Failure to use an x-ray machine in the right body area to locate a missing sponge constitutes the misuse of tangible personal property under TTCA

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of Tex. Sw. Med. Ctr. V. Rhoades, No. 05-19-00445-CV (Tex. App.—Dallas June 30, 2020).

This is a medical negligence case brought under the Texas Tort Claims Act (TTCA) filed after a sponge was left inside Plaintiff Rhoades during surgery.  The Dallas Court of Appeals held the plea to the jurisdiction was properly denied because Rhoades had made a proper allegation of misuse of tangible personal property.

Rhoades had surgery at the Medical Center for breast reconstruction surgery.  During the surgery, surgery included removal of tissue from her abdomen for use in her chest.  After the surgery in the abdomen was completed, but the surgery in her chest area was still in progress, the surgical staff realized they were missing a sponge.  The staff x-rayed Rhoades body in its search for the sponge but did not x-ray low enough in Rhoades’ abdomen.  While Rhoades was still in recovery in the ICU, the sponge was found with an x-ray of her pelvic area and it was removed. Complications after the sponge-removal surgery resulted in multiple further surgeries.  Rhoades sued the Medical Center for medical negligence asserting a waiver of immunity for misuse of tangible personal property (i.e. the sponge and the first x-ray machine.)  The Medical Center filed a plea to the jurisdiction which was denied. The Medical Center appealed.

The Texas Tort Claims Act, states that a governmental entity’s immunity is waived 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. “  Tex. Civ. Prac. & Rem. Code § 101.021(2).   Immunity is not waived for incorrect medical judgment.  Non-use of medical equipment is insufficient to waive immunity as is negligent medical judgment. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2001).  The Court of Appeals held that Rhoades had sufficiently alleged misuse of the x-ray machine in failing to take the x-rays in the right location to discover the sponge during the initial surgery and that the misuse of the sponge by leaving it in the body are sufficient to waive governmental immunity to overcome a plea to the jurisdiction.  Not monitoring or responding to medical equipment in a timely fashion can constitute a waiver of governmental immunity for negligent use of the equipment.  It was not a misuse of the information that the x-ray provided that caused the medical injuries, but it was not using it in the correct area that caused the additional surgery that led to further medical issues.

The dissent stated that immunity was not waived by the use of the x-ray machine, because the use of the x-ray machine did not cause the injuries or additional surgeries, but instead the non-use of the x-ray machine in her pelvic area did not find the sponge.   The x-ray machine was operated and functioned properly and produced the images correctly, and there is no allegation that it should not have been used.

If you would like to read this opinion click here. Panel consists of Justices Bridges, Molberg, and Partida-Kipness.  Opinion by Justice Partida-Kipness.