COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-16-00368-CV
UNIVERSITY OF NORTH TEXAS APPELLANT HEALTH SCIENCE CENTER
V.
JESSICA JIMENEZ, JENNIFER APPELLEES GALO, CATHERINE FRANK, IN THEIR INDIVIDUAL CAPACITIES, AND WILLIAM TYLER II, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF PAMELA J. KNIGHT, DECEASED
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 352-275721-14
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MEMORANDUM OPINION1
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1 See Tex. R. App. P. 47.4. We are asked to decide, under section 101.101(c) of the civil practice and
remedies code, whether certain entries in medical records equate to actual notice
to Appellant University of North Texas Health Science Center, a governmental
unit, of an injury to its patient Pamela Knight—an injury that is alleged to have
triggered a cascade of problems leading to her death. If the records sufficed to
put UNT Health on notice within the meaning of section 101.101(c), then the trial
court properly denied UNT Health’s motion to dismiss for lack of subject-matter
jurisdiction.2
We hold that UNT Health did not have the requisite actual notice within the
meaning of the code and reverse the decision below.
Background
In the latter part of 2012, Pamela Knight became a patient of UNT Health
and its employee Dr. Albert H. Olivencia-Yurvati, D.O. Dr. Yurvati has been a
UNT Health faculty member for over two decades, and currently chairs UNT
Health’s Department of Surgery. The record does not reveal when Dr. Yurvati
2 In the trial court, both UNT Health and codefendant Columbia Plaza Medical Center of Fort Worth had earlier and unsuccessfully challenged the plaintiffs’ expert report under civil practice and remedies code section 74.351(a) as inadequate. Plaza Medical appealed the trial court’s ruling; we affirmed. Columbia Plaza Med. Ctr. of Fort Worth, Subsidiary, L.P. v. Jimenez, No. 02-15- 00275-CV, 2016 WL 2586738 (Tex. App.—Fort Worth May 5, 2016, no pet.) (mem. op.). UNT Health did not similarly appeal but instead then moved to dismiss on different grounds, this time based on (1) the plaintiffs’ conceded failure to comply with the six-month-notice requirement of civil practice and remedies code section 101.101(a) and (2) the alleged lack of the actual notice that under section 101.101(c) can take the place of formal notice. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), (c) (West 2011).
2 became department chair, nor does it show what sorts of duties—investigative,
reporting, risk-management-related, or otherwise—accompany that position.
Knight, who was overweight, had undergone gastric lap-band surgery at a
weight-loss facility the previous year and, after complications necessitated the
band’s removal, ultimately developed a significant side effect known as
“nutcracker esophagus.” This painful condition results in such strong and
involuntary esophageal contractions that food has difficulty reaching the
stomach.
After evaluating Knight, Dr. Yurvati recommended surgery—a “left
thoracotomy with extensive esophageal myotomy”3—and performed that
procedure on December 11, 2012. The next day, December 12, Dr. Yurvati
ordered an esophagram, which showed no problems. But in the days that
followed, Knight’s condition “began to markedly deteriorate”; she developed low
levels of oxygen concentration in her blood (hypoxemia) and needed support
ventilation in the form of bilevel positive airway pressure so that she could
breathe.
After a thoracostomy procedure on December 17 that placed a chest tube
in Knight’s left lung—needed because of a loculated pneumothorax—her
3 In layman’s terms, this means making an incision in the chest wall to access and to then cut away some of the outer tissue layers from the lower esophagus.
3 condition continued to worsen.4 Eight days after Knight’s initial surgery, a second
esophagram on December 19 revealed a leak in her esophagus that, according
to Appellees, had resulted from an esophageal perforation during the December
11 surgery. Despite Dr. Yurvati’s attempt to repair the perforation on December
20 through a second thoracotomy, Knight’s condition worsened to the point of
developing a massive infection.
Months of additional medical problems and procedures culminated in
Knight’s death in May 2013 at the age of 56. In November 2014, Appellees—
Knight’s brother (as estate administrator) and Knight’s mother and two adult
daughters—sued UNT Health and Plaza Medical for medical negligence.5
UNT Health’s records
Because both sides agree that UNT Health was not given written notice of
the incident forming the basis of the plaintiffs’ claims within six months of
December 11, 2012, see Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), we
focus only on whether Knight’s medical records as maintained by UNT Health
provided “actual notice” to that entity that she had “received some injury.” Id.
§ 101.101(c).
4 A thoracostomy differs from a thoracotomy in that a thoracostomy involves a small incision, whereas a thoracotomy involves a larger opening so that a surgeon can access internal organs and areas such as the esophagus. A “loculated pneumothorax” means an air pocket in the pleural space between someone’s lung and the chest wall. 5 Dr. Yurvati was originally also a named defendant but is no longer a party.
4 Knight’s family points us to Dr. Yurvati’s December 20, 2012 operative
report, which contains entries that they contend satisfy the statute:
PREOPERATIVE DIAGNOSES: 1. Distal esophageal perforation. 2. Status post esophageal myotomy.
PROCEDURES PERFORMED: 1. Left thoracotomy with repair of esophageal perforation utilizing modified T-tube repair. 2. Decortication. (Emphases added.)
This operative report also includes these details in its “Findings” section:
At the time of [the December 11] surgery, there appeared to be no evidence of any injury to the esophagus or perforation. As a matter of fact, she had a postoperative esophagram that was completely clean. About 4 days after surgery, she was having significant pain and discomfort in her chest. She developed what appeared to be a loculated hemopneumothorax after her drains had been removed. A small bore catheter was placed and re-expanding the upper portion of the lung; however, she did not do well and had evidence of a leaky drainage from her chest tube site. This became quite apparent yesterday [December 19] and an esophagram confirmed that there was a distal leak. It was recommended that she urgently should undergo surgical intervention. . . . She was brought to the operating room and once we cleared away and were able to identify the esophagus, there appeared to be a 5cm linear tear in the esophagus. This appeared to be secondary to some ischemia and then a perforation. The edges appeared to be viable and clean. [Emphases added.]
Further into the report, Dr. Yurvati described the December 20 procedure, noting
that when the esophagus was exposed during this thoracotomy, “[a]bout the
distal 1/3, there appeared to be evidence of a linear 5cm perforation which was
clearly visible.”
5 Our review of the record also reveals that nearly a month later, on January
18, 2013, Dr. Yurvati signed a medical certification requested by Knight’s Family
and Medical Leave Act coverage provider. There, he recounted her various
procedures, including “12-20-2012 left thoracotomy [with] repair of esophageal
perforation utilizing modified T-tube repair and decortication.”
This document is part of UNT Health’s medical records, as is Dr. Yurvati’s
“History and Physical” from slightly earlier (the fax heading is dated January 9,
2013), which described Knight’s difficulties following the December 11 surgery:
Subsequently, she started having some milky fluid out from her chest drains. Then she became quite hypoxic and short of breath. A chest x-ray film showed a loculated left pneumothorax. A small bore catheter was placed to help reinflate the lung and [resolve] this. I was very concerned with a possible delayed per. Immediately postoperatively about day 1-2, she did have an esophagram that showed excellent flow through without any evidence of perforation at that time. This was a clean study. However, [w]as concerned now few days later with her symptomatology and a loculated pneumothorax and the drainage, that indeed we may have had a problem.
The repeated references in UNT Health’s records to an esophageal
“perforation” contrast with Dr. Yurvati’s affidavit, which UNT Health filed with its
motion to dismiss and in which he discussed the December 20 procedure:
“During the procedure, I located a linear tear in Ms. Knight’s esophagus. I
determined that the tear did not occur[] as a result of any act or omission on the
part of myself or any other health care provider.” As indicated in Dr. Yurvati’s
December 20 operative report quoted earlier, however, a “tear” and a
“perforation” do not appear to be synonymous. Nonetheless, neither UNT
6 Health’s medical records nor the appellate record as a whole demonstrates that a
perforated esophagus necessarily—or even most likely—must result from
medical error.6
Standard of review
We review de novo a trial court’s ruling on a plea to the jurisdiction, which
is essentially what UNT Health raised through its motion to dismiss for lack of
subject-matter jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000) (noting that absence of subject-matter jurisdiction may be raised
by different procedural vehicles); In re Tex. Dep’t of Transp., 510 S.W.3d 701,
705 (Tex. App.—El Paso 2016, orig. proceeding) (citing Bland ISD and noting
that “jurisdictional challenge[s] can be raised by a number of procedural vehicles,
including a plea to the jurisdiction, a motion to dismiss, or a motion for summary
judgment”).
If a plea to the jurisdiction or comparable procedure challenges the
existence of jurisdictional facts, we consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised, just as the trial
court must. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
6 Appellees’ brief states that there can “be no doubt that the perforation noted in [UNT Health’s] records could only have occurred during the surgical procedure previously performed by Dr. Yurvati.” That could well be true, but absent some record support, we cannot so conclude. 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 or from which a fact issue arises.
7 2004); Bland Indep. Sch. Dist., 34 S.W.3d at 555; City of Wichita Falls v. Jenkins,
307 S.W.3d 854, 857 (Tex. App.—Fort Worth 2010, pet. denied). If the evidence
creates a fact question on the jurisdictional issue, then the trial court cannot grant
the plea to the jurisdiction, and the factfinder will resolve the
question. Miranda, 133 S.W.3d at 227–28; Jenkins, 307 S.W.3d at 857. But if the
relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea as a legal
matter. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard
generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at
228; see Tex. R. Civ. P. 166a(c).
Although actual notice is a fact question when the evidence is disputed, in
many instances it can be determined as a matter of law. Tex. Dep’t of Criminal
Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004). Here, the parties do not
dispute the evidence presented on the jurisdictional issue; they simply dispute its
legal significance. Accordingly, we will review the trial court’s ruling as a matter of
law. See id.; Miranda, 133 S.W.3d at 228.
We have jurisdiction over the trial court’s interlocutory order under section
51.014(a)(8) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(8) (West Supp. 2016).
Discussion
Because Appellees concede that they did not give UNT Health formal
written notice of their claims within six months of December 11, 2012, we thus
8 sustain UNT Health’s first issue and analyze only UNT Health’s second issue,
which questions whether UNT Health had actual notice sufficient to satisfy the
Texas Tort Claims Act’s requirements. If it did, its sovereign immunity was
waived, and the trial court properly denied UNT Health’s motion to dismiss. See
id. §§ 101.021(2) (West 2011), 101.101(a), (c).7
Actual notice acquired within six months can replace the need for formal
notice if a governmental unit knows of (1) a death or an injury, (2) its alleged fault
in producing or contributing to that death or injury, and (3) who exactly died or
was injured. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Jenkins,
307 S.W.3d at 858. But “[s]tanding alone, knowledge that an injury has occurred
does not establish actual notice.” Univ. of Tex. Health Sci. Ctr. at Houston v.
Cheatham, No. 14-14-00628-CV, 2015 WL 3878111, at *3 (Tex. App.—Houston
[14th Dist.] June 23, 2015, no pet.) (mem. op.) (citing Univ. of Tex. Health Sci.
Ctr. at Houston v. McQueen, 431 S.W.3d 750, 755 (Tex. App.—Houston [14th
Dist.] 2014, no pet.)). The supreme court put it succinctly in Cathey: the plaintiffs
“argue that section 101.101(c) requires only that a governmental unit have
7 In a case against a governmental unit, sovereign immunity is not waived under the Texas Tort Claims Act unless a claimant satisfies the prerequisite either of (1) providing formal notice “not later than six months after the day that the incident giving rise to the claim occurred” that “reasonably describe[s]” the “damage or injury claimed,” “the time and place of the incident,” and “the incident”; or (2) showing that the governmental unit had “actual notice [within that same six-month period] 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(a), (c).
9 knowledge that a death, an injury, or property damage has occurred. We
disagree.” 900 S.W.2d at 341.
It is also not enough even that the governmental unit “should have
investigated an incident as a prudent person would have, or that it did
investigate, perhaps as part of routine safety procedures, or that it should have
known from the investigation it conducted that it might have been at fault.”
Simons, 140 S.W.3d at 347–48. Rather, the governmental unit must have
knowledge equivalent to what a formal section 101.101(a) notice would have
provided, which “includes subjective awareness of its fault, as ultimately alleged
by the claimant, in producing or contributing to the claimed injury.” Univ. of Tex.
Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548–49 (Tex.
2010) (quoting Simons, 140 S.W.3d at 347). In a case such as this one, medical
records may create a fact issue on actual notice only if they “indicate to the
[government] hospital its possible culpability in causing the injuries.” Dinh v.
Harris Cty. Hosp. Dist., 896 S.W.2d 248, 253 (Tex. App.—Houston [1st Dist.]
1995, writ dism’d w.o.j.).
We have reviewed UNT Health’s records and cannot find within them
anything that rises to the level of subjective awareness that UNT Health was at
fault in producing or contributing to Knight’s injuries. References to a perforated
esophagus, in and of themselves, simply do not suffice. Our conclusion comports
with caselaw similarly dealing with medical records as the purported basis for
actual notice. See Cathey, 900 S.W.2d at 341–42 (finding no knowledge on
10 government hospital’s part of alleged culpability for stillbirth where medical
records might have revealed only that Cesarean section was performed more
than half an hour after it should have been); McQueen, 431 S.W.3d at 760–61
(holding no subjective awareness of fault from medical records that noted “bowel
injury during hysterectomy”); Reynosa v. Bexar Cty. Hosp. Dist., 943 S.W.2d 74,
78 (Tex. App.—San Antonio 1997, writ denied) (holding insufficient, for actual-
notice purposes, medical records concerning brain-damaged baby where those
records consisted of handwritten reports by doctors and nurses documenting
extent of baby’s injuries, a fetal-heart-tone-monitoring strip, and a nurse’s
handwritten note); see also Cheatham, 2015 WL 3878111, at *5 (holding, in case
involving overlooked surgical needle, that government healthcare entity lacked
subjective awareness where records suggested nothing more than that private-
hospital surgical nurses, whose job it was to account for all needles, may have
been the sole producers of or contributors to plaintiff’s injury by missing one of
them).
Our inquiry does not end here, though, because in addition to the actual
notice that might appear wholly within an entity’s records—but here does not—a
governmental unit’s agent’s or representative’s knowledge of the three Cathey
factors may be imputed to the entity under certain circumstances. E.g.,
McQueen, 431 S.W.3d at 755 (“Actual notice may be imputed to the
governmental entity by an agent or representative who receives notice of the
Cathey elements and who is charged with a duty to investigate the facts and
11 report them to a person of sufficient authority.”); Univ. of Tex. Health Sci. Ctr. at
San Antonio v. Stevens, 330 S.W.3d 335, 340–41 (Tex. App.—San Antonio
2010, no pet.) (disagreeing that only a designated risk manager’s knowledge
may be imputed and holding that actual notice was imputed where pediatrics-
residency-program director conducted faculty review of incident involving
resident’s administering wrong medication and, under the contract between
residency program and hospital, the director had agreed to investigate any
problems involving residents); Johnson v. Nacogdoches Cty. Hosp. Dist.,
109 S.W.3d 532, 537 (Tex. App.—Tyler 2001, pet. denied) (holding that hospital
director’s awareness that decedent had come to the emergency room and not
been treated, and director’s awareness of potential for liability, raised fact
question about whether hospital had actual notice).
But not all government-hospital employees—even treating physicians—
hold positions from which their own knowledge will be imputed to the entity.8
Caselaw most often highlights the doctor’s particular role: a government doctor
who has oversight responsibilities tends to have his or her knowledge treated as
tantamount to that of the entity itself. That was true in Stevens, and it was true
when, some two months later, the supreme court decided Arancibia.
There, in affirming the trial and appellate courts’ denial of UT
Southwestern’s jurisdictional challenges on actual-notice grounds, the Arancibia
8 Appellees’ discussion of imputed knowledge relies simply on the records of Dr. Yurvati’s treatment.
12 court set out the following chain of events and knowledge on a supervisor’s part
concerning a patient’s death after two surgical residents botched a hernia
surgery by perforating her bowel:
Dr. Watson [an assistant professor of surgery who supervised the procedure] was present during Arancibia’s laparoscopic hernia repair. The day after her death, Watson emailed his immediate supervisor, who was chief of the division. The email begins, “I wanted to give you a heads up on a terrible outcome with a Surgery A patient.” Watson described the surgery, which he believed went well, and Arancibia’s return to the emergency room two days later. A laparotomy at that time “showed an unrecognized bowel injury,” and Arancibia died the next day of multiple organ failure. Watson’s email concluded, “I have already spoken with risk mgt.”
324 S.W.3d at 549. Dr. Watson’s supervisor then contacted the chair of the
surgery department, who in turn responded with an email outlining several
reasons why a patient such as Arancibia might present with her symptoms more
than 24 hours after surgery. Id. Despite the supervisor’s later conclusion that
bowel perforation was a known complication of the surgery and that no standard-
of-care issues were implicated, the supreme court nevertheless found that the
supervisor’s “ultimate conclusion that those errors were acceptable does not
detract from his subjective awareness that medical error contributed to
Arancibia’s death.” Id. at 549–50.
From these facts the court had little trouble concluding that UT
Southwestern was subjectively aware of its fault, particularly when “the sole
instrumentality of harm [was] the government itself.” Id. at 550 (distinguishing
City of Dallas v. Carbajal, 324 S.W.3d 537, 539 (Tex. 2010), in which the court
13 found no subjective awareness of fault on City’s part where missing barricades
led to plaintiff’s driving into roadway excavation because “a private contractor or
another governmental entity (such as the county or state) could have been
responsible” for the missing barricades).
In contrast here, Knight’s surgery occurred not at UNT Health but at Plaza
Medical, a private hospital. Although an injury’s location is not outcome-
determinative,9 the possibility of nongovernmental actors’ involvement with a
particular injury is a factor bearing on the subjective-awareness component.
But even assuming that Dr. Yurvati believed (but never expressed) that he
had negligently perforated Knight’s esophagus, another obstacle for Knight’s
family in defeating governmental immunity is that we have no evidence about Dr.
Yurvati’s position or duties from which we can conclude that his knowledge
should be imputed to UNT Health. Cf. id. (stating that the government, in the form
of UT Southwestern, had “conceded that its surgical error perforated Arancibia’s
intestine, resulting in sepsis, multiple organ failure, and death”; it was
“undisputed” that UT Southwestern “was aware that its surgeons’ errors caused
9 For example, Stevens involved an incident at a nongovernmental hospital at which the UT Health San Antonio pediatrics-residency director officed, and from which he supervised the pediatrics residents. 330 S.W.3d at 337. On the other hand, actual notice was absent even where “the events of which the [plaintiffs] complained all happened in the [government] hospital and involved hospital personnel.” Simons, 140 S.W.3d at 344 (discussing Cathey, 900 S.W.2d at 341–42).
14 those perforations and that clinical management contributed to [Arancibia’s]
death”). Here, UNT Health has conceded nothing similar.
Beyond the facts that—as his affidavit states—Dr. Yurvati has been a UNT
Health faculty member for over 20 years and at some unknown time became
chair of UNT Health’s Department of Surgery, the record does not suggest that
simply by virtue of being a faculty member or department chair he was tasked
with investigating or reporting incidents. Appellees do cite one case to posit that
physicians, by their very nature, have a duty to gather facts and investigate
incidents. See Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402,
412 (Tex. App.—El Paso 1994, writ denied) (“Dr. Lakho and Dr. Rosen, as
physicians, did have the duty to gather facts and investigate the incident.”). But
Apodaca involved additional facts that the court recited immediately following the
above quotation:
Further, the incident was reported to Appellant [Texas Tech HSC] by virtue of the Incident Report signed by Dr. Lakho. The report itself is printed on a form containing Appellant’s name, and shows that it was reviewed by a member of Appellant’s “risk management” department two days after the incident.
Id. We are unaware of any case holding that a treating physician’s knowledge is
automatically imputed to his or her governmental-unit employer, and Apodaca
does not stand for that proposition.
Consistent with Cathey and Simons, then, actual notice cannot be imputed
from knowing that a patient received treatment from one of its doctors, or even
that the patient died; otherwise, a hospital “would be required to investigate the
15 standard of care provided to each and every patient that received treatment.”
Simons, 140 S.W.3d at 344 (quoting Cathey, 900 S.W.2d at 341). UNT Health’s
motion to dismiss should have been granted on lack-of-notice grounds, and we
therefore sustain UNT Health’s second issue.
Conclusion
Having sustained UNT Health’s first and second issues, we reverse the
trial court’s order denying UNT Health’s motion to dismiss and render judgment
dismissing Appellees’ claims against UNT Health for lack of subject-matter
jurisdiction.
/s/ Elizabeth Kerr ELIZABETH KERR JUSTICE
PANEL: WALKER, GABRIEL, and KERR, JJ.
DELIVERED: August 3, 2017