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The University of Texas Southwestern Medical Center v. Alcantar

Court of Appeals of Texas, Fifth District, Dallas

August 21, 2019


          On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-17-04210-A

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III



         This is an interlocutory appeal by the University of Texas Southwestern Medical Center (UTSW) from the trial court's order denying its plea to the jurisdiction. UTSW raises two issues in this Court, arguing that (1) appellee Maria Alcantar failed to establish that any UTSW employee had actual notice of her claim and (2) Alcantar did not establish that information known to her doctors or contained in her medical records could be imputed to UTSW. Because we conclude that UTSW lacked actual notice of Alcantar's claim, we reverse the trial court's order and render judgment dismissing Alcantar's claim for want of jurisdiction.


         Stephanie Chang, M.D., an employee of UTSW, performed Alcantar's hysterectomy at Parkland Hospital on August 4, 2015. Alcantar was discharged three days later, but-while at home-she called UTSW to report a foul-smelling vaginal discharge. She was told this was normal. Ten days after the surgery she was admitted to Parkland's emergency room. She was subsequently diagnosed with a rectovaginal fistula, an abnormal passage that formed between her digestive and genital tracts. For the following three months, Alcantar remained under the care of UTSW personnel. The fistula did not heal naturally, and throughout that time it caused drainage of stool through her vagina. On November 5, Joselin Anandam, M.D., another UTSW employee, performed surgery to repair the fistula. The repair surgery left Alcantar with a drainage tube that was removed in a third procedure on January 14, 2016.

         In October of that year, counsel for Alcantar sent Dr. Chang a letter alleging that Alcantar's injuries were caused by Dr. Chang's cutting into Alcantar's rectum during the hysterectomy. The following August, Alcantar sued UTSW, alleging negligence by Dr. Chang that was attributable to UTSW by the doctrine of respondeat superior. UTSW filed a plea to the jurisdiction, arguing that Alcantar's failure to give it notice of her claims as required by the Texas Tort Claims Act (the Act) left the trial court without jurisdiction to hear those claims. Alcantar responded that UTSW had actual notice of her injuries. The trial court denied the plea.

         UTSW appeals.


         The parties agree that UTSW is a governmental entity that generally enjoys immunity from suits seeking to impose tort liability. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). Absent a waiver of immunity, a trial court lacks subject matter jurisdiction over such a suit. City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018). The Act provides a waiver of a governmental entity's immunity when notice of a claim against it is provided as the Act prescribes. Id. The notice must be given within six months from the day the incident giving rise to the claim occurred, and it must reasonably describe (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident. Tex. Civ. Prac. & Rem. Code § 101.101(a).

         These notice requirements do not apply if the governmental entity has actual notice. Id. § 101.101(c); Tenorio, 543 S.W.3d at 776. A governmental entity has actual notice under the Act "if it has subjective knowledge of (1) a death, injury, or property damage; (2) the governmental unit's fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved." Tenorio, 543 S.W.3d at 776 (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)). The second of these three requirements is most often at issue, as it is in this case. The settled test for that requirement asks whether the governmental entity "has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries." Id.[1]

         The provision of notice is a jurisdictional requirement to bringing suit against a governmental entity. Tex. Gov't Code § 311.034. When the relevant facts are undisputed, as they are here, the trial court's subject matter jurisdiction is a question of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

         Alcantar acknowledges that she failed to give the written notice contemplated by section 101.101(a) within six months as the statute requires. She argues, however, that UTSW had actual notice of her claim. She relies in the first instance upon her medical records. Those records indicate that no fistula existed before her hysterectomy and that just three days after she left the hospital she called to report the discharge. She suffered no trauma or medical emergency in the intervening time. She was admitted to the emergency room ten days later, and she was subsequently diagnosed with the fistula and underwent a surgery to reverse it. In all, the records reflect that she was treated by UTSW for approximately seven months. During that time, UTSW personnel were the only health care providers who treated her. Thus, she argues, these medical records provided direct and conclusive evidence that UTSW is the sole entity who could bear blame for the fistula.

         Alcantar stresses the expertise of the doctors who oversaw her care throughout those months. Dr. Chang was an obstetrics and gynecology professor at UTSW. Dr. Anandam was a professor at UTSW in the Department of Surgery and the chief of Colon and Rectal Surgery at Parkland. Given these levels of expertise, Alcantar contends, the doctors' treatment of ...

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