In University of Texas Health Science Center at Houston v. Cheatham, the appellate court considered the dismissal of a plaintiff’s health care liability claim based on immunity. The plaintiff had received a partial left heart bypass surgery by two employee doctors at the Health Science Center in 2008. Nurses helped doctors perform the procedure.
After the procedure, the plaintiff was X-rayed. The X-ray showed something metallic embedded within the plaintiff’s chest. He was taken back to the operator room, and the metallic object was a surgical needle. The plaintiff sued the doctors, alleging that they negligently left the needle in his chest. The doctors moved to dismiss on the grounds that they were government employees. The lower court granted the motion.
The plaintiff then filed an amended complaint, adding the Health Science Center as a defendant. The Health Science Center argued it was also immune. It claimed that the plaintiff had failed to give formal or actual notice as required by the Texas Tort Claims Act. It also filed evidence to support its plea to the jurisdiction. The plaintiff didn’t contest the evidence as inadmissible. The trial court denied the plea, and the defendant appealed.
The main issue on appeal was whether the defendant had received formal or actual notice of the plaintiff’s claim under the Tort Claims Act. The appellate court explained that agencies of Texas, including the Health Science Center, usually are immune from suit and liability, except when liability is waived.
Under the Tort Claims Act, there are a number of limited immunity waivers. For example, a governmental entity can be liable for a personal injury that is caused by use of tangible personal or real property or a condition, if the governmental entity would be liable as a private person under Texas law. In order to fit within this waiver, a plaintiff needs to give the governmental entity notice of its claim not later than six months after the event that forms the basis for the claim, before filing suit. The notice needs to describe the injury, the time and place of the event, and the event that gives rise to liability.
If this notice isn’t given, the case can be dismissed for lack of subject matter jurisdiction. However, these notice requirements don’t apply if the governmental entity has actual notice of the plaintiff’s injury, death, or property damage.
In this case, the plaintiff hadn’t given formal notice, but he argued that it had actual notice. The appellate court explained that a governmental entity has actual notice of an injury if the entity knows of the injury, death, or property damage; the governmental entity was at fault in causing the injury, death, or property damage; and the identity of all the parties can be shown.
However, simply knowing an injury has happened doesn’t mean the entity has actual notice. It’s insufficient that the entity should have investigated the accident. Instead, it has to have subjective awareness of its fault, as alleged by the claimant, in producing the injury.
In this case, the Health Science Center had provided deposition testimony, affidavits, medical records, and the report of the plaintiff’s medical expert. The plaintiff relied on this evidence to argue there was a factual issue that precluded the claim being dismissed. Among other things, the doctor had testified that the needle had been left unintentionally in the plaintiff’s chest. He also testified that doctors don’t close a surgical incision until the nurse reports three times that the surgical needles are accounted for.
The expert had testified that the standard of care required those in the operating room to ensure there were no foreign materials left in a body cavity. He also testified that in this case, the standard of care was breached.
The appellate court explained that the doctor’s knowledge was imputed to the Health Science Center, but in this case, this was only knowledge that the plaintiff had suffered an injury because a needle was accidentally left in his chest. The Health Science Center didn’t have subjective awareness of how this occurred, nor did it believe itself responsible. Therefore, it didn’t have actual notice. It ruled that the lower court had erred in denying the defendant’s plea to the jurisdiction and dismissed the plaintiff’s claim.
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