Opinion
No. 01-09-00064-CV
Opinion issued October 1, 2009.
On Appeal from the 56th District Court, Galveston County, Texas, Trial Court Cause No. 07CV0675.
Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
MEMORANDUM OPINION
Appellant, The University of Texas Medical Branch at Galveston (UTMB), appeals the trial court's denial of its plea to the jurisdiction and motion to dismiss, arguing that governmental immunity bars the claims of appellee Dawn Nico Brisco.
We reverse and render a judgment of dismissal.
Background
On April 19, 2005, Brisco had vocal-cord surgery at UTMB. Her symptoms persisted after surgery, and Brisco sought additional medical care from UTMB doctors through early 2007. In November 2006, Brisco consulted with a voice specialist, who concluded that Brisco "sustained severe scarring of the soft tissues" as a result of her vocal-cord surgery. In August 2007, Brisco was diagnosed with laryngeal cancer.
Specifically, the surgeons performed a micro laryngoscopy with micro flap dissection of bilateral true vocal cords and suction of Reinke's edema.
Meanwhile, on April 16, 2007, Brisco's attorney notified UTMB by letter that Brisco was pursuing a health-care liability claim. The notice letter stated, "On April 19, 2005, Dawn N. Brisco was admitted to [UTMB] for treatment of bilateral true vocal cord epitheliad damage and Reinke's edema. As a result of the negligence of the hospital, Ms. Brisco suffered injury." On June 15, 2007, Brisco sued UTMB and two treating physicians. Brisco alleged, "The care or treatment consisted of micro laryngoscopy with micro flap dissection of bilateral true vocal cords and suction of Reinke's edema; all beginning on or about April 19, 2005 and continued until March of 2007." Brisco further alleged:
Defendant's [sic] jointly and/or severally [sic] failure or refusal to properly diagnose, treat, provide care and adequate follow up care, inform, consult with specialist and refer her to a specialist for further medical diagnosis or treatment. Further, Plaintiff would argue and urge that the injury and damage to Plaintiff's vocal cords was due to an Airway Fire, which occurred during the laryngoscopy. Plaintiff states that the specific acts and omissions of the Defendants were the proximate cause of said injuries.
Brisco specifically alleged eight failures by UTMB to take some action and one instance of performing "needless and unnecessary micro suspension laryngoscopy or laser surgery." Brisco alleged that UTMB was negligent:
(1) In failing to warn the Plaintiff during the existence of the hospital-patient relationship of the dangers resulting from University of Texas Medical Branch at Galveston and University of Texas System's incompetent treatment;
(2) In failing to properly perform the medical treatment necessary to the Plaintiff's welfare according to the standards set by the medical profession;
(3) By failing to recognize and/or acknowledge its recognition of the Plaintiff's symptoms that resulted from its treatment of the Plaintiff;
(4) By failing to fully and completely disclose the risks and/or hazards of micro suspension laryngoscopy or laser surgery;
(5) By performing needless and unnecessary micro suspension laryngoscopy or laser surgery upon Plaintiff's person when a less severe means of treatment could have provided the necessary and proper cure for Plaintiff's medical condition;
(6) By failing to consult a specialist in the field of gastroenterology, when the Defendant knew or should have known that its skills, knowledge or facilities were inadequate to properly treat the Plaintiff under the circumstances as they then existed;
(7) By failing to provide Plaintiff with adequate competent staff to meet her requirements; and
(8) By failing to use and/or misusing the laser used to perform the Plaintiff's surgery; providing defective equipment for said surgery or misreading the equipment during the surgical procedure on April 19, 2007.
UTMB answered the suit and filed a plea to the jurisdiction and motion to dismiss, arguing that Brisco did not comply with the notice requirement of the Texas Tort Claims Act because the alleged incident occurred on April 19, 2005, and Brisco's notice was dated April 16, 2007. Brisco responded, arguing that the incident was a continuing course of medical care, which concluded around February 23, 2007, making the April 2007 notice timely. The trial court overruled appellant's plea to the jurisdiction and denied its motion to dismiss. UTMB brings this interlocutory appeal from that order.
Section 51.014(a) of the Civil Practices and Remedies Code permits a party to appeal an interlocutory order that grants or denies a governmental unit's plea to the jurisdiction. TEX.CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) (Vernon 2008); Harris County v. Luna-Prudencio, No. 01-09-00039-CV, 2009 WL 1687944, at *2 (Tex. App.-Houston [1st Dist.]June 18, 2009, no pet. h.); accord Univ. of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 244 S.W.3d 455, 458 (Tex. App.-Dallas 2007, pet. denied). UTMB is a governmental unit. See Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 584 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) ("UTMB is clearly a state agency entitled to the same sovereign immunity enjoyed by the State of Texas."). Accordingly, this interlocutory appeal is properly before us.
Standard of Review
A plea to the jurisdiction based on governmental immunity questions a trial court's subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Because subject-matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction de novo. Holland, 221 S.W.3d at 642; Miranda, 133 S.W.3d at 226.
In reviewing a trial court's jurisdictional ruling, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We do not consider the merits of the case; rather we consider only the pleadings and evidence relevant to the jurisdictional inquiry. Id. First, we determine if the plaintiff's petition alleges facts sufficient to demonstrate that jurisdiction exists. Holland, 221 S.W.3d at 642-43; Miranda, 133 S.W.3d at 226. Sometimes, however, a plea to the jurisdiction may require the court to consider evidence pertaining to jurisdictional facts. Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 227. "A plea should not be granted if a fact issue is presented as to the court's jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted." Holland, 221 S.W.3d at 643 (citing Miranda, 133 S.W.3d at 227-28).
Governmental Immunity and the Texas Tort Claims Act
Governmental immunity deprives a trial court of subject-matter jurisdiction for suits against the State or certain governmental units, unless the State consents to suit. Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity, under which immunity from suit is coextensive with immunity from liability. Id. at 224-25; TEX. CIV. PRAC. REM. CODE ANN. §§ 101.001-.109 (Vernon 2005). The plaintiff bears the burden of demonstrating how the TTCA has waived a governmental unit's immunity from suit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine whether the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Id. (quoting Tex. Natural Res. Conservation Comm'n. v. White, 46 S.W.3d 864, 868 (Tex. 2001)).
Under the TTCA, a governmental unit is liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV. PRAC. REM. CODE ANN. § 101.021(2). Therefore, the plaintiff must allege, among other things, that the property's use proximately caused the personal injury or death. See Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998). "Use" means "to put or bring into action or service; to employ for or apply to a given purpose." San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004). Moreover, the Texas Supreme Court has expressly held that allegations of non-use of property cannot support a claim under the TTCA's limited waiver of sovereign immunity. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587-89 (Tex. 2001) (holding sovereign immunity not waived under the TTCA when appellee alleged error in medical judgment and failure to diagnose fatal condition); Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996) (observing that allowing both use and non-use of property to result in waiver under TTCA "would be tantamount to abolishing governmental immunity"); see City of Pasadena v. Thomas, 263 S.W.3d 43, 46-47 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding that allegations that city failed to furnish protective equipment while appellee performed community service did not support waiver of sovereign immunity); City of Sugarland v. Ballard, 174 S.W.3d 259, 265 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (holding that claim based on police officers' failure to provide adequate care, well-being, and safety of plaintiff while he was in custody did not fall within express language of TTCA's waiver provisions).
Texas Tort Claims Act — Notice Requirement
To overcome the shield of governmental immunity, a plaintiff must comply with the TTCA's notice requirements, found in Civil Practice and Remedies Code section 101.101, as follows:
(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
. . . .
(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.
TEX. CIV. PRAC. REM. CODE ANN. § 101.101 (Vernon 2005). The notice requirement ensures prompt reporting of claims to enable the government to investigate while facts are fresh and conditions remain substantially the same. City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex. 1981); see also Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 251 (Tex. App.-Houston [1st Dist.] 1995, writ dism'd w.o.j.). The failure to give notice under section 101.101 requires that the trial court dismiss a suit under the TTCA for lack of jurisdiction because the Texas legislature has determined that the TTCA's notice requirement is jurisdictional in nature. TEX. GOV'T CODE ANN. § 311.034 (Vernon 2005) ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.").
Nevertheless, the notice requirement does not apply "if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged." TEX. CIV. PRAC. REM. CODE ANN. § 101.101(c); Parsons v. Dallas County, 197 S.W.3d 915, 919 (Tex. App.-Dallas 2006, no pet.) (holding that governmental unit had actual notice of inmate's claim when jail-facility employees arranged for inmate to be taken to hospital after falling). Mere notice that an incident has occurred is not enough to establish actual notice. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Garcia v. Tex. Dep't of Criminal Justice, 902 S.W.2d 728, 730-31 (Tex. App.-Houston [14th Dist.] 1995, no writ). Under the TTCA, actual notice to a governmental unit requires the governmental unit's: (1) knowledge of a death, injury, or property damage; (2) subjective awareness that its fault produced or contributed to the claimed injury; and (3) knowledge of the identity of the parties involved. Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 344-47 (Tex. 2004) (citing Cathey, 900 S.W.2d at 341); see Parsons, 197 S.W.3d at 919 (holding that plaintiff must plead facts sufficient to invoke waiver of governmental immunity under TTCA). The Texas Supreme Court noted, "What we intended in Cathey by the second requirement for actual notice was that a governmental unit have knowledge that amounts to the same notice to which it is entitled by section 101.101(a)." Simons, 140 S.W.3d at 347. Actual notice is a fact question when the evidence is disputed; but in many instances actual notice is determined as a matter of law. Id. at 348.
Discussion
Brisco alleged injury arising from her vocal-cord surgery on April 19, 2005, associated with the alleged misuse of a laser. Brisco does not dispute that she first sent written notice of her health-care liability claim to UTMB on April 16, 2007, almost two years after the surgery. Under the TTCA, this notice is untimely with respect to any claim arising from the incident of the April 19, 2005 surgery, as it was not sent within six months. See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a).
In her original petition, Brisco alleged that UTMB had actual notice of her claim because "as a governmental unit," UTMB "had preexisting knowledge of the Plaintiff's injury and damages, the said defendant's alleged fault in producing or contributing to the injury, and the identity of the Plaintiff." This conclusory allegation restates the requirements for actual notice under the TTCA, but Brisco did not allege facts sufficient to show UTMB's knowledge of a personal injury and the people involved or its subjective awareness of its alleged role in contributing to the injury. See Simons, 140 S.W.3d at 344. Accordingly, we conclude that Brisco's petition does not plead jurisdictional facts sufficient to show actual notice of her health-care liability claim based on the events of April 19, 2005. See id.
This conclusion does not end our analysis because Brisco also alleged and argued that her claim arose from a continuing course of care at UTMB. In examining the pleadings, we note that the allegations not related to Brisco's April 19, 2005 surgery do not allege the use of tangible personal or real property. See TEX. CIV. PRAC. REM. CODE ANN. § 101.021(2). Rather, Brisco alleged that UTMB failed to communicate, failed to diagnose, failed to consult with a specialist, failed to provide adequate staff, and otherwise failed to use information. Because these are allegations of "non-use," they cannot support a waiver of sovereign immunity under the TTCA. See Miller, 51 S.W.3d at 587-89.
Brisco's notice letter refers only to the April 19, 2005 surgery date. In both the text of the letter and the subject line, the date of the incident is described only as having occurred on April 19, 2005. In addition, Brisco does not allege any use of a laser after April 19, 2005. Thus, on its face, the notice letter does not give UTMB notice of a continuing-course-of-care claim. See TEX. CIV. PRAC. REM. CODE ANN. § 101.101(a)(2).
Accordingly, after examining the undisputed evidence and construing Brisco's allegations in her favor, we hold that Brisco's original petition does not present a claim in which governmental immunity is waived by the TTCA. We sustain appellant's sole issue.
Conclusion
We reverse the order denying the UTMB's plea to the jurisdiction, and we render judgment dismissing Brisco's claims against UTMB for want of jurisdiction.