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Click here for the full text of this decision FACTS:Joyce Sanders’ father, Edwin Clayton, was a resident at the Glen Rose Medical Center Nursing Home, which was a subsidiary of the Somervell County Healthcare Authority. Clayton slipped on urine on the floor of his bathroom. He fractured his hip and had to have surgery. Two months later, he developed sepsis from a bed sore and died. Sanders filed a wrongful death and survival action under the Texas Tort Claims Act, alleging negligence and gross negligence. Sanders alleged that the nursing home waived its immunity because the personal injury in this case was caused by “a condition or use of tangible or real property.” Specifically, Sanders alleged that the nursing home staff should have known that Clayton was at high risk for falls, that the staff failed to address this risk, that the nursing home made the fall worse by administering anticholinergic medications (which allegedly impede parasympathetic nerve fiber impulses), that the nursing home failed to diagnose and treat Clayton’s depression, and that the nursing home failed to provide Clayton with proper medical care. The trial court granted the county’s plea to the jurisdiction, which was based on sovereign immunity. HOLDING:Affirmed. Examining Sanders’ pleadings, the court finds that most of her allegations involve the nursing home’s failure to act. They do not involve the use of tangible personal or real property. The court notices that the only arguable condition or use of property is Sanders’ allegation that the nursing home improperly administered anticholinergic medicine. The court points out, however, that the nursing home does not prescribe or dispense drugs. It acts only at the direction of a doctor � Clayton’s personal physician, in this case � and the medicine is dispensed by a pharmacist. Though improper use of medication can be characterized as a tangible use of property, Sanders nevertheless does not argue that the nursing home gave the drugs to Clayton in an improper manner or in a manner contrary to the doctor’s orders. The court then rejects Sanders’ request that she be allowed to amend her pleadings to cure the jurisdictional defect. Calling its holding consistent with other prior 10th Court of Appeals holdings, the court says that “it is impossible” for Sanders to amend her pleadings in such a way as to establish a waiver of immunity. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE:Gray, C.J. The concurrence agrees with the outcome of the case, but disputes the majority’s assertion that the ruling on the amendment of pleadings is consistent with prior opinions. “A careful analysis of those prior opinions belies the statements made in that portion of the [majority's] opinion,” the concurrence states.

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