James Long v. Dr. James Long, Dr. Miller, University of Texas Medical Branch-Galveston, Texas, Department of Criminal Justice Institutional Division and Other Unknown Defendants--Appeal from 81st Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-02-00566-CV
James LONG,
Appellant
v.

Dr. James LONG, Dr. John H. Miller, and University of Texas Medical Branch-Galveston

Appellees
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 01-06-00107-CVK
Honorable Ron Carr, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 12, 2003

AFFIRMED

James Long ("Long") sued Dr. James Long, Dr. John H. Miller, the University of Texas Medical Branch-Galveston ("UTMB"), the Texas Department of Criminal Justice-Institutional Division ("TDCJ"), and other unknown defendants for negligence, gross negligence, and medical malpractice. Long appeals the trial court's dismissal of his claims against Dr. Long, Dr. Miller, and UTMB. We affirm the judgment of the trial court.

Background

Long, who is incarcerated, injured his finger while cleaning a shower. He was taken to the hospital and received stitches. His doctors asked that he return for a follow-up appointment. According to Long, TDCJ and UTMB failed to program the date of the follow-up appointment into their computer system. As a result, Long alleges, TDCJ and UTMB failed to communicate the date of his follow-up appointment to him. This, Long contends, caused him to miss his follow-up appointment, which in turn caused him to sustain further injuries.

In response to Long's petition, TDCJ filed a plea to the jurisdiction and moved for severance. The trial court granted the plea and the motion. (1) Doctors Long and Miller then filed a motion for summary judgment and a motion to dismiss, alleging that Long failed to file an expert report within 180 days as required by the Medical Liability and Insurance Improvement Act. The trial court granted the motion to dismiss and dismissed Long's claims against Doctors Long and Miller. UTMB filed a motion to dismiss, plea to the jurisdiction, and motion for summary judgment, alleging that Long failed to meet the notice requirements of and failed to prove a waiver of sovereign immunity under the Texas Tort Claims Act ("TTCA"). The trial court granted the motion and dismissed Long's remaining claims against UTMB.

Long appeals the judgment of the trial court, arguing that the trial court erred in 1) granting Dr. Long and Dr. Miller's motion to dismiss; and 2) granting UTMB's motion. We affirm the judgment of the trial court.

Dr. Long and Dr. Miller's Motion to Dismiss

Long argues that the trial court abused its discretion by granting Dr. Long and Dr. Miller's motion to dismiss because the trial court failed to follow the procedure delineated in section 13.01 of the Medical Liability and Insurance Improvement Act.

We review a trial court's ruling on a motion to dismiss under section 13.01 under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Long argues that the trial court abused its discretion in granting Dr. Long and Dr. Miller's motion to dismiss because section 13.01(b) of the Medical Liability and Insurance Improvement Act requires the trial court to enter an order requiring the plaintiff to file a $7,500 cash bond before dismissing a plaintiff's case and here, the trial court failed to enter such an order. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(b) (Vernon Supp. 2003). The requirements of section 13.01(b), however, do not apply where, as here, the plaintiff failed to file an expert report within 180 days as required by section 13.01(d). See id. 13.01(d), 13.01(e). Long does not dispute the fact that he failed to file an expert report within 180 days. Accordingly, the trial court did not abuse its discretion in granting Dr. Long and Dr. Miller's motion to dismiss.

Notice Requirement

UTMB filed a motion to dismiss, plea to the jurisdiction, and motion for summary judgment, alleging that Long failed to comply with the notice requirements of the Texas Tort Claims Act. Specifically, UTMB alleged that 1) Long failed to give UTMB notice under section 101.101(a) of the TTCA; and 2) UTMB did not have actual notice under 101.101(c) of the TTCA. The trial court granted UTMB's motion.

Section 101.101(a) of the TTCA provides:

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.

Tex. Civ. Prac. & Rem. Code Ann. 101.101(a) (Vernon 1997). Section 101.101(c) further provides that such notice requirements 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." Id. 101.101(c). Thus, a claimant must give a governmental unit at least six month's notice of a tort claim against it unless that governmental unit has actual notice. Id. 101.101(a), 101.101(c).

UTMB's motion was supported by an affidavit of Linda Smith, claims administrator for UTMB, who stated that 1) Long failed to provide UTMB with notice under 101.101(a); and 2) UTMB did not have actual notice under 101.101(c). Long failed to respond to the motion. On appeal Long does not dispute the fact that he failed to provide UTMB with notice under 101.101(a). Instead he argues that UTMB had actual notice because Long filed a grievance with TDCJ describing his alleged injuries. The record on appeal, however, does not include a copy of this grievance. Without a record of the grievance, there is no way for us to judge whether it gave UTMB actual notice as required by section 101.101(c). Furthermore, even if we had a copy of the grievance, Long fails to show how a grievance filed with TDCJ gave actual notice to UTMB. Accordingly, we find that the trial court properly granted UTMB's motion.

Tangible Property

Even if Long had complied with the notice requirements, he failed to plead and prove a waiver of sovereign immunity.

In Texas, a governmental unit is immune from suit and liability unless the state consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Governmental immunity from suit defeats a court's subject matter jurisdiction. Id. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Id. To determine if the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issues, the evidence submitted by the parties. Id.

Whether a governmental unit is immune from liability for a particular claim depends entirely on statute. Here, Long asserts that the state has waived immunity pursuant to section 101.021(2) of the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon 1997). This section provides that "[a] governmental unit in the state 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." Id.

To determine whether the state has waived sovereign immunity pursuant to section 101.021(2), we must decide whether Long's alleged injuries arose from UTMB's "use" of the computer system. The supreme court has defined "use" as "to put or bring into action or service; to employ for or apply to a given purpose." Whitley, 104 S.W.3d at 542. The use of tangible property "does not cause injury if it does no more than furnish the condition that makes the injury possible." Id. at 543.

Here, the computer system was not the source of the alleged injuries. Rather, the alleged injuries arose from UTMB's alleged failure to convey information. A governmental unit does not waive its sovereign immunity by using or misusing information. See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994) (holding that the center's alleged failure to record information in patient's medical records and its alleged failure to rely on information that was recorded did not constitute use, misuse, or nonuse of tangible personal property under the TTCA); see also Cherry v. Tex. Dep't of Criminal Justice, 978 S.W.2d 240, 243 (Tex. App.--Texarkana 1998, no pet.) (holding that the department's misclassification of a prisoner in its computer system did not constitute use of tangible personal property under the TTCA); Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 312 (Tex. App.--Houston [1st Dist.] 1998, pet. denied) (holding that the department's erroneous use of information contained in a computer printout did not constitute the use of tangible personal property under the TTCA). Accordingly, Long failed to prove a waiver of sovereign immunity under the TTCA.

Conclusion

Because Long failed to provide an expert report within 180 days as required by the Medical Liability and Insurance Improvement Act, and because Long failed to comply with the notice requirements of and plead and prove a waiver of sovereign immunity under the TTCA, we affirm the judgment of the trial court.

Karen Angelini, Justice

1. Because the trial court severed TDCJ from the lawsuit, TDCJ is not a party to this appeal.