Baston v. City of Port Isabel
In Baston v. City of Port Isabel, 49 S.W.3d 425 (Tex. App.--Corpus Christi 2001, pet. denied), Port Isabel EMTs responded to an emergency assistance call for the decedent.
When the EMTs arrived, they used an EKG monitor to determine if the decedent was experiencing cardiac problems. The plaintiffs alleged that the EMTs misinterpreted the reading of the EKG machine, reading the results as normal when the machine actually indicated the decedent was suffering from cardiac problems. Not having been transported to the hospital, the decedent died later that morning. Port Isabel filed a plea to the jurisdiction, claiming sovereign immunity barred the suit, and the trial court granted the plea. Baston, 49 S.W.3d at 427.
On appeal, the plaintiffs argued that under Salcedo, the misuse of an EKG machine qualifies as a misuse of tangible personal property. Id. at 428.
In response, Port Isabel argued that Salcedo could no longer be relied upon in light of the Bossley court's limitation of Salcedo to its facts.
The court of appeals rejected Port Isabel's argument, noting that the Bossley court did not address the question of whether an EKG machine or its graphs would constitute tangible personal property. Id.
The court concluded that Salcedo was still a viable statement of the law and that its facts were sufficiently analogous to apply it. Id. at 428-29.
The court thus held that the plaintiffs' allegations of negligent use or misuse of an EKG machine stated a claim under the TTCA. Id. at 429-30.