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Hampton v. University of Texas-M.D. Anderson Cancer Center9/23/1999
This is an appeal from the trial court's order granting a plea to the jurisdiction based on sovereign immunity. We reverse the trial court's order and remand the cause.
Nature of the Case
Marcia Hampton, individually, and as representative of the estate of Jerry D. Hampton, deceased, and as next friend of Lauren Hampton, a minor, and Jil Hampton ("the Hamptons") sued the University of Texas-M.D. Anderson Cancer Center ("the hospital") alleging a medical malpractice claim arising from the decedent's fall from a hospital bed after surgery.
Sovereign Immunity and Waiver
The hospital is a governmental unit generally immune from tort liability. The sole issue in this case is whether the Hamptons have alleged a cause of action that falls within the immunity waiver provisions of the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109 (Vernon 1997 & Supp. 1999). The Hamptons contend that the Texas legislature waived sovereign immunity in section 101.021(2) of the Texas Tort Claims Act, which provides:
A governmental unit in the state is liable for:
(2) 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 Ann. §101.021(2) (Vernon 1997).
Jurisdictional Review
If a cause of action is barred by sovereign immunity, the trial court lacks subject matter jurisdiction. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.-Austin 1998, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 1999). Under such circumstances, the trial court should dismiss the cause with prejudice. Id.
In considering a plea to the jurisdiction the trial court must look solely to the allegations in the plaintiff's petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.-Austin 1994, writ denied). Similarly, on appeal from an order granting a plea to the jurisdiction, the appellate court will consider the issue de novo, basing its decision solely on the allegations in the plaintiff's petition. L.S. Ranch, Ltd., 970 S.W.2d at 753; Firemen's Ins. Co. v. Board of Regents of the Univ. of Tex. Sys., 909 S.W.2d 540, 542 (Tex. App.-Austin 1995, writ denied).
It is the plaintiff's burden to allege facts affirmatively showing that the trial court has subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); L.S. Ranch, Ltd., 970 S.W.2d at 753. However, the reviewing court must accept the allegations of the plaintiff's petition as true and construe those allegations in the plaintiff's favor. Id.
The Plaintiffs' Petition
In their second amended petition, the Hamptons allege that on October 17, 1995, the deceased, Jerry D. Hampton, underwent surgery for abdominal and rectal cancer while staying at the hospital. Three days later, on October 20, 1995, Mr. Hampton fell from his hospital bed and was found by Mrs. Hampton lying on the floor and bleeding significantly.
The Hamptons further allege:
[Mr. Hampton's] medical condition and the high doses of medication required and placed a duty on [the hospital] to provide proper supervision and a proper environment for his post-operative hospitalization and recovery period. On the occasion in question, Mr. Hampton was left unattended in his hospital bed while an automatic pump administered pain medication. The bed was equipped with side rails designed to prevent Mr. Hampton from falling out of bed o
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