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Texas Tech University Health Sciences Center v. Mendoza3/20/2003
This is an interlocutory appeal of the trial court's denial of Appellant's plea to jurisdiction. Jesus Roberto Mendoza, individually and as temporary guardian of the estate of Alicia Mendoza, Jesus Roberto Mendoza, Jr., and Rosa Mendoza, ("the Mendozas") brought suit against the Texas Tech University Health Sciences Center ("TTUHSC") under the Texas Tort Claims Act, alleging medical negligence. TTUHSC filed a plea to the jurisdiction asserting sovereign immunity. The trial court denied the motion in favor of the plaintiffs. TTUHSC now appeals the lower court's decision. We will affirm.
BACKGROUND
In December of 1995, Alicia Mendoza was hospitalized and surgery was performed at R.E. Thomason Hospital. A day after the surgery, Mrs. Mendoza suffered a pulmonary embolism and collapsed. She fell into a coma, never recovered, and died on July 24, 1997. Alicia Mendoza's husband and children brought suit against the hospital and Texas Tech University Health Sciences Center. The trial court dismissed the claim against the hospital upon a motion for partial non-suit. TTUHSC filed a motion to dismiss for lack of jurisdiction based on sovereign immunity. The trial court denied the motion. TTUHSC now appeals the denial.
The Mendozas contend Mrs. Mendoza died as a result of the negligence of her treating physician, Dr. Emmitt McGuire. In particular, they argue that improper medical treatment caused her to suffer a pulmonary embolism. Further, they maintain their claim falls within a waiver under the Tort Claims Act ยง 101.021(2). Specifically, Appellees argue the use of six different tangible items by the treating physician and staff proximately caused the death of Alicia Mendoza. The tangible property at issue includes an EKG machine , walker, heart monitor, fluid machine, surgical tools, and radiological equipment.
STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea by which a party challenges the trial court's authority to determine the subject matter of the cause of action. See Texas Dept. of Transportation v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999); City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.--El Paso 2000, pet. dism'd w.o.j.). The plaintiff has the burden to allege facts positively establishing the trial court has subject matter jurisdiction. Id.; Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). To sue the State for a tort, the pleadings must state a claim under the Tort Claims Act. Jones, 8 S.W.3d at 639. However, where sovereign immunity is at issue, mere reference to the Act does not demonstrate the state's consent to be sued, nor confer jurisdiction on the trial court. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).
A trial court's ruling on a plea to jurisdiction is subject to de novo review on appeal. City of Midland, 33 S.W.3d at 6-7; Herring v. Welborn, 27 S.W.3d 132, 136 (Tex.App.--San Antonio 2000, pet. denied). The appellate court may consider a plaintiff's pleadings, assertions of fact, and any evidence submitted by the parties relevant to the jurisdictional issue. Miller, 51 S.W.3d at 587; Jones, 8 S.W.3d at 639. Pleadings are construed liberally in the plaintiff's favor and with an eye to the plaintiff's intent. Texas Department of Transportation v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Texas Ass'n of Bus., 852 S.W.2d at 446. Moreover, we take the facts as plead to be true unless the defendant pleads and proves the allegations were fraudulently made in order to confer jurisdiction. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). The reviewing court should not address the merits of the case. Bland Indep. Sch. Dist. v
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