SE Texas Record

Wednesday, September 18, 2019

Justices dismiss suit against MD Anderson, hospital sued over patient's walking device


By Erianne Leatherman | May 13, 2019

HOUSTON – An appeals court has reversed a trial court’s ruling and dismissed a lawsuit filed by a patient against a hospital. 

According to the May 7 filing in the Texas First District Court of Appeals, appellee Roger Contreras alleges he was hurt as the result of a fall after undergoing knee replacement surgery at The University of Texas MD Anderson Cancer Center. 

Contreras said he went to MD Anderson’s barbershop with a nurse, a walker and a rolling IV pole. The nurse left him for his haircut, took his walker and told him to use the IV pole “as a mobility device when he needed to move around,” according to the filing. 

When Contreras got up, the suit says, he used the IV pole to walk, but his knee buckled and he fell. The suit alleges MD Anderson negligently had Contreras use the rolling IV pole as a “walking aid, mobility device, or fall-prevention mechanism,” and Contreras said the nurse should have left his walker or brought something other than the rolling IV pole, according to the filing. 

According to the filing, after MD Anderson entered a plea to the jurisdiction and did not waive its sovereign immunity from the suit, the trial court reviewed the evidence from both parties, which included Contreras testimony, his medical expert’s report, and the treating surgeon’s deposition. At that time, the trial court denied the jurisdictional plea. 

In its defense, MD Anderson argued the suit doesn’t satisfy Section 101.021’s uses requirement because the hospital simply gave Contreras the IV pole but that he was the one who used it, the filing said. The lawsuit also said that the hospital should have given him another walking device, which falls under the non-use of tangible personal property instead of its use, according to the filing. 

The Texas First District Court of Appeals ruled that the trial court erred in denying MD Anderson’s jurisdictional plea and therefore reversed the trial court’s order and dismissed the suit for lack of jurisdiction. 








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