Actual notice under Tort Claims Act requires more than a bad result, but a subjective signal of fault says Houston Court of Appeals

The University of Texas Health Science Center at Houston v. Teresa McQueen et al. 14-13-00605-CV (Tex. App. – Houston [14th Dist.], May 6, 2014).

This is a Texas Tort Claims Act case where the primary issue is whether the entity had actual notice of a claim since the Plaintiff failed to provide written notice within statutory time period. The 14th District Court of Appeals held the Hospital did not have subjective awareness necessary for actual notice of the claim, reversed the denial of the plea to the jurisdiction and dismissed the claims.

Teresa Queen underwent a hysterectomy at the hands of doctors from the University of Texas Health Science Center at Houston (“UTHSCH.”)  Afterwards she discovered a perforated bowel which apparently resulted from the surgery and brought suit. Queen did not file a formal written notice of the claim within the statutory 6 month period so UTHSCH filed a plea to the jurisdiction which the trial court denied.

Queen asserted no written notice was required since UTHSCH had actual notice of the claim by receiving medical records from her bowel perforation after the surgery and provided notice to one of the doctors (Dr. Schneider) under Tex. Civ. Prac. & Rem Code §74.051 (medical malpractice statutory notice provision) within six months. UTHSCH asserts it had no subjective awareness of UTHSCH’s fault. The court noted the key question is whether the medical records and Dr. Schneider’s knowledge, assuming it is properly to be imputed to UTHSCH, constitute the requisite level of “subjective awareness” to put UTHSCH on actual notice of its fault. The court went through the facts, noting the numerous mentions that the actual cause was unknown and that bowel perforation was a complication of this type of surgery which does not indicate a standard of care failure. Schneider did not know what caused the perforation and did not attribute it in any way to anything she or anyone else particularly did or failed to do. “While we acknowledge that ‘an unqualified confession of fault’ is not  required, and that ‘a government cannot evade the determination [of liability] by subjectively refuting fault,’ we conclude there must exist something in the circumstances to provide a subjective signal to the governmental unit within the six-month period that there might be a claim, even if unfounded, at issue. There must be something more than the mere fact of a ‘bad result,’ even one that perhaps a prudent person or physician would have investigated.”  In short, the record does not support actual knowledge on the part of UTHSCH, so the trial court lack jurisdiction.

The dissent felt UTHSCH did not negate actual knowledge as alleged in the complaint. Based on the evidence, Justice Christopher believed Queen raised a genuine issue of material fact precluding the grant of the plea.

If you would like to read this opinion click here. If you would like to read the dissent click here. Panel: Justice Boyce, Justice Christopher, and Justice Brown. Opinion by Justice Brown, dissent by Justice Christopher. The attorney listed for UTHSCH is Bridget Lynn McKinley.  The attorney listed for the Queens is Joseph Michael Gourrie.