Opinion issued August 30, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-01105-CV

———————————

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, 

Appellant

V.

LOLA TATUM, INDIVIDUALLY AND AS NEXT FRIEND OF DWIGHT 

TATUM, SANDY TATUM, LOLA PRISCILLA TATUM, DWIGHT 

TATUM, JR., AND DWAYNE TATUM, Appellees

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Case No. 10-CV-1877

OPINION ON REHEARING

Appellees, Lola Tatum, individually and as next friend of Dwight Tatum, 

Sandy Tatum, Lola Priscilla Tatum, Dwight Tatum, Jr., and Dwayne Tatum 
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(collectively, “the Tatums”), filed a motion for rehearing of our June 21, 2012 

opinion. We deny the Tatums’ motion for rehearing, withdraw our opinion and 

judgment of June 21, 2012, and substitute this opinion and judgment in their place.

The Tatums sued appellant, The University of Texas Medical Branch at 

Galveston (“UTMB”), for medical malpractice for the loss of a bone flap removed 

from Dwight Tatum’s skull. UTMB filed a plea to the jurisdiction and motion to 

dismiss arguing that the Tatums failed to establish waiver of immunity under the 

Texas Torts Claim Act, and the trial court denied the plea. In two issues on appeal, 

UTMB argues that (1) the Tatums’ claims do not involve the use of tangible 

personal property and (2) the Tatums failed to plead and prove personal injuries 

proximately caused by a condition or use of tangible personal property.

We reverse and render judgment dismissing the suit against UTMB for lack 

of subject-matter jurisdiction.

Background

In July 2008, Dwight Tatum fell and hit his head, causing swelling of his 

brain. UTMB physicians performed a craniotomy to remove a bone flap from 

Dwight’s skull to relieve the pressure on his brain caused by the swelling. In 

September 2008, Galveston Island, where UTMB is located, suffered extensive 

flooding and loss of power as a result of Hurricane Ike. In May 2009, Dwight’s 

swelling had subsided and physicians decided to perform a cranioplasty to replace 
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the previously removed bone flap. However, UTMB was unable to locate the bone 

flap taken from Dwight’s skull, so physicians used titanium mesh in performing 

the cranioplasty.

The Tatums filed a healthcare liability suit against UTMB alleging negligent 

mishandling and misuse of Dwight’s bone flap. Specifically, their live pleading 

alleged that UTMB’s agents and employees “negligently mishandled and misused 

[Dwight’s removed bone flap] . . . in such a manner that it was no longer available 

in May 2009 when his surgeons wanted to replace it in his skull” and that such 

negligence was the proximate cause of his injury, asserting that Dwight “will have 

an artificial plate in his skull until the day he dies.” The Tatums also filed the 

expert report of John Hyde, Ph.D., identifying the following “areas of negligence”:

1. Failure to provide a safe, secure, standardized and bidirectionally traceable tissue storage system.

2. Failure to develop and maintain appropriate strategies for 

managing safety and security during emergencies.

UTMB subsequently filed a plea to the jurisdiction and motion to dismiss 

arguing that the Tatums had failed to adequately establish that UTMB had waived 

its immunity to suit under the Tort Claims Act because they failed to state a claim 

based on the negligent use of tangible personal property by any UTMB employee. 

UTMB sought dismissal of the Tatums’ claims against it, arguing that “there are 
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absolutely no waivers of governmental immunity which can arise against [UTMB] 

as a result of [the Tatums’] allegations.”

The Tatums responded, asserting that UTMB “took into its possession, 

control and care a piece of tangible personal property belonging to Mr. Tatum: a 

piece of his skull. . . . UTMB negligently failed to care for Mr. Tatum’s tangible 

personal property and it was lost.” The Tatums argued that the bone flap was used 

because “UTMB employed the piece of skull in its medical treatment for the 

purpose of alleviating the effects of Mr. Tatum’s swelling brain. . . .”

Following a hearing on the plea, the trial court denied the plea to the 

jurisdiction and motion to dismiss. This appeal followed.1

Plea to the Jurisdiction

A plea to the jurisdiction challenges a trial court’s subject-matter jurisdiction 

to hear the case. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per 

curiam); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). 

Subject-matter jurisdiction is essential to the authority of a court to decide a case 

and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 

440, 443–44 (Tex. 1993). The existence of subject-matter jurisdiction is a question 

of law that we review de novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 

 

1 Civil Practice and Remedies Code section 51.014(a) permits a party to appeal an 

interlocutory order that grants or denies a governmental unit’s plea to the 

jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 

2011).
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(Tex. 2010) (per curiam); State Dep’t of Highways & Pub. Transp. v. Gonzales, 82 

S.W.3d 322, 327 (Tex. 2002).

The plaintiff has the burden to allege facts affirmatively demonstrating that 

the trial court has subject-matter jurisdiction. Cnty. of Cameron v. Brown, 80 

S.W.3d 549, 555 (Tex. 2002); Tex. Ass’n of Bus., 852 S.W.2d at 446. In reviewing 

a plea to the jurisdiction, we must construe the pleadings liberally in favor of the 

pleader and look to the pleader’s intent. Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the facts affirmatively demonstrate 

the trial court’s jurisdiction to hear the case, the plea to the jurisdiction must be 

denied. See id. 22–27; see also Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 

333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“[W]e 

are required to construe the allegations in favor of jurisdiction unless, on its face, 

the petition affirmatively demonstrates a lack of jurisdiction.”). If the pleadings do 

not demonstrate incurable defects in the jurisdiction, but also fail to allege

sufficient facts to demonstrate the trial court’s jurisdiction, the issue is one of 

pleading sufficiency and the plaintiff should be afforded an opportunity to amend. 

Miranda, 133 S.W.3d at 226–27. If the pleadings affirmatively negate the 

existence of jurisdiction, then a plea to the jurisdiction may be granted without 

allowing an opportunity to amend. See id. at 227.
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Waiver of Immunity Under the Texas Tort Claims Act

Sovereign immunity deprives a trial court of subject-matter jurisdiction in 

lawsuits against the state or certain governmental units unless the state consents to 

suit. Id. at 224. It is undisputed that UTMB is a governmental entity that generally 

enjoys governmental immunity from tort liability unless immunity has been 

waived. See Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 

777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (recognizing that 

that UTMB is state agency). When a claimant asserts a healthcare-liability claim 

against a governmental entity that is a healthcare provider, the claimant must 

comply with both the Medical Liability Act and the Texas Tort Claims Act. Univ. 

of Tex. Med. Branch at Galveston v. Simmons, No. 14-11-00215-CV, 2012 WL 

19665, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.) (mem. op.).

The Texas Tort Claims Act provides a limited waiver of governmental 

liability from suit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 2011). 

The Tatums argue that UTMB’s governmental immunity has been waived under 

section 101.021(2), which provides that “[a] governmental unit in the state 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.” Id. § 101.021(2). The Tatums 

allege that Dwight Tatum suffered personal injury as a result of UTMB’s negligent 
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mishandling and misuse of his bone flap, which they contend is tangible personal 

property.

The Texas Supreme Court has defined “use” as “to put or to bring into 

action or service; to employ for or apply to a given purpose.” Tex. Dep’t of

Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001); Simmons, 2012 WL 

19665, at *3. Furthermore, the plaintiff’s injury must be proximately caused by 

the use of tangible personal property. Dallas Cnty. Mental Health & Mental 

Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998). “The requirement of 

causation is more than mere involvement,” and the “[p]roperty does not cause 

injury if it does no more than furnish the condition that makes the injury possible.” 

Id. at 343; see also Miller, 51 S.W.3d at 588 (holding that it is not sufficient for 

waiver purposes “that some property is merely involved” and concluding that 

property used might have furnished condition that made injury possible, but did not 

hurt patient or make him worse in and of itself). 

Claims that involve failure to use and non-use of tangible personal property 

are not within the waiver provided in section 101.021(2). Miller, 51 S.W.3d at 

587–88. Likewise, general medical malpractice claims or claims for errors in 

medical judgment, such as claims of negligent supervision, failure to perform the 

necessary medical treatment, and failure to use acceptable practices, do not fall 

within the waiver in section 101.021(2). Kamel, 333 S.W.3d at 686 (citing Arnold 
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v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 469 (Tex. App.—Dallas 

2009, no pet.)). We look to the true nature of the pleadings to determine whether a 

plaintiff’s claims are an attempt to artfully plead around the requirements of the 

TTCA. Id. (citing Arnold, 279 S.W.3d at 470).

Our sister court has recently considered a similar fact pattern. See Simmons, 

2012 WL 19665, at *3. In Simmons, the plaintiff alleged that the hospital 

negligently failed to properly train and credential its physicians, staff, and nurses, 

failed to safeguard his bone flap removed during a craniotomy, failed to develop 

and implement proper procedures for safeguarding the bone flap, and failed to 

ensure that its employees followed proper procedures and policies. Id. The 

Simmons court stated, “Presuming for the sake of argument that a bone flap is 

tangible personal property,2none of Simmons’ allegations are based upon a 

negligent use of tangible personal property.” Id. (citing Univ. of Tex. M.D. 

Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 880 (Tex. App.—Houston [14th 

Dist.] 2010, pet. denied) (holding that allegations of “failure to develop, employ, 

monitor, and follow” policies and procedures, “failure to assure the competence of 

 

2 Although the Fourteenth Court of Appeals “[p]resum[ed] for the sake of argument 

that a bone flap is personal property,” it cited Dominguez ex rel. Ramirez v. Bexar 

County Medical Examiner’s Office, No. 10-06-00109-CV, 2007 WL 613792, at *3 

(Tex. App.—Waco Feb. 28, 2007, no pet.) (mem. op.), which concluded that 

bodily remains do not constitute personal property for which party a may sue the 

state. Univ. of Tex. Med. Branch at Galveston v. Simmons, No. 14-11-00215-CV, 

2012 WL 19665, at *3 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, no pet.) 

(mem. op.).
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medical staff,” and “failure to monitor and oversee quality treatment” are not 

allegations under section 101.021(2) for which immunity is waived)). The 

Simmons court further concluded that Simmons’ pleadings did not amount to a 

claim of misuse of tangible personal property. Id.

Here, the Tatums alleged that UTMB’s agents and employees “negligently 

mishandled and misused [Dwight’s removed bone flap] . . . in such a manner that it 

was no longer available in May 2009 when his surgeons wanted to replace it in his 

skull.” They argued that UTMB “took into its possession, control and care a piece 

of tangible personal property belonging to Mr. Tatum: a piece of his skull. . . . 

UTMB negligently failed to care for Mr. Tatum’s tangible personal property and it 

was lost.” The Tatums argued that the bone flap was used because “UTMB 

employed the piece of skull in its medical treatment for the purpose of alleviating 

the effects of Mr. Tatum’s swelling brain. . . .” Likewise, their expert report stated 

that UTMB was negligent for failing “to provide a safe, secure, standardized and 

bi-directionally traceable tissue storage system” and failing “to develop and 

maintain appropriate strategies for managing safety and security during 

emergencies.”

Assuming, without deciding, that a bone flap is tangible personal property, 

none of the Tatums’ pleadings allege a negligent use of tangible personal 
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property.3 The allegations of failure to provide an appropriate tissue storage 

system and failure to maintain appropriate strategies during an emergency are 

claims for errors in medical judgment or general medical negligence and do not 

involve the use of tangible personal property to proximately cause an injury. 

Kamel, 333 S.W.3d at 686; see also Miller, 51 S.W.3d at 588 (holding that it is not 

sufficient for waiver purposes “that some property is merely involved”); Bossley, 

968 S.W.2d at 343 (holding that “[t]he requirement of causation is more than mere 

involvement,” and the “[p]roperty does not cause injury if it does no more than 

furnish the condition that makes the injury possible”); Simmons, 2012 WL 19665, 

at *3 (holding allegations of failure to properly train staff, failure to safeguard bone 

flap, and failure to implement proper procedures for safeguarding bone flap were 

not based upon negligent use of personal property). Nothing in the Tatums’ 

pleadings indicate that UTMB’s use of the bone flap itself caused Tatum harm: 

 

3 On rehearing, the Tatums argue that they alleged that “a particular piece of 

property, the freezer [where the bone flap was stored], was itself defective and 

used in a negligent manner.” Thus, they argue that misuse of the freezer is an 

allegation that falls within the waiver provided in section 101.021(2). See 

Freeman v. Harris Cnty., 183 S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 

2006, pet. denied) (holding that use of incinerator to negligently dispose of body 

following autopsy was sufficient to waive immunity under section 101.021). 

However, the Tatums’ live pleading contained no such allegation and only 

indirectly stated that UTMB “stored the [bone flap] in such a way that it could not 

be found.” Furthermore, the facts pled by the parties affirmatively negate such a 

claim, as UTMB asserted that the bone flap was lost because the bone bank where 

the flap was stored lost power following Hurricane Ike, and the Tatums concurred 

that the bone flap was lost in the course of the storm.
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they do not argue that UTMB was negligent in removing it to alleviate swelling. 

They allege that it was removed and then never used again.

The allegation that UTMB “misused” the bone flap because it was not 

available for reinsertion during the cranioplasty is likewise not an allegation in 

which the use of the property—the bone flap—proximately caused the injury. The 

true nature of this allegation is actually one of failure to use or non-use, which are 

not within the waiver provided in section 101.021(2). See Miller, 51 S.W.3d at 

587–88; Simmons, 2012 WL 19665, at *3; Kamel, 333 S.W.3d at 686.

We conclude that the Tatums failed to plead sufficient factual allegations 

that the negligent use of tangible property by UTMB caused their injuries within 

the waiver provided by section 101.021(2). See Simmons, 2012 WL 19665 at *3–

4. We further conclude that the Tatums’ pleadings are incurably defective and 

affirmatively negate the existence of jurisdiction. The trial court erred in denying 

UTMB’s plea to the jurisdiction and in failing to dismiss the Tatums’ claims 

against UTMB. See Miranda, 133 S.W.3d at 227.

We sustain UTMB’s first issue.4

 

4 Because of our holding on this issue, it is unnecessary to address the remaining 

issue.
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Conclusion

We reverse the order of the trial court denying UTMB’s plea to the 

jurisdiction and render judgment dismissing the Tatums’ claims against UTMB for 

want of subject-matter jurisdiction.

Evelyn V. Keyes

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.