UT Med. Branch Galveston v. Brisco
(Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Massengale)
(
Texas Tort Claims Act TTCA case, claim dismissed, sufficiency of  notice of claim letter, immunity
not waived)REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice
Massengale   
Before Chief Justice Radack, Justices Bland and Massengale   
01-09-00064-CV  The University of Texas Medical Branch Galveston and
The University of Texas System v. Dawn Nico Brisco   
Appeal from 56th District Court of Galveston County
Trial Court Judge: Hon Lonnie Cox

MEMORANDUM OPINION

   Appellant, The University of Texas Medical Branch at Galveston (UTMB), appeals the trial court’
s denial of its plea to the jurisdiction and motion to dismiss, arguing that governmental immunity
bars the claims of appellee Dawn Nico Brisco.

   We reverse and render a judgment of dismissal.

Background

   On April 19, 2005, Brisco had vocal-cord surgery at UTMB. Footnote Her symptoms persisted
after surgery, and Brisco sought additional medical care from UTMB doctors through early 2007.
In November 2006, Brisco consulted with a voice specialist, who concluded that Brisco “sustained
severe scarring of the soft tissues” as a result of her vocal-cord surgery. In August 2007, Brisco
was diagnosed with laryngeal cancer.

   Meanwhile, on April 16, 2007, Brisco’s attorney notified UTMB by letter that Brisco was pursuing
a health-care liability claim. The notice letter stated, “On April 19, 2005, Dawn N. Brisco was
admitted to [UTMB] for treatment of bilateral true vocal cord epitheliad damage and Reinke’s
edema. As a result of the negligence of the hospital, Ms. Brisco suffered injury.” On June 15,
2007, Brisco sued UTMB and two treating physicians. Brisco alleged, “The care or treatment
consisted of micro laryngoscopy with micro flap dissection of bilateral true vocal cords and suction
of Reinke’s edema; all beginning on or about April 19, 2005 and continued until March of 2007.”
Brisco further alleged:

Defendant’s [sic] jointly and/or severally [sic] failure or refusal to properly diagnose, treat, provide
care and adequate follow up care, inform, consult with specialist and refer her to a specialist for
further medical diagnosis or treatment. Further, Plaintiff would argue and urge that the injury and
damage to Plaintiff’s vocal cords was due to an Airway Fire, which occurred during the
laryngoscopy. Plaintiff states that the specific acts and omissions of the Defendants were the
proximate cause of said injuries.

Brisco specifically alleged eight failures by UTMB to take some action and one instance of
performing “needless and unnecessary micro suspension laryngoscopy or laser surgery.” Brisco
alleged that UTMB was negligent:

   (1)     In failing to warn the Plaintiff during the existence of the hospital-patient relationship of
the dangers resulting from University of Texas Medical Branch at Galveston and University of
Texas System’s incompetent treatment;

   (2)     In failing to properly perform the medical treatment necessary to the Plaintiff’s welfare
according to the standards set by the medical profession;

   (3)     By failing to recognize and/or acknowledge its recognition of the Plaintiff’s symptoms that
resulted from its treatment of the Plaintiff;

   (4)     By failing to fully and completely disclose the risks and/or hazards of micro suspension
laryngoscopy or laser surgery;

   (5)     By performing needless and unnecessary micro suspension laryngoscopy or laser
surgery upon Plaintiff’s person when a less severe means of treatment could have provided the
necessary and proper cure for Plaintiff’s medical condition;

   (6)     By failing to consult a specialist in the field of gastroenterology, when the Defendant knew
or should have known that its skills, knowledge or facilities were inadequate to properly treat the
Plaintiff under the circumstances as they then existed;

   (7)     By failing to provide Plaintiff with adequate competent staff to meet her requirements; and

   (8)     By failing to use and/or misusing the laser used to perform the Plaintiff’s surgery ;
providing defective equipment for said surgery or misreading the equipment during the surgical
procedure on April 19, 2007.

   UTMB answered the suit and filed a plea to the jurisdiction and motion to dismiss, arguing that
Brisco did not comply with the notice requirement of the Texas Tort Claims Act because the
alleged incident occurred on April 19, 2005, and Brisco’s notice was dated April 16, 2007. Brisco
responded, arguing that the incident was a continuing course of medical care, which concluded
around February 23, 2007, making the April 2007 notice timely. The trial court overruled appellant’
s plea to the jurisdiction and denied its motion to dismiss. UTMB brings this interlocutory appeal
from that order. Footnote

Standard of Review

   A plea to the jurisdiction based on governmental immunity questions a trial court’s subject-
matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Because subject-matter jurisdiction is a
question of law, we review a trial court’s ruling on a plea to the jurisdiction de novo. Holland, 221 S.
W.3d at 642; Miranda, 133 S.W.3d at 226.

   In reviewing a trial court’s jurisdictional ruling, we construe the pleadings in the plaintiff’s favor
and look to the pleader’s intent. Miranda, 133 S.W.3d at 226. We do not consider the merits of the
case; rather we consider only the pleadings and evidence relevant to the jurisdictional inquiry. Id.
First, we determine if the plaintiff’s petition alleges facts sufficient to demonstrate that jurisdiction
exists. Holland, 221 S.W.3d at 642–43; Miranda, 133 S.W.3d at 226. Sometimes, however, a plea
to the jurisdiction may require the court to consider evidence pertaining to jurisdictional facts.
Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 227. “A plea should not be granted if a fact
issue is presented as to the court’s jurisdiction, but if the relevant undisputed evidence negates
jurisdiction, then the plea to the jurisdiction must be granted.” Holland, 221 S.W.3d at 643 (citing
Miranda, 133 S.W.3d at 227–28).

Governmental Immunity and the Texas Tort Claims Act

   Governmental immunity deprives a trial court of subject-matter jurisdiction for suits against the
State or certain governmental units, unless the State consents to suit. Miranda, 133 S.W.3d at
224. The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity, under
which immunity from suit is coextensive with immunity from liability. Id. at 224–25; Tex. Civ. Prac. &
Rem. Code Ann. §§ 101.001–.109 (Vernon 2005). The plaintiff bears the burden of demonstrating
how the TTCA has waived a governmental unit’s immunity from suit. Dallas Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine whether the plaintiff has met that
burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties. Id. (quoting Tex. Natural Res.
Conservation Comm’n. v. White, 46 S.W.3d 864, 868 (Tex. 2001)).

   Under the TTCA, a governmental unit is liable for “personal injury and death so caused by a
condition or use of tangible personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2). Therefore, the plaintiff must allege, among other things, that the property’s
use proximately caused the personal injury or death. See Dallas County Mental Health & Mental
Retardation v. Bossley, 968 S.W.2d 339, 342–43 (Tex. 1998). “Use” means “to put or bring into
action or service; to employ for or apply to a given purpose.” San Antonio State Hosp. v. Cowan,
128 S.W.3d 244, 246 (Tex. 2004). Moreover, the Texas Supreme Court has expressly held that
allegations of non-use of property cannot support a claim under the TTCA’s limited waiver of
sovereign immunity. Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–89 (Tex. 2001)
(holding sovereign immunity not waived under the TTCA when appellee alleged error in medical
judgment and failure to diagnose fatal condition); Kerrville State Hosp. v. Clark, 923 S.W.2d 582,
585 (Tex. 1996) (observing that allowing both use and non-use of property to result in waiver
under TTCA “would be tantamount to abolishing governmental immunity”); see City of Pasadena
v. Thomas, 263 S.W.3d 43, 46–47 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that
allegations that city failed to furnish protective equipment while appellee performed community
service did not support waiver of sovereign immunity); City of Sugarland v. Ballard, 174 S.W.3d
259, 265 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that claim based on police
officers’ failure to provide adequate care, well-being, and safety of plaintiff while he was in custody
did not fall within express language of TTCA’s waiver provisions).

Texas Tort Claims Act—Notice Requirement

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

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

             (1) the damage or injury claimed;

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

             (3) the incident.
   . . . .

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

Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005). The notice requirement ensures
prompt reporting of claims to enable the government to investigate while facts are fresh and
conditions remain substantially the same. City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.
1981); see also Dinh v. Harris County Hosp. Dist., 896 S.W.2d 248, 251 (Tex. App.—Houston [1st
Dist.] 1995, writ dism’d w.o.j.). The failure to give notice under section 101.101 requires that the
trial court dismiss a suit under the TTCA for lack of jurisdiction because the Texas legislature has
determined that the TTCA’s notice requirement is jurisdictional in nature. Tex. Gov’t Code Ann. §
311.034 (Vernon 2005) (“Statutory prerequisites to a suit, including the provision of notice, are
jurisdictional requirements in all suits against a governmental entity.”).

   Nevertheless, the notice requirement does not apply “if the governmental unit has actual notice
that death has occurred, that the claimant has received some injury, or that the claimant’s
property has been damaged.” Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c); Parsons v. Dallas
County, 197 S.W.3d 915, 919 (Tex. App.—Dallas 2006, no pet.) (holding that governmental unit
had actual notice of inmate’s claim when jail-facility employees arranged for inmate to be taken to
hospital after falling). Mere notice that an incident has occurred is not enough to establish actual
notice. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Garcia v. Tex. Dep’t of Criminal
Justice, 902 S.W.2d 728, 730–31 (Tex. App.—Houston [14th Dist.] 1995, no writ). Under the
TTCA, actual notice to a governmental unit requires the governmental unit’s: (1) knowledge of a
death, injury, or property damage; (2) subjective awareness that its fault produced or contributed
to the claimed injury; and (3) knowledge of the identity of the parties involved. Tex. Dep’t of
Criminal Justice v. Simons, 140 S.W.3d 338, 344–47 (Tex. 2004) (citing Cathey, 900 S.W.2d at
341); see Parsons, 197 S.W.3d at 919 (holding that plaintiff must plead facts sufficient to invoke
waiver of governmental immunity under TTCA). The Texas Supreme Court noted, “What we
intended in Cathey by the second requirement for actual notice was that a governmental unit have
knowledge that amounts to the same notice to which it is entitled by section 101.101(a).” Simons,
140 S.W.3d at 347. Actual notice is a fact question when the evidence is disputed; but in many
instances actual notice is determined as a matter of law. Id. at 348.

Discussion

   Brisco alleged injury arising from her vocal-cord surgery on April 19, 2005, associated with the
alleged misuse of a laser. Brisco does not dispute that she first sent written notice of her health-
care liability claim to UTMB on April 16, 2007, almost two years after the surgery. Under the TTCA,
this notice is untimely with respect to any claim arising from the incident of the April 19, 2005
surgery, as it was not sent within six months. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a).

   In her original petition, Brisco alleged that UTMB had actual notice of her claim because “as a
governmental unit,” UTMB “ had preexisting knowledge of the Plaintiff’s injury and damages, the
said defendant’s alleged fault in producing or contributing to the injury, and the identity of the
Plaintiff.” This conclusory allegation restates the requirements for actual notice under the TTCA,
but Brisco did not allege facts sufficient to show UTMB’s knowledge of a personal injury and the
people involved or its subjective awareness of its alleged role in contributing to the injury. See
Simons, 140 S.W.3d at 344. Accordingly, we conclude that Brisco’s petition does not plead
jurisdictional facts sufficient to show actual notice of her health-care liability claim based on the
events of April 19, 2005. See id.

   This conclusion does not end our analysis because Brisco also alleged and argued that her
claim arose from a continuing course of care at UTMB. In examining the pleadings, we note that
the allegations not related to Brisco’s April 19, 2005 surgery do not allege the use of tangible
personal or real property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). Rather, Brisco
alleged that UTMB failed to communicate, failed to diagnose, failed to consult with a specialist,
failed to provide adequate staff, and otherwise failed to use information. Because these are
allegations of “non-use,” they cannot support a waiver of sovereign immunity under the TTCA.
See Miller, 51 S.W.3d at 587–89.

   Brisco’s notice letter refers only to the April 19, 2005 surgery date. In both the text of the letter
and the subject line, the date of the incident is described only as having occurred on April 19,
2005. In addition, Brisco does not allege any use of a laser after April 19, 2005. Thus, on its face,
the notice letter does not give UTMB notice of a continuing-course-of-care claim. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.101(a)(2).

   Accordingly, after examining the undisputed evidence and construing Brisco’s allegations in her
favor, we hold that Brisco’s original petition does not present a claim in which governmental
immunity is waived by the TTCA. We sustain appellant’s sole issue.

Conclusion

   We reverse the order denying the UTMB’s plea to the jurisdiction, and we render judgment
dismissing Brisco’s claims against UTMB for want of jurisdiction.

                                                      
Michael Massengale

                                                      Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.