The University of Texas Health Science Center at Houston v. Rakisha Dickerson, 14-13-00232-CV (Tex. App. – Houston [14th Dist.], February 20, 2014)
This is an interlocutory appeal from the denial of a plea to the jurisdiction arising under the Texas Tort Claims Act. The 14th Court of Appeals reversed the denial and dismissed the claims in which the Plaintiff held physicians and staff improperly utilized tangible personal property resulting in the death of an infant.
Dickerson brought suit against the University Health Science Center (“University”) alleging a variety of negligent uses of personal property and motor driven equipment resulted in the death of his daughter from a streptococcus infection. However, all of the allegations essentially stem from the belief at University staff misused and misread test results and failed to inform him of the results before discharge. The University filed a plea to the jurisdiction which the trial court denied and the University appealed.
The 14th Court of Appeals first held that the “use” of property requires more than reading and interpreting data. The use of information is not actionable. Dickerson cited to old case law for the proposition a waiver exists for misreading test data and the Texas Tort Claims Act had been amended several times since his cited case. The court went through several cases examining and detailing the differences in the use of information v the misuse of equipment. The court ultimately determined that Dickerson’s claims are for the misuse of information for which the University retains immunity. Although focused on medical equipment, the case analysis can be helpful to an attorney dealing with a misuse of information type case. Since no waiver exists in this case, the claims were dismissed.
[Commentary: At the risk of creating a lengthy summary, I wanted to point out the almost comical level Dickerson’s counsel went to trying to establish a waiver of immunity including the negligent use of a motor vehicle by failing to get into a patrol car, drive to Dickerson’s house and inform him of the test result; negligently operating, using and/or mis-using the telephone by calling Plaintiff Dickerson or other family members and not leaving a message; by first dialing the wrong number; and negligently operating, using and/or mis-using a computer, electric typewriter or dictation system by placing an incorrect address on a test notification letter. The court held the crux of his claims stem from the misuse of information and therefore none of the above apply.]
If you would like to read this opinion click here. Panel: Justices Boyce, Christopher, and Brown. Opinion by Justice Boyce. The attorney listed for the Plaintiff is W. Russ Jones. The attorney listed for the University is Kevin D. Molina