Are State Hospital Employees Liable for Not Providing a Medication ?
In Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994), the supreme court concluded that the failure to provide a patient with medication was non-use and did not waive sovereign immunity.
Although the governmental employees had taken medication away from the patient, the court reasoned that the claim of waiver of immunity was based on the failure to provide the patient with her medication. See id.
In Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996), the supreme court held that giving a patient oral medication instead of an injectionable drug was non-use and did not give rise to waiver of immunity under the Texas Tort Claims Act.
The plaintiffs alleged the treatment prescribed was not as effective as the injectionable drug would have been.
The court resolved that although state hospital employees gave the patient oral medication, "the gravamen of the plaintiffs' complaint was that the defendants' non-use of an injectionable drug was the cause of their daughter's death." See id.