University of Texas M.D. Anderson Cancer Center v. Vicki M. King--Appeal from 215th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-10-00282-CV

Case Date: 12/07/2010

Plaintiff: University of Texas M.D. Anderson Cancer Center

Defendant: Vicki M. King--Appeal from 215th District Court of Harris County

Preview:Affirmed in Part; Reversed and Rendered in Part; Reversed and Remanded in Part; and Opinion filed December 7, 2010.

In The

Fourteenth Court of Appeals
___________________ NO. 14-10-00282-CV ___________________ UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellant V. VICKI M. KING, Appellee On Appeal from the 215th Dist. Court Harris County, Texas Trial Court Cause No. 2009-29122

OPINION
In this health care liability case, the University of Texas M.D. Anderson Cancer (M.D. Anderson) appeals the denial of its assertions of immunity. Because the plaintiff's pleadings are deficient, the trial court erred in denying M.D. Anderson's plea to the jurisdiction. The plaintiff's claim that her injuries were caused by the improper use of a hospital bed contains insufficient facts to demonstrate the presence or absence of

jurisdiction; we therefore remand that claim to the trial court to allow the plaintiff an opportunity to amend. We dismiss with prejudice the remainder of plaintiff's claims because her pleadings affirmatively demonstrate the absence of jurisdiction. Finally, we conclude that the trial court did not abuse its discretion in determining that there had been inadequate time for discovery; thus, we affirm the denial of M.D. Anderson's no-evidence motion for summary judgment. I. FACTUAL AND PROCEDURAL BACKGROUND While undergoing chemotherapy at M.D. Anderson on May 10, 2007, Vicki King sustained a broken arm and a torn rotator cuff. Two years later, she filed this health care liability claim. M.D. Anderson responded with a plea to the jurisdiction asserting that King failed to allege facts constituting a waiver of M.D. Anderson's sovereign immunity.1 The plea was not set immediately for hearing. In the meantime, the trial court issued a docket control order specifying that King was to designate her expert witnesses by February 2, 2010, and that the parties were to complete discovery and amend pleadings not later than April 16, 2010. On February 10, 2010, M.D. Anderson filed a supplemental plea to the jurisdiction in which it pointed out that King had designated no expert witness to opine that her injuries were caused by the use of tangible personal property, and the deadline for King to designate additional experts had passed. At the same time, M.D. Anderson filed a

no-evidence motion for summary judgment. One month later, King filed an amended petition and M.D. Anderson filed a second supplemental plea to the jurisdiction asserting that King's latest pleading added only sham allegations in an attempt to wrongfully confer

Sovereign immunity and governmental immunity are sometimes treated as interchangeable terms. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 n.1 (Tex. 2006) (op. on reh'g). Sovereign immunity is available to the state and its agencies, and governmental immunity is available to political subdivisions. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
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jurisdiction. Both the supplemented plea to the jurisdiction and the summary-judgment motion were scheduled for a hearing to take place on March 26, 2010. King failed to timely respond to the summary-judgment motion2 and filed no response at all to the plea to the jurisdiction. At the hearing, King's counsel requested a continuance, asserted that discovery was ongoing, and argued that there had been inadequate time to complete discovery. The trial court did not continue the hearing, but instead denied both M.D. Anderson's plea to the jurisdiction and its summary-judgment motion, stating, If I can look at the evidence, I got to wait until the discovery period is over. M.D. Anderson brings this interlocutory appeal to challenge those rulings.

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