with other similar opinions

from other courts of appeals as the cases cited by TRMC deal with different types of fact

scenarios that are not comparable. In contrast to the cases cited by TRMC, there are holdings of

other court of appeals that are similar scenarios and reach the same result as the Sixth District

Court of Appeals.

       Gainsville Mem. Hosp. v. Tomlinson, dealt with a patient sitting up on the end of the bed

when the patient fell. 48 S.W.3d 511, 513-14 (Tex. App. – Fort Worth 2001, pet. denied). The

Court of Appeals found that the use of the bed did not proximately cause the injury. Id. These

facts are distinguishable in that in the case at hand, if the bedrail was use correctly Roach would

not have been injured. Roach would not have been injured had it not been for the misuse of the

tangible personal property.

       McCall v. Dallas Cnty. Hosp. Dist., the patient went into cardiac arrest and died a few

weeks later and the family brought suit on the basis that the hospital failed to use a heart monitor,

oxygen equipment, a monitored bed and other tangible property in treating McCall. 997 S.W.2d

287, 289, 290 (Tex. App. – Eastland 1999, no pet.). The court of appeals reasoned the claims of

plaintiffs were nothing more than a failure to use different kinds of medical equipment and

                                                 13
tangible property and therefore the hospital did not waive its sovereign immunity. Id. McCall is

distinguishable in that it is a non-use case as opposed to Roach’s claims of misuse and use and

therefore does not conflict with the Sixth District Court of Appeals opinion.

        Spindletop MHMR Center v. Beauchamp involved a plaintiff alleging an injury from a

hospitals failure to use appropriate padding or other ulcer preventing devices. 130 S.W.3d 368,

369-72 (Tex. App. –Beaumont 2004, pet. denied). The court found that the plaintiff had not

alleged that the bed was defective or lacked an integral safety feature and that it was a non-use

case and therefore no waiver. Id. At 372. The facts here are non-use as opposed to misuse

and/or use of the bed and therefore the holdings do not conflict.

        Salinas v. City of Brownsville, an unpublished opinion, TRMC asserts holds different

than that of the Sixth District Court of Appeals opinion yet the facts of each case are completely

different. No. 13-08-00146-CV, 2010 WL 672885, *5 (Tex. App. – Corpus Christi Feb 25,

2010, no pet.)(mem.op.).     Specifically, there was not any alleged use of tangible personal

property of a state actor.

        There are court of appeals opinions that hold similar results as that of the Sixth District

Court of Appeals opinion in this case. In Texas State Technical College v. Beavers, the Plaintiff

was injured when a hoist fell on his hand while in use at a college. 218 S.W.3d 258, 263 (Tex.

App. –Texarkana 2007, no pet.) The Court found that in determining whether property is used,

“one must take into account the entirety of the circumstances under which the incident arose. Id.

In City of Houston v. Stephon Lamar Davis, a motorist was injured by a police dog that bit him

after it escaped from a police car and the court of appeals found that the officer negligently used

the police dog without properly restraining the dog, which was a substantial factor in the dog

                                                14
causing the injuries to Davis. 294 S.W.3d 609, 613 (Tex. App. – Houston [1st Dist.] 2009).

Texas Med. Branch Hosp. at Galveston v. Hardy, involved the case of a misuse of a cardiac

monitor in which the court of appeals found waiver. 2 S.W.3d 607 (Tex. App. –Houston [14th

Dist.] 1999, pet. denied). These cases further support the opinion of the Sixth District Court of

Appeals to support a finding of waiver of sovereign immunity by the use and misuse of the

hospital bed by TRMC which proximately caused the injuries of Roach. It is further supported

by the holding in Hampton, which was described in length above and dealt with the same set of

facts. Hampton, 6 S.W. 3d 627 (Tex. App. – Houston [1 Dist.] 1999).

          Specifically, with regard to Hampton, TRMC attempts to mislead this Court in the

decision made by the Houston Court of Appeals. TRMC states that appellate court found

sovereign immunity was waived as a result of the failure to use the bedrail. The court in

Hampton found that the there was a misuse of the bedrails which waived immunity. Id. In

addition, erroneously stated by TRMC, the Sixth District Court of Appeals likewise did not find

that the failure to use the bedrails was what waived immunity, it was simply the use of the bed

itself.    Titus Regional Med. Ctr. v. Roach, 06-11-00022-CV, 2011 WL 2517198, at *5

(Tex.App.—Texarkana June 24, 2011). TRMC tries to simply make this a non-use case as in

this Court’s prior decisions but the facts herein are not akin to a non-use case and therefore this

Court should deny the petition for review.

                                 CONCLUSION AND PRAYER

          Roach prays that this court deny the petition for review and affirm the judgment of the

Sixth Court of Appeals, and for such other and further relief to which Roach may show herself to

be entitled.

                                                15
                                                      Respectfully submitted,

                                                      Lori Chism, Attorney at Law
                                                      100 West Alabama
                                                      Mt. Pleasant, Texas 75455

                                                      (903) 575-9005 (phone)
                                                      (903) 575-9021 (fax)

                                                      By:_/s/Lori Chism______________
                                                        Lori Chism
                                                        SBN: 24031308

                                                      ATTORNEY FOR RESPONDENT
                                                      GLENNA VIRGINIA ROACH


                                 CERTIFICATE OF SERVICE

       The undersigned certifies pursuant to Texas Rules of Appellate Procedure 9.5(e) that on

the 6th day of March, 2012, a true and correct copy of this Respondent’s Brief on the Merits was

served via certified mail, return receipt requested to the following counsel of record:

       Katherine Elrich
       Frank Alvarez
       Arlene A. Wiese
       HERMES SARGENT BATES, L.L.P.
       901 Main Street, Suite 5200
       Dallas, Texas 75202



                                              __/s/Lori Chism________________________
                                              Lori Chism




                                                 16

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:2
posted:9/20/2012
language:Unknown
pages:27