Texas Supreme Court Examines Whether State Mental Hospital Can be Liable for Patient’s Death By Asphyxiation from Plastic Bag

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by John Chapman

The doctrine of sovereign immunity derives from the common law and has long been part of Texas jurisprudence. See Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (holding that the State could not be sued in her own courts absent her consent “and then only in the manner indicated”). The Texas Legislature has waived governmental entities’ immunity from certain claims by means of the Tort Claims Act . See TEX. CIV. PRAC. & REM.CODE §§ 101.001–.109.

However, the Tort Claims Act only provides specific, limited waivers of sovereign immunity. In other words, to bring a suit against a governmental entity—for example, a city police department or a state hospital—you must allege a cause of action that fits within one of the limited waivers of sovereign immunity provided by the Tort Claims Act.

Travis Black was a psychiatric patient in Rusk State Hospital when he was found unconscious with a plastic bag over his head. Efforts to resuscitate him were unsuccessful and he died. An autopsy determined Travis died of asphyxiation and concluded that he committed suicide.

His parents, the Blacks, sued Rusk State Hospital alleging, in part, that the hospital was negligent by providing or allowing Travis access to a plastic bag that was inherently dangerous in an inpatient psychiatric setting. On appeal, the hospital argued the case should be dismissed for lack of jurisdiction because the claims did not fit within any waiver of the hospital’s immunity from suit.

As relevant to the parent’s claim against the hospital, the Tort Claim Act provides that a governmental unit is liable for “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 § 101.021(2).

The Blacks alleged that the Hospital’s negligent in providing, furnishing, or allowing Travis to access the plastic bag involved a use or condition of tangible personal property. The Blacks emphasized that the Hospital’s policy classified the plastic bag as inherently dangerous in an inpatient psychiatric setting.

Use of the Bag

Section 101.021(2) waives immunity for claims based upon the “use” of tangible personal property only when the governmental unit itself uses the property. The Supreme Court has held that a governmental unit does not “use” property within the meaning of the Tort Claim Act when it merely allows someone else to use it.

The Supreme Court found the Black’s allegations similar to and controlled by its earlier decision in San Antonio State Hosp. v. Cowan, 128 S.W.3d 244 (Tex. 2004).

The Cowan case also involved the death of a psychiatric patient at a state hospital. The hospital allowed Cowan access to suspenders and a walker, which Cowan then used in causing his own death. The Supreme Court held that the hospital’s immunity was not waived because the hospital did not “use” the suspenders and walker within the meaning of section 101.021(2) by merely giving them to Cowan. The court explained that “the Hospital’s immunity can be waived only for its own use of Cowan’s walker and suspenders, and not by Cowan’s use of them.”

Applying Cowan to the Black’s claims regarding the plastic bag, the Supreme Court found there was no proper allegation of “use”:

Neither providing nor prohibiting access to the bag was a “use.” The Blacks’ “use” argument erroneously equates providing, furnishing, or allowing access to tangible property with putting or bringing the property into action or service or applying the property to a given purpose. […] Here, the Blacks allege the Hospital allowed Travis access to the plastic bag that was used in causing his death. These allegations do not present a claim for which the Hospital’s immunity is waived by the TCA because, as we held in Cowan, a hospital does not “use” tangible personal property (e.g., a plastic bag) within the meaning of section 101.021(2) by merely providing, furnishing, or allowing a patient access to it.

Condition of the Bag

Sovereign immunity can also be waived for claims based on a “condition” of tangible property if the condition proximately causes personal injury or death. See TEX.CIV. PRAC. & REM. CODE § 101.021(2). However, the Supreme Court has held that a condition does not proximately cause an injury or death if it does no more than furnish the means to make injury or death possible. Thus, immunity is waived only if the condition (1) poses a hazard in the intended and ordinary use of the property and (2) actually causes an injury or death.

The Blacks alleged that a “condition” of the plastic bag caused Travis’s death. They emphasize the plastic bag was a contraband item and inherently dangerous in the inpatient psychiatric setting.

In Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1966), , the plaintiff alleged that he injured his knee playing football after the University’s football coach ordered him to remove his knee brace and reenter a game without it. The Court concluded that the knee brace was an integral part of Lowe’s football uniform and held that the TCA waived the University’s immunity because the uniform it gave Lowe was defective due to its lack of a knee brace. The Supreme Court has subsequently limited the precedential value of its holding in Lowe “to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that lack of this integral component led to the plaintiff’s injuries.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996).

The Blacks argued that the Hospital’s act of furnishing Travis with a plastic bag considered inherently dangerous in the inpatient psychiatric setting was analogous to giving him property that lacked an integral safety component. However, the Supreme Court agreed with the Hospital that the Blacks’ reliance on Lowe was misplaced because in that case the property was “being put to its intended and ordinary use when a defect in the property caused an injury.” In other words, because the plastic bag was not being put to its ordinary, intended use when it caused Travis’s death, the Hospital’s immunity is not waived for a claim based on the alleged condition of the bag. According to the Supreme Court, “[i]n the circumstances of Travis’s care at the Hospital, any inherently dangerous aspects of the plastic bag were at most a means to make his death possible.”

Assisted Suicide

The Blacks alternatively urged that the Hospital’s negligence resulted in Travis’s death by assisted suicide. The argument focused on the possibility that a Hospital employee assisted Travis in committing suicide.

However, the Tort Claim Act does not waive immunity for claims arising from intentional torts. See TEX. CIV. PRAC.&REM.CODE § 101.057(2) (“This chapter does not apply to a claim . . . arising out of assault, battery, . . . or any other intentional tort.”). A person commits the criminal offense of aiding suicide if “with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit suicide.” TEX. PENAL CODE § 22.08(a). The statute proscribes action taken with the intent that a suicide result. Actions taken with the specific intent to inflict harm are characterized as intentional torts. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985). Therefore, the Supreme Court concluded that “assuming, without deciding, that assisting suicide or murder is a tort, it requires actions taken with intent to cause harm and is an intentional tort. The Hospital’s immunity as to such a tort is not waived.”

Remand

The hospital had not raised its sovereign immunity challenge to jurisdiction until the case was on appeal as to another issue. Because “[t]he Hospital has not shown conclusively by this record either that [the Blacks] had a full and fair opportunity in the trial court to develop the record as to jurisdiction and amend their pleadings, or that if the case is remanded to the trial court for further proceedings they will be unable to show jurisdiction,” the case was remanded to the trial court for further proceedings.

The full opinion in Rusk State Hospital v. Black, NO. 10-0548 (August 31, 2012) can be viewed on the website of the Texas Supreme Court.