University of Texas Medical Branch at Galveston v. Carl Newman, Individually and as personal representative of the Estate of Thomas Newman, deceased--Appeal from 172nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-029 CV
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UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant
V.
CARL NEWMAN, individually and as personal representative
of THE ESTATE OF THOMAS NEWMAN, Deceased, Appellee
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-165,570
MEMORANDUM OPINION

Carl Newman filed a wrongful death suit against the University of Texas Medical Branch at Galveston (UTMB) alleging negligence and medical malpractice in the care and treatment of his son, Thomas Newman, when he was an inmate at the Federal Correction Complex Beaumont-Low (Low facility). UTMB appeals from the trial court's denial of its plea to the jurisdiction. UTMB contends appellee failed to establish a waiver of sovereign immunity under the Texas Tort Claims Act for two reasons. First, appellee did not comply with the mandatory notice provision under the Act. Second, appellee did not demonstrate a use or misuse of tangible personal property, or that any use or misuse of such property proximately caused Thomas Newman's injuries and death.

A claimant is required to provide a governmental unit with formal, written notice of a claim against it within six months of the incident giving rise to the claim unless the governmental unit has actual notice of the claim. See Tex. Civ. Prac. & Rem. Code Ann. 101.101 (Vernon 1997). "[F]or a hospital to have actual notice, it must have knowledge of (1) a death or injury; (2) its alleged fault producing or contributing to the death or injury; and (3) the identity of the parties involved." Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995).

The parties do not dispute that appellee failed to give formal written notice. Likewise, the parties do not dispute that UTMB had actual knowledge of the death and the identity of the parties involved. Therefore, we must determine whether the pleadings and evidence are sufficient to allege that UTMB received actual notice of its potential liability. Appellee asserts UTMB had actual notice through telephone communication with personnel at the Low facility immediately after Thomas Newman's death, and through the Multi-Level Mortality Review.

The telephone communication appellee relies upon is his contact of "prison officials and U.T.M.B. employees questioning the quality of health care provided to his son" and his transfer of Thomas Newman's body to the state of Arizona where a second autopsy was conducted. The persons contacted by appellee are not identified so we cannot verify their status in regards to UTMB. Nevertheless, assuming those contacted represented UTMB, there is no assertion, nor any indication, either in the record or appellee's brief of further communication with the Low facility. The mere fact that immediately after Thomas Newman's death appellee questioned his care does not provide UTMB with notice of its potential culpability. There is no evidence UTMB was informed of the results of the second autopsy or that those results indicated any negligence. Appellee's "questioning" does not equal the proposition that UTMB knew or should have known that appellee judged UTMB responsible for the death of his son. Consequently, the telephone communication does not constitute actual notice.

The Mortality Review stated, "Weaknesses: Nurse communication to provider following EKG of 9/3/99." It also answered "Yes" to the query, "Did patient receive appropriate and adequate health care, consistent with community standards, during his incarceration in the Federal Bureau of Prisons?" In order for this report to constitute actual notice, it had to convey the hospital's potential culpability. See Cathey, 900 S.W.2d at 342.

"Although typically a question of fact for the jury, the existence of actual notice may be determined as a matter of law where the evidence is insufficient to raise a fact issue." City of San Angelo v. Smith, 69 S.W.3d 303, 307 (Tex. App.--Austin 2002, pet. denied). "When a health care provider should have known from its records that its negligence was more likely than not the cause of plaintiff's injuries, a fact issue will have been raised on the actual notice issue. . .." Gaskin v. Titus County Hosp. Dist., 978 S.W.2d 178, 182 (Tex. App.--Texarkana 1998, pet. denied).

The report of a "weakness" is countered by the finding that Thomas Newman received appropriate and adequate care. The review in no way suggests the "weakness" was a factor to any degree in his death. We therefore find it does not convey to UTMB its potential liability for the death of Thomas Newman and hence does not provide actual notice.

Issue one is sustained. Accordingly, we reverse the order of the trial court denying UTMB's plea to the jurisdiction and render judgment dismissing this cause for lack of jurisdiction.

REVERSED AND RENDERED.

PER CURIAM

 

Submitted on June 12, 2003

Opinion Delivered July 17, 2003

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.