Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

University of Texas Health Science Center at Houston v. Owens

Court of Appeals of Texas, First District

August 29, 2019

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant
v.
TELICIA OWENS, Appellee

          On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2012-07534

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          JULIE COUNTISS, JUSTICE

         In this interlocutory appeal, [1] 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[2] 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.[3]

         We reverse and render.

         Background

         This is the third appeal that we have heard in this case.[4] 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 performed.

         Subsequently, 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.

         Thereafter, 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 Aureus."

         Owens 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.

         To 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.[5] Further, Dr. Totz, in his answer, asserted:

[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.[6]

         After the two previous appeals in this case, Owens's health care liability claims were eventually remanded to the trial court for further proceedings.[7] 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."[8] 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.

         Owens 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 Texas."

         In her 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. Totz.

         UTHSCH 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."[9]

         In 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).[10] (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] occurred."[11]

         In its 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, 2010."[12]

         After a hearing, the trial court denied UTHSCH's plea to the jurisdiction and motion to dismiss.

         Standard of Review

         We 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).

         When a 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, pet. denied).

         Review 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.