the University of Texas Southwestern Medical Center v. Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on Behalf of the Estate of William R. Kingsick
05-15-00246-CV
| Tex. App. | Apr 30, 2015Background
- William R. Klingsick underwent a bilateral lung transplant at UT Southwestern (UTSWMC) on July 23, 2010 and died July 25, 2010; donor lungs were procured and transported by Southwest Transplant Alliance (STA).
- Appellees allege the donor lungs were damaged because STA-prepared preservation solution had an incorrect THAM concentration that altered pH, causing graft dysfunction and death.
- STA employees mixed the preservation solution under STA policy; STA later admitted a mixing error affecting multiple transplants from Oct. 2009–Feb. 2011 and investigated in Feb. 2011; UTSWMC was not told which patients were affected until July 13, 2011.
- Plaintiffs served written notice to UTSWMC on June 12, 2012—well beyond the six-month notice period in Tex. Civ. Prac. & Rem. Code §101.101.
- UTSWMC moved to dismiss for lack of jurisdiction on two TTCA grounds: (1) no timely notice (§101.101) and (2) no negligent use of tangible personal property by a UTSWMC employee (§101.021), because STA—not UTSWMC—mixed the solution.
- Trial court denied UTSWMC’s plea to the jurisdiction; this interlocutory appeal challenges that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UTSWMC had "actual notice" under TTCA §101.101 within six months | Dr. Peltz’s January 2011 in‑procedure pH testing and later observations provided UTSWMC actual notice that its fault may have caused injury | No subjective awareness of UTSWMC fault existed within six months; Dr. Peltz’s January 10 test was inconclusive, related to non‑UTSWMC patient, and STA prepared the solution | Trial court denied plea; on appeal UTSWMC argues denial was reversible because evidence fails to show subjective awareness of fault within six months. |
| Whether plaintiffs timely provided written notice under §101.101 | Plaintiffs rely on the §101.101(c) actual‑notice exception to excuse late written notice | Plaintiffs did not satisfy the elements for actual notice (knowledge of injury, knowledge of defendant’s fault, identities) within six months | Trial court denied plea; UTSWMC contends statutory and controlling precedent require reversal. |
| Whether the TTCA waiver (§101.021) applies because tangible personal property was negligently used | Plaintiffs assert the preservation solution (and lungs) were tangible personal property negligently used in treatment | UTSWMC argues the solution was mixed and used by STA, not UTSWMC employees, and many allegations are non‑use claims (judgment, supervision, investigation) that do not trigger waiver | Trial court denied plea; UTSWMC argues no waiver applies because no negligent use of tangible property by its employees occurred. |
| Whether alleged failures (investigation, supervision, judgment) transform into a §101.021 tangible‑use claim | Plaintiffs note tangible items were involved and list failures (pH checks, training, procedures) | UTSWMC counters that misuse of information, judgment, hiring/training, or failure to act are not a statutory negligent use of tangible property under precedent | UTSWMC asserts these theories fail as a matter of law; trial court nonetheless denied plea. |
Key Cases Cited
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (actual notice requires knowledge of injury, alleged fault, and identities)
- Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004) (actual notice requires subjective awareness that the governmental unit’s fault produced or contributed to injury)
- City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex. 2010) (reports or records that do not imply the governmental unit’s fault do not supply actual notice)
- Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) (TTCA waiver limited; routine medical use of tangible items does not automatically waive sovereign immunity)
- Univ. of Texas Health Sci. Ctr. at Houston v. McQueen, 431 S.W.3d 750 (Tex. App.—Houston [14th Dist.] 2014) (for health‑care claims a "subjective signal" beyond a bad outcome is required for actual notice)