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Texas Tech University Health Sciences Center v. Lozano

Court of Appeals of Texas, Eighth District, El Paso

February 14, 2018

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Appellant,
v.
GLORIA LOZANO, Appellee.

         Appeal from 168th District Court of El Paso County, Texas (TC # 2014DCV1772)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE

         This interlocutory appeal from the denial of a plea to the jurisdiction asks us to decide whether Texas Tech University Health Sciences Center (Texas Tech), had actual knowledge of a possible malpractice claim within six months of Gloria Lozano's surgery. We conclude that it did not. Accordingly, we reverse the trial court and render judgment dismissing the suit for lack of subject-matter jurisdiction.

         FACTUAL SUMMARY

         On May 31, 2012, Gloria Lozano underwent a TAH/BSO procedure address several uterine fibroids.[1] Dr. Ghulam Murtaza performed the surgery and he was assisted Dr. Rafael Arcone. Both are alleged to be employees or agents of Texas Tech. The surgery was performed at University Medical Center of El Paso. The record does not reflect the affiliation between the hospital and Texas Tech, nor the affiliation of all the persons who were in the surgical suite that day.[2]

         Lozano encountered persistent nerve pain following the procedure. Contending that the pain resulted from the misuse of surgical equipment, she served Texas Tech on March 20, 2013 with a formal notice of claim. She later filed suit alleging that during the surgery, employees or agents of Texas Tech caused nerve damage using a retractor or other surgical instruments.

         Texas Tech responded by filing a plea to the jurisdiction and motion to dismiss, asserting that Lozano failed to serve her notice of claim letter within the six-month notice deadline under Texas law.[3] Lozano responded with an amended petition alleging that Texas Tech had actual notice of the claim which satisfies the statutory notice requirement.[4] As proof of actual knowledge, Lozano relied on several entries in her medical records made during follow-up visits at a Texas Tech clinic. Because both sides agree that Texas Tech was not given timely formal written notice of the incident, we focus only on whether Lozano's medical records as maintained by Texas Tech provided "actual notice" of her claim within six-months from May 30, 2012. We describe those records in some detail.

         Lozano followed up in the Texas Tech OB/GYN clinic on June 14, 2012, two weeks after the surgery. A note in that medical record states that she was complaining of pain to the incision site. The physician at that time noted that it was "normal post op discomfort." On June 28, 2012, almost a month post-surgery, Lozano again complained of pain at the incision site and in the inner-upper thigh area. The examining doctor, William Scragg, advised Lozano to wait another four weeks for the swelling to go down and suggested the pain might be due to "positioning on [the] exam bed during surgery." Almost a month later, on July 23, 2012, Ms. Lozano continued to complain of pain over the incision site that was intermittent and had a burning-like quality. On August 31, 2012, she saw Dr. Rafael Arcone in the clinic, the resident doctor who assisted in the surgery. We reproduce the "History of Present Illness" note from that visit with its several typographical errors:

50 year old G6 P6, s/p supracervical hyst, cervical myomectomy, bilateral salpingo-oopherectomy and seprafilm placement on 5/31/12. Voiding well, denies constipation. only c/o pain over the insicion in the midline and on the left corner, intermitent, like burning sensation. no other. still after 3 month. syuspected nerve injury over insicion. she refused local anesthetic inyection before.

         The same entry appears in a November 20, 2012 office visit note, with the addition that Lozano was still having pain, which was better following a prescription of Gabapentin. On that visit, Drs. Arcone and Scragg ordered a CT scan that showed no abnormalities at the incision site. The six-month deadline for notice ran on November 30, 2012. See Tex.Civ.Prac.&Rem.Code Ann. § 101.101(a)(West 2011).

         In a March 4, 2013 chart entry, Lozano asked for a copy of her medical record so that she could seek care elsewhere; she also mentioned a possible lawsuit. On that visit, the treating physician advised that the pain was most likely due to a nerve injury during the procedure, "which is part of the risks of surgery for which she was consented for. [sic]"

         Texas Tech's plea to the jurisdiction contains the affidavit of its associate general counsel who states that after a thorough record search, and after inquiries to the appropriate offices, in the six-month period following the surgery Texas Tech found "no notice, either actual or written, that Gloria Lozano was claiming [Texas Tech], or its employees were negligent as result of the surgery performed on May 31, 2012." In response to Texas Tech's plea to the jurisdiction, Lozano filed a copy of her medical records. She also filed her own affidavit, stating that in the first six-month period following the surgery, and during follow-up visits, Texas Tech physicians told her that the pain was from "a nerve injury caused during the surgery on May 31, 2012."

         The trial court denied Texas Tech's plea and this interlocutory appeal follows. See Tex.Civ.Prac.&Rem.Code Ann. § 51.014(a)(8)(West Supp. 2017)(allowing interlocutory appeals from the granting or denial of plea to jurisdiction by a governmental entity)

         CONTROLLIN ...


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