Texas Judiciary Online - HTML Opinion

Trial Court Cause No. = 2006-08198

MEMORANDUM=20 OPINION

Appellant, Autry = Garrett,=20 appeals from a judgment of dismissal rendered upon the granting of = a plea=20 to the jurisdiction made by appellee, Harris County Hospital = District=20 (=93HCHD=94). Garrett contends that the trial court erred in = granting=20 HCHD=92s plea to the jurisdiction because they timely provided = HCHD notice=20 of their claim as required by the Texas Tort Claims Act = (TTCA). We=20 affirm.

Background

=20 On October 3, 2003, Garrett, who was pregnant, went to Lyndon B. = Johnson=20 General Hospital (=93LBJ=94), a facility owned and operated by = HCHD, for=20 routine obstetrical care. At the initial visit, Dr. Riggs = discovered=20 a mass in her left breast and ordered an ultrasound. On = October 6,=20 the hospital performed the ultrasound and detected a possibly = malignant=20 mass. On October 15, Garrett went to LBJ breast clinic for=20 evaluation by Dr. Robinson, who scheduled a needle biopsy on = November=20 25. Dr. Bonner performed the needle biopsy and received the = results,=20 indicating a malignant tumor, on December 1, 2003. Garrett = alleges=20 that neither Dr. Bonner, nor any other person at LBJ, telephoned = her or=20 mailed her the results of her biopsy. Garrett did not keep a = follow-up appointment scheduled for December 10, 2003.

=20 Garrett instead had transferred her care outside LBJ to Dr. = Ortega,=20 another OB/GYN. She had her first appointment with Ortega on = November 13,=20 2003, during which he too noted the mass in Garrett=92s left = breast. =20 At her follow-up appointment on January 15, 2004, Ortega indicated = that he=20 would obtain her biopsy report from LBJ, but never did so. = Garrett=20 had two further appointments with Ortega following the delivery of = her=20 baby on April 23, 2004.

On July 11, 2005, = Garrett=20 arrived at the LBJ emergency room complaining of pain in her = breast, at=20 which time she learned that the biopsy revealed ductal = carcinoma. =20 The LBJ oncology clinic evaluated Garrett and determined that the = breast=20 cancer had metastasized and spread to her lumbar spine and the = lymph nodes=20 in her chest.

On August 3, 2005, = Garrett=92s=20 attorney sent letters to the LBJ administrator, Harris County = Judge=20 Eckels, Harris County Commissioners, and The University of Texas = Health=20 Science Center at Houston notifying them of the pending = claim. =20 Garrett filed suit on February 7, 2006. HCHD filed a plea to = the=20 jurisdiction and a supplement to it, contending that Garrett=92s = notice was=20 untimely filed because the Tort Claims Act requires notice of the = claim=20 within six months of the date of the occurrence, and HCHD=92s = failure to=20 report the results occurred in December 2003. The trial = court=20 granted HCHD=92s plea to the jurisdiction and dismissed the = case.

Plea to=20 the Jurisdiction

Garrett contends that = the trial=20 court erred in determining that her claim against HCHD is barred = for=20 failing to provide the County with timely notice of the claim. = She=20 asserts that her claim against HCHD did not accrue until Garrett=20 discovered her biopsy results in July 2005 instead of the date = that HCHD=20 received the results and failed to promptly report them=97December = 2003.=20 Alternatively, Garrett contends that the discovery rule should = apply to=20 the TTCA=92s notice requirement, and thus, we should equitably = toll the=20 notice period until Garrett learned of the biopsy results and = HCHD=92s=20 alleged negligence. We note that Garrett did not contend in = the=20 trial court and does not contend on appeal that HCHD had actual = notice of=20 the claim. Cf. Cathey v. Booth, 900 S.W.2d = 339, 341=20 (Tex. 1995) (holding that hospital did not have actual notice of = claim=20 even if death occurred and thus, statute of limitations had=20 run).

Standard of=20 Review

The question of = subject-matter=20 jurisdiction is a legal issue, and thus we review the trial = court=92s ruling=20 under a de novo standard. Mayhew v. Town of=20 Sunnyvale, 964 S.W.2d 922, 928 = (Tex.=20 1998). The=20 pleader must allege facts that affirmatively demonstrate the = court=92s=20 jurisdiction to hear the cause. Tex. Ass=92n of = Bus. v.=20 Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). = A=20 reference to, or recitation of, provisions of the TTCA in = pleadings does=20 not confer jurisdiction on the trial court unless the facts = alleged=20 demonstrate a claim that falls within the act=92s scope.=20 Tex. Dep=92t of Criminal Justice v. Miller, 51 = S.W.3d=20 583, 587 (Tex. 2001). We consider the pleadings and any = proffered=20 evidence to resolve the jurisdictional issues raised. = Bland=20 Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). = If=20 the evidence as to jurisdictional facts is undisputed, then = whether that=20 evidence establishes a trial court=92s jurisdiction is a question = of law.=20 Tex. Dep=92t of Parks and Wildlife v. Miranda, 133 = S.W.3d 217,=20 226 (Tex. 2004). If the evidence creates a fact question = regarding=20 the jurisdictional issue, then the trial court cannot grant the = plea to=20 the jurisdiction; the fact issue must be resolved by the fact = finder.=20 See id. at 227=9628. When reviewing a plea to = the=20 jurisdiction in a case in which the plaintiff meets the TTCA=92s = pleading=20 requirements but the government has submitted evidence in support = of the=20 plea, we take as true all evidence favorable to the plaintiff and = indulge=20 every reasonable inference in the plaintiff=92s favor. = Id. at=20 228.

Texas Tort Claims = Act=97Notice=20 Requirement

To overcome the = shield of=20 governmental immunity, a plaintiff must comply with the TTCA=92s = notice=20 requirements, found in Texas Civil Practice and Remedies Code = section=20 101.101, as follows:

(a) A governmental unit is entitled to = receive=20 notice of a claim against it under this chapter not later than six = months=20 after the day that the incident giving rise to the claim occurred. = The=20 notice must reasonably describe:

(1) the damage or injury claimed; =

(2) the time and place of the incident; = and=20

(3) the incident.

. . . .

(c) The notice requirements provided or = ratified=20 and approved by Subsections (a) and (b) do not apply if the = governmental=20 unit has actual notice that death has occurred, that the claimant = has=20 received some injury, or that the claimant's property has been = damaged.=20

Tex.=20 Civ. Prac. & Rem. Code Ann. =A7 101.101 (Vernon = 2005).=20 Mere notice that an incident has occurred is not enough to = establish=20 actual notice. Cathey v. Booth, 900 S.W.2d 339, 340 = (Tex.=20 1995); Garcia v. Texas Dep't of Criminal Justice, 902 = S.W.2d 728,=20 730=9631 (Tex. App.=97Houston [14th Dist.] 1995, no writ). = The notice=20 requirement ensures prompt reporting of claims to enable the = government to=20 investigate while facts are fresh and conditions remain = substantially the=20 same. City of Houston v. Torres, 621 S.W.2d 588, 591 = (Tex.=20 1981); see also Dinh v. Harris County Hosp. Dist., 896 = S.W.2d 248,=20 251 (Tex. App.=97Houston [1st Dist.] 1995, writ dism=92d w.o.j.); = Parrish=20 v. Brooks, 856 S.W.2d 522, 525 (Tex. App.=97Texarkana 1993, = writ=20 ref=92d). The failure to give notice under section 101.101 = requires=20 that the trial court dismiss a suit under the TTCA for lack of=20 jurisdiction because the Texas legislature has determined that the = TTCA=92s=20 notice requirement is jurisdictional in nature. Tex. Gov=92t Code Ann. = =A7 311.034=20 (Vernon 2005) (=93Statutory prerequisites to a suit, including = the=20 provision of notice, are jurisdictional requirements in all suits = against=20 a governmental entity.=94).
Analysis

=20 Garrett notified the HCHD of her claim on August 3, 2005. In = order=20 for her notice to be timely, the event giving rise to the HCHD=92s = liability=20 thus must have occurred on or after February 3, 2005. = Garrett=20 asserts that HCHD=92s failure to communicate the results of the = biopsy to=20 Garrett constitutes a continuing tort, and thus they meet the = six-month=20 requirement. Alternatively, Garrett contends that her cause = of=20 action occurred in July 2005 =93when Autrey first learned she had = a=20 life-threatening disease that had gone untreated.=94 In = essence,=20 Garrett asks either that we extend the accrual date of her claim = to July=20 2005 or we apply an equitable discovery rule to the TTCA=92s = notice=20 provision.

Accrual = Date

=20 HCHD breached its duty to disclose Garrett=92s biopsy results by = failing to=20 communicate the results reasonably promptly after obtaining = them. =20 See Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex. 1992) = (holding=20 that doctor could have breached duty to perform proper = examinations only=20 on those occasions when he had opportunity to perform such = examinations);=20 see also Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995) = (holding=20 that physician=92s =93negligent failure to conduct follow-up = procedures=94=20 occurs only =93in connection with the [last] examination=94); = Shah v.=20 Moss, 67 S.W.3d 836, 844=9645 (Tex. 2001) (holding that when = physician=20 negligently fails to provide weekly or monthly follow-up = treatment, breach=20 of duty imposed by standard of care occurs on last date physician = actually=20 saw patient); Gross v. Kahanek, 3 S.W.3d 518, 521 = (Tex. 1999)=20 (because appellant doctor was no longer authorizing refills of = appellee=92s=20 prescription as of September 1992 and was therefore no longer = responsible=20 for monitoring her blood levels, appellant=92s course of treatment = with=20 appellee ended in September 1992, even though appellee continued = to take=20 same prescription, now being authorized by a different = doctor). It=20 was HCHD=92s alleged failure to promptly communicate the biopsy = results that=20 caused Garrett=92s injury. Thus, we hold that Garrett=92s = cause of=20 action accrued in December 2003 or early 2004, well before = February 3,=20 2005, the earliest date by which her actual notice of claim would = have=20 been timely under the TTCA. = =20

Discovery = Rule

Garrett contends that = she could=20 not possibly have discovered the failure to communicate her = diagnosis to=20 her until much later. The TTCA, however, does not provide a=20 discovery rule to extend the limitations period. The courts = that=20 have considered imposing a discovery rule have ultimately = determined that=20 the language of section 101.101 precludes it. See Univ. = of Tex.=20 Med. Branch at Galveston v. Greenhouse, 889 S.W.2d 427, 429 = (Tex.=20 App.=97Houston [1st Dist.] 1994, writ denied) (op. on reh=92g) = (=93While we=20 believe it is remarkably unfair to deprive Greenhouse of her right = of=20 recourse against UTMB because she was unable, through no fault of = her own,=20 to comply with the notice requirements, we must agree with UTMB = that the=20 trial court erred in applying the discovery rule.=94); see also = Putthoff=20 v. Ancrum, 934 S.W.2d 164, 174 (Tex. App.=97Fort Worth 1996, = writ=20 denied) (holding that the discovery rule does not apply to claims = made=20 under the TTCA); Streetman v. Univ. of Tex. Health Science = Center at=20 San Antonio, 952 S.W.2d 53, 56 (Tex. App.=97San Antonio 1997, = writ=20 denied) (same). We follow our court=92s holding in = Greenhouse=20 and hold that the discovery rule does not apply to the TTCA notice = requirement. See Greenhouse, 889 S.W.2d at 429 = (holding that=20 the trial court erred in applying the discovery rule); see also = Putthoff, 934 S.W.2d at 174.

Conclusion

The trial court did = not err in=20 granting HCHD=92s plea to the jurisdiction based on untimely = notice. =20 We therefore affirm the judgment of the trial court.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Justice

Panel consists of = Justices=20 Taft, Jennings, and=20 Bland.