UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant
TELICIA OWENS, Appellee
Appeal from the 152nd District Court Harris County, Texas
Trial Court Case No. 2012-07534
consists of Justices Lloyd, Landau, and Countiss.
interlocutory appeal,  appellant, University of Texas Health
Science Center at Houston ("UTHSCH"), challenges
the trial court's order denying its plea to the
jurisdiction and motion to dismiss the health care liability
claims brought against it by appellee, Telicia
Owens, in her suit for negligence and gross negligence. In
its sole issue, UTHSCH contends that the trial court erred in
denying its plea to the jurisdiction and motion to dismiss
because UTHSCH did not have notice of Owens's claims
within six months of the allegedly negligent medical care and
treatment that gave rise to Owens's claims.
reverse and render.
the third appeal that we have heard in this
case. In 2012, Owens brought health care
liability claims against certain health care providers who
treated her in 2010. In her original petition, Owens alleged
that on February 6, 2010, she went to the Emergency
Department at Memorial Hermann, complaining of a severe
headache. She was diagnosed with migraine, tension headache,
and "headache associated with sinuses," but
"[n]o diagnostic testing was done to rule out any
internal problems." On February 10, 2010, Owens returned
to the Emergency Department at Memorial Hermann, complaining
of the "same persisting symptoms" and was diagnosed
with a headache and sinitus. Again, "[n]o diagnostic
testing" was performed. On February 21, 2010, Owens
returned to the Emergency Department at Memorial Hermann,
complaining of headache and blurry vision. During that visit,
Kenneth A. Totz, D.O., FACEP, and another doctor treated her
and diagnosed her with a headache. No diagnostic testing was
on February 24, 2010, Owens sought treatment at another
hospital where doctors determined that she was suffering from
a "head bleed." At that time, Owens was admitted
into the Intensive Care Unit and later discharged.
on April 22, 2010, Owens went to third hospital complaining
of "sudden blindness," which resulted in
"[the] placement of a lumbar shunt." On May 14,
2010, she returned to the third hospital complaining of
problems with her sutures, "shunt leak[age],"
blurred vision, and a headache. On May 17, 2010, Owens again
returned to the hospital complaining of a headache, chest
pain, and neck stiffness. Her shunt was infected, and it was
removed. Further, it was determined that Owens was suffering
from "MRSA-Methicillin Resistant Staphyloccus
alleged that, as a result of certain undiagnosed
"internal problems" at the aforementioned
hospitals, she ultimately sustained permanent damage to her
optic nerves and became "completely blind in both of her
eyes." And she continued to suffer "ongoing
damages, including pain and mental anguish." Owens did
not specify in her original petition the medical cause or
reason for her loss of vision and residual damage and pain,
but she brought direct-liability and vicarious-liability
claims against certain health care providers for negligence
and gross negligence.
support her negligence and gross negligence claims, Owens, on
or about May 29, 2012, filed and served upon the health care
providers, including Dr. Totz, a medical expert report. The
health care providers each answered and sought various relief
under the Texas Medical Liability Act's expert-report
provision. Further, Dr. Totz, in his answer,
[T]he rights and protections afforded to him pursuant to
Texas Civil Practice & Remedies Code [section] 101.106,
because this [instant] suit [was] based on [his] alleged
conduct within the general scope of his employment with
[UTHSCH], a governmental unit, and th[e] case could have been
brought against the governmental unit.
the two previous appeals in this case, Owens's health
care liability claims were eventually remanded to the trial
court for further proceedings. On August 9, 2017, Dr. Totz filed
a motion to dismiss, pursuant to Texas Civil Practice and
Remedies Code section 101.106(f), asserting that the Texas
Tort Claims Act ("TTCA") provides that the employee
of a governmental unit must be dismissed from a suit, and the
governmental unit substituted as the defendant in his place,
when the suit is "based on conduct within the general
scope of that [governmental] employee's employment"
and when suit "could have been brought . . . against the
governmental unit." According to Dr. Totz, at the time that
Owens received the allegedly negligent medical care and
treatment provided by him on February 21, 2010, he was an
employee of UTHSCH, a governmental unit.
did not respond to Dr. Totz's section 101.106(f) motion
to dismiss but instead amended her original petition. In her
second amended petition, Owens removed Dr. Totz as a
defendant and substituted, in his place, UTHSCH, noting that
"UTHSCH is [the] governmental unit who employed [Dr.
Totz], a physician licensed to practice in the State of
third amended petition, Owens alleged, related to UTHSCH,
that on February 21, 2010, when she returned to the Emergency
Department at Memorial Hermann, complaining of headache and
blurry vision, Dr. Totz, "who was employed by . . .
UTHSCH" at the time, and another doctor provided her
with medical care and treatment. At that time, Owens was
diagnosed with a headache, but no diagnostic testing was
performed. And because Owens later sustained permanent damage
to her optic nerves and became "completely blind in both
of her eyes," due to certain undiagnosed "internal
problems," Owens brought direct-liability and
vicarious-liability claims against UTHSCH for negligence and
gross negligence. According to Owens, UTHSCH "is
responsible for her injuries jointly and severally under the
doctrines of respondeat superior, corporate negligence,
apparent or ostensible agency, agency by estoppel, and
violation of non-delegable duties performed by" Dr.
answered, generally denying Owens's allegations and
asserting certain affirmative defenses, including sovereign
immunity. UTHSCH then filed a plea to the jurisdiction and
motion to dismiss, arguing that the trial court lacks
subject-matter jurisdiction because Owens alleged that she
sustained injuries "as a result of negligent medical
care and treatment rendered on or about February 21,
2010" by Dr. Totz; at that time, Dr. Totz was acting
"in the course and scope of his employment with"
UTHSCH, a governmental unit of the State of Texas; and the
TTCA only provides a limited waiver of sovereign immunity.
UTHSCH also asserted that sovereign immunity had not been
waived as to it because Owens had failed, pursuant to Texas
Civil Practice and Remedies Code section 101.101(a), to
"provide [it with the required] written notice of her
claims within six (6) months after the [purportedly negligent
medical] treatment and care" by Dr. Totz and UTHSCH
"did not have actual notice of [Owens's] claims
within th[at] time frame."
response to UTHSCH's plea to the jurisdiction and motion
to dismiss, Owens asserted that the trial court has
subject-matter jurisdiction because Dr. Totz waited
"more than five years" to file his section
101.106(f) motion to dismiss; in accordance with section
101.106(f), Owens amended her petition, dismissing Dr. Totz
and naming UTHSCH, the governmental unit, as the defendant in
her suit; Owens had no reason to know that Dr. Totz was
"an employee of a governmental unit" of the State
of Texas, i.e., UTHSCH, until he filed his original answer in
2012; and August 9, 2017-the date that Dr. Totz filed his
section 101.106(f) motion to dismiss-is that date that must
be used to determine the deadline by which Owens was required
to provide UTHSCH written notice of her claims pursuant to
section 101.101(a). (Emphasis omitted.) Further, because
UTHSCH "was served with process . . . on September 20,
2017" and "appeared in th[e] [instant] action on
October 19, 2017," UTHSCH had "actual notice of
Owens'[s] [claims] within the meaning of . . . [section]
101.101" on or before "six months after the day
that the incident giving rise to [her] claim[s]
reply, UTHSCH asserted that the TTCA did not waive sovereign
immunity in the instant case because Owens was required to
provide it with notice pursuant to Texas Civil Practice and
Remedies Code section 101.101; the notice requirement is
jurisdictional; and UTHSCH did not have notice of Owens's
claims on or before August 21, 2010, i.e., six months after
Dr. Totz's purportedly negligent medical care and
treatment of Owens, which occurred "within the general
scope of his employment with UTHSCH on February 21,
hearing, the trial court denied UTHSCH's plea to the
jurisdiction and motion to dismiss.
review de novo a trial court's ruling on a jurisdictional
plea. See Ben Bolt-Palito Blanco Consol. Indep. Sch.
Dist. v. Tex. Political Subdivisions Prop./Cas. Joint
Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006);
City of Hous. v. Vallejo, 371 S.W.3d 499, 501 (Tex.
App.-Houston [1st Dist.] 2012, pet. denied). A plea to the
jurisdiction is a dilatory plea that seeks dismissal of a
case for lack of subject matter jurisdiction. Harris Cty.
v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004);
Villarreal v. Harris Cty., 226 S.W.3d 537, 541 (Tex.
App.-Houston [1st Dist.] 2006, no pet.). A plea to the
jurisdiction may be utilized to challenge whether the
plaintiff has met its burden of alleging jurisdictional facts
or to challenge the existence of jurisdictional facts.
See Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
plea to the jurisdiction challenges the pleadings, we
determine whether the pleader has alleged facts that
affirmatively demonstrate the trial court's jurisdiction.
Id. at 226. We construe the pleadings liberally in
favor of the pleader, accept all factual allegations as true,
and look to the pleader's intent. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the
pleadings are insufficient, the court should afford an
opportunity to replead if the defects are potentially curable
but may dismiss if the pleadings affirmatively negate the
existence of jurisdiction. City of Hous. v. Guthrie,
332 S.W.3d 578, 586-87 (Tex. App.-Houston [1st Dist.] 2009,
of a plea challenging the existence of jurisdictional facts
mirrors that of a matter-of-law summary-judgment motion.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 635 (Tex. 2012); Guthrie, 332 S.W.3d at
587 ("[T]his standard generally mirrors that of a
summary judgment under Texas Rule of Civil Procedure 166a(c).
. . . By requiring the [political subdivision] to meet the
summary judgment standard of proof . . ., we protect the
plaintiff from having to put on [her] case simply to
establish jurisdiction." (first, second, and third
alterations in original)); see also Tex. R. Civ. P.
166a(c). "[A] court deciding a plea to the jurisdiction
. . . may consider evidence and must do so when necessary to
resolve the jurisdictional issues raised." Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2000). And a court may consider evidence as necessary to
resolve a dispute over the jurisdictional facts even if the
evidence "implicates both the subject matter
jurisdiction of the court and the merits of the case."
Miranda, 133 S.W.3d at 226. We take as true all
evidence favorable to the non-movant and we indulge every
reasonable inference and resolve any doubts in the
non-movant's favor. Id. at 228. If the defendant
meets its burden to establish that the trial court lacks
jurisdiction, the plaintiff is then required to show that
there is a material fact question regarding the