*1 OF TEXAS The UNIVERSITY CENTER
HEALTH SCIENCE HOUSTON, Appellant
AT McQUEEN and
Teresa Clarence
McQueen, Jr., Appellees.
No. 14-13-00605-CV. Texas, Appeals
Court (14th Dist.).
Houston
6,May May 29, 2014.
Rehearing Overruled *3 Austin, Lynn McKinley, Ap-
Bridget pellant. Gourrier, Houston, for Michael
Joseph Appellees. BOYCE,
Panel of Justices consists CHRISTOPHER, and BROWN. OPINION BROWN, Justice. MARC W. case, liability appel- In this health care University of Texas Health Sci- lant the (“UTHSCH”) at Houston ence Center the trial interlocutory appeal on challenges jurisdiction court’s denial of its in favor of sovereign immunity based on McQueen Teresa and Clarence appellees court Concluding that the trial McQueen. plea to when it denied UTHSCH’s erred jurisdiction, we reverse the court’s or- On February the McQueens judgment dismissing der and render against filed suit Schneider.1 In their live McQueens’ suit. petition, McQueens alleged Schneider’s in, negligence among other things,2 injur- Background I.Factual Procedural ing Teresa’s bowel through negligent use McQueen Appellant Teresa underwent a trocar, instrument, of a laparoscopic and/or laparoscopic hyster- robotie-assisted total monopolar cautery instruments. After ectomy salpingo and bilateral oophorecto- Schneider filed a motion to dismiss as a my (“hysterectomy”) at Memorial Her- government employee pursuant to section mann Hospital September 2009. 101.106(f) of the Texas Tort Claims Act *4 Dr. Karen primary phy- Schneider was the (“TTCA”), McQueens the substituted in performed sician who the hysterectomy. 13, UTHSCH on June time, At the employed by Schneider was answer, UTHSCH filed a verified specif- an professor UTHSCH as associate in the ically denying receipt pursuant of notice Department of Gynecology, Obstetrics and section 101.101 of the TTCA. UTHSCH residency program and as an assistant di- then plea jurisdiction, filed its spe- Berens, rector. Dr. Pamela another cifically arguing that it had no notice of the Zamora, physician, Dr. UTHSCH and Gus McQueens’ claims within six months and resident, a third-year UTHSCH assisted that their claims do not waive UTHSCH’s during hysterectomy. the sovereign immunity. supported UTHSCH 12, Teresa discharged September was plea its with an signed by affidavit its risk later, days 2009. Two on September manager, Thompson.3 Catherine In her presented she to Memorial Hermann’s affidavit, Thompson stated that she had emergency room complaining of abdominal found no record of written or actual fever, pain, symptoms. and other An at- notice of a claim received from or on be- tending physician examined Teresa and half of McQueens the within six months of suspected possible a perforation. bowel incident, including the September the 15, 2009, September performed On Berens surgery. Thompson also stated: diagnostic laparoscopic surgery and dis- notice, covered fecal UTHSCH had no material in Teresa’s either actual or lower 1) written, Lawrence, abdomen. Dr. of: the injuries Elizabeth or damages anoth- by er claimed physician attending McQueen UTHSCH the Teresa pro- and Clar- cedure, 2) McQueen, lawsuit; then examined ence Teresa’s small bow- Jr. this el, discovered a 1 cm 1 cm area time place and the of the incidents al- colon, perforation in the sigmoid per- leged by and McQueen Teresa and Clarence formed a bowel lawsuit; 3) resection. McQueen, Jr. in this or McQueens 1. The added as a defendant but 101.021 of the Texas Tort Claims Act. See Physicians University later nonsuited UT f/k/a Univ. Tex. M.D. Anderson Cancer Ctr. v. Care Plus. King, 329 S.W.3d (Tex.App.- 880-81 denied). pet. Houston [14th Dist.] Be- McQueens alleged 2. The neg- also Schneider’s notice, cause we reverse based on actual how- monitor, treat, ligent diagnose, failures to and ever, argument. we do not reach this See provide nursing reasonably medical and care Tex.R.App. P. 47.1. required for Teresa’s condition. Within its issue, argues partic- third that these presented 3.UTHSCH also medical records alleged ular failures do not involve use of McQueens' excerpts and from the tangible property and thus do not waive depositions. Schneider’s sovereign immunity UTHSCH's under section Battaglia affi- objections to by Tere- UTHSCH’s lawsuit alleged in this incidents McQueen, Jr. davit. McQueen and Clarence sa (6) day after the months
within six Analysis II. Tere- giving rise to incidents alleged McQueen McQueen and Clarence sa immunity A. Governmental had no claims occurred. Jr.’s the TTCA under alleged producing fault knowledge of its waiver, governmental Absent a McQueen or Teresa causing injury to UTHSCH, im entities, generally are like (6) within six McQueen, Jr. Clarence See Univ. damages. from suits for mune alleged day months after Estate at Dallas v. Tex. Sw. Med. Ctr. McQueen to Teresa giving rise incidents (Tex.2010). 544, 546 Jr.’s claims oc- McQueen and Clarence immunity governmental waives The TTCA curred. circumstances, acts in certain negligent for response filed caused including personal evidence, attached tangible personal UTHSCH’s condition or use of *5 rec- Hermann medical Prac. & Rem. including property. Memorial real See Tex. Civ. 2011). 101.021(2) (West testimony, ords, § To take deposition Schneider’s Code Bat- expert Dr. Frank and overcome the advantage and the affidavit of of this waiver immunity, a claim governmental Schneider’s sub- taglia, opined who that shield of notify a unit of technique represented governmental ant must the surgical standard than six months negligent of care. the act not later from the standard deviation 101.101(a) § id. after the incident. See and also filed reply filed its UTHSCH (West 2011). reasonably The notice must affidavit. The objections Battaglia injury, place the the time and describe objections trial court overruled UTHSCH’s incident, the incident itself. Id. the timely filed plea. and denied its UTHSCH provi of the TTCA’s notice purpose pursuant to sec- interlocutory appeal this unit to governmental to enable the 51.014(a)(8) sion is Texas Practice tion Civil fresh and while the facts are investigate and Remedies Code. substantially in are similar the conditions argues that the appeal, On UTHSCH claims, against unfounded guard order to be- denying plea in its trial court erred claims, Cathey trial. prepare for settle (1) provide failed to McQueens the cause (Tex.1995) Booth, 900 341 v. S.W.2d timely written notice of with ÚTHSCH curiam); Tex. Dep’t Garcia v. (per 101.101(a) to section pursuant their claim Justice, 728, 731 902 Criminal S.W.2d (2) McQueens did not the of the TTCA 1995, no (Tex.App.-Houston Dist.] [14th regard fact to whether raise a issue with writ). notice of the had actual UTHSCH notice under give The failure to to section McQueens’ pursuant claim 101.101(c) a requires dismissal of suit the extent a section 101.101 To TTCA. notice, the Texas jurisdiction lack of because to actual for fact issue exists as that the determined legislature erred in has argues the trial court requirement jurisdiction is the TTCA’s notice denying its because Gov’t Ann. their al in nature. Tex. Code allege establish that failed 2013) (West (“Statutory prereq § condi- 311.034 by negligent were caused claims suit, including provision uisites to a property pursuant use of tangible tion or notice, jurisdictional requirements are contends Finally, to the TTCA. entity.”); against governmental all suits overruling the trial court erred
755
(“[T]he
(Tex.2004)); Simons,
Arancibia,
338
140
at
However, formal
notice is
written
notice,
actual
is not synonymous with lia
required where the
unit
governmental
not
bility;
implies
it
rather
responsibility
actual
“has
notice” that “the claimant has
claimed.” Id. at
Subjec
injury.”
received some
Tex.
Prac. &
Civ.
101.101(c).
tive
often will
proved
§
awareness
be
“if
knowledge
Rem.Code
Mere
however,
all,
(cit
occurred,
an
incident has
is
circumstantial evidence.” Id.
348).
enough
Simons,
not
notice.
ing
establish actual
140 S.W.3d at
Cathey,
Supreme
“rejected
imputed
Court has
an
Actual
be
require
tation of actual notice that
governmental entity
would
agent
an
*6
governmental
that a
only
unit have knowl
who
representative
receives notice of the
death,
of a
edge
injury,
property
an
or
Cathey
charged
elements and who is
with
defendant,
damage! because a
like a
]
hos
duty
investigate
a
to
the facts
report
and
would
pital,
investigate
then have to
the
them to a
of
person
authority.
sufficient
of care
each and
provided
standard
to
Univ.
Tex. Health Sci. Ctr. at San
of
treatment,
patient
that
every
received
Stevens,
335,
Antonio v.
330 S.W.3d
339-40
eviscerating the
requirement’s pur
notice
(actu
2010,
(Tex.App.-San
pet.)
Antonio
no
(in
Arancibia,
at 548
pose.”
324 S.W.3d
al
imputed
pediatrics
notice
where
residen
omitted)
quotation
(citing
ternal
marks
cy program
faculty
director conducted
re
341).
Cathey, 900 S.W.2d at
involving
view of chemical burn incident
of
injection
topical
mistaken
anesthetic
TTCA,
Under the
actual notice
and,
into
resident
according
wound
to
governmental
gov
to a
unit
the
requires
operating agreement
residency
between
(1)
death,
ernmental
of
knowledge
unit’s:
a
program
hospital,
agreed
and
had
to con
(2)
or
injury,
property
subjective
damage;
investigations
problems involving
duct
into
fault,
of
ultimately alleged
awareness
its
as
residents);
Dinh v.
Cnty.
see
Harris
Hosp.
claimant,
by the
contribut
producing or
Dist.,
896 S.W.2d
253 (Tex.App.-Hous
death,
the
ing
proper
claimed
injury,
ton
writ
(3)
w.o.j.).
[1st Dist.]
dism’d
damage4;
ty
knowledge
Actual notice thus is not
a
only
limited to
identity of
parties
the
Id. at
involved.
particular government official or employee,
(discussing Cathey's “subjective
548-59
of risk
requirement
management
awareness”
ex
such as a director
as further
Stevens,
plained
Department
hospital
the court in
administrator. See
Texas
330
Simons,
339; Dinh,
Criminal Justice v.
140 S.W.3d
at
S.W.3d
If a of affirmatively negates the existence ing fault, for- requiring then awareness tive Id. at 227. jurisdiction. nothing to would do mal, notice written informa- statutory purposes further the challenges governmental unit Where claims, prepar- settling gathering, tion facts, and jurisdictional the existence at 324 S.W.3d for trial. ing relevant to parties submit evidence Simons, Howev- 549; S.W.3d at 347. 140 we consider challenge, jurisdictional subjec- unit is not er, governmental a “[i]f resolve the necessary to evidence when fault, not have it does aware of its tively Id. We credit issues raised. jurisdictional gather information incentive the same favoring the nonmov- true all evidence designed provide, is the statute inferences and draw all reasonable ant and not be unreasonable fa- when it would in the nonmovant’s even resolve doubts unit was governmental (acknowledging that the at 228 standard believe vor. Id. Simons, S.W.3d at 348. that of traditional sum- generally mirrors fault.” discharg- If the movant mary judgment). jurisdiction to the B. Plea trial to establish that es its burden jurisdiction, the nonmovant court lacks a jurisdiction A to the is plea a evidence sufficient to raise present must is “to defeat dilatory plea; purpose its regarding jurisdic- of fact material issue regard to whether action without cause of tion, will sustained. Id. plea or the be merit.” Bland asserted have the claims Blue, Dist. v. Indep. Sch. issues, In its first two (Tex.2000). challenges the plea deny the trial court erred argues that subject jurisdiction over trial court’s jurisdiction because ing its action. Tex. of a cause of pleaded matter juris with the comply failed to Miranda, Dep’t Parks & Wildlife requirement—written dictional (Tex.2004). govern If a Because the actual notice—of the TTCA. immunity pending from a unit has mental of notice to suit statutory prerequisite claim, subject lacks matter a trial court against governmental unit under claim. Rusk State *7 jurisdiction as to that it is jurisdictional requirement, TTCA is (Tex. Black, 88, 95 Hosp. v. 392 S.W.3d jurisdic to the properly plea asserted in a 2012). ruling a trial court’s on a We review 546; tion. 324 S.W.3d at See Miranda, de novo. plea jurisdiction to the Cnty., 324 S.W.3d Colquitt v. Brazoria curiam) 133 at 228. (Tex.2010) (failure S.W.3d (per to 543 requirement meet 101.101’s notice section plaintiff A bears the burden preserve government’s “operate[s] affirmatively demon alleging facts that immunity”). jurisdiction. court’s Id. at strate the trial Tex. Ass’n Bus. v. Tex. Air (citing may 226 actual notice be a Although (Tex. Bd., 440, 446 disput Control 852 S.W.2d is question fact when the evidence 1993)). ed, con a trial court’s decision as a matter of law When it can be determined jurisdiction to the is based uncontested. Ar- cerning plea pertinent if the facts are 549; Simons, ancibia, petition, accept we must at plaintiffs (“In instances, allegations peti many in the howev as true all factual at 348 S.W.3d er, can be determined as a tion, liberally, actual notice pleadings construe the law.”). Bat- Here—apart from intent. Id. at 226-27. matter of pleader’s look to the not dis- taglia’s parties affidavit5—the do jurisdiction may granted be pleaA deciding Battaglia’s affida- analysis, pre- without that Solely purposes our we sume for jurisdic- on the pute presented liability the facts claim under section 74.051 of the issue, they simply dispute legal tional Texas Civil Practice and Remedies Code.7 significance Accordingly, of that evidence. Specifically, they argue that a conflict ex- ruling we review the trial court’s as a ists between the provisions notice in sec- Simons, matter of law. See 140 S.W.3d at tions 74.051 and 101.101“because Chapter Miranda, 348; at 226. S.W.3d 74 authorizes a period limitations of 2 years days and 75 from the date of the did C. UTHSCH not have formal notice incident for a liability health care claim McQueens’ of the claims. § while 101.101 would shorten that limita- notice, regard (6) With to formal with its period tions time to six months.” See presented Thompson’s UTHSCH affi- 74.051(c) Tex. §§ Civ. Prac. & Rem.Code verifying McQueens davit that the did not 74.251(a) (75-day tolling period), (two-year provide written notice to within UTHSCH limitations). statute of giving six months incident rise to
their claims.6
However, our review of the record
does not reveal that
McQueens
raised
McQueens
dispute
do not
this conflict issue before the trial court.
that,
jurisdictional purposes,
they
Thus,
McQueens
have failed to pre
brought
against
their claims
un
serve error
argument,
as to this
and we do
They
der the TTCA.
also do not dispute
not address their conflict issue. See Tex.
written,
they
provide
did not
formal
33.1;
R.App. P.
Karaali v. Petroleum
101.101(a).
pursuant
to section
Wholesale, L.P.,
14-11-00577-CV,
No.
However,
they
on appeal,
contend that
2013 WL
(Tex.App.-Hous
at *5
they
subject
should not be
to the six-
26, 2013,
ton
Nov.
pet.)
[14th Dist.]
no
requirement
month notice
TTCA
(mem.
Stinson,
op.); Fontenot v.
they
all here where
complied with the re
quirement
provide
notice to
276 n. 10 (Tex.App.-Houston
filed) (substitute
prior
bringing
six months
a health care
pet.
[14th Dist.]
op.
(b)
vit would be
pleadings
admissible.
subsequently
such
as are
court,
any
party
filed
each
shall state that
presented deposition excerpts
6. UTHSCH also
fully complied
provisions
it has
with the
they
from the
wherein
acknowl-
this section and Section 74.052 and shall
edged
they
personally
did not ever
con-
provide
judge
such evidence thereof as the
UTHSCH, Schneider,
tact
other
may require
of the court
to determine if the
employee
complain
about the
*8
provisions
chapter
of this
have been met.
provided
care
to Teresa.
(c)
given
provided
Notice
chap-
in this
74.051, Notice, provides:
7. Section
applicable
ter shall toll the
statute of limita-
including
period
tions to and
(a)Any person
days
a
of
agent
or
his authorized
notice,
asserting
liability
following
giving
a health care
claim shall
the
and this
give
written
tolling
notice of such claim certi-
apply
parties
shall
poten-
to all
and
mail,
receipt requested,
fied
return
to each
parties.
tial
physician
provider against
or health care
being
whom such claim is
at
made
least 60
(West
§
Tex. Civ. Prac. & Rem.Code
74.051
days
filing
any
before the
a
in
of
suit
court
McQueens
2011).
petition,
In their
the
al-
upon
of this state based
a health care liabil-
leged performance
precedent
of all conditions
ity
accompanied
claim. The notice must be
compliance
and
with sections 74.051 and
by the authorization form for release of
74.052.
protected
required
health information as
under Section 74.052.
duty
investigate
report
or
dans had a
to
reh’g).8
on
claims,
report
not
to UTHSCH
and did
actual notice
did not have
D. UTHSCH
“subjective
knowledge and
they
that
had
McQueens’ claims.
the
of
pro-
fault
awareness”
that UTHSCH’s
contributed to Teresa’s bowel
duced or
notice, UTHSCH
regard to actual
With
it
argues at the most
injury. UTHSCH
raised
McQueens have not
the
argues that
complication
a known
knowledge
had
had
whether UTHSCH
fact
issue on
a
hysterectomy
occurred.
section
claims under
of their
actual notice
101.101(c)
particu-
six months.
that,
within
particular-
McQueens respond
The
the incident
lar,
decision,
out that
points
to the Arancibia
ly analogizing
UTHSCH,
rather at
but
occur at
did not
notice to UTHSCH
these facts show actual
Hospital.9 Hermann
denied
properly
Memorial
trial
court
and the
Thompson’s uncon-
it presented
They
contends
contend Teresa’s
plea.
UTHSCH’s
that its risk
establishing
to
troverted affidavit
actual notice
provided
medical records
have ac-
did not
to
management department
McQueens
point
also
UTHSCH.
affidavit,
claims within
McQueens’
wherein
expert Battaglia’s
tual notice
their
the
argues
the medical
records
six months.10 UTHSCH
he reviewed
Schneider, Berens,
sigmoid
Lawrence
Teresa’s
opined
injury
that the
fact that
misapplication
aware of the occurrence
a result of the
may have been
colon “as
surgical
technique)
sufficient
(negligent
is not
misuse
Teresa’s bowel
(trocars
other
surgical
Ac-
instruments
impute actual notice to UTHSCH.
and/or
UTHSCH,
monopolar cau-
physi-
sharp instruments
none of these
cording to
and/or
hospital,
govern-
president/CEO of the
had raised this con
the
Even if the
8.
below,
summary
entity,
legally
mental
was
sufficient
101.101 of the TTCA
flict issue
section
timing
judgment
purposes
proving
impact
opera
evidence
has no direct
on the
nonreceipt
the
liability
limi
of notice under
TTCA.
health care
statute of
tion of the
795,
statute,
(Tex.App.-Houston
tolling
[14th
and the two
S.W.2d
801-02
tations or
of that
There,
do,
pet.).
hospital
"may,
operate inde
no
provisions
Dist.]
and often
only
president/CEO
See Timmons v.
that the
notice
pendently of one another."
testified
Ctr.,
(Tex.
hospital
844-46
letter from the
Univ. Med.
received was the
(citing
pet.)
attorney making
against
App.-Amarillo
plaintiff's
no
a claim
Chilkewitz
(Tex. 1999),
Hyson, 22
hospital,
hospital
829-30
did not have
and that
argument
rejecting
receiving
that section 101.101's
the letter.
Id.
actual notice before
jurisdictional
requirement
conflicts
(noting
affidavit held sufficient
at 801
similar
timing provided
trumped
with
within and is
hospital
Cathey).
This court found the
two-year
clear,
statute of limita
section 74.25l’s
positive
president/CEO's affidavit "was
Moreover,
tions).
direct,
limitations is an affirma
otherwise credible and free from
defense,
inconsistencies,
tive
which is waivable and distinct in
readily
have been
and could
requirement,
from
TTCA’snotice
nature
controverted.”
Id. at 802. This court con-
jurisdictional prerequisite
to suit.
which is
"[ajbsent
controverting proof
cluded that
Further, chapter
expressly
See id.
any alleged culpability
of actual notice of
sovereign
not waive
immu
states that it does
contributing
part producing
any inju-
its
nity.
§ 74.003
Tex. Civ. Prac. & Rem.Code
summary judg-
ry
appellant,
Hospital’s
*9
(West 2011).
legally
prove
ment evidence was
sufficient to
appellant
comply with the
that the
failed to
case,
pur-
101.101(a)
appears
9. While this
to be
provisions
of section
Act,
poses
supporting
plea,
(c),
UTHSCH relied
Hospital
of
its
and the
Texas Tort Claims
on Memorial Hermann’s medical records.
summary judgment
entitled to
as mat-
was
of no
ter
law on their affirmative defense
of
too,
So,
Thompson’s
Authority,
injury.”
is
Hospital
notice of
Id.
10. In
v. Tomball
Huffine
here.
whether the affidavit of
affidavit
this court considered
(Tex.2010)
tery)” represented
curiam),
a breach of the stan-
(per
where
The
dard
care
Schneider.
police report did not indicate that city was
conclusively
that the evidence
estab-
argue
barricades).
responsible for missing road
had actual notice
Likewise,
lishes
UTHSCH
here, there is no real dispute
addition,
September
2009. In
at least
that, as reflected in the medical records
argue that
cannot
they
UTHSCH
evade
and Schneider’s testimony, Teresa’s injury
subjective
by subjectively
awareness
refut-
occurred sometime during
hysterecto-
her
Arancibia,
ing fault. See
324 S.W.3d at my
performed by
as
physicians.
UTHSCH
Finally, they
550.
maintain that Schneider
key question
The
here is whether the
knowledge
had
of the incident and “her
medical records and Schneider’s knowl-
incident,”
causing
fault
in
and that
edge, assuming
properly
it is
imput-
to be
physicians
Schneider and other UTHSCH,
ed to
constitute the requisite
duty
gather
Berens and Lawrence had a
level of “subjective awareness” to put
and report
facts
such that actual notice
on
fault,
actual notice of its
imputed
should be
to UTHSCH.
ultimately alleged by
McQueens,
there are some
While
similarities be-
producing or contributing
inju-
to Teresa’s
Arancibia—particular-
tween this ease and
ry.
Arancibia,
See id. at 549.
In
ly regarding
type
and the
record showed
governmental
that the
ac-
issue of actual notice to be decided as a
tor, University of Texas Southwestern
interlocutory
matter of
appeal
law
from
(“Southwest-
Medical Center at Dallas
the denial of a plea
jurisdiction—we
to the
ern”),
aware,
subjectively
was
within days
ultimately conclude that here the circum-
fatality,
fault,
of its
as ultimately
present
stances do not
a fact question on
Arancibias,
alleged by the
in producing or
UTHSCH’s actual notice.
contributing to Irene’s death. See id.
Arancibia,
In
Irene Arancibia died
proof
The
of actual notice there was not
days
three
after two
physicians
resident
just
result,”
the “bad
but rather “went
performed laparoscopic
surgery
hernia
on beyond the mere fact of [Irene’s] death.”
her. See
spoken Dr. supervisor, such as time, management; any surmised addition, Watson at from a in resulted Dr. Schneider supervised Alan Katz who perforation bowel that the for- supervisor The a depart- Id. injury. gynecology; retraction obstetrics surgical de- email to about up” warded Watson’s a “heads provide ment chair to chair, that he had who indicated partment review investigation No the incident. incident. Id. about” the “heard leading to much less one completed, was any par- any assessment thereafter, having reviewed Shortly error, “technical,” probably if even ticular treatment, supervisor Watson’s Irene’s any of Tere- portion occurred or that had error occurred a “technical concluded that No injury. to her care “contributed” result- sa’s operation hernia during original of care” involving bowel. the “standard Irene’s evaluation perforations in” two ing “[although place supervisor stated affiliated with the incident took Id. The unfortunate, recognized complica- addition, is a this In the record includes the time. surgery. No hernia laparoscopic tion of regarding the testimony from Schneider identified care issues were standard incident, a deposi- albeit in the context of in- supervisor Id. The also review.” upon At her years tion three and a half later. however, dicated, manage- that “[c]linieal acknowledged that deposition, Schneider Irene’s death and contributed to” ment of Teresa’s likely possible the most cause necessarily consis- care “was not that the injury from the injury bowel was a thermal Id. The standards.” tent with established tools, not see or cautery although she did that Southwest- concluded Arancibia court any tool to her any note direct contact fault as aware of its subjectively ern was between tools. any coupling bowel or Arancibias, and by the ultimately alleged if noted a Schneider indicated that she had ac- not evade the that Southwestern could hysterectomy, she injury during bowel by subjectively determination tual-notice it and called would have documented at 550. The Aranci- refuting its fault. Id. surgery to evaluate the bowel. general purpose observed that bia court during follow-up, Schneider told Tere- And govern- is to enable requirement it caused.” sa she “didn’t know how was investigate and address mental units to Schneider described Teresa’s was satisfied which appropriately, claims proce- with the “complication associated Id. actual notice. by Southwestern’s anything not think of dure.” She could change anything would not here, “unusual” and contrast, the evidence procedure. records, during she did including consists of medical that she did not believe that also stated report in a progress Schneider’s notation cautery tools fell hysterectomy” her use of injury during of a “bowel below the standard of care.12 delay recovery. Teresa’s No that would "concluding that a characterized Arancibia as noted that there was 11. The Arancibia court why report did so or risk physician’s [Watson] no direct "evidence of to a medical center's management, circumstances, reported” but what he to risk manager, provided under superiors knew Irene and his that Watson patient’s of a claim.” actual notice organ multiple failure caused had died of (Tex.2011). n. 10 S.W.3d perforated sepsis, in two her bowel was surgical places probably as a result of tool acknowledged they also injury, management had retraction and risk anyone complained to at UTHSCH never at 550. In Univer- been alerted. about Teresa’s care. at San sity Health Science Center Texas Bailey, Supreme Court the Texas Antonio
761 sum, presented by In the evidence evade the liability] determination [of fault,” id., medical records13 and Schneider’s knowl- subjectively refuting see we con- edge injury complica- was that a bowel clude there must something exist in the point during tion occurred at some Tere- provide circumstances to a subjective sig- hysterectomy; sa’s Schneider did not governmental nal unit within the perforation know what caused the and did period six-month that there might be a in any way anything not attribute it she claim, unfounded, even if at issue. There anyone particularly else did or failed to must be something more than the mere assuming, do.15 Even without deciding, result,” fact of a “bad even one that per- solely purposes analysis for of our haps prudent person or physician would particular hospital in her em- id.; Simons, have investigated. See ployee charged duty role was with a Otherwise, S.W.3d at 347-48. hospital record, investigate report, on this im- charged would then be with actual notice puting knowledge supervisor her to her in and investigate every need to instance management risk would not have provided where a possible risk or complication gen- with subjective awareness of its erally surgical attributable to a or other implicit fault or responsibility, as ultimate- procedure resulted in an injury. While ly alleged by McQueens, in producing this might fully not “eviscerate” the notice or contributing injury. to Teresa’s See id. requirement’s purpose, it certainly appears at 549-50. to be in tension with it. Cathey, See Simons, acknowledge Cathey
While we
that “an
S.W.2d at 341.
unquali-
Arancibia,
fied confession of fault”
required,
is not
see
reaffirmed
fairly
cannot
be
government
id.
and that “a
require
cannot
read to
such a result.16
Arancibia,
13. Pre Simons and
"truly
this court has
part
remember
[doesn’t]
what
procedure
concluded a fact issue existed on actual notice
did.” See
[Berens]
v. Cam-
Muniz
13-10-00689-CV,
Angleton
Cnty.,
based on medical
eron
records. See
Dan
No.
2012 WL
Chavana,
bury Hosp.
(Tex.App.-Corpus
Dist. v.
at *7
May
Christi
10, 2012,
denied) (mem.
("[S]ince
pet.
(Tex.App.-Houston
op.)
427-28
[14th Dist.]
collision,
pet.).
expressed
fatal
no
Chavana involved an
witnesses have
incorrect in
difficulty recalling
jection
depositions
given during
surgery.
facts in their
cataract
Chavana,
years
taken over two
after the collision” and
hospital qual
the doctor filled out a
police cruiser at issue had since been de-
ity
report
assurance
on the date of the occur
accident).
stroyed in another
incorrectly inject
rence wherein he stated he
plaintiff
ed saline into the
and listed a district
16.See
(Cathey
ligent surgical operative surgical gan part “not reverse the trial Accordingly, we court’s ... “misapplication by some misuse field” jurisdic- of to the plea denial UTHSCH’s instruments”—allegedly surgical of judgment dismissing tion and render the care, of the standard we cannot breached McQueens’ jurisdiction. want of claims for in case agree the medical records this that J., CHRISTOPHER, dissenting. subjective to convey a fact issue
raised of to its fault suffi awareness UTHSCH CHRISTOPHER, Justice, TRACY 101.101(c). Compare meet section cient to dissenting. (no at 341-42 fact is Cathey, 900 S.W.2d view, my University of Texas sue matter of law on actual notice as a Health Science Center Houston reviewed medical records expert where (“UTHSCH”) as a prove failed to matter delay and of minutes opined negligent notice, law actual that it did not receive stillbirth), in in resulted with C-section McQueens and the raised a fact issue on (fact Dinh, 896 S.W.2d at issue on I Accordingly, actual notice. would affirm medical actual notice where records indi plea the trial court’s denial only plaintiff cated not suffered a cerebral jurisdiction. majority Because the does “accident,” but also de vascular evidenced not, I respectfully dissent. lays long eight by hospital as hours as negate A. did not actual UTHSCH personnel examining plaintiff pro and notice. transfusion, viding blood and detailed condition,
plaintiffs deteriorating conclusory UTHSCH filed a affidavit plaintiff expert opined where suffered Catherine its risk Thompson, manager. in hospital). stroke while Thompson testified as follows: On I May 2013. conducted search light Even viewed in the favorable most of all files and appropriate records at to McQueens and all resolving doubts inquiries of ap- UTHSCH and made favor, demonstrates, this record their propriate offices individuals law, a matter of was not throughout determine fault, subjectively aware of its as ultimate- when any type UTHSCH first received ly alleged by McQueens, well until Plaintiffs’, McQueen of notice of Teresa beyond the six-month notice after period Jr., McQueen, and Clarence claims. Therefore, record, on incident. this I find no record or information that because the did present not actual written notice or notice of a to raise a question evidence sufficient fact pursuant claim Tort to the Texas Claims notice, on conclude actual we that the trial Act was from or on ever received behalf denying court erred in UTHSCH’s of, McQueen or Teresa Clarence Miranda, the jurisdiction. See McQueen, by any representative Jr. at 228. investigate UTHSCH authorized such claims, sustain We UTHSCH’s second issue. in connection with the allegations lawsuit, this dispose interlocutory Because we that are in this described within (6) appeal day based the trial court’s six months after jurisdiction, lack subject matter we do incidents ... occurred. might longer employed
While this affidavit
be sufficient was no
with UTHSCH on
notice,
negate
formal written
it is con- May
Moreover,
the affidavit does
clusory as to actual notice and sets out the
not set forth the
legal
correct
standard for
*13
(cid:127)wrong legal standard for actual notice.
actual notice. Actual notice does not have
McQueens objected
conclusory
The
to the
to be received “from” McQueens.
Nor
affidavit,
but the
nature
record does does actual notice have to be received “on
they
not reflect
obtained a ruling.
behalf’ of the McQueens. Nor does it
However,
conclusory
because a
affidavit is
consist of
notice of a claim
defective,
substantively
the failure to ob McQueens.
I would hold that UTHSCH
objection
a ruling
tain
on an
does not
did not shift the
proof
burden of
to the
defect,
challenge
waive a
and the McQueens through this affidavit.
objection may
appeal.
be considered on
McQueens
B. The
raised a fact issue
Hosp.
See Methodist
v. Zurich Am. Ins.
on actual notice.
Co.,
510,
(Tex.App.-Hous
329 S.W.3d
2009,
denied);
pet.
ton [14th
Para
Dist.]
if Thompson’s
Even
affidavit were suffi-
Contractors,
gon Gen.
Inc. v. Larco
cient to shift the
proof,
burden of
I believe
Constr., Inc.,
(Tex.
McQueens
that the
raised a fact issue on
App.-Dallas
pet.).
no
actual notice. This case is almost on all
conclusory
The affidavit
is
because
fours with a recent
Supreme
Texas
Court
Thompson
identify
did not
with whom she opinion where the court held that
there
spoke
determining
when
whether was evidence of actual notice. See Univ.
had
notice.
actual
We know
Tex. Sw. Med. Ctr. at Dallas v. Estate
of
Schneider,
Arancibia,
(Tex.2010).
that she did not talk to Dr.
The main and obvious distinction be- Dr. Schneider was a supervisor her- McQueens’ tween the case and Arancibia self. In the court held that the report is the to management risk and the hospital had actual notice. Id. at 550. report to a supervisor. report Is the to Because the facts of this case are nearly management risk the defining distinction identical, I would conclude that between the cases? ifWhat UTHSCH McQueens at least raised a fact issue as to policy only requires report such a in death (actual actual notice. See id. at 549 notice cases such as in Arancibia? Is the report may be -of question jury fact for the supervisor to a the defining distinction? Lawrence, Berens, Dr. whether Dr. Sci know Tex. Health decide); also Univ. see any- Stevens, injury this Heaps reported 330 S.W.3d or Dr. Antonio at San
Ctr. investigation. Antonio or did an (Tex.App.-San one else 340-41 (fact supervis- where existed issue pet.) no actual have concluded that Lower courts pa- was aware physician ing only particular is not limited tient). as a director official such government majority opinion with the agree I administra- hospital or a management risk case is whether in this central issue 339-40; Stevens, tor. See fact issue on raised a Dist., 896 Cnty. Hosp. Harris Dinh v. *14 notice—whether of actual prong second (Tex.App.-Houston [1st S.W.2d subjective had unit governmental the w.o.j.). Should we writ dism’d Dist.] fault, ultimately alleged as of its awareness a fact plaintiff that a has raised conclude claimant, or contribut- producing in by the within an numerous doctors issue when death, injury, proper- ing to the claimed notice? I would con- organization have Dep’t Criminal See Tex. ty damage. such a fact issue there was clude Simons, 344-48 140 S.W.3d v. Justice Dr. generally—and given a doctor’s duties (Tex.2004). “Fault, to actual pertains as it particu- role in administrative Schneider’s liability; notice, synonymous with is not by lar—subject to rebuttal UTHSCH. inju- for the responsibility implies rather it majority notes that UTHSCH While the Arancibia, 324 S.W.3d claimed.” ry duty no to argued that these doctors had will be awareness often Subjective 550. claims, report investigate all, evi- “if at circumstantial proved that ar- support no evidence to presented Simons, at 348. dence.” gument. employee is an Dr. Schneider majority opinion from the It is unclear Residency and is the Assistant Dr. majority the believes that whether Schneider did not Program Director. Dr. fault or not have notice of Schneider did she was aware of investigation an after do did not have notice whether UTHSCH was not asked injury. the bowel She majority seems to conclude fault. The injury the reported whether or not she there Dr. Schneider knew was that that all anyone else at UTHSCH. hysterectomy. the was a “bad result” with the McQueen returned to When Mrs. disagree. I room, Heaps that Dr. emergency we know knew at the time of the Dr. Schneider injury from immediately suspected a bowel tools hysterectomy that if the cauterization a Heaps prepared Dr. hysterectomy. then necrosis of the touched the colon report. Heaps reported Dr. consultant’s knew at the time colon could occur. She Kahn, Dr. consulting physician, to a this procedures there are surgery surgery. McQueen Mrs. who then sent prevent happening. that from follow surgery began laparoscopic Dr. Berens Dr. claimed to have Although in Dr. Law- McQueen Mrs. and called surgical er- procedures, followed those fecal matter rence when she discovered ror occurred. Dr. Lawrence McQueen’s Mrs. abdomen. at first claimed injury, perfor- Although Dr. Schneider that the bowel determined know what caused the colon, that she did not during the ation of the occurred also testified that injury, bowel she by Dr. Schneider hysterectomy performed by the was in all likelihood caused injury noted no Dr. Dr. Lawrence Berens. or Dr. tools that either she do not cauterization bowel abnormalities. We other during hysterectomy. Berens used JARDIN, Appellant Frederic although Dr. Schneider denied
And liability using improperly, for the tools no doubt that she knew that their there is MARKLUND, Douglas Soren Wene injury. use of the tools caused Chem32, LLC, Appellees. words, ei- other Dr. Schneider knew that Dr. responsible ther she or Berens was No. 14-13-00616-CV. McQueen, injury claimed now Mrs. Texas, Appeals Court of actually agrees she with one of the two (14th Dist.). Houston plaintiffs to how expert theories However, occurred. she con- 6,May 2014. negligent using tends that she was not Rehearing Overruled June undisputed the tools. It is that the sole instrumentality gov- of the harm was the unit
ernmental itself. See at 550. *15 identify any
Dr. Schneider could not oth-
er possible injury. causes of the bowel
There were no abnormalities noted of the removed,
uterus as it was and no other were impor-
adhesions observed. This is pelvic
tant because a adhesion can some-
times cause a bowel injury. There were problems
no other with the bowel noted
during hysterectomy. There was no
infection or inflammation preexisting that injury.
could have caused the bowel Dr. ruled out all these other injury. Simply
causes put, there was possible
no other cause of the injury other
than actions taken the surgeons during hysterectomy.
Just as Dr. Schneider had
notice of the and the cause of the
injury. She had actual notice of fault as
defined Arancibia. The trial court’s
denial of the should be affirmed.