the University of Texas Health Science Center at Houston v. Teresa McQueen and Clarence McQueen, Jr.
2014 Tex. App. LEXIS 4858
| Tex. App. | 2014Background
- Teresa McQueen underwent a robot-assisted total laparoscopic hysterectomy performed by Dr. Karen Schneider (a UTHSCH physician); postoperative return to ER two days later revealed a sigmoid colon perforation and required bowel resection.
- McQueens sued Schneider, then substituted UTHSCH as defendant after Schneider moved to dismiss under Tex. Civ. Prac. & Rem. Code §101.106(f).
- UTHSCH filed a verified plea to the jurisdiction asserting lack of TTCA notice (no written notice within six months and no actual notice); supported by an affidavit from UTHSCH risk manager stating no record of written or actual notice.
- McQueens offered medical records, Schneider’s deposition, and an expert affidavit opining negligent surgical technique. Trial court overruled UTHSCH’s objections to the expert affidavit and denied the plea.
- On interlocutory appeal the court considered whether (1) McQueens gave required written notice, and (2) whether UTHSCH had actual notice (subjective awareness of fault, identity, and injury) sufficient to waive sovereign immunity under the TTCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McQueens provided the TTCA’s required written notice within six months | McQueens argued compliance with Chapter 74 notice to physician tolled limitations and should preclude application of TTCA six-month rule (argued on appeal) | UTHSCH: no written notice to UTHSCH within six months; TTCA §101.101’s written-notice requirement is jurisdictional | Court: McQueens conceded below they did not provide written notice to UTHSCH; claim dismissed on jurisdictional grounds for lack of timely notice (argument about conflict forfeited) |
| Whether UTHSCH had actual notice under TTCA §101.101(c) (subjective awareness of fault, injury, identity) | McQueens: medical records, Schneider’s knowledge, and expert affidavit establish a fact issue that UTHSCH (through its physicians) had subjective awareness of fault within six months | UTHSCH: risk-manager affidavit shows no actual notice; physicians did not report to risk management or supervisors and did not have duty to investigate/report such that notice could be imputed | Court: No actual notice as a matter of law — medical records and Schneider’s equivocal statements showed only a bad outcome/possible complication, not subjective awareness of responsibility; plea sustained |
| Whether knowledge of treating physicians can be imputed to UTHSCH absent report to risk management or supervisory investigation | McQueens: treating physicians’ knowledge (including Schneider) and expert opinion suffice to impute actual notice | UTHSCH: physicians did not report or investigate; no evidence they communicated fault to persons charged with claims investigation | Court: Imputation failed on these facts — without a report or supervisory recognition of fault, hospital lacked subjective awareness within six months |
| Evidentiary ruling on plaintiffs’ expert affidavit (Battaglia) | McQueens: expert’s affidavit created fact issue on negligence and notice | UTHSCH: objection to affidavit admissibility | Court: Trial court had overruled objections below but appellate decision disposed of case on jurisdictional notice and did not reach other UTHSCH issues; the majority assumed admissibility for analysis but found it insufficient to create actual-notice fact issue |
Key Cases Cited
- Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544 (Tex. 2010) (actual notice requires subjective awareness of fault and may be shown by reports to risk management or supervisors)
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (mere knowledge of an injury is insufficient for TTCA actual notice)
- Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004) (clarifies subjective-awareness prong of actual notice; actual notice often proved circumstantially)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard of review for plea to the jurisdiction; accept pleadings as true and consider evidentiary submissions when jurisdictional facts are challenged)