14th Court of Appeals holds dispensing prescription medication waives immunity under the Texas Tort Claims Act


The University of Texas M.D. Anderson Cancer Center v. Karen Jones 14-15-00266-CV (Tex. App. Houston [14th Dist.], January 21, 2016)

This is a negligent use of tangible personal property case where the 14th District Court of Appeals held that dispensing prescribed medications to a patient waives sovereign/governmental immunity.

Karen Jones was a smoker who participated in a blind study of a drug combination expected to help people stop smoking. Jones notified the study’s candidate screener of her depression and her adverse reaction to Chantix (one of the two drugs in the combinations) when she applied for the study. In the study, Jones was placed in a partial control group with and prescribed Chantrix but a placebo of the other drug. Afterwards, Jones attempted suicide. She survived but with permanent injuries. She sued the University (“UTMDA”) alleging it negligently prescribed and dispensed the drug to her, which is what caused her depressed state and suicide attempt. UTMDA filed a plea to the jurisdiction which was denied. UTMDA appealed.

The court first noted the negligent use of information is not a waiver of immunity.  However, UTMDA physically handed Jones the drugs, which are tangible personal property. The court then held dispensing the drug into Jone’s possession is a “use” of the drug. Next the court noted that for immunity to be waived the requirement of causation by tangible personal property is more than mere involvement. However, Jones alleged and offered expert evidence that her suicide attempt was “proximately caused by the use of tangible personal property, namely the [Chantix] that was prescribed and dispensed” by UTMDA.  The court rejected the argument that it must be the “direct” cause of the injury. The court determined “evidence show a nexus between UTMDA’s prescribing and dispensing Chantix and the injuries the drug allegedly caused Jones.”  Therefore, the panel concluded the pleadings indicate sufficient jurisdiction that a waiver of immunity exists.

If you would like to read this opinion click here. Panel: Justice Boyce, Justice Busby and Justice Brown. Opinion by Justice Busby.  The attorney listed for the M.D. Anderson is Matthew Jason Warner.  The attorney listed for Jones is Jeffrey Benton

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