Evaluating risk factors helps protect entity under TTCA, even if tangible personal property is present.

The University of Texas M.D. Anderson Cancer Center v. Vicki M. King, No. 14-12-00847-CV (Tex. App. – Houston [14th Dist.] June 27, 2013)

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the issue was a proper interpretation of a waiver of governmental immunity under the Texas Tort Claims Act for the negligent use of tangible personal property.

King allegedly sustained a broken arm and a torn rotator cuff at the University of Texas M.D. Anderson Cancer Center (“MDA”) while she was undergoing chemotherapy. She alleged that MDA waived its sovereign immunity because her injury was caused by a condition or use of tangible personal property, specifically that MDA failed to use the side rails of her hospital bed and failed to use all required restraints and mechanisms to prevent her from falling. While King had no history of falling, during her treatment she was given medication which put her into a sleepy state.  Evidence established that while the lack of raised side rails could result in falls, raised side rails can also trap limbs or injure a patient if they strike it while moving. In response to MDA’s plea, King submitted her own affidavit attesting why she believes she was injured.  The trial court overruled MDA’s objection to the affidavit.

The court noted that while the non-use of property is not a waiver of immunity, a waiver exists if an injury is caused by property’s lack of an integral safety component. However, in distinguishing other bed rail cases, the court noted MDA specifically assessed the risks of using the railings and made an educated and discretionary decision not to use them. While the court noted it was a type of medical judgment, the key for other entities, although not expressly stated, is that it was an assessment and a discretionary decision after weighing the factors. As a result, there is no waiver of immunity.  The court also held the trial court erred in considering King’s affidavit which was not based on personal knowledge and was inconsistent so no fact issue can result. The denial was reversed and judgment rendered for MDA.

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