HOUSTON - The First Court of Appeals has reversed a ruling denying The University of Texas M.D. Anderson Cancer Center’s plea to the jurisdiction in a health care liability claim.
Court records show Cheryl Bowman filed suit against M.D. Anderson for side effects she allegedly suffered due to chemotherapy, including the aggravation of her neuropathy. Bowman’s husband, Dave, also filed a loss-of-consortium claim.
Bowman was initially diagnosed with and received treatment for colon cancer at Houston Methodist Hospital. Methodist interpreted the diagnostic imaging of lesions on her liver as metastasized cancer. Six months later, she consulted with a colon cancer specialist at M.D. Anderson, and the specialist determined Bowman was a good candidate for immunotherapy.
Physicians at M.D. Anderson ultimately determined that the lesions on Bowman’s liver were not malignancies from the primary tumor.
In their suit, the Bowmans alleged that M.D. Anderson negligently failed to ascertain the true status of Cheryl’s condition and in continuing chemotherapy using tangible personal property, chemotherapy drugs, that caused harm to her through well-known and foreseeable side effects, including aggravation of neuropathy.
M.D. Anderson responded to the suit by filing a plea to the jurisdiction, arguing that it did not administer chemotherapy to Bowman. The Bowmans responded that their petition was only deficient by using the term “chemotherapy” instead of “immunotherapy” but did not attempt to amend their petition.
The trial court denied the plea, and on appeal M.D. Anderson argued that the Texas Tort Claims Act’s limited waiver of governmental immunity does not apply because Bowman’s alleged injuries were not proximately caused by its use of tangible personal property.
On Jan. 15, the First Court reversed the trial court and dismissed the case, concluding that M.D. Anderson’s governmental immunity bars the Bowmans’ claims.
“Here, the record conclusively negates the existence of jurisdiction,” the opinion states. “The undisputed jurisdictional evidence presented to the trial court, including Bowman’s testimony and the testimony of her experts, established that M.D. Anderson did not administer chemotherapy to Bowman. The record thus establishes that M.D. Anderson’s use of tangible personal property did not cause Bowman’s purported injuries.
“We conclude the Bowmans did not establish a waiver of sovereign immunity under the TTCA. The trial court erred in denying M.D. Anderson’s jurisdictional plea.”
Appeals case No. 01-24-00634-CV
