January 27, 2020

The Texas Fourteenth Court of Appeals (“Texas Appellate Court”) stated in its Memorandum Opinion dated December 31, 2019 that “the gravamen of [the Texas medical malpractice wrongful death plaintiff’s] complaint is that the diagnosis and treatment of decedent Tracy Crawford’s heart attack were delayed by UTMB’s [defendant University of Texas Medical Branch at Galveston’s] negligent failure to obtain and act upon intangible information” and therefore the claims do not fall within the Texas Tort Claims Act’s waiver of immunity from suit for personal injury and death proximately caused by the use of tangible personal property. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2).” The defendant had argued that it was immune from suit due to sovereign immunity.

Sovereign Immunity

Sovereign immunity is waived to the extent of liability under the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a). Under the Act, a governmental unit such as UTMB 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.” § 101.021(2).

In an attempt to skirt defendant UTMB’s sovereign immunity, the Texas medical malpractice wrongful death plaintiff alleged that the decedent “suffered a misdiagnosed and untreated heart attack due to the misuse of laboratory testing which progressed into cardiogenic shock” and that UTMB “failed to order a second troponin test” within four to six hours of the initial test and, because UTMB was unaware that the decedent’s troponin levels had changed, UTMB “fail[ed] to diagnose and treat the myocardial infarction in a timely manner using tangible property.” The plaintiff alleged that if UTMB had followed its own policy and performed a second troponin test four to six hours after the onset of cardiac symptoms, “this use of tangible property would have adequately diagnosed Tracy Crawford’s condition within the time necessary to save her life.” The plaintiff alleged that UTMB proximately caused Tracy’s death “in its misuse of the tangible personal property, specifically the troponin tests.”

The Texas Appellate Court held: “We conclude, however, that the claim is incurably defective because the true substance of [the plaintiff’s] complaint is that UTMB failed to use information it could have discovered through a timely blood test. Thus, he alleges the non-use of intangible information, not the use of tangible personal property … Failure to perform a diagnostic test is not a “use” of tangible personal property. Failure to use property is not. Failure to follow a recommendation or policy is not. Failure to diagnose or treat is not. And failure to monitor is not … the true foundation of [the plaintiff’s] complaint is that UTMB failed to obtain the information that a timely second troponin test would have revealed … But test results are information, and information is not tangible personal property.”

Source The University of Texas Medical Branch at Galveston v. Crawford, No. 14-18-00758-CV.

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