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Sovereign Immunity: It's not so good to be the subject

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The king can do no wrong, and neither can his agents, even when they clearly have.

On May 2, 2010, Londyn R’Mani Dickerson, the infant daughter of Rakisha Dickerson died from complications of a streptococcus infection. Her death was totally preventable.

Rakisha took her sick daughter to Children’s Memorial Hermann Hospital in Houston on Feb. 24, 2010. A doctor ordered a blood culture and then discharged the baby.

Dickerson alleged in her negligence lawsuit that she was never told the blood culture tested positive for Group B Streptococcus. The mother brought her baby back to the hospital on March 18, because she was suffering seizures and other complications.

The University of Texas Health Science Center at Houston did not dispute that the blood culture tested positive for streptococcus.

In order to perfect a cause of action, Dickerson’s attorney, W. Russ Jones at Underwood, Jones, Scherrer & Malouf in Houston, tried every which way to somehow connect this communication breakdown to the use of “motor equipment.” If you’re not familiar with the Texas Tort Claims Act, this may seem an odd exercise.

Here’s an example of the plaintiff’s pleading:
“UTHSCH employees proximately caused the death … by negligently operating, using, and/or misusing the Emergency Department Telephone (e.g., by obtaining and dialing the wrong telephone number or by misdialing the correct telephone number and thereby negligently calling or contacting someone other than plaintiff Dickerson to notify, warn, counsel, advise and instruct regarding the potentially lethal infection in her baby)”

The action or inaction of the hospital staff is reworded in every conceivable way to somehow connect their failure to warn the mother to some communications device—a phone, a typewriter, a computer, and even a failure to use a hospital security vehicle to go to her house and inform her in person.

The connection had to be made to establish jurisdiction, because as a state-run hospital, Children’s Memorial and its staff have sovereign immunity. There are waivers to sovereign immunity, defined by the Legislature, but they are very narrow.

As Justice William Boyce of the Fourteenth Court of Appeals explained in a Feb. 20 opinion, the state Tort Claims Act only waives immunity in personal injury or death cases when death arises from the operation of a motor-driven vehicle or motor-driven equipment, or a negligent condition or use of tangible personal or real property.

If a staff orderly ran over Dickerson’s baby in the hall with a gurney, the mother would have an open and shut case.

This is hardly the first time a failure to communicate led to disastrous results without a Texas hospital getting so much as a slap on the wrist. To support his argument, Boyce cited University of Texas Medical Branch v. Qi, a 2013 opinion involving the allegation that medical staff incorrectly interpreted results of blood pressure testing equipment and urine test strips. They failed to diagnose preeclampsia, which Qi claimed caused the stillbirth of her child and her own injuries.

There was also University of Texas Medical Branch at Galveston v. Mullins, a 2001 decision involving an HIV test that was positive. The plaintiff was not told she had HIV until three years later.

“The gravamen of the complaint was the UTMB failed to communicate the test results to her, and information is not tangible property, even if it is transcribed in a medical chart,” Boyce wrote.

In both Qi and Mullins, the Fourteenth District found sovereign immunity was not waived. It boiled down to this—“the property must be the instrumentality of the harm.”

So, Dickerson needed to have a staffer bash her baby’s head in with a telephone to penetrate the jurisdiction wall.

“Dickerson contends cases considering test results to be intangible information, rather than tangible property, are distinguishable because UTHSCH assumed a duty to contact the patient in the hospital discharge instructions. Those discharge instructions stated as follows: ‘If there is … a positive culture we will contact you. (Make sure we have your local telephone number).’ Dickerson alleges she relied on this promise, no one contacted her, and her daughter died as a result,” Boyce said.

Boyce recognized that such a common law duty exists, but it “does not act as a waiver of immunity.”
The Fourteenth District not only reversed the trial court that granted her jurisdiction, it sent instructions that Dickerson’s lawsuit could not be amended.

“Amendment would not cure Dickerson’s failure to plead facts sufficient to waive immunity under the Tort Claims Act,” he said.

When I was a journeyman newspaper reporter in Texas, I came across sovereign immunity cases that were just as shocking as these. And I wasn’t allowed to write about them.

The thinking of my editors was that there was no point in wasting space and ink on issues where the newspaper had no chance of effecting change.

I concede that the likelihood of effecting change was and is very slim. But that doesn’t mean we should not give voice to the victims of injustice. There is still virtue in saying something is rotten here.

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