Timmons v. University Medical Center
2011 Tex. App. LEXIS 463
| Tex. App. | 2011Background
- Timmons underwent hernia surgery at University Medical Center (UMC) on February 16, 2007, during which packing material was left inside her abdomen.
- A debridement on August 31, 2007 removed the material; discovery occurred after multiple health issues and treatments.
- Timmons filed suit on August 17, 2009, naming UMC and Dr. Thomas; UMC moved for a plea to the jurisdiction.
- The trial court granted the plea to the jurisdiction, and Timmons appealed raising three issues.
- Key issues: whether TTCA notice (six months) waives immunity vs. the TMLA limitations, whether the rules conflict, and whether Open Courts/discovery considerations affect notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 101.101 apply or is trumped by 74.251? | Timmons argues 74.251 trumped 101.101 due to 'notwithstanding' language. | UMC contends 101.101 and 74.251 do not conflict and both may apply; failure to notify within six months deprives jurisdiction. | 101.101 applies; failure to notify within six months deprives jurisdiction. |
| Do 101.101 and 74.251 conflict so as to trump one another? | Timmons claims 74.251 governs limitations, nullifying 101.101 notice. | UMC argues no conflict; both operate independently; 101.101 still applies. | No conflict; 101.101 applies; 74.251 does not trump it. |
| Should Open Courts or discovery rules excuse notice in a retained object case? | Timmons seeks Open Courts/extended discovery to excuse late notice. | UMC argues no preserved Open Courts issue and discovery rule does not toll 101.101. | Open Courts issue not preserved; discovery rule not applied to toll 101.101. |
| Is the discovery rule applicable to 101.101 notice? | Diminished awareness should toll notice period. | Plain, mandatory wording of 101.101 rejects tolling by discovery. | Discovery rule does not apply to 101.101 notice. |
Key Cases Cited
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (Open Courts purpose; prompt reporting of claims)
- Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999) (notwithstanding any other law; meaning for 74.251 timing issues)
- Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995) (which limitations governs when conflicting)
- Martinez v. Val Verde County Hosp. Dist., 140 S.W.3d 370 (Tex. 2004) (strict application of 101.101; discovery tolls not allowed)
- Sanford v. Tex. A&M Univ., 680 S.W.2d 650 (Tex. App.-Beaumont 1984) (discovery rule cannot toll 101.101)
- Streetman v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 952 S.W.2d 53 (Tex. App.-San Antonio 1997) (tolling concerns; Open Courts and notices)
- Greenhouse v. Univ. of Tex. Med. Branch, 889 S.W.2d 427 (Tex. App.-Houston [1st Dist.] 1994) (Open Courts considerations and TTCA timing)
- Harris v. Univ. Med. Ctr., 302 S.W.3d 456 (Tex. App.-Amarillo 2009) (immunity considerations in TTCA actions)
- Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292 (Tex. 2010) (open courts retained object reasoning in foreign object cases)
- Loutzenhiser v. Univ. of Tex. Sw. Med. Ctr., 140 S.W.3d 351 (Tex. 2004) (immunity and TTCA framework; jurisdictional nuances)
- Miranda v. Tex. Dep't of Parks & Wildlife, 133 S.W.3d 217 (Tex. 2004) (sovereign immunity and waiver framework)
- Turnhow v. Collingsworth County, 303 S.W.3d 353 (Tex. App.-Amarillo 2009) (Open Courts and notice concepts)
- Gomez v. Pasadena Health Care Mgmt., Inc., 246 S.W.3d 306 (Tex. App.-Houston [14th Dist.] 2008) (limitations and immunities interplay)