University of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia Ex Rel. Vasquez-Arancibia

OF TEXAS SOUTH UNIVERSITY CENTER

WESTERN MEDICAL Petitioner, DALLAS,

AT ARANCI OF Irene Esther

The ESTATE Beneficiary Hugo Victor

BIA its Hugo

VASQUEZ-ARANCIBIA, Victor Individually, and

Vasquez-Arancibia, Vasquez-Arancibia, Individu

Cecilia

ally, Respondents.

No. 08-0215. Court of Texas.

Supreme

Argued Sept. 2009.

Decided Oct.

Attorney Abbott, General Greg W. At- Texas, torney Sullivan, General of Kent C. Morales, David S. Attorney Office of the Texas, General of Deputy First Assistant General, Attorney Herrera, Nelly R. Office General, Attorney Giberson, John P. General, Attorney Assistant Litiga- Tort Division, Nava, tion Elsa Giron Office of General, Attorney Ho, James C. Solici- Texas, tor General of Daniel Geyser, L. General, Asst. Solicitor Office of the Attor- Texas, ney General of Clarence Andrew Weber, General, Attorney First Assistant Austin, TX, for Petitioner.

Stephen Khoury, A. Caugh- Lance Eric field, Clark, Khoury Kelsoe Anderson & Dallas, TX, Respondent. for (June 26, 2009), Sellars, County Sup.Ct. Tex. J. Dallas Asst. K. Todd affirm. Dallas, and now Amicus Curiae. Atty., delivered JEFFERSON Justice Chief amendment to Govern- II. The 2005 Court, by Justice joined of the opinion the applies. section 311.034 ment Code MEDINA, HECHT, Justice Justice waiver, en governmental Absent a WILLETT, Justice GREEN, Justice Southwestern, tities, generally im like are GUZMAN, LEHRMANN. and Justice damages. Reata from suits for mune not on the merits turns appeal This Dallas, City Corp. v. Constr. pre- whether claim but on underlying the (Tex.2006). 371, The Texas Tort 374 satisfied, and have been requisites to suit immunity from suit “to act waives Claims not, interlocutory appeal is an if whether liability by created [the Act].” extent of require- the relevant available. Because 101.025(a). § Tex. Prao. & Rem.Code Civ. here, inter- and because met ments were waiver, this advantage take To we affirm appropriate, locutory appeal of a notify government must plaintiffs judgment. appeals’ the court 101.101(a). § Id. within six months. claim reasonably describe the The notice must Background I. incident, injury, place the time and But this for the incident itself. Id. laparoscopic underwent Irene Arancibia “if the mality is not Hos- at Parkland Memorial surgery hernia has oc unit has actual notice that death 4, proce- 2003. The pital September that the claimant has received curred [or] physi- two resident performed dure was 101.101(c). § injury.” Id. some Yau, cians, and attended Drs. Curtis Watson, professor of an assistant by Dr. 2004, the notice In we concluded that gastrointestinal/endocrine surgery in the mandatory, rather requirements were division, Surgery, at U.T. Department of was no jurisdictional, and that there than in Dallas. Arancibia was interlocutory jurisdiction over appellate later, days day. later that Two discharged that denied a unit’s order emergency Parkland’s presented she a claimant’s plea based on jurisdictional Emer- pain. abdominal room with severe provide failure to notice. Univ. of that, during the surgery revealed gency Loutzenhiser, 140 Tex. Sw. Med. Ctr. perfo- bowel had been repair, hernia her (Tex.2004). 351, Shortly 365-66 S.W.3d leading peri- to acute places, rated in two thereafter, Legislature amended following sepsis. tonitis with She died provide that “[statu- Government Code day. suit, including the tory prerequisites to a jurisdictional re- provision of are family initially operating Her sued the them, govern- against nam- in all suits quirements but later nonsuited physicians entity.” in their mental ing Southwestern and Parkland Tex. Gov’t Code § The 2005 amendment did moved to dismiss the 311.034. stead. Southwestern it case, statutory prerequisites; those contending change that the trial court lacked of a failure merely consequence failed stated the jurisdiction because the Arancibias them. The amendment timely comply notice of their claim. provide 1, 2005. Act of September took effect plea, The trial court denied the R.S., 1150, 25, 2005, 455, Leg., 79th ch. May appeals court of affirmed. 3783, review, 2,§ Tex. Gen. Laws granted petition 462. We R.S., plea 1150, 2, Southwestern then filed a 79th Leg., § ch. jurisdiction, contending pre- had no Tex. Gen. Laws presume 3783. We (formal actual) suit notice of the Aranci- prospective statute is expressly unless appeals bias’ claim. The court of did not made retrospective. See Tex. Gov’t Code issue, reach this because it held that this § 311.022. case, years filed before the 2005 amend- ment, governed by was not its terms —an But prospectivity presumption issue that has led to disagree- considerable necessarily does not answer whether the (includ- among ment our appeals courts of amendment governs this suit. Another ing split a between Houston’s First and provides rule that a court is to apply the Districts).1 Fourteenth law in effect at the time it decides the case. If the amendment a applies, lack of Bradley v. Sch. City Bd. of of jurisdictional, notice would be meaning Richmond, 696, 711, 416 U.S. 94 S.Ct. that the trial court dispose could 2006, (1974); 40 L.Ed.2d 476 Tex. Mun. plea case on a to the jurisdiction, and a Agency Power v. Public Util. Comm’n of statutory unit would have a Tex., 184, (Tex.2007) (ex- 253 S.W.3d 198 right interlocutory appeal if the plea plaining jurisdictional statutes should failed. Tex. Civ. Prac. & Rem.Code applied they be exist at the time judg- 51.014(a)(8); Loutzenhiser, § 140 S.W.3d rendered); ment is see also Landgraf v. requirement at 359. If the merely man Prods., 244, 264, Film USI 511 U.S. 114 datory, unit would be enti 1483, (1994) 128 S.Ct. L.Ed.2d 229 (noting summary tled to judgment, but the trial the “apparent tension” between these two court’s denial of that motion could not be maxims). examination, however, On closer

immediately appealed, governmen and the two these rules can be reconciled. See tal unit could waive the issue. Loutzenhis er, 273, Landgraf, 511 at 114 140 at U.S. S.Ct. S.W.3d 1483 (noting that specific legisla- “[e]ven absent Legislature The did not state whether authorization, application tive of new stat- applied prospectively amendment passed utes after the events in suit is retroactively, nor did the act contain a unquestionably proper many situa- savings clause for pending suits. The tions”). A statute operate amendment does not retro- merely provided that it “takes 1, September 25, effect May actively merely 2005.” Act of applied because it is in a (T 212,218 (holding 1. 244 S.W.3d at 459 pp.-Houston that amendment S.W.3d [1st ex.A retroactive”); 2007, denied) (amendment compare was "not pet. Howard v. applies Dist.] Harrell, 07-08-0013-CV, enactment), No. 2009 WL to case filed before and Med. Arts 839048, *3-4, 2322, Robison, 38, (Tex. Tex.App. Hosp. 2009 LEXIS v. 216 S.W.3d 41 (Tex. 31, 2009, 2006, App-Amarillo (same), App.-Eastland *10-11 pet.) Mar. no no and Tex. (amendments pet.) Dep't to section 311.034 do not Criminal v. Justice 197 enacted), 904, apply to case filed (Tex.App.-Beaumont before statute S.W.3d 906-07 336, 2006, Cty. Posey, pet.)(same); Dallas v. 239 S.W.3d 339 no see also Hon. Scott 2007) (same), Brister, (Tex.App.-Dallas vacated on oth Is It Time To Our Courts Reform 22, grounds, Cty. Posey, Appeals?, er Dallas (Mar./Apr. 40 Hous. Law. 25 869, (Tex.2009) curiam), 2003) (per 1 (noting “conflicting interpretations 872 n. Lucero, Houston, especially Tex. Tech Univ. Health Sci. Ctr. v. 234 of the law are acute in 158, 2007, (Tex.App.-El pet. S.W.3d litigation 166 Paso due both volume of in Harris Coll, denied) (same), Baylor County larger uncertainty Med. v. and the as to who Hernandez, 4, (Tex.App.-Hous appeal”). gives will hear the This conflict us 2006, denied) (same) pet. jurisdiction interlocutory ton appeal. [14th Dist.] over this Thomas, 22.225(c), (e). Dep't § Tex. Criminal Justice v. Tex. Gov’t Code applies, the amendment predating from conduct Because arising case provide failure to would purported Id. at 114 S.Ct. 1483. enactment. jurisdiction, trial deprive the court of may interlocutory raised on issue be against retroac prohibition now appeal. We turn Southwestern’s apply does not laws application tive that it actual notice un- contention lacked remedial, stat jurisdictional procedural, Act. der the utes, typically do not because such statutes Power right. vested Tex. Mun. affect a had actual notice III. Southwestern ap Because 253 S.W.3d at 198. Agency, under Government Code section jurisdictional gener rule of a new plication 101.101(c). away right no takes substantive but ally The Tort Act states that Claims to hear impacts power tribunal’s simply gov notice is “if the formal case, normally present governs law unit notice that ernmental has actual death 511 U.S. at Landgraf, such situations. occurred, has the claimant re has (“When intervening 114 1483 the S.Ct. some that the claimant’s injury, ceived or propriety or affects the statute authorizes damaged.” has been property Tex. Civ. relief, application 101.101(c). of the new prospective of § But Prac. & Rem.Code we retroactive.”). Thus, rejected interpretation not an of actual provision is the only that “require[ notice would that a ] of the United States Supreme Court has knowledge unit have of a governmental intervening “regularly applied statutes death, injury, property damage,” or ousting conferring jurisdiction, or whether defendant, a like a hospital, because would lay the jurisdiction underlying when or have “to the investigate then standard of occurred or when the suit was conduct every patient provided care each and 274, 1483. Stat Id. at 114 S.Ct. filed.” treatment,” eviscerating received that the section 311.034—that do not de utes—like requirement’s See purpose. Cathey notice of a parties right the substantive prive (Tex.1995) Booth, 339, v. 900 341 S.W.2d power the the court rather “speak to added). Instead, (emphasis we held that rights obligations the or of the than to know governmental unit had to of its applied parties” may pending be to cases “alleged producing fault or contributing to 274-75, at the time of enactment. Id. at death, injury, property damage.”2 or (noting “[cjhanges 114 1483 that in S.Ct. Id. This standard led to some confusion procedural may applied rules often be in among appeals,3 our courts and we ex with arising suits before their enactment it further plained Department in Texas retroactivity”) concerns raising out about Simons, 140 Criminal Justice v. S.W.3d omitted). (citations agree that We (Tex.2004): 338 here, to do appropriate so and such a Cathey by we intended in the sec- What Quick is not construction retroactive. requirement ond for actual notice was (Tex. Austin, City S.W.3d v. governmental that a unit have knowl- 1999). edge amounts to same notice to Simons, Dep’t held that Tex. v. 2. We also actual notice 3. See Criminal Justice death, (Tex.2004) (collect- unit know of the 345-48 claimed, damages injury, as well as the cases). ing identity parties Cathey involved. Booth, 900 S.W.2d at 341. Southwestern dispute it had notice of does not those matters in this case. 101.101(a). by tioning

which it is entitled section that he would forward the email to That includes awareness of its Department Chair of the Surgery. fault, ultimately by alleged the claim- The responded Chair and discussed sever- ant, in producing contributing al of patients the reasons might present injury. claimed with symptoms more than twenty-four surgery. hours after began, 140 S.W.3d at 347. We observed His email “I that, if today.” unit this heard about this had fault, along awareness of with the other Dr. Watson surmised that the bowel information to which it was entitled under perforation “was a result of a retraction 101.101(a), formal, section then requiring injury out of the field of view.” He stated written notice in nothing addition would do that, subsequent Arancibia’s surgery, further statutory purposes of infor physician “through observed a claims, mation gathering, settling pre through jejunum.”5 hole This was paring for trial.4 Id. records, confirmed surgery which must, then, We decide whether this rec- perforations showed two jejunum. in the ord subjec- demonstrates Southwestern’s thereafter, Shortly upon reviewing Ar- fault, tive awareness of its as ultimately treatment, ancibia’s Watson’s supervisor Arancibias, alleged by the in producing or concluded technical “[a] error oc- contributing to Arancibia’s death. Al- curred during original hernia operation though we have said that actual may resulting in through-and-through small be a question fact when the evidence is injury” bowel manage- and that “[c]linical disputed, id. at pertinent facts ment contributed to” Arancibia’s death. here are uncontested. Dr. Watson was unfortunate, He stated that “[although present during Arancibia’s laparoscopic recognized complication this is a laparo- of death, hernia repair. day The after her scopic hernia surgery. No standard of Watson emailed his immediate supervisor, care issues were upon identified review.” who was chief of the division. The email begins, give you “I up wanted to a heads We conclude that this record shows that on a terrible outcome with a A Surgery Southwestern subjectively was aware itsof patient.” Watson described the surgery, fault, ultimately as alleged by the Aranci- well, which he believed went and Aranci- bias, in producing contributing or to Aran- emergency bia’s return to the room two Although cibia’s death. Dr. Watson’s su- days laparotomy later. A at that time pervisor determined that there were no unrecognized “showed an injury,” bowel violations, standard of care he noted that a and day Arancibia died the next of multi- made, “technical error” was that clinical ple organ failure. Watson’s email conclud- management contributed to Arancibia’s ed, “I already spoken mgt.” with risk death, and that the care “was not neces- supervisor responded, sarily Watson’s consistent with thank- established stan- ' ing Watson for the notification men- dards.” His ultimate conclusion that those 4. We did not jejunum decide whether the TDCJ had 5. The is “the first two fifths of the because, actual notice beyond of Simons's claim in a small intestine the duodenum usu. Simons, day merging case decided the imperceptibly same as we held almost with the ileum thicker-walled, provide though larger, that a claimant’s failure to notice did somewhat deprive jurisdiction. not the trial having court of more vascular more numerous (citing 140 Peyer’s patches.” S.W.3d at 348-49 Univ. circular folds and fewer of Loutzenhiser, Tex.Sw. Med. Ctr. v. Dictionary Webster’s Third New International (Tex.2004)). (2002). 351 incident. provide does actual notice The acceptable not detract were

errors conclude that because dissent would awareness that medical subjective his from investigation internal Southwestern’s Arancibia’s It contributed to death. error care, found no breach the standard that, although Watson said he had true is could not have been aware was no management, risk there contacted contributing producing of its fault in or to he did so what he why evidence But Arancibia’s death. “fault” and his superiors But reported. Watson not defined under Simons is fault as multiple had died of knew that Arancibia ultimately rather al- defendant, but “as by sepsis, that her failure caused organ Simons, 140 leged by the claimant.” places had two jejunum perforated been added). Here, (emphasis at 347 S.W.3d (an surmised injury probably Watson error alleged physician the Arancibias surgical being when tools were occurred and, perforated intestine led Arancibia’s retracted), management risk had and that ultimately, her death. That Southwestern Simons, 140 at 348 been alerted. S.W.3d surgeons’ that its errors caused aware will of- (noting subjective awareness those and that clinical man- perforations all, by proved, ten be “if at circumstantial agement contributed to her death is undis- evidence”). puted. Fault, pertains to actual no as it require purpose The the notice tice, synonymous liability; not rath ment enable units is “to er, for implies responsibility injury guard gather necessary information Thus, have held police claimed. we that a claims, claims, against unfounded settle report showing that barricades were miss Cathey, trial.” prepare of a ing was evidence here S.W.2d at 341. notice satisfied unit’s awareness its fault af formal, requirement; “requiring writ accident, private ter an because “a contrac nothing ten in addition do would (such governmental entity tor or another purpose of the statute.” further Si state) county could as the have been mons, Indeed, at such [missing responsible for the barricades].” exactly notice would state what Southwest City Carbajal, Sup.Ct. Dallas v. 53 Tex. result, already ern knew. And while a bad 2010) curiam). 715, 7, (per (May J. 716 itself, in is not evidence of a breach But that be the case when the sole cannot care, proof of the standard of of actual instrumentality government harm is the case beyond notice in this went mere Here, government has con itself. fact Viewing of Arancibia’s death. evi surgical ceded that error perforated its light dence in the most favorable intestine, resulting Arancibia’s sepsis, in must,6 Arancibias, we Southwestern had failure, organ jury and death. A multiple actual notice as section may government liability absolve the 101.101(c). number any that death for of reasons. government But a cannot evade the deter question IV. need not We reach by subjectively refuting mination fault. party may raise on inter- whether cannot that We conclude Southwestern locutory appeal of sover- an issue in producing was unaware of its fault immunity eign it failed contributing injury alleged. raise in the trial court. approach, only

Under the dissent’s Even it had the assuming unqualified requisite confession of would Southwestern contends fault (Tex.2004). randa, 6. See Tex. & Dep’t Parks v. Mi- Wildlife that the Araneibias did not substitute it as missal. urges us to treat party thirty within days of Dr. Watson’s general Watson’s denial as if it were a motion to dismiss under Tort Claims Act motion, 101.106 triggering the thirty-day section 101.106. See Tex. Civ. Prao. & amended pleading deadline. 101.106(f). § Because South- Rem.Code We conclude that gener- Southwestern’s

western failed to argument raise this 101.106(f) al denial was not a motion. Sec- court, the trial appeals the court of refused 101.106(f) tion lists prerequisites several interlocutory to consider the issue on ap- that must be satisfied before an employee peal. S.W.3d at 461. Southwestern is entitled to employee dismissal. The challenges this argues conclusion and must show that the suit was against filed because we have held that immunity impli- him based on conduct within general subject jurisdiction, cates matter may we scope of employment his and that it could reach interlocutory appeal issues the brought been under chapter 101 parties failed to raise the trial court. against only. unit The Araneibias disagree, contending that id. Watson’s motion attached an affidavit immunity standing, is different from ripe- stating he acting within the scope of ness, or other involving subject matters employment Southwestern; his his jurisdiction, matter and interlocutory ap- answer did not. peal is different judgment. from final Watson’s incorporated motion portions We need not today. resolve this issue of Arancibia’s petition argued that the argument The 101.106 fails as a matter of claims alleged she were ones that could if law even Southwestern could raise the have been brought against Southwestern issue for the interlocutory first time on instance; in the first his answer did not. appeal. Watson’s motion was entitled “Motion to Dr. V. Watson’s answer was not a Dismiss Pursuant to TCPRC Section 101.106motion. 101.106”; his answer was not.7 101.106(f) requires Section The motion attached a blank fiat setting motion, employee’s “[o]n the suit hearing; the matter for the answer did against the employee be shall dismissed” not. unless pleadings naming amended the gov parties’ agreement Rule 11 stated ernmental unit as a defendant are filed 101.106(f) that Dr. Watson would not file a thirty days. within Tex. Civ. Prac. & Rem. motion January (long before after 101.106(f). § Dr. Watson moved to Code answer). he had filed his While against dismiss the case him January agreement bearing has no on whether the 20, later, 2005. Eight days the Araneibias motion, answer was a it shows that filed their petition naming amended South parties certainly did not consider it as western as a defendant. such. Nor do we. argues Southwestern that the Araneibias thirty-day failed to meet the Watson’s answer bears little deadline be- resem- cause the last sentence of Dr. blance to the motion he subsequently. Watson’s filed (and answer prayer), Pleadings give claim, his filed months ear- must fair notice of a lier, mentioned prayed 101.106and for dis- and we must construe them “so toas do Answer, “Original 7. It was titled Abatement Petition.” Special Exceptions and Original to Plaintiffs' timely, actual notice of the P. 45. western had Tex.R. Civ. justice.”

substantial 101.106(f) meaning claim within the a mo- Arancibias’ the answer as Construing Tort Act. with this rule. Claims comport not tion would 101.106 assuming Southwestern’s Even I. us, before Wat- properly was complaint family give a motion to dismiss The Arancibia did not was not answer son’s 101.106(f). Southwestern, Hospi- Parkland of claim to under section

tal, surgery performed, where the VI. Conclusion the first any performed of the doctors who months after surgery until over seven interlocu- right had the

Southwestern 7,May a letter By Irene’s death. dated it also had actual notice but tory appeal, Watson, 2004, they notified Dr. Mark who timely substitution after section and a surgery, Irene’s supervised had affirm the court of motion. We 101.106 60.2(a). family pursue legal intended to action. On Tex.R.App. P. judgment. appeals’ 3, 2004, daughter

August Irene’s son delivered Justice JOHNSON Dr. Watson and the doc- against filed suit joined by Justice opinion, dissenting Drs. performed surgery, who had tors WAINWRIGHT. Yau, individually. They al- Curtis ways in several the doctors leged JOHNSON, joined by Justice Justice of care and applicable breached standards WAINWRIGHT, dissenting. caused Irene’s death. On the breaches pre- that the Tort Claims Act’s agree I 28, 2005, the Arancibias amended January jurisdictional to suit are requisites They pleadings. their added Southwest- And because the Arancibias’ claim. County Hospital Dallas District ern and give timely formal no- did Arancibias (collectively, the Hospital Parkland d/b/a required by claim as the Tort tice of their entities) as defendants dismissed Act, immunity Southwestern’s Claims U.T. pled The entities lack of notice doctors. only if it had actual from suit was waived Act sought under the Tort Claims dis- the Arancibias’ claim as the term notice of immunity. sovereign missal on the basis of in the Tort “actual notice” is used Claims juris- court the entities’ The trial denied In for Southwestern to Act. order pleas appeals dictional and the court of timely, it had to have had actual affirmed. S.W.3d at fault in subjective knowledge that was Only petition filed a for Arancibia’s death. See Tex. causing Irene asserts, in part, sovereign 140 review. It Dep’t Justice v. Criminal (Tex.2004). immunity bars the Arancibias’ claims be- The basis prerequisites cause section 311.034 makes the Arancibias’ claim that Southwestern jurisdictional, to suit see Tex. Gov’t Code surgeons was at fault is that the who first 311.034, admittedly § her the Arancibias failed negligently on Irene caused operated breaching give timely notice of claim under section applicable death standard 101.101(a), identify The evi- see Tex. Civ. Prac. of care. Court does & Rem.Code 101.101(a), § did not injuries knew the and Southwestern dence that Southwestern pursuant have actual notice of the claim by Irene caused breach of a stan- were 101.101(c). 101.101(c). § id. it therefore had section dard of care and that urge In the Arancibias that for- response, awareness it was at fault actual Thus, was not re- I mal notice to Southwestern causing disagree Irene’s death. sued the doctors quired they because first with the conclusion that South- Court’s entities, (1) individually opposed as death, and have “knowledge of injury, or reading (2) the Tort Claims Act to require property damage; governmental the pre-suit notice to Southwestern under such alleged unit’s fault producing or contribut- yield circumstances would an absurd re- death, ing to injury, the or property dam- They sult. also claim that Southwestern (3) age; and identity the parties of the had actual notice of their claim so formal involved.” Id. at 341. 101.101(a)

notice under section was not The Court clarified the second element required. of this governmental standard —the unit’s alleged fault producing or contributing to II. death, the injury, or property damage —in 101.101(a) Section of the Tort Claims Simons, a case strikingly similar to the Act general the rule that establishes time- case before regard us in to whether the ly notice of a claim given must be to a governmental entity had actual notice of governmental entity a prerequisite its fault. See 140 S.W.3d 338. In against suit that entity: a work crew from the Terrell Unit of the A unit is entitled to re- Department Texas of Criminal Justice was ceive notice of a against claim it under digging postholes using an auger attached chapter this not later than six months (PTO) to power take-off mounted on the day after the giving incident rear of a tractor. auger became stuck rise to the claim occurred. The notice ground, in the so the PTO disengaged reasonably must describe: and a pipe wrench was attached to the (1) claimed; the damage injury auger in an attempt to back the auger out (2) incident; the time place and of the ground by hand. The work TDCJ and supervisor, Canon, Ron left the area of the (3) the incident. auger, went to the tractor re-engaged 101.101(a). § Tex. Civ. PRAC. & Rem.Code the PTO. Simons was struck in the head notes, As the Court the purpose of the and severely injured when auger rotat- requirement “is to ensure prompt ed and the pipe swung wrench around. reporting of gov claims order to enable immediately investigated TDCJ ernmental gather units to information nec took statements from Canon and all the essary claims, to guard against unfounded work crew. The statements and the re- claims, settle for trial.” prepare Cath port of the accident submitted the pris- Booth, (Tex.1995) ey v. safety officer indicated that when Can- Torres, (citing City Houston v. on went back to the re-engage tractor to (Tex.1981)). PTO, pipe wrench had been taken Even absent the formal notice of claim off the auger, the workers had been told 101.101(a), required by however, section auger, stand clear of the and Canon looked 101.101(c) section waives a engaged back before he auger entity’s immunity entity if the “has actual could see Simons but could not see that occurred, notice that death has wrench, pipe being instead of off the claimant injury, has received some or that auger, the auger. was on Id. at 339-41. property claimant’s has been dam- aged.” days accident, Three after prison Tex. Civ. Prao. & Rem.Code 101.101(c). § In Cathey, the safety Court held officer and the regional TDCJ safe- to have ty actual notice under section officer took a statement from Simons 101.101(c), governmental the unit must who in hospital prescrip- was the and on a safety committee. that to the unit’s opined the submitted reliever. Simons pain

tion was “kinda Depart- the tractor the operating put sufficient to person That putting the Simons remembered fault, new.” is inquiry possible of its ment making one auger on the and wrench pipe the existence the by demonstrated out, auger and he turns to back the or two safety actually review conducted. say hearing anyone remember not did the investigate did accident Department that he opined He also did clear.” “stand the it needed to gather and information he did not anyone injury, for his not blame defend Simons’s claim. good lose get to in trouble or anyone want explained: disagreed Id. This Court it, it a mistake “a over was time at 339- a mistake.” 140 S.W.3d is mistake Cathey by we in the What intended Thus, unquestioned, there an was requirement for actual notice second injury from a that resulted unintended governmental unit that a have was re- act of employee’s intentional TDCJ the knowledge amounts to same that wrench was pipe the PTO while a engaging to which it is entitled section notice was auger, the wrench out attached 101.101(a). subjective includes That view, and field of the employee’s of the ultimately fault, as al- awareness itsof injury to the a injured person attributed claimant, leged by producing the directing blame toward “mistake” without injury. contributing to claimed a the If anyone specific. governmental unit has this appeals that TDCJ The court held fault, along awareness other notice the Tort Claims had actual under it entitled which is un- information v. Si Dep’t Act. Tex. Criminal Justice 101.101(a), requiring der section then mons, (Tex.App.-Beau 74 S.W.3d formal, written in addition would (Tex. rev’d, 2002), mont purpose nothing do further 2004). conclusion, reaching In it noted its is, govern- “to enable statute —which injury, there was an unquestioned that to gather mental units information nec- employee re-engaged TDCJ had PTO essary guard against unfounded and an investi injury, that resulted claims, claims, prepare settle gation accomplished put was that TDCJ on enough govern- It is that a trial.” inquiry possible of its fault: investigated mental unit should have rec- its that its support argument To have, prudent would person incident as not raise issue on notice of ords do a fact upon relies culpability, Department investigate, perhaps that it did it after it com- the conclusion reached procedures, or part safety routine pleted investigation its incident. it should known in- have from only with the We are concerned here it vestigation might it conducted possible its Department’s realization of been at If a fault. is, Depart- culpability, whether fault, subjectively aware of its unit is not realized that be accused of ment it could not have the same incentive to does arising accident.... negligence from the gather information that statute safety con- Department’s officers [T]he when it designed provide, even would investigation ducted an of a extensive to believe not be unreasonable injury while the serious that occurred unit at fault. operating inmates were motor-driven (emphasis 347-48 S.W.3d at machinery in a work detail. supervised added). Reports promptly were prepared

Proof of a defendant’s fault in a health requirements notice of section 101.101 do liability care claim does not on depend not to apply against suits employees sued proof ordinary negligence, such as fail- individually and they because first sued ing injured to assure that no one would be the doctors individually, interpreting the by the auger pipe an attached wrench require Tort Claims Act to notice to the when a PTO on a tractor was but engaged, doctors’ governmental-entity employers is dependant proof is rather that the de- unreasonable and They absurd. argue fendant applicable breached an standard of plaintiffs will not generally give notice care. See Tex. Civ. Prao. & Rem.Code they when government sue employees indi- § 74.351 (requiring timely service of a re- vidually they because are required to. port providing expert’s opinion regard- Thus, case, generally as will be the if care, ing applicable standards the man- given notice has not been entity, ner in which the care rendered then requiring entity to physician or provider health care to failed be employee substituted for the is unfair standards, meet the causal rela- requires a futile action because tionship between that inju- failure and the entity will do what Southwestern has done harm, ry, claimed); damages Murphy here and assert its lack of notice. The Russell, (Tex.2005). 167 S.W.3d Arancibias, however, point do not to any Then, if breach of a standard of care is language the Tort Claims Act that indi- shown proved and is also that the breach Legislature cates the intended section proximately injury, caused the the defen- 101.106 to dispense with the notice re- may dant be damages. found liable for quirements of section 101.101. Zandt, E.g., Hart v. Van (Tex.1965) (noting that it enough is not In responding, Southwestern makes four negligence a medical case to show an (1) 101.101(a) arguments: section specifies injury injury and that the might have oc- that it applies any to claim against gov- curred because of a doctor’s negligence). entity ernmental chapter,” “under this case, In this allege Arancibias that the statutory the clear language contains no surgeons operated who first on Irene were (2) exceptions; Legislature did not in- they at fault because breached standards plaintiffs grant tend to allow themselves course, They allege, of care. also an exemption requirement from the notice the breaches caused her death and South- first, by suing employees and to do so western is liable for surgeons’ fault or makes no sense because regardless of negligence. when governmental entity is sued it still investigate needs so it can

III. (3) claim; the Arancibias’ interpretation A. requirements would eviscerate the notice they Arancibias first claim that of section 101.101 because a plaintiff who were not give notice of claim to give failed to notice initially could sue an Southwestern at they all because first sued employee, individual wait for the inevitable individually. disagree. the doctors I employee pursuant motion to dismiss the 101.106(f) to section and then sue em- Under section 101.106 of the Tort (4) unfair, Act, ployer; and it is not as the plaintiffs Claims must elect to sue claim, Arancibias government require either or their all claimants employees em- ployers. give pursuant notice to section Tex. Civ. Prao. & Rem.Code 101.101(a) § 101.106. The requirement Arancibias assert that the —the the first something wrong during simple and done compliance and clearly stated not evidence that Southwestern surgery is inexpensive. it was at fault subjective knowledge had There nois Southwestern. agree I did not iden- causing Irene’s death. Victor indicating Act Tort Claims in the language who made the statement tify surgeon the 101.106to intended section Legislature the surgeon evidence the was and there is no governmental entities to sue persons allow or that the employee of Southwestern statutory Regard- notice. giving without imputed should be surgeon’s opinion concerns, construing less of the Araneibias’ Further, “in the whether Southwestern. they language Act’s as Tort the Claims somebody something operation did first would, purposes, ne- practical for all urge Everyone the issue. very wrong” is not requirements of section the notice gate were an perforations that the colon agrees 101.101(a). give Plaintiffs who failed and undesirable result. unintended a required could sue notice of claim as subjec- had is whether Southwestern issue individually, wait employee surgeons that the breached knowledge tive dismissal, to move for employee the lapa- appropriate of care a standard thereby avoid- employer, then sue the That issue was not ad- roscopic surgery. Thus, I requirements. ing the attributed by the statement Victor dressed regardless of the fact that would hold that surgeon. to the unknown against first filed suit Araneibias doctors, individually, the Araneibias must the actions of the imme- As for doctors Dr. e- prerequisites diately the notice after Irene’s death Watson still have satisfied Living- Dr. supervisor, in order to maintain mailed his Edward 101.101 of section ston, Endoc- Chief of Gastrointestinal against their suit Southwestern. Southwestern, Surgery

rine Division at B. Rege, and Dr. Robert Chair both Surgery at Southwestern Department of urge Araneibias to actual As Surgery the Division of at Parkland supervisor that Dr. e-mails to his Watson’s Dr. Watson Hospital, about the situation. subsequent investigation prove, or and the out- about, Irene’s death as a terrible described question a fact at least create come, noted that he had “scrubbed the had whether Southwestern well, it went procedure,” thought entire They rely fault. also knowledge of its Livingston Rege and advised Drs. Arancibia that one of testimony by Victor already spoken manage- with risk he had the corrective surgeons performed who ment. hospi- Irene returned to the surgery after “somebody something did tal told Victor re- possible three-step Parkland has a during surgery the first

very wrong” place takes when an process view get lawyer. a Victor should care occurrence is unexpected patient a fact argues this evidence does raise step The first is initial screen- identified. question regarding whether Southwestern quality management ing by hospital’s subjectively knew that breach of a stan- physi- team. The second is referral care, ultimately claimed dard of as if certain monitoring cian or committee Araneibias, caused Irene’s death. screening pro- in the criteria are identified by Divi- First, testimony step The third is review Arancibia’s cess. Victor (corrective) if the second- surgery, sion Peer Review Committee following the second monitoring reviewer or step physician told that he surgeons one of the Victor recommends. had committee so lawyer should find a because someone Livingston assigned death, Dr. to review ment about Irene’s evidence that an surgery part quality employee of Parkland’s agent contacted an enter- process.1 control His review was the sec- prise’s management risk department is not three-step ond of the process. The docu- evidence that the employee anyone or else by ments used Dr. in Livingston making subjectively believed the enterprise was at report preprinted specific his were fault. Most entities any significant size questions aspects pa- about most of the management risk departments and tient’s care. He answered in require one instance accidents or unusual incidents to management contributed be reported “[c]linical to the risk management team. to” death explained Irene’s his answer The reporting requirement generally ex- by who, a narrative that “a technical error oc- regardless ists if anyone, is sus- during original curred operation pected hernia of being at fault in causing the resulting in a through-and-through small accident or incident. injury.”

bowel In regard questions The Arancibias point to the fact that Dr. management, to medical he checked Watson contacted risk management, but = box in response “No” “Criteria the record does not contain evidence ex- Practice consistent with established [was] why plaining he made the contact or what Physician standards. Reviewer comforta- he reported to risk management. For ex- practice. ble with Practice Acceptable.” (1) ample, there is no evidence of whether However, he checked the in “Yes” box Dr. Watson management contacted risk = regard to “Criteria 2 practice Reviewed pursuant protocol to routine because a not necessarily consistent with established death was involved or because of the unex- standards, acceptable. but still Physician (2) outcome, pected patient his contact was practice. Reviewer comfortable with Prac- not routine but was out of an abundance of Acceptable.” tice He checked additional caution, (3) his contact was because he boxes to indicate that the prac- reviewed subjectively believed a of appropri- breach tice did not deviate significantly or deviate ate standards of care caused Irene’s death. from established standards or that the Although Dr. Watson could not recall what practice unacceptable. was He included a management, he told risk the evidence is narrative findings/conclu- statement of his undisputed reported Rege that he to Drs. sions in which he said that the unfortunate Livingston that he believed the sur- occurrence was a recognized complication gery went well perforations and that the laparoscopic surgery hernia and no could have been injuries retraction standard of care issues were identified. occurred out of the field view of the He did not recommend further review of surgeons. Absent evidence of the reason Allen, the case. See Roark v. 633 S.W.2d Dr. Watson management contacted risk (Tex.1982) 804, 811 (holding there was no reported, what he the fact the contact took evidence that a negligence proxi- doctor’s place does not raise inference that he mately injury caused the forceps when believed Irene’s death was due to a breach slipped during delivery baby’s and a skull of applicable alleged standards of care as fractured). any the Arancibias more than it raises In regard to Dr. Watson’s e-mail state- an inference that the prod- contact was the ment that he had manage- contacted risk uct of protocol routine or some other rea- parties stipulated Livingston’s 1. The that Dr. western had actual notice of the Arancibias' investigation findings could be consid- claim. purpose determining ered for the if South- laparoscopic hernia sur- Lozano, complication 52 S.W.3d Lozano son. Cf. C.J., concurring were (Tex.2001) in “no of care issues (Phillips, gery and standard (noting Roark, at 811. dissenting part) part and identified.” species rule is a review equal inference no further He recommended that circum- rule “when the taken, step no-evidence none The third be was. any plau- slight that evidence is so follow-up stantial quality management Parkland’s guess, it is in purely inference is sible is no and there process was initiated evidence”). no For same legal effect any investigation of that further evidence reasons, that Dr. Wat- the fact foregoing made. nature was manage- with risk reported his contact son the actu- recently The Court considered Rege, and without Livingston to Drs. ment setting in a care notice issue non-health al more, not an inference that support does Carbajal, 324 S.W.3d City in Dallas v. of subjectively believed any of the doctors (Tex.2010). There, sued plaintiff the 537 appli- to a breach of Irene’s death due she drove injuries she suffered when of care. cable standards roadway in the in a construction gap into a Living- are Dr. Next to be considered City officer police area. A of Dallas report. The evi- investigation and ston’s The investigated the accident. promptly dies, patient a shows that when dence the report officer’s written indicated is to procedure Parkland’s standard an unbarricaded plaintiff through drove management quality reviewed for the case year after plaintiff The sued over a area. Dr. Liv- There no evidence purposes. is accident, timely given but she had pursuant than ingston’s review was other The trial City. notice of claim the formal con- procedures. report standard His jurisdic- City’s plea court denied the that, in isolation language tains considered timely on lack notice under tion based context, an infer- might support or out of ap- the Tort Act and the court Claims he a belief developed ence that appeals’ affirmed. The court of peals surgeons may have been at fault. For immediate City’s turned on the opinion manage- he indicated example, “[c]linical occurred, the notice that an incident had death, contributed Irene’s “a ment to” entity responsible evidence lack of of a origi- during technical error occurred City, City’s than the knowl- other operation resulting in nal hernia in matter: edge possible of its fault injury,” small bowel through-and-through report City police here shows [T]he in response and checked the “No” box incident had immediate notice of the =1 Practice consistent with es- “Criteria possible failing its in to block fault Physician tablished Reviewer standards. barri- gap properly the road with Practice Ac- practice. comfortable [Tjhere here .... no evidence cades is considering But in all the ceptable.” evi- entity than the responsible of a other dence, must, Livingston’s as we Dr. ex- City, police making and the officer opinions his planatory giving statement entity.... is an report employee of disregarded. and conclusions be cannot report here more than police [T]he Wilson, City See Keller v. descrip- notice of an or a just accident (Tex.2005). 802, 824-25 He checked boxes condition; police tion of a road it is specifically indicating Irene’s death was report perception officer’s of her not the result a breach of standards of cause of the accident. care and a narrative statement on the clearly City Carbajal, Dallas v. opinion form he set out his that the rev’d, 2009), recognized (Tex.App.-Dallas unfortunate occurrence was (Tex.2010) added). (emphasis S.W.3d 537 no standard of care violations. Based on appeals’ reversed the court of Dr. Livingston’s recommendation, Court so, In judgment. doing quoted step the Court third quality Parkland’s manage- emphasized process some of the ment review previously- did not occur. And quoted language from there is no evidence Simons: that before the Aran- finally cibias sent their letter notice to Dr. enough

“It is not that a Watson more than seven months after investigated unit should have an incident death, Irene’s Southwestern believed it ..., investigate, perhaps or that it did should take gather action to information part safety procedures, of routine “necessary guard against unfounded that it should have known from the in- claims, claims, settle prepare for tri- vestigation it might conducted that al.” Cathey, 900 S.W.2d at 341. have been at fault. If a governmental fault, subjectively unit is not aware of its holding today The Court’s does not take it does not have the same incentive to into account the nature of determining gather information that the statute is “fault” in health care cases. All the phy- designed provide, even it when would recognized sicians that the unrepaired not be unreasonable to believe that the perforations and Irene’s death were bad governmental unit was at fault.” results. But although always there is pos- sible, potential, Lability for a bad health Carbajal, (quoting S.W.3d at 538 Si result, care mons, 347-48). a bad result simply is not 140 S.W.3d at The Court evidence that a health care provider was police concluded that report “[w]hen at fault because standards of care were governmental does not indicate that breached. The Arancibias fault, dispute Dr. unit was at the governmental unit Livingston’s little, opinion, they but do point if any, has incentive to investigate its any reason Southwestern to potential liability have because it is unaware subjectively disbelieved sincerity of his liability that is even at issue.” Id. at 539. findings and conclusions. Nor they do reasoning That same apply should refer to evidence that Southwestern or Arancibias’ claim. any physicians of its discounted Dr. Liv- Livingston Dr. designated to inves- ingston’s investigation opinion oth- tigate the care Irene received and deter- independently subjective erwise formed a mine whether breaches of applicable stan- belief that surgeons perfor- caused the dards of care occurred as part routine by breaching any ations standards of care. procedures. His report shows that he rec- Thus, there is no evidence that Drs. Wat- ognized perforations in Irene’s bowel son, Livingston, Rege, or Southwestern errors, were technical yet it also shows his subjective knowledge had or belief that opinion was that the perforations were a the surgeons and Southwestern were at recognized complication surgery regard fault in to Irene’s death —and until Irene underwent and were not outside the today knowledge such has been accepted boundaries of standards of care. litigant for actual notice when a fails to He made an unambiguous hand-written give timely formal notice of claim. summary statement to that effect and rec- ommended that no further review of the In the Court stated that “a place. matter take Livingston Dr. ex- acquire unit cannot actual plained reasoning his deposition merely by conducting his and notice an investiga- tion, maintained that his report correctly by obtaining set or even information subjective opinion out his reasonably suggest that there were would culpability. its actual, unit must of its in the fault awareness at 348. And Car- 140 S.W.3d matter.” rejected argument

bajal, the Court knowledge by of the facts

that immediate together the ab- City Dallas par- of other responsible evidence

sence of knowledge of fault possible

ties and its missing was actual barricades

because at 539. The Court

notice. reject argument

should likewise actual had notice because knew of undetected injuries

knew of po- technical errors that

and uncorrected generate allegations

tentially could caused were breaches injuries of care.

standards

IY. statutory jurisdic- notice is agree

I the Tort Claims Act as it

tional under case. I would that the

applies to this hold dispositive:

notice issue is

did have actual thus the Aranci- to, not, but give

bias were did notice. I reverse the

timely formal would of appeals of the court and dis-

judgment suit against

miss the Arancibias’ South- jurisdiction. lack of

western for and Barbara

Millard VAUGHN Petitioners,

Vaughn, Mary DRENNON and

Paul

Drennon, Respondents.

No. 10-0226.

Supreme Court of Texas.

Oct.

Case Details

Case Name: University of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia Ex Rel. Vasquez-Arancibia

Court Name: Texas Supreme Court

Date Published: Oct 22, 2010

Citation: 324 S.W.3d 544

Docket Number: 08-0215

Court Abbreviation: Tex.