Appellee’s Brief

Texas Tech University v Buford

Description: This was a medical malpractice case where Heygood, Orr & Pearson represented the mother of a young girl who was killed by a medication error during a hospitalization for cystic fibrosis.  Because the hospital was a government run hospital, the defense filed a plea to the jurisdiction of the court based on sovereign immunity, which the trial court denied.  The hospital appealed. The issue on appeal was whether the inappropriate prescription of a dangerous drug constituted misuse of tangible personal property which would be an exception to sovereign immunity.  This appellate brief was filed by Heygood, Orr & Pearson on behalf of their client.

No. 11-10-00033-CV
In the
Court of Appeals for the Eleventh District of Texas
at Eastland
TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER,Appellant,

v.

LORETTA BUFORD,
Individually and as heir to and on behalf of
the Estate of Stefanee Buford, deceased,

Appellee.

On accelerated, interlocutory appeal from
the 161st Judicial District Court of Ector County, Texas
Honorable John W. Smith

Appellee’s Brief

(Oral Argument Requested)

Michael Heygood (No. 00784267)

Kent Barnett (No. 24050257)

Heygood, Orr & Pearson

2331 W. Northwest Highway, Second Floor

Dallas, Texas 75220

214.237.9001 (Telephone)

214.237.9002 (Facsimile)

 

Attorneys for Appellee

 

Table of Contents

Index of Authorities ………………………………………………………………………iii

Statement of the Case ……………………………………………………………………iv

Issue Presented ……………………………………………………………………………….v

Statement of the Facts …………………………………………………………………….1

  1. Stefanee is admitted to Medical Center Hospital……………………………….1
  2. Fentanyl patches are for chronic pain in opioid-tolerant patients………………1
  3. The residents negligently used fentanyl patches in Stefanee’s treatment………3
  4. Stefanee dies from fentanyl toxicity, and Loretta brings this lawsuit………….4

Summary of Argument ……………………………………………………………………6

Argument and Authorities ………………………………………………………………..8

  1. The Texas Supreme Court has indicated that the administration

of a harmful medication constitutes a “use” of

“tangible personal property.”…………………….…………………………….8

  1. The residents’ delegation of duties to hospital nurses does not

relieve the residents of liability………………….……………………………..9

  1. Texas Tech is liable even if its residents ordered nurses

to administer Stefanee’s prescriptions………………………………………9

  1. Texas Tech relies upon inapposite decisions..…………………………….12
  1. A prescription of medication filled in the hospital that causes

harm constitutes tangible personal property…………………………………..15

Conclusion and Prayer……………………………………………………………………18

Certificate of Service…………………………………………………………………….19


Index of Authorities

Decisions

Citizens Ins. Co. of Am. v. Daccah,

217 S.W.3d 430 (Tex. 2007) …………………………………..…………………11

 

Dallas County v. Alejo,

243 S.W.3d 21 (Tex. App.—Dallas 2007, no pet.) ……………………..………..15

 

Garrett v. Ector County Hosp. Dist., No. 11-05-00225-CV,

2006 Tex. App. LEXIS 2374

(Tex. App.—Eastland Mar. 30, 2006, pet. denied) (mem. op.)……………….12–13

Kerrville State Hosp. v. Clark,

923 S.W.2d 582 (Tex. 1996) …………………………………………….6, 8, 15, 17

Leonard v. Green,

296 S.W.3d 669 (Tex. App.—San Antonio 2009, pet. filed) .……………14, 15–17

Lowe v. Texas Tech Univ.,

540 S.W.2d 297 (Tex. 1976) …………………….…………………………….…10

San Antonio State Hosp. v. Cowan,

128 S.W.3d 244 (Tex. 2004)…………………………………………………..10, 13

Tex. A & M Univ. v. Bishop,

156 S.W.3d 580 (Tex. 2005) ……………………………………..……………….14

Tex. Dep’t of Criminal Justice v. Miller,

51 S.W.3d 583 (Tex. 2001) …………………………………..6, 8, 9, 11, 12, 15, 17

Univ. of Tex. Med. Branch at Galveston v. York,

871 S.W.2d 175 (Tex. 1994)………………………………………………12, 16–17

Constitutions, Statutes, and Rules

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) ……………………………………….6

Tex. Const. art. I, § 19 …………………………………………………………………11

U.S. Const. amend. XIV, § 1 ……………………………………………………………11

 


Statement of the Case

Appellee Loretta Buford asserts negligence and gross negligence claims against appellant Texas Tech University Health Science Center for the death of her daughter, Stefanee Buford.  (CR 83–85)  Texas Tech employed three resident-physicians at Ector County Hospital District (d/b/a Medical Center Hospital), a state governmental unit separate from Texas Tech.  Loretta contends that Texas Tech is liable for, among other things, three resident doctors’ negligent prescribing and administering of fentanyl patches to Stefanee at Medical Center Hospital.  (CR 83–85)  Fentanyl is an opioid medication more than eighty times stronger than morphine, and it is intended to treat chronic, as opposed to acute, pain.  (CR 75)  The prescribed patches were obtained from the pharmacy at Medical Center Hospital and applied by nurses there under the residents’ supervision while Stefanee was the residents’ patient at Medical Center Hospital.  (CR 102, 108, 167, 187)

Texas Tech filed a plea to the jurisdiction of the trial court.  (CR 92–97)  Texas Tech asserted that its governmental immunity deprived the trial court of jurisdiction.  Specifically, Texas Tech argued that it was entitled to governmental immunity because Buford’s claims do not concern “personal injury or death . . . caused by a condition or use of tangible personal . . . property.”  (CR 94)  Loretta opposed Texas Tech’s plea.  (CR 116–125)  The trial court (1) reviewed the parties’ briefing and the evidence and (2) held   oral argument on Texas Tech’s plea.  (CR 211)   After doing so, the trial court denied the plea to jurisdiction on January 7, 2010.  (CR 211)

Texas Tech filed its notice of appeal on January 28, 2010.  (CR 207)   

Issue Presented

Texas Tech has no governmental immunity when its resident-physicians prescribe and administer a drug that causes death.  Three of Texas Tech’s residents at Medical Center Hospital caused Stefanee’s death when they negligently prescribed—and had nurses under their supervision administer—nine different fentanyl patches to Stefanee before her discharge from the hospital.  Does Texas Tech have governmental immunity?

Statement of the Facts

The facts for purposes of this interlocutory appeal do not appear to be contested.[1]

I. Stefanee is admitted to Medical Center Hospital. Stefanee was admitted to Medical Center Hospital in Ector County on April 2, 2006 and discharged on April 10, 2006.[2] During her eight-day hospitalization, Stefanee was under the care and treatment of Drs. Dao, Gurrapu, and Venati, all of whom were employees of Texas Tech as internal-medicine-resident physicians.[3] During Stefanee’s hospitalization, each of these doctors prescribed and ordered fentanyl patches for Stefanee.[4] According to Dr. Gurrapu, the nurses at the hospital followed his orders.[5] Indeed, he had no “criticisms whatsoever about the nurses and other personnel at Medical Center Hospital with respect to their care and treatment of Stefanee Buford.”[6] Dr. Venati also testified that he intended the nurse to follow his instructions concerning Stefanee’s fentanyl-patch prescription.[7]

II.        Fentanyl patches are for chronic pain in opioid-tolerant patients.

Fentanyl is an opioid medication more than eighty times stronger than morphine.[8] Fentanyl patches are indicated for the management of “persistent, moderate to severe chronic pain that . . . requires continuous, around-the-clock opioid administration for an extended period of time . . . .”[9] They are specifically contraindicated in patients in the management “of acute pain or in patients who require opioid analgesia for a short period of time.”[10] They are also contraindicated for patients that have not developed a tolerance to opioid medications.[11]

The patch is intended to be applied to the patient’s skin and changed every 72 hours.  The skin under the patch absorbs the fentanyl and allows it to circulate into the patient’s bloodstream.[12] A patient generally reaches a peak concentration of fentanyl in the blood between 24 and 72 hours after the first patch is applied.[13] Because it takes time for the patient’s fentanyl-blood concentration to increase, the manufacturer specifically warns that the dosage strength should not be increased until after three days:

Because of the increase in serum fentanyl concentration over the first 24 hours following initial . . . application, the initial evaluation of the maximum analgesic effect of fentanyl transdermal system cannot be made before 24 hours of wearing.  The initial fentanyl transdermal system dose may be increased after 3 days . . . .[14]

III.      The residents negligently used fentanyl patches in Stefanee’s treatment.

Over the course of five days, the hospital nurses placed a total of nine fentanyl patches on her body as the Texas Tech residents repeatedly changed their orders concerning the fentanyl-patch prescription:

  • April 6, 2006:  Dr. Gurrapu ordered nurses to place three 25 mcg/hr patches on Stefanee’s body for a total prescribed dose of 75 mcg/hr.[15] This was the first time Stefanee had been prescribed and administered a fentanyl patch.[16]
  • April 7, 2006:  Two of the three 25 mcg/hr patches were removed at the direction of the attending physician, Dr. Bartels, who concluded that the 75 mcg/hr dose (prescribed by the residents) was too high.[17]
  • April 7, 2006:  The remaining 25 mcg/hr patch was removed and replaced with a 50 mcg/hr patch at the direction of Dr. Gurrapu, who increased the prescribed dosage strength to 50 mcg/hr.[18]
  • April 9, 2006:  The 50 mcg/hr patch was removed and replaced with three 25 mcg/hr patches at the direction of Dr. Dao who increased the prescribed dosage strength to 75 mcg/hr.[19]
  • April 10, 2006:  The three 25 mcg/hr patches were removed.  They were replaced by the nurses with one 50 mcg/hr patch and one 25 mcg/hr patch, thereby continuing her prescribed 75 mcg/hr dose with new patches.[20]

On April 10, 2006, Stefanee was discharged from the hospital wearing the fentanyl patches (with a total dosage strength of 75 mcg/hr) that the nurses placed on her at the instruction of Dr. Venati.[21] She was instructed to continue wearing those fentanyl patches.[22]

The residents’ repeated administration of fentanyl patches to Stefanee violated nearly all of the instructions in the fentanyl-patch package insert.[23] The residents, by administering patches of increasing dosage strength to Stefanee, violated the dosing instructions that require the patient to be on the patch for at least 72 hours before increasing the dose.[24] Moreover, when Stefanee was admitted to the hospital in April 2006, none of her home medications were opioids, and she was not on around-the-clock opioid care.[25] The residents were also improperly attempting to treat short-term, acute pain (a contraindicated use) because they were trying to “wean” Stefanee from the fentanyl patch after only four days’ use.[26]

IV.      Stefanee dies from fentanyl toxicity, and Loretta brings this lawsuit.

Although a prescription for additional fentanyl patches was given upon discharge, Stefanee never filled it.  Stefanee returned home on April 10 and was found dead on April 11.  The Ector County Medical Examiner concluded that Stefanee died from fentanyl toxicity.[27] His office’s investigation found no evidence that Stefanee’s toxic fentanyl level came from any source other than the patches that the nurses placed on her body at the residents’ direction.[28]

Loretta, Stefanee’s mother, alleges that Texas Tech is liable for their residents’ negligence.[29] Loretta pleads specifically that the residents were negligent in, among other things:

  • applying or administering more than one fentanyl patch at a time to Stefanee and/or misusing such fentanyl patches;
  • discharging Stefanee with multiple patches on her body;
  • prescribing the fentanyl patch for Stefanee;
  • selecting the dose of fentanyl at a higher dose than should have been prescribed; and
  • administering fentanyl to Stefanee with other medications.[30]

Summary of Argument

Texas Tech has no governmental immunity here because their residents “used” tangible personal property by negligently prescribing and administering fentanyl patches to Stefanee.  The Texas Tort Claims Act provides that Texas Tech has no governmental immunity when it causes “death . . . by a condition or use of tangible personal . . . property if [Texas Tech] would, were it a private person, be liable to [Loretta] according to Texas law.”[31] To “use” tangible property, such as a fentanyl patch, Texas Tech needs merely to “put or bring [that property] into action or service.”  Texas Supreme Court precedent indicates that the affirmative act of prescribing and administering a harmful medication constitutes the “use” of “tangible personal property.”  The Court has distinguished a failure to prescribe helpful medication as a “non-use” of tangible personal property from the situation here in which the residents “used” tangible personal property by prescribing and administering a medication that itself caused harm.[32] Indeed, Justice Hecht has even stated in a later decision that a governmental unit is “clear[ly]” liable when, as here, it administers a medication that injures a patient.[33] The residents, therefore, are not entitled to governmental immunity.

Texas Tech does not address Loretta’s arguments based on these Supreme Court decisions in its brief.  Instead, it argues that it retains its immunity for two reasons.  First, Texas Tech argues that their residents are not liable because only the hospital nurses, as opposed to the residents themselves, administered and thus “used” the fentanyl patches.  Second, assuming that its residents cannot be held liable for the nurses’ administering of the fentanyl patches, Texas Tech argues that its residents cannot be held liable for prescribing a drug because a prescription does not constitute “tangible personal property.”[34] These arguments are without merit.

First, the state-employee hospital nurses, who work at the direction of the residents, applied the patches to Stefanee’s body and thereby caused her death.  The mere fact that the residents had their subordinates at the hospital comply with their orders to apply the patch (as opposed to placing the patch on Stefanee themselves) does not shield Texas Tech from liability.  Nothing in Texas law provides that a governmental employee may avoid liability by delegating actions to subordinates.  The residents “used” the fentanyl patches because they “put or [brought them] into action or service.”  Decisions of the Texas Supreme Court and this Court are not to the contrary.  Second, even if the nurses’ actions are not attributable to the residents, the prescription of medication constitutes the use of “tangible physical property” because it harmed Stefanee.  The decision from the San Antonio Court of Appeals upon which Texas Tech relies is not only undergoing merits review in the Texas Supreme Court, but that decision improperly relied upon a Supreme Court decision that did not concern whether a prescription is “tangible personal property.”  It is thus neither binding nor persuasive.

Argument and Authorities

I.         The Texas Supreme Court has indicated that the administration of a harmful medication constitutes a “use” of “tangible personal property.”

The Texas Supreme Court has indicated that the administration of a harmful medication is a “use” of “tangible personal property.”  “Use” means “to put or bring into action or service; to employ for or apply to a given purpose.”[35] In the context of medical treatment, to constitute “use” of tangible personal property, the “drugs [or] the treatment afforded to [the patient must] hurt him or ma[ke] him worse.”[36] Specifically, the Court has distinguished a failure to prescribe a certain type of medication (not a “use”) from the actual prescription of a harmful medication (a “use”):

[The hospital’s] employees gave [the patient] an oral form of Thorazine when he left the hospital . . . .  The [plaintiffs] allege that [the hospital] should have administered an injectionable drug to ensure [the patient’s] compliance, rather than the oral form given.  They claim that if an injectionable medication had been used [the patient] would not have murdered his wife.  The [plaintiffs’] pleadings and evidence do not show that oral Thorazine caused any harm.  . . .  Because the failure to prescribe a certain form of drug simply does not fall within the definition of use under the Act, [the hospital] did not waive its immunity.[37]

Thus, the government can be found liable for giving medication that injures a patient, but not for failing to prescribe a medication.  Indeed, Justice Hecht has specifically explained that the law is “clear” on that point:

Setting aside the difficulty in determining “use”, and taking only clear cases:  why should the government be liable for administering medication that injures a patient but be immune from liability for withholding medication that could have helped the patient?[38]

Here, the residents negligently prescribed and administered (through the nurses who followed their orders) fentanyl patches to Stefanee that caused her death.  Accordingly, the residents’ actions “[brought] into action or service” the fentanyl patches, and thus Texas Tech is not shielded by sovereign immunity.
II. The residents’ delegation of duties to hospital nurses does not relieve the residents of liability.

Texas Tech does not appear to contest the principles that Loretta derives from the Clark and Miller cases.  Instead, Texas Tech argues that its residents did not “use” the fentanyl patches because the hospital nurses (employed by a separate state entity) under the residents’ supervision applied them to Stefanee’s body.  This argument belies precedent and common sense.

A.        Texas Tech is liable even if its residents ordered nurses to administer Stefanee’s prescriptions.

The definition of “use” does not require that the state employee himself or herself manually cause harm with the tangible property at issue.  Instead, all that is required is that the employee “put or bring into service” the fentanyl patches.[39] This definition of “use” is more than broad enough to include the residents’ orders to subordinate nurses—who complied with those instructions while Stefanee was still at the hospital under the residents’ care—to administer a medication.[40]

In Lowe v. Texas Tech University,[41] the Supreme Court held that a state entity could be held liable when a football coach ordered his players to wear a uniform without a knee brace.  The Court later noted that sovereign immunity did not apply in Lowe because “the coach prescribed the uniform to be worn, not merely [because] he allowed the player to choose what to wear.”[42] It was not necessary that the coach dress his players for the state to have “used” tangible personal property.  And it was immaterial that the players could have, but did not, refuse to comply with his order.  Instead, it was enough that the coach ordered his subordinates—his players—to do as he instructed.

Robinson is analogous to Loretta’s case and demonstrates that Texas Tech is not entitled to immunity.  Loretta alleges (and the evidence demonstrates) that the residents, like the coach in Robinson, ordered the nurses to administer fentanyl patches to Stefanee and that the nurses, like the football players, complied.  The residents and the nurses did not simply leave the fentanyl patches in Stefanee’s hospital room for her to use as she saw fit.  Instead, the residents negligently ordered the administration of a medication that caused harm.  Texas Tech is, therefore, not entitled to governmental immunity.

Texas Tech argues that permitting liability here “would waive sovereign immunity altogether when a governmental employee orders or prescribes someone to do an act which later turns out to cause harmful or even deadly consequences.”[43] This is not so.  Consistent with the Supreme Court’s decision in Robinson, Loretta instead advocates a rule for which liability would attach only when a governmental employee orders or instructs someone under his charge to put a tangible object, such as a fentanyl patch, into service.  In contrast, no liability would attach, say, if the governmental employee simply told a patient’s visiting relative to leave the patient’s room and the relative fell and injured herself as she exited.  The governmental employee would not have instructed anyone for whom he was responsible to use personal property that caused injury.  Loretta’s proposed rule not only finds its basis in precedent (and common sense) but is also self-limiting.

In contrast, Texas Tech advances a rule that is arbitrary and thus unconstitutional under both the federal and state constitutions.  “Due process requires that the application of Texas law be neither arbitrary [nor] fundamentally unfair.”[44] Yet, Texas Tech asks this Court to create a rule—from a statute that is already exceedingly difficult to interpret[45]—where liability exists based on meaningless distinctions.  For instance, under its theory of the case, it appears that Texas Tech would be liable if its residents placed the wrong medicine in pill form in a patient’s mouth.  But, under that same theory, Texas Tech would not be liable, for example, if its residents handed a pill to the patient and instructed her to swallow it, or if its residents prescribed the wrong pill and had their nurses hand it to the patient.  Texas Tech offers no justification for how the legislature could or would reasonably intend for liability to attach under the first scenario but not the latter two.  Indeed, such a rule would be “unreasonable, arbitrary, or capricious [and] not within the legislature’s authority to make.”[46]

B.        Texas Tech relies upon inapposite decisions.

The three decisions upon which Texas Tech relies to support its argument are, at best for Texas Tech, inapposite or, at worst, helpful to Loretta’s argument.[47] Texas Tech first relies upon this Court’s unpublished opinion in Garrett v. Ector County Hospital District.[48] In that case, the plaintiffs alleged that the state-employee nurses failed to holster a surgical device that injured one of the plaintiffs.  The record was clear that only the doctor, who was in private practice, used the device and that he instructed the state-employed nurses not to use the device.[49] The Court, unsurprisingly, held that the state-employed nurses did not “use” tangible personal property.[50]

Garrett is distinguishable in two key ways from Loretta’s case.  First, Garrett concerned a state employee’s “non-use” of property by failing to holster the device, not the “use” of property by affirmatively administering a drug to a patient, as Loretta alleges.  Second, the record was clear that the physician instructed the nurses not to use the tangible property.  Here, the record is clear that the nurses complied with the residents’ affirmative order to apply the fentanyl patches.[51] Garrett simply does not indicate that a state actor can relieve himself or herself of liability by delegating an action to a subordinate.

San Antonio State Hospital v. Cowan[52] is similarly distinguishable.  The Supreme Court held in that case that state employees did not “use” a set of suspenders and a walker by merely providing them to a patient who later misused them to commit suicide.  The state employees did not put the suspenders and walker into service for a given purpose; they merely gave them to the decedent.[53] In Loretta’s case, in contrast, the residents ordered the nurses to apply fentanyl patches to Stefanee; the residents did not merely hand the fentanyl patches to Stefanee, who later misused them.  Moreover, in Cowan, the patient who committed suicide did not use the suspenders and walker for the purpose that the state employees intended (i.e., respectively, to keep his pants up and assist his walking).  But, in Loretta’s case, Stefanee’s nurses administered the fentanyl patches exactly as the residents ordered—in the manner that the residents intended—without any patient misuse.

Likewise, Leonard v. Glenn,[54] a case in which the Supreme Court has called for and received merits briefing, is not analogous to this case.  In Leonard, a physician’s assistant prescribed medication contraindicated for patients with the plaintiff’s medical condition.[55] The appellate court found that the no “use” of tangible property occurred because the patient was not given the harmful medication at the clinic.[56] Loretta’s case, in contrast, involves a prescription that was filled at the hospital.  Moreover, all of the fentanyl patches were placed on Stefanee’s body (and therefore “used”) during her hospitalization by hospital staff under the residents’ charge.  Thus, Leonard, like the other decisions upon which Texas Tech relies, is distinguishable.

Accordingly, the residents, although they ordered the nurses under their direction to administer the patches, “used” the fentanyl patches and thereby caused Stefanee’s death.[57]
III. A prescription of medication filled in the hospital that causes harm constitutes tangible personal property.

The Court must decide whether a prescription for medication, by itself, constitutes personal property only if it adopts Texas Tech’s rule that governmental employees cannot be held liable when they order one under their charge to use tangible personal property that causes harm.  If the Court does find it necessary to reach this issue, it should hold that a prescription of a drug filled in a hospital pharmacy (while a patient is in the hospital) that causes harm constitutes tangible personal property.  “The use of medication may or may not constitute a use of tangible personal property.  It depends upon whether the medication causes the injury or death.”[58] Here, the fentanyl patches prescribed by the residents and dispensed at the residents’ direction in the hospital caused Stefanee’s death.[59] Nothing in the definition of “use” of a harmful medication limits such use to the administration of the harmful medication—especially when it is filled at the hospital at the physician’s direction during the patient’s hospital stay.  Thus, the prescription of the fentanyl patches constitutes a use of tangible, personal property.

Texas Tech, nevertheless, argues that a prescription is intangible property, and it primarily relies upon Leonard.[60] Leonard indicates, in dicta, that the negligent prescription of a medication that is filled outside of the hospital may not be “tangible personal property” because it merely involves the interpretation or evaluation of information about a patient.[61] This case is distinguishable because Stefanee’s prescription was filled at the residents’ direction while she was staying at the hospital.  Moreover, Leonard’s broader conclusion that a prescription is not tangible personal property is at odds with Texas Supreme Court precedent and does not follow from the cases that the Leonard court cited.

Specifically, the Leonard court relies almost entirely upon University of Texas Medical Branch at Galveston v. York.[62] York, however, did not involve the prescription or administration of a medication but instead a patient’s medical information that involved no tangible property.  In York, the plaintiff alleged that the physicians were negligent in failing to diagnose his son’s broken hip.[63] The claim allegedly involved tangible personal property because “misuse of [the plaintiff’s son’s] medical records prevented an earlier diagnosis of the broken hip.”[64] The Supreme Court declined to take such a broad interpretation of tangible personal property because “the State would be subject to liability in all cases in which the State has used, misused, or failed to use information that has been reduced to writing.”[65] In short, simply “recording in writing” information does not make that information tangible personal property.[66]

Critically, the Supreme Court never indicated that a physician or hospital’s actual prescription of tangible personal property, such as a fentanyl patch, that is filled at a hospital pharmacy upon a physician’s order and harms a plaintiff is not actionable simply because the negligent “use” also involved the use or misuse of information.[67] Instead, the Texas Supreme Court has indicated that prescribing a harmful medication would be an actionable use of tangible personal property.[68] Thus, the broader interpretation of Leonard is not consistent with the Texas Supreme Court decisions.  Accordingly, Texas Tech’s reliance on Leonard—which is neither persuasive nor binding on this Court—is misplaced.

 

Conclusion and Prayer

For the foregoing reasons, the Court should affirm the trial court’s order denying Texas Tech’s plea to jurisdiction.

Respectfully submitted,

 

 

_________________________________

Michael Heygood

Texas Bar No. 00784267

Kent Barnett

Texas Bar No. 24050257

Heygood, Orr & Pearson

2331 W. Northwest Highway, Second Floor

Dallas, Texas 75220

214.237.9001 (Telephone)

214.237.9002 (Facsimile)

 

Attorneys for Appellee

DATED:  April 6, 2010

Certificate of Service

I certify that a copy of the foregoing document was served upon the following parties, through counsel of record by U.S. Certified Mail, Return Receipt Requested, on April 6, 2010:

Greg AbbottAttorney General of Texas

C. Andrew Weber

First Assistant Attorney General

David S. Morales

Deputy Attorney General

for Civil Litigation

Nelly R. Herrera

Chief, Tort Litigation Division

John P. Giberson

Assistant Attorney General

Tort Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

 

Counsel for Appellant

William W. Webster IIOffice of General Counsel

Tex. Tech Univ. Health Servs. Ctr.

3601 4th Street, Suite 2B137

Lubbock, Texas 79430-0001

 

In-House Counsel for Appellant

Max E. Wright

Hinkle, Henley, Chanar & Martin,       LLP

P.O. Box 3580

Midland, Texas 79702

 

Counsel for Defendants Mylan, Inc., Mylan Pharmaceuticals, Inc., and Mylan Technologies, Inc.

 

Jennifer L. Cairns

McGuire Woods LLP

625 Liberty Ave., 23rd Floor

Pittsburg, Pennsylvania 15222

 

 

Counsel for Defendants Mylan, Inc., Mylan Pharmaceuticals, Inc., and Mylan Technologies, Inc.

 

Susan CooleyDena Mastrogiovanni

Schell Colley, LLP

15455 Dallas Parkway, Suite 550

Addison, Texas 75001

 

Counsel for Defendant Dr. Bartels

________________________________

Kent H. Barnett


[1] (RR 6:4-9 (plea-to-jurisdiction hearing))

[2] (Appellant’s Br. at 2)

[3] (CR 101–02, 107–08, 113–14 (Resident Physicians’ Affidavits); Appellant’s Br. at 2)

[4] (CR 102, 108, 114 (Resident Physicians’ Affidavits); Appellant’s Br. at 2)

[5] (CR 167 (Gurrapu Dep. at 312:5-10))

[6] (CR 167 (Gurrapu Dep. at 312:11-15))

[7] (CR 187 (Venati Dep. at 67:10-21))

[8] (CR 75)

[9] (CR 128 (Package Insert at 2) (emphasis original))

[10] (CR 128 (Package Insert at 2))

[11] (CR 128 (Package Insert at 2))

[12] (CR 130 (Package Insert at 4))

[13] (CR 130 (Package Insert at 4))

[14] (CR 141 (Package Insert at 15))

[15] (CR 150 (Gurrapu Dep. at 114:5–115:17); 162–63 (Gurrapu Dep. at 174:13–175:5))

[16] (CR 177 (Bartels Dep. at 146:8-16))

[17] (CR 152–53, 163 (Gurrapu Dep. at 122:2–123:15, 175:6-9); 178–80 (Bartels Dep. at 151:14–153:12))

[18] (CR 154–57 (Gurrapu Dep. at 132:25–135:3); 163 (Gurrapu Dep. at 175:10-18))

[19] (CR 163 (Gurrapu Dep. at 175:19-24))

[20] (CR 163–64 (Gurrapu Dep. at 175:25–176:11); 182 (Bartles Dep. at 207:3-7))

[21] (CR 159–61 (Gurrapu Dep. at 156:24–158:22); 187–88 (Venati Dep. at 67:22–68:25); 181–83 (Bartels Dep. at 206:3–208:23))

[22] (CR 188 (Venati Dep. at 68:9-18); 189–90 (Venati Dep. at 82:22–83:4))

[23] (See, supra, Statement of Facts, Part II)

[24] (CR at 141 (Package Insert at 15))

[25] (CR 166 (Gurrapu Dep. at 232:1-4))

[26] (CR 166 (Gurrapu Dep. at 232:19-22); 188 (Venati Dep. at 68:9-18))

[27] (CR 197–98 (Galloway Dep. at 9:20–10:15); 199 (Galloway Dep. at 15:3-20))

[28] (CR 200 (Galloway Dep. at 18:8-22))

[29] (CR 84 (Third Am. Pet. ¶ 37))

[30] (CR 83–84 (Third Am. Pet. ¶ 36))

[31] Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).

[32] Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585–86 (Tex. 1996).

[33] Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001) (Hecht, J., concurring).

[34] Texas Tech does not appear to contest that—assuming that their residents used tangible personal property—a sufficient causal nexus exists between the residents’ actions and Stefanee’s death.  Similarly, they do not appear to contest that a private person could be held liable for Stefanee’s death under the facts alleged.  (See Appellant’s Br. at 7–13)

[35] Miller, 51 S.W.3d at 588.

[36] Id.

[37] Clark, 923 S.W.2d at 585–86 (emphasis added).

[38] Miller, 51 S.W.3d at 591 (Hecht, J., concurring) (emphasis added).

[39] Id. at 588 (majority opinion).

[40] Notably, the residents never declare in their affidavits that the nurses were not administering fentanyl (retrieved from the hospital’s pharmacy) according to their instructions or that the nurses were not under their charge while doing so.  (See generally CR 101–03, 107–09, 113–15)

[41] 540 S.W.2d 297 (Tex. 1976).

[42] San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 247 (Tex. 2004).

[43] (Appellant’s Br. at 8)

[44] Citizens Ins. Co. of Am. v. Daccah, 217 S.W.3d 430, 446 (Tex. 2007); Tex. Const. art. I, § 19; U.S. Const. amend XIV, § 1.

[45] See Miller, 51 S.W.3d at 589 (“For many years, this Court and its justices have expressed their frustration in trying to draw principled boundaries between “use” and “non-use.”) (referring to series of decisions).

[46] Miller, 51 S.W.3d at 592 (Hecht, J., concurring).   Moreover, Texas Tech’s proposed rule seeks to place the blame on the less culpable party—the nurses under their residents’ charge—rather than their residents who ordered the administration of the fentanyl patches.

[47] Texas Tech also refers to University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175 (Tex. 1994), in passing on page 10 of its brief.  But York does not concern the issue of whether a government employee, as opposed to some other party, used personal property.  It concerns, instead, whether failing to properly diagnose a condition constitutes the use of tangible property, as opposed to intangible information.

[48] No. 11-05-00225-CV, 2006 Tex. App. LEXIS 2374 (Tex. App.—Eastland Mar. 30, 2006, pet. denied) (mem. op.).

[49] Id.

[50] Id. at *4–5.

[51] (CR 167 (Gurrapu Dep. at 312:5-15), 187 (Venati Dep. at 67:10-21))

[52] 128 S.W.3d 244 (Tex. 2004).

[53] Id. at 246.

[54] 293 S.W.3d 669 (Tex. App.—San Antonio 2009, pet. filed).

[55] Id. at 673.

[56] Id. at 684 (“Importantly [the plaintiff] filled the prescription after he was discharged from [the clinic].”).

[57] Nothing in Texas A & M University v. Bishop, 156 S.W.3d 580 (Tex. 2005), is to the contrary.  In that case, a university drama club hired independent contractors to stage a play.  Those contractors decided to use a real knife during a death scene; one of the student-actors was ultimately stabbed and injured a lung.  The Court held that the university was not liable for the negligence of the independent contractors.   But there was no allegation in that case that the independent contractors were fulfilling an order of state employees to use a knife in the death scene.  Here, in contrast, the nurses were complying with the orders of Texas Tech’s residents to administer fentanyl patches to Stefanee.

[58] Dallas County v. Alejo, 243 S.W.3d 21, 27 (Tex. App.—Dallas 2007, no pet.) (emphasis original).

[59] Clark, 923 S.W.2d at 585–86; see also Miller, 51 S.W.3d at 591 (Hecht, J., concurring).

[60] (Appellant’s Br. at 7–8, 11–12)

[61] Leonard, 293 S.W.3d at 684–85.

[62] 871 S.W.2d 175 (Tex. 1994).

[63] Id. at 176.

[64] Id.

[65] Id. at 179.

[66] Id.

[67] See id.

[68] See Miller, 51 S.W.3d at 591 (Hecht, J., concurring); Clark, 923 S.W.2d at 585–86.