14th Court of Appeals holds administering drug is the “use” of tangible personal property for immunity purposes

University of Texas M.D. Anderson Cancer Center v. Lance McKenzie, Individually and as Representative of the Estate of Courtney McKenzie-Thue (Deceased), Deborah Diver, Individually and As Next Friend of Jensen O’Hara, a Minor 14-16-00681-CV (Tex.App—Houston [14th District] August 3, 2017)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a medical malpractice/Texas Tort Claims Act (“TTCA”) matter against a university. The 14th Court of Appeals affirmed the denial and remanded the case for trial.

McKenzie-Thue suffered from cancer and sought treatment at the University of Texas M.D. Anderson Cancer Center (“MDACC”).  MDACC utilized two clinical trials of the Wake Forest Protocol for treatment, which included (in oversimplified terms) surgical removal of cancer, sealing of cavities, and flushing of the cavities along with chemical treatments.  A total of 9 liters of fluid was perfused into McKenzie-Thue’s abdominal cavity. The procedure was performed at MDACC using MDACC personnel and equipment. However, a medical technician called a “perfusionist” perfused—under her surgeon’s direction— the chemotherapeutic agent. The procedure and mixing of the agent and drug (D5W) resulted in a drop in sodium levels and swelling of Mckenzie-Thue’s cells. She died two days later. The family sued alleging negligence and the specific negligent use of tangible personal property (i.e. the drug solutions utilized in the cavity). The family’s expert report noted the use of the D5W drug along with the specific chemical agents used deviated from the standard of care, resulting in the patient’s death. MDACC filed a plea to the jurisdiction, which the trial court denied. MDACC appealed.

MDACC asserts the drugs and fluids used were administered by an independent contractor (i.e. the perfusionist) as his specific area of expertise, so no MDACC employee negligently used the tangible property. Further, the death was not a foreseeable use of the fluids/drugs so no proximate cause can be shown. The perfusionist testified he was an independent contractor, but the MDACC surgeon, Dr. Mansfield, specified the use of the D5W, the flow rate for the perfusion, and the temperature for the perfusing fluid during the IPHC procedure.  Further, after the initial procedure, Dr. Mansfield washed out McKenzie-Thue’s cavity using the D5W. Dr. Mansfield acknowledged the perfusionist made no decisions about the volume or type of fluid used during the perfusion process. He also testified MDACC was aware D5W and mixtures of fluids could cause a drop in sodium which is why the surgical team used an insulin drip and hypertonic saline drip during the surgery.  After analyzing the facts the court held under the TTCA a governmental unit’s immunity is not waived “when it merely allows someone else to use” the property. “Use” in the context of §101.102(2) means “to put or bring into action or service; to employ for or apply to a given purpose.” Since Dr. Mansfield utilized D5W to flush the cavity, and MDACC provided the D5W drug, it constitutes legally sufficient evidence of “use.”  Further, the “use” by MDACC employees was during the part of the procedure when other chemicals were in the body and could cause the deadly mix leading to a drop in sodium.  The court agreed with MDACC that allegations involving the misuse of information, negligent training, or medical judgment, without more, are insufficient to waive immunity. However, the evidence supports more than mere medical judgment was involved since MDACC personnel arguably distributed D5W at a time during the procedure it should not have been distributed under the protocol. Further, no one disputes it was the mixture of drugs and fluids which caused her death and which was a known risk.  From a pleadings standpoint, such is sufficient to survive a plea to the jurisdiction both for the “use” and the “causation” elements.

If you would like to read this opinion click here. The panel includes Justice Christopher, Justice Busby and Justice Jewell. Justice Jewell delivered the opinion of the court. The attorney listed for the University is Kevin D. Molina. The attorneys  for McKenzie are Susan Leigh VanOstrand Fuller and Allan R. Brain.

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