Opinion
NUMBER 13-19-00438-CV
02-11-2021
MEMORIAL MEDICAL CENTER - PORT LAVACA, Appellant, v. CYNTHIA HACKBARTH, Appellee.
On appeal from the 135th District Court of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Memorial Medical Center - Port Lavaca (MMC), a county hospital, contends the trial court erred in denying its plea to the jurisdiction because it conclusively established that appellee Cynthia Hackbarth's alleged injury was not caused by a condition or use of tangible personal property. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). We reverse and render a judgment of dismissal for want of jurisdiction.
I. BACKGROUND
Hackbarth alleges that after a successful knee replacement, she was referred to MMC for outpatient physical therapy. During a therapy session, MMC employees Regina Johnson and Laura Price "attempted to 'vigorously manipulate' [Hackbarth's] knee through forceful flexion, at which time [Hackbarth] felt a 'pop' and a tremendous amount of pain." An MRI revealed that Hackbarth suffered a quadriceps tear that required immediate surgery. Hackbarth claims she is now permanently disabled and lost her job because she could no longer perform her duties.
Hackbarth filed suit against MMC, Johnson, and Price based on various theories of negligence. Her claims against MMC include: (1) failing to develop, employ, monitor, and follow appropriate policies and procedures with regard to the assessment, treatment, management and oversight of patients; (2) failing to train, employ, and provide appropriate personnel to carry out such policies and procedures; (3) failing to properly credential, qualify, supervise, or dismiss Johnson and Price; and (4) vicarious liability for the acts and omissions of Johnson and Price.
Johnson filed a motion to dismiss under the election of remedies provision of the Texas Tort Claims Act (TTCA).See id. § 101.106(e). MMC filed a plea to the jurisdiction arguing that Hackbarth failed to plead a waiver of governmental immunity under the TTCA "because there has been no use of tangible property." See id. § 101.021(2).
Based on the record before us, it appears that Price, no longer an MMC employee when Hackbarth filed suit, was not served with citation and did not otherwise appear in the case. --------
Hackbarth filed an amended petition with the additional allegation that while the injury occurred, Johnson and Price were "utilizing the equipment and property in the examination room, including, but not limited to the examination table without non-slip pad, roller pad(s), and other physical therapy instrument(s)." Hackbarth subsequently filed her response to the plea in which she also alleged that Johnson and Price were utilizing a goniometer when the injury occurred. Attached to her response is the unsworn report of Charles Nichols, a board certified orthopedic physical therapy specialist. In the report, Nichols explains the proper technique for using a goniometer to measure knee motion for flexion:
1. The patient should be positioned in the supine position.
2. One arm of the goniometer should be aligned with the thigh to the greater trochanter.
3. The other arm of the goniometer should be aligned with the fibula to the lateral malleolus.
4. The axis of the goniometer should be centered over the knee joint just below the lateral femoral condyle at the lateral joint line.
5. The patient will bend the knee as far as possible and gentle overpressure is applied to take up the slack between the active and passive motions until firm and free is obtained and measurement is taken.
Nichols stated that after reviewing Hackbarth's medical records, he could not determine "how extensively the above technique was followed." He opined that two factors "could have led" to Hackbarth's injury:
1. From the provided documentation, it appears that the patient was measured in the prone position. It is recommended that knee motion is measured in supine, as the prone position places added tension force on the quad muscles and tendon. This additional force may have led to the quad injury as end range motion places more stress to the tendon.
2. Too much force during the overpressure. This sometimes happens
due to the provider being too insistent to show improvement in motion. In this case, it appears that the provider was too aggressive resulting in a rupture of the quad tendon.
Hackbarth's response also included an unsworn letter from her orthopedist. Hackbarth reported to him that "the therapist was trying to vigorously manipulate her knee without anesthesia and that she felt a pop accompanied by excruciating pain." He opined that Hackbarth's injury "was a direct and proximate result of the therapy" she received.
MMC filed an amended plea arguing that "the alleged manipulation of [Hackbarth's] knee was not done by any equipment or property, but instead solely by hand. Thus, there is no use of property that caused the alleged injury and no waiver of immunity." To support its position, MMC attached an affidavit by Johnson attesting to those facts:
I occasionally performed physical therapy services on Cynthia Hackbarth in 2016. I was the sole person at [MMC] who provided physical therapy to Ms. Hackbarth on her visits on July 11, 2016[,] and on July 13, 2016. I would apply gentle pressure with my hands during physical therapy to check on and attempt to improve Ms. Hackbarth's range of motion in her knee. I never used any equipment on Ms. Hackbarth during physical therapy to move, manipulate[ ], or put any pressure on her leg or knee. A device called a goniometer would sometime[s] be used next to her leg to measure her range of motion, and a goniometer was used to measure her range of motion on both July 11 and July 13. The goniometer is simply a measurement tool and the only purpose I use the device for is to measure the maximum flexion and extension after a patient's limb or joint has already been moved. I do not use the goniometer to determine how much force to apply to a limb or when to stop applying pressure. I did not use the goniometer to manipulate or apply pressure to Ms. Hackbarth's leg or knee. Additionally, it was not used to determine how much pressure to apply to her knee or leg, how far to flex her knee, or when to stop applying pressure or stop flexing her knee or leg. Instead, once maximum flexion had been achieved on Ms. Hackbarth's knee, through her own movement and by [my] hand, I used the goniometer to measure her range of motion. Additionally, Ms. Hackbarth would sit or lay on an examination table when therapy movements were performed[;] however, the table was not used to actually move or manipulate her leg or knee. Any manipulation or movement of her leg and knee was always done by hand only, and only in a gentle manner.
Hackbarth filed her own countervailing affidavit stating, in pertinent part:
4. During every physical therapy session, the [p]hysical [t]herapist utilized an instrument that was similar to a protractor to report to me the angle of the manipulation.
5. On July 11, 2016[,] the physical therapist attempted to vigorously manipulate and force my knee when I felt popping and tremendous pain. At that time[,] they reported the angle utilizing that same instrument/device. In fact, I recall the reading to be "100+ degrees."
The trial court granted Johnson's motion to dismiss and denied MMC's plea. This interlocutory appeal ensued. See id. § 51.014(a)(8).
II. STANDARD OF REVIEW & APPLICABLE LAW
Unless waived, governmental immunity protects the political subdivisions of the State from lawsuits for money damages. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). Immunity from suit deprives a trial court of subject matter jurisdiction. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)).
A plea to the jurisdiction is a procedural vehicle to challenge the trial court's subject matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The existence of subject matter jurisdiction is a question of law that we review de novo. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When a plea to the jurisdiction "'challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,' even where those facts may implicate the merits of the cause of action." City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (quoting Miranda, 133 S.W.3d at 227). If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder; however, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228.
The TTCA provides a limited waiver of governmental immunity for certain negligent conduct by government employees, including personal injury caused by a condition or use of tangible personal property. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2), .025. "Use" means "to put or to bring into action or service; to employ for or apply to give a purpose." Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). For the waiver to apply, a use of property must proximately cause the injury. City of Dallas v. Sanchez, 494 S.W.3d 722, 726 (Tex. 2016) (per curiam) (citing Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998)). Proximate cause has two requirements: cause in fact and foreseeability. Id. (citing Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015) (per curiam)). To satisfy the cause in fact element, the use of property must be a substantial factor in causing the injury; that is, the use of property "must actually have caused the injury." Id. (quoting Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex. 2009)). When using property merely furnishes a circumstance that makes the injury possible, the use is not a substantial factor in causing the injury. Id. (citing Bossley, 968 S.W.2d at 343).
III. ANALYSIS
In this case, the record conclusively establishes that there is no direct causal link between the use of the examination table or the goniometer and Hackbarth's alleged injury. Instead, it was the amount of force the therapist used to "vigorously manipulate" Hackbarth's leg that actually caused her injury. See id. (citing Posey, 290 S.W.3d at 872). It is undisputed that the therapist used her hands to apply that pressure, not the examination table or goniometer. Moreover, it is uncontroverted that the goniometer "was not used to determine how much pressure to apply to her knee or leg, how far to flex her knee, or when to stop applying pressure or stop flexing her knee or leg." Instead, the parties agree that the goniometer was only used to measure Hackbarth's range of motion "once maximum flexion had been achieved." See Univ. of Tex. Med. Branch at Galveston v. Kai Hui Qi, 402 S.W.3d 374, 388 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ("[T]he 'use' of property requires more than reading and interpreting data produced by medical equipment.").
Therefore, it was not misuse of the examination table or goniometer that allegedly caused Hackbarth's injury; rather, it was a prior independent error in medical judgment about the appropriate amount of pressure to apply to her leg that proximately caused the injury. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 516 (Tex. 2019) ("The key is that while medical judgment was involved, it led to the use of property that was allegedly improper under the circumstances and caused harm."). At most, use of the examination table and goniometer merely furnished circumstances that made the injury possible. See Sanchez, 494 S.W.3d at 726 (citing Bossley, 968 S.W.2d at 343). Thus, Hackbarth's claim does not fall within the TTCA's negligent-use-of-property waiver of immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). Likewise, Hackbarth's other negligence claims against MMC based on its policies and procedures and training, credentialing, and supervision of its employees fall outside the TTCA's waiver of immunity. See, e.g., Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 880-81 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (collecting cases). We sustain MMC's issue.
IV. CONCLUSION
We reverse and render a judgment of dismissal for want of jurisdiction.
GINA M. BENAVIDES
Justice Delivered and filed on the 11th day of February, 2021.