References in medical records were insufficient to provide Texas Tort Claims Act notice of claim says Fort Worth Court of Appeals

University of North Texas Health Science Center v. Jessica Jimenez, Jennifer Galo, Catherine Frank, in Their Individual Capacities, and William Tyler II, as Independent Administrator of the Estate of Pamela J. Knight, Deceased, 02-16-00368-CV (Tex.App— Fort Worth, August 3, 2017)

In this Texas Tort Claims Act (“TTCA”) notice case, the Fort Worth Court of Appeals held information within medical records was insufficient to qualify as §101.101 actual notice to the entity of its fault.

Pamela Knight was treated at the University of North Texas Health Science Center (“UNT”) by Dr. Yurvati. Knight previously underwent weight-loss surgery but developed complications. Dr. Yurvati performed corrective surgery. Within one week of the corrective surgery Knight experienced a severe decline. Tests revealed a leak in her esophagus that, according to Appellees, resulted from an esophageal perforation which occurred during Dr. Yurvati’s corrective procedure. Ultimately Knight died. The family sued UNT for medical negligence. UNT filed a plea to the jurisdiction asserting, among other things, the Appellees failed to provide timely notice under the Texas Tort Claims Act. The trial court denied the plea and UNT appealed.

It is undisputed the Appellees did not give any formal written notice to UNT regarding the claim prior to the 6 month deadline, so the analysis focused on the “actual notice” prong under the TTCA. The Appellees contend Dr. Yurvati’s postoperative report written 4 days after surgery contains entries which satisfy Tex. Civ. Prac. & Rem. Code §101.101(c) for notice. Specifically, Dr. Yurvati notes a “tear” did occur but was corrected during surgery. It also notes the tear appeared to already be present and did not occur due to any actions performed during the surgery. The court notes a “tear” and a “perforation” do not appear to be medically identical but held the distinction was one which did not need to be examined in order to rule. For actual notice to be present, the entity must have a subjective awareness of its fault in causing the injury. After reviewing the medical records, the court stated it could not find any references or indications which rose to the level of providing UNT actual notice of its own subjective fault in causing the injuries. [Comment: I personally liked footnote 6 where the court noted “The medical records might imply, at least to laymen like us, that esophageal perforations do not occur without human agency, but that is not the same as the kind of evidence from which actual notice can be fairly assumed…”].  The court went on to analyze whether the knowledge of individual employees can be imputed to the entity. In some situations, such individual knowledge can qualify. However, physicians, by their very nature, do not have a duty to gather facts and investigate incidents, which is a requirement to impute knowledge. As a result, the plea should have been granted.

If you would like to read this opinion click here. The panel includes Justices Walker, Gabriel, and Kerr. Justice Kerr delivered the opinion of the court. Attorney listed for the University is Nichelle A. Cobb. Attorneys for Ms. Jimenez et al., are Stephen C. Maxwell and Daniel P. Sullivan.