*1 in the amount ment to himself TEXAS
$3,043.06 page 15 of on the labeled The UNIVERSITY OF in the AT to himself MEDICAL BRANCH and a reimbursement GALVESTON, $3,404.08 Appellant, page labeled on the amount July report 17 of 20 of said filed Texas, County, in Hands GREENHOUSE, Appellee. Audrey report and failed to include in said 01-93-00371-CV. No. repre- political expenditures as amount of in the that sented said reimbursements Texas, Apрeals of Court of $50.00, name and aggregate exceed the full (1st Dist.). person expen- of the to whom the address Sept. made, pur- and ditures were and dates expendi- poses expenditures, Rehearing of the Opinion Overruling political expenditures were not tures which Dec. reimbursements, represented said
namely payment, the amount of such person
full name address made, payment
whom date and de- payment, the said with
fendant made said false statement
knowledge meaning statement’s deceive,
with intent and said state- required by law made
ment wаs to be oath. majority 254.041 of holds Section Code, making it a mis-
the Election Class C required file a
demeanor for one who is knowingly
campaign expenditure report report
fail “to include information included, precludes the required” to be though
prosecution perjury, of one for even alleges knowingly and that he indictment he has
with intent to deceive swears that report all the information
included respectfully I to be included. dis-
agree. case the close state’s While a di- such to warrant opin- guilty, my this in
rected verdict
ion, quashing not a valid basis do, however, agree I
indictment. judge legislative action
imminent trial
needed. *2 plaintiff, Audrey Greenhouse, brought
The malpractice a medical claim against the Uni- versity of Texas Medical Branch Galveston (UTMB). alleged surgical She UTMB’s portion negligently surgical staff left a of a body mastectomy. needle in her during a dispute small, not UTMB does there is a curved in “metallic artifact” the subcutanеous wall, right tissue Greenhouse’s front chest jury near her lower A ribs. found UTMB negligent $100,000. awarded appeals jury’s findings. UTMB background Factual On faculty surgeon Sally performed Dr. Abston a modified radi- mastectomy cal on Greenhouse’s breast. intentionally The doctor left about 38 metal in clips chest.1 complained to her oncolоgist, McClure, pain Dr. Susan about in MRI, Dr. her chest. an McClure ordered performed May which was on The radiologist’s report part: stated in absent, The breast is consistent with history right mastectomy. The major pectoralis and minor muscles are Incidentally present. noted is the fact that right pectoralis minor much smaller Morales, Pryor, Cain, Dan Will Delmar L. artifact, left. A than the metallic located Stroud, Keller, Austin, Mary Barbara L. F. within the subcutaneous tissue appellant. for wall be chest could III, Burwell, Enos, Russell Gregory G. B. patient’s surgery.2 City, appellee. added.) (Emphasis Dr. did see McClure not films, radiologist’s the MRI but received the OLIVER-PARROTT, C.J., Before report. patient Her notes indicate the MRI O’CONNOR, WILSON and JJ. showed, among things, other a “metallic arti- fact, possibly prev. surgery, R. related to in OPINION ON MOTION added.) (Emphasis ant. chest.” Her notes FOR REHEARING omit reference to the lower anterior chest O’CONNOR, wall. Justice. opinion
We withdraw our of March Dr. McClure referred Greenhouse back to opinion substitute this its stead. tumor сlinic for evaluation. referral, stated, principal “Today issue this case is whether she I feel a small nodule, applies provi- to the notice subcut. tender.” She indicated that sions the Texas Tort Act. hold she marked the area with “X” and stated “may it does not and reverse. metallic the nodule artifact seen frоnt, anterior, clips 1. Dr. Abston testified were used "to 2. Dr. testified the McClure chest wall runs from the collarbone to the lower keep lymph leaking." hip. Dr. mass located near the area recent MRI.” chest. The was McClure testified surgical clips, and signaled containing the feared the nodule a recurrence of lowеr near the metallic artifact Greenhouse’s breast cancer. located chest wall. nodule to Dr. McClure referred *3 1988, September had an- Greenhouse not, fact, was the artifact men- metallic radiologist’s report this other MRI. The for report. tioned in MRI the She testified: part: test states summary my I the [W]hen wrote little of previous with the Comparison made report, copying M-R-I all the instead of ago.... Again than six months exam less there, writing words on clips on surgical seen are the the chest, chest, I anterior so when I wrote axillary dissection well as from an node as consult, my went write back to and thumb right mastectomy change. A small metаl- note, through, my own I on see didn’t write fragment likely representing lic a broken “lower,” my I note which case never seen in tissues the needle is the of soft would at all. have mentioned that wall. anterior chest higher up The nodule she felt was in the brings point six of error. The first UTMB chest wall than the metallic artifact. provisions three оf points deal with the Dr. Abston testified she examined Green- the Act.4 In its three Texas Tort Claims last day house same Dr. McClure wrote the points, complains sufficiency referral.3 testified the nodule and the She jury’s findings. support to evidence tenderness about Greenhouse com- upper plained in the Dr. were chest. Abston The Tort Act seeing the by remembered “X” drawn Dr. Act) (the Act The Texas Tort Claims chest, McClure on Greenhouse’s govern was to some of enacted abolish “X” nodule. marked the Medical writ- notes immunity from suit. Tex.Civ.PRAC. & ment’s surgical ten Dr. Robert Alexander (Vernon 1986); § 101.025 Ann. Rem.Code 31,1988, department May on indicate Green- Owens, (Tex. 748, Brown v. pain complainеd house anteri- 1984). governmental The Act that a states *4 requirements support ficient the strict notice jury’s finding Act”; Tort that UTMB she further asserts that if had notice within months six apply not when does Greenhouse knew or should have Act, provision notice injury. known of the Act is her uncon rights stitutional and pro violates her to due It undisputed did not cess, protection,5 equal open courts. We give UTMB injury written notice of her with- process find the due guarantee set forth in in six after day months the incident open provision courts of the Texas Con giving rise to the claim injury occurred. The case; apply stitution does not in this we complains—a of which needle find further upon cases which Green left in during mastectomy— chest relies for proposition house that she is 17,1987. occurred on gave from giving distinguish excused notice May 25, notice written 1989. The able. only evidence of actual notice is UTMB’s medical records. first indication that a provides, The Texas Constitution “All needle was ap- left Grеenhouse’s chest open, every person courts shall for an pears May report, MRI him, lands, injury goods, person done and his which refers to a metal artifact in the subcu- reputation, remedy by or shall have due taneous tissue of the Const, I, § course of law.” Tex. art. clearly chest wall. UTMB did not have ei- “open premised This courts” ther written or actual notice within six upon legislature the rationale that the has no months of injury the date the occurred. power remedy by to make a due course of applied trial court rule. contingent upon law impossible an condition. Jury question number three asked: Inc., v. Sterling Drug, Moreno University open
Did the To establish an of Texas Medical violation, litigant satisfy Branch courts a Audrey receive notice of Green- must a two- first, part house’s claim within test: she must show she a six months after the has day well-recognized that she knew or cause of action should have known of common-law second, being restricted; the inсident rise she must to her claim? The University show the restriction is unreasonable or arbi of Texas Medical Branch trary against receive of a when balanced written formal Supreme the statute. Id. The or actual notice. Court has The notice must reasonably stated: damage injury describe or
claimed, placе the time and of the incident A common law cause of action exists with- and the incident. legislative such, As out a enactment. arti- I, UTMB asserts the rule does not cle section 13 of the Texas Constitution Act, upon open pursu- relies mandates that the courts be Sanford University, legislature Texas A ing & M claims. The is not such n.r.e.). (Tex.App.—Beaumont abrogate writ refd entitled restrict or a common- Sanford, appeals the court of held “the law cause action without reasonable Although protec- authority. equal waived Greenhouse raises an ment or She therefore review TexR.App.P. claim, 74(f). argu- supported tion issue. she has not it with of this action gave cause of providing adequate rise to both basis without however, If, negligence a cause action against city substitute. and common law law, recognized was not at common but against garage superinten- cause legislature, any by the created dent). Thus, meet the Greenhouse cannot itsеlf legislative abrogation the cause ac- open courts test because prong first abrogation not tion would be a true aof “well-recognized she does have a common not Rather, right. legisla- constitutional law action.” We find cause of therefore granted simply ture would not as pro- appellant’s rights open under the courts might extensive a as it have. Texas Constitution have vision added). Moreno, (emphasis been violated. sovereign im The common-law doctrine party agree that a with Greenhouse munity provides the is not liable for the State mental, laboring legal physical, negligence employees of its absent a constitu (such minority) may be excused incapacity liability. statutory provision tional or compliance with notice re from strict University Branch Texas Medical at Gal Torres, quirements city charters. See York, veston v. Odessa, 591; McCrary 1994). S.W.2d at agency, A state as a such branch *5 151, (Tex.1972); University system, 482 S.W.2d 154 Hatcher the of is аn of Texas arm (Tex. State, Galveston, sovereign 37, by City and is the shielded immu 775 S.W.2d 39 of writ). nity. University 1989, Whitehead v. Texas App. [1st Dist.] no of — Houston Antonio, Health Science at San 854 Ctr. exceptions applicable are to These 175, (Tex.App. 5.W.2d 181 Antonio case. The to recover — San writ). 1993, no municipality from a is a cause of common-law open provision action the to which courts legislature The Act enacted the to waive Moreno, 355; would 787 at governmental immunity apply. in certain circum York, Arthur, 944, stances. 871 at 177. But for Hanks v. Port 48 S.W.2d of Act, sovereign immunity (Tex.1932).7 the the doctrine of precluded would Greenhouse’s lawsuit the Supreme The Court has said of UTMB, against an arm State. Her Act, plaintiff procedural the “Once a invokes is a suit cause of that exists Act, to devices the Texas Tort solely by virtue Dep’t of the Act.6 Texas State, bring against a cause of action the Health Mental and Mental Retardation v. by he then is also bound the limitations 707, Petty, (Tex.App. 817 S.W.2d — Austin State provided remedies statute.” 1991), aff'd, (Tex.1992); cf. Annis, Dep’t Dopyera, 127, Highways 834 S.W.2d White v. 864 S.W.2d (Tex.1992). writ) Greenhouse, by bringing a App. (exploding no tire of — Dallas truck, Act, city-owned plaintiffs against bound leg, which broke under the legislature injury, discovery unless the 6. Had the intended the rule the claimant learned Act, stated, apply provisions discovery applies. the it Thе to notice the rule court discovery rule could have written the into the exception “discovery not be rule” would Act, as it did the DTPA. See with & Tex.Bus applicable undisputed es- where the (Vernon 1987). § 17.565 Code Com Ann. the time of that the claimant knew at tablishes injured. he had Here the been occurrence Toires, awarе a 7. We are that in involved obviously injury that he knew of the Torres against municipality, language certain suit injury his promptly a notice of form with filed opinion implies discovery would family employer saw his doctor. brought to lawsuits Act. language implies Tones, at Id. 592. This only question Supreme before applied had not known rule would have Torres plaintiff's was whether the belief that his Court injured. time the incident that he had been injuries were trivial excused him from however, Moreno, by guided, and believe We are timely city notice inapplicability of rule to that the finding its charter. that Torres was not rather, abrogation right; Act require- is not an complying excused frоm ments, with granted legislature personal injury has not as extensive the court noted that Moreno, actions, might See 787 S.W.2d as it have. a cause of action accrues when the wrongful injury, regardless at 355. act of when effects Act, including justify Hosp. the limitations of the County it. Tarrant Dist. v. provision. Ray, (Tex.App. 712 S.W.2d — Fort n.r.e.). Worth writ ref'd It is clear thе facts of this case that incapable complying with provision the notice requirements the notice because neither she Tort governmental Claims Act is to enable a injury nor UTMB learned of her within the investigate against unit to allegations it while six-month time frame. While we believe it is facts are fresh and conditions substan- rеmarkably deprive unfair to Greenhouse of tially so guard against similar it un- against of recourse UTMB because claims, claims, prepare founded settle unable, own, through she was no fault Torres, trial. City Houston v. comply requirements, with the notice we The notice agree must UTMB that trial court rationally legitimate to a stаte inter- applying erred in rule. We est. reluctantly point sustain of error two. Be- disposition error, point cause of our of this
we need not remaining address UTMB’s
points. judgment reverse render nothing by
that Greenhouse take her suit
against UTMB. ON
OPINION APPELLEE’S MOTION FOR REHEARING CORPORATION, TRI-LEGENDS We overrule Greenhouse’s motion for re- Appellant, *6 hearing. opinion In our on UTMB’s motion for TICOR TITLE INSURANCE COMPANY rehearing, we stated that Greenhouse waived OF and Ticor Title CALIFORNIA equal protection claim because she did Company, Appellees. Insurance not support argument authority it with However, original brief. as Greenhouse No. A14-93-00946-CV. points rehearing, out in her motion for Texas, postsubmission Appeals did file a brief that Court addressed (14th Dist.). this issue. We therefore address merits equal protection of her claim. Sept. equal protection claim is Rehearing Overruled Oct. without merit. Texas cases echo federal whether a determining standards when stat equal protection
ute violates either the
federal or state constitution. Rose v. Doc Hosp.,
tor’s
Those standards dictate that when the classi
fication created state statute does not
infringe upon rights fundamental or does not class, inherently suspect equal
burden an
protection requires only statutory rationally legiti be to a
classification legislatures interest.
mate state Id. State presumed to have acted within their con that, despite fact power
stitutional
practice, inequality. them laws result some
A discrimination will be set may any
aside if state of facts conceived or chest. notes His further state: unit is notice of claim not entitled receive At this point x-ray a nodule Chest is felt. day later than six months after the surgical clips reveals in this area. Last giving rise the claim incidеnt occurred. injected sequential week the area was on 3 101.101(a) § & Ann. Tex.Civ.PRAc. Rem.Code days with Marcaine without relief. The (Vernon 1986). require The notice of claim patient brought now be will back into the (a) subpart ment in if the does Minor [sic] OR for incision and 5/7/88 governmental unit has actual notice that exploration light anterior chest with injury. claimant has received some Tex.Civ. exploration surgical clip retained or for 101.101(c)(Vernon § Prac. & Rem.Code Ann. body. foreign other 1986). the notice added.) (Emphasis requirement prompt reporting ensure 1988, 31, May signed governmental unit to On a of claims to enable the form, investigate consent in which of a claim while the disclosure and merits “right facts remain sub consented to anterior chest incision are fresh conditions exploration clip foreign” stantially City or the same. v. Tor res, (Tex.1981); possible Parrish [sic]. The form indicated that Brooks, (Tex.App. procedure hazard “failure re- 856 S.W.2d was denied); clip.” performed writ Cavаzos v. surgery move on —Texarkana Mission, doctor removed a mass 1990, writ); no Rosales fatty upper App. Corpus of dead tissue from Christi — (Ver- § Although 4. 101.002 Dr. Abston testified she examined & Tex.Civ.Prac. Rem.Code Ann. time, operated 1986). Greenhouse and Greenhouse testified Dr. Robert Alexander exam- ined her and on her a second non performed surgery. the second County, Brazoria applicable [is] not to the in- writ). (Tex.App.—Texarkana 1989, pursuant no brought stant cause Tort Claims Act plain, because its points error, three UTMB as mandatory and compelling wording.” Id. at serts: denying the trial court erred in its only is the Texas case to con- Sanford motions for judgment directed verdict and directly. front this issue non obstante veredicto because there was no responds evidence UTMB received notice trial Act; properly applied court the trial court rule be applying erred in cause “Texas courts held person rule to the that a Act; incapable who notice is and there was no excused insuf