Court of Appeals of Texas, Eighth District, El Paso
from 168th District Court of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD MCCLURE, CHIEF JUSTICE
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.
31, 2012, Gloria Lozano underwent a TAH/BSO procedure address
several uterine fibroids. 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.
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.
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. Lozano responded with an amended petition
alleging that Texas Tech had actual notice of the claim which
satisfies the statutory notice requirement. 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.
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.
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).
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.
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."
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)