Tangible property is not “used” under TTCA unless it causes the injury says Houston Court of Appeals

Tangible property is not “used” under TTCA unless it causes the injury says Houston Court of Appeals

John Harrison v. The University of Texas Health Science Center at Houston, No. 01-12-00980-CV (Tex. App. – Houston [1st Dist.], August 29, 2013)

This is a Texas Tort Claims Act (“TTCA”) case where the plaintiff alleges the negligent use of tangible personal property in the misdiagnosis of his condition. With the exception of the last substantive paragraph here, there is nothing significant or interesting about the law in this case so unless you are just curious, you can skip this one.

For those who are interested, after several tests, Harris was informed he may have an effusion in his lung, underwent surgery and developed an infection. He sued the doctor and UTHSC alleging the misuse of several medical instruments (tangible personal property which triggers a waiver of immunity) which lead to a misdiagnosis. The First District Court of Appeals held that the “use” of property which triggers a waiver of sovereign immunity must be that the property caused the injury. Incidental involvement is insufficient to establish waiver. Property does not “cause” the injury if it simply furnishes the condition that makes the injury possible.  The court held the claims are more akin to a misuse of information (test results) which led to a possible misdiagnosis. Further, the doctors are not the ones who “used” the testing equipment and the equipment did not cause the misdiagnosis or an additional injury. Harrison’s condition existed prior to any tests. As a result the pleadings do not establish jurisdiction. The court also analyzed the pleadings and noted the existence of immunity in this type of case created an incurable defects so he need not be given the opportunity to replead.

Of  some interest in the opinion is an explanation of the statutory amendments to the TTCA that alter the Texas Supreme Court’s holding in Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983) which held the reading of an EKG machine is a “use” actionable under the TTCA. The statutory amendments clarified that the misuse of information is not actionable and the court noted several court of appeals cases interpreting Salcedo, narrowing or implicitly overruling its holding.

If you would like to read this opinion click here.