Cheryl Bowman was initially diagnosed with and received treatment for colon cancer at Houston Methodist Hospital (“Methodist”). Methodist interpreted the diagnostic imaging of lesions on her liver as metastasized cancer. Methodist immediately started treating Bowman’s cancer with chemotherapy, which is known to cause and did cause her peripheral neuropathy.
Approximately six months later, Bowman consulted with a colon cancer specialist at M.D. Anderson. The specialist determined that Bowman was a good candidate for immunotherapy (in this case, the immunotherapy agent was
pembrolizumab (“pembro”), also called “Keytruda”). Thus, M.D. Anderson administered immunotherapy to Bowman.
Physicians at M.D. Anderson ultimately determined that the lesions on Bowman’s liver were not malignancies from the
primary tumor.
Bowman alleged that M.D. Anderson, as a defendant, was negligent “in [M.D. Anderson’s] failure to ascertain the true status of Cheryl’s condition and in [M.D. Anderson’s] continuing chemotherapy using tangible personal property, chemotherapy drugs, that caused harm to [Bowman] through well-known and foreseeable side effects including aggravation of neuropathy.” Throughout her pleading, Bowman complained of the chemotherapy regimen and the side effects therefrom, not the immunotherapy regimen.
M.D. Anderson argued that it did not administer chemotherapy to Bowman. Bowman responded that her petition was only deficient by using the term “chemotherapy” instead of “immunotherapy” but did not attempt to amend her petition.
The trial court did not rule on M.D. Anderson’s plea to the jurisdiction until August 5, 2024, after M.D. Anderson moved for a ruling. The trial court denied M.D. Anderson’s plea to the jurisdiction by written order, stating that it considered the “pleadings and arguments of counsel,” but did not indicate that it considered the jurisdictional evidence. M.D. Anderson appealed, arguing that the trial court erred by denying its plea to the jurisdiction because Bowman’s injuries were not caused by its use of tangible personal property.
The Court of Appeals For The First District of Texas stated in its January 15, 2026 Memorandum Opinion: “The parties do not dispute that M.D. Anderson is a unit of state government entitled to sovereign immunity. TEX. CIV. PRAC. & REM. CODE § 101.001(3); see Sharma v. Lin, No. 01-24-00730-CV, 2025 WL 3071581, at *5 (Tex. App.—Houston [1st Dist.] Nov. 4, 2025, no pet. h.) (mem. op.). Unless the State has consented to suit through legislative waiver of immunity, sovereign immunity from suit deprives courts of subject-matter jurisdiction. Fallon, 586 S.W.3d at 56. A plaintiff has the burden to affirmatively demonstrate the trial court’s jurisdiction, which includes establishing a waiver of sovereign immunity in suits against the government.”
“The Texas Legislature enacted the Texas Tort Claims Act (“TTCA”) to provide a limited waiver of immunity in certain circumstances. See TEX. CIV. PRAC. & REM. CODE ch. 101. As relevant here, the TTCA waives a governmental unit’s
immunity for “personal injury and death 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 § 101.021(2). The plaintiff must plead sufficient facts to establish that the court has jurisdiction under the TTCA because it is the plaintiff’s burden to establish that the TTCA has waived a governmental unit’s immunity.”
“The Bowmans assert a waiver of sovereign immunity under the TTCA. To establish a waiver of immunity under the TTCA, the Bowmans must establish that M.D. Anderson’s use of tangible personal property caused Bowman’s personal injuries. See TEX. CIV. PRAC. & REM. CODE § 101.021(2). In their live pleading, the Bowmans alleged that M.D. Anderson was negligent because it failed to ascertain the true status of Bowman’s condition and continued “chemotherapy using tangible personal property, chemotherapy drugs, that caused harm to Ms. Bowman through well-known and foreseeable side effects including aggravation of neuropathy.””
The Texas appellate court held: “Undisputed evidence establishes that M.D. Anderson did not use chemotherapy to treat Bowman. Bowman and the Bowmans’ retained experts agree that M.D. Anderson did not administer chemotherapy to Bowman. To the extent the trial court failed to consider this evidence in ruling on the plea to the jurisdiction, the trial court erred … The trial court erred by refusing to consider the undisputed evidence showing that the Bowmans failed to plead sufficient facts to establish a waiver of immunity, and thus subject-matter jurisdiction.”
“Here, the record conclusively negates the existence of jurisdiction. The undisputed jurisdictional evidence presented to the trial court, including Bowman’s testimony and the testimony of her experts, established that M.D. Anderson did not administer chemotherapy to Bowman. The record thus establishes that M.D. Anderson’s use of tangible personal property did not cause Bowman’s purported injuries. We conclude the Bowmans did not establish a waiver of sovereign immunity under the TTCA. The trial court erred in denying M.D. Anderson’s jurisdictional plea.”
Source The University of Texas M.D. Anderson Cancer Center v. Bowman, No.. 01-24-00634-CV.
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