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University of Texas Medical Branch at Galveston v. Estate of Darla Blackmon6/22/2005
Introduction
This is an interlocutory appeal of the trial court's denial of a plea to the jurisdiction by the University of Texas Medical Branch at Galveston (UTMB).
UTMB provides medical services to inmates in Texas Department of Criminal Justice (TDCJ) facilities in Coryell County. An inmate's daughter seeks wrongful-death and survival damages following her mother's death from pneumonia while incarcerated at a TDCJ facility. The issue is whether the plaintiff has alleged a waiver of sovereign immunity from suit under the Texas Tort Claims Act (TTCA) by pleading that the death was proximately caused by negligent use of tangible personal property. TEX. CIV. PRAC. & REM. CODE ANN. ยง 101.021(2) (Vernon 2005). Because we conclude that the plaintiff alleged a claim within the statutory waiver, we affirm the trial court's denial of the plea to the jurisdiction.
I.
Plaintiff's Second Amended Original Petition alleged:
In July 2000, Darla Blackmon entered the TDCJ's Substance Abuse Felony Punishment Facility (SAFPF) in Gatesville, Texas for a mandatory stay of approximately nine months for alcoholism treatment. The SAFPF program required Blackmon to remain on site, and Blackmon was dependent on the program for her sustenance and health care needs.
In December 2000, Blackmon became ill with cold/flu symptoms, including cough, respiratory difficulties, nasal discharge, fever, intestinal tract problems, headache, earache, sore throat, hoarseness, nasal stuffiness, and tearing. On January 10, 2001, Blackmon, who was 37 years old, went to the TDJC/SAFPF medical clinic--operated by UTMB--as an emergency walk-in patient, complaining that the above symptoms had existed for at least four days. The medical records reveal that Blackmon had suffered from similar symptoms for more than a month. Blackmon was seen by Sheila Ringer, a nurse, who administered only cold medications. Blackmon was not referred to a physician, and Ringer did not order diagnostic tests such as a blood test or x-ray. Also, no antibiotics were prescribed or given to Blackmon.
On January 12, 2001, Blackmon requested medical attention again because of her persisting symptoms. She was seen by Donald Baker, a physician's assistant, who performed an office examination and prescribed cold medications and Tylenol. Baker did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics.
Because of her persisting and worsening symptoms, Blackmon sought additional medical attention on January 13, 2001 at 11:30 a.m. She was seen by Bonnie Roach, a nurse, who performed an office examination using a thermometer and a stethoscope. Roach recorded a temperature of 103.5 degrees for Blackmon but did not refer Blackmon to a physician, order diagnostic tests, or prescribe antibiotics.
Blackmon's symptoms became acute and she experienced a significant inability to breathe, and she again sought medical attention on January 13, 2001 at 11:00 p.m. On this occasion, she was seen by John Lancaster, a nurse, who performed an office examination. In his examination, Lancaster used: a pulse oxymeter, which is used to determine oxygen saturation in the lungs; a stethoscope, which is used to detect adverse lung sounds; and a thermometer, which is used to detect fever. Lancaster dispensed cold medications and Tylenol but did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics for Blackmon.
Blackmon was ordered back to her room, and upon returning, her symptoms became even more severe, as her inability to breathe caused her face and skin to turn blue. Crying and hysterical,
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