Reversed and Rendered and Memorandum Opinion filed June 23, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00628-CV

     THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
                     HOUSTON, Appellant
                                         V.

                        JERRY CHEATHAM, Appellee

                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2010-20312

                 MEMORANDUM                      OPINION

      The University of Texas Health Science Center at Houston appeals from the
denial of its plea to the jurisdiction seeking dismissal of appellee Jerry Cheatham’s
health care liability claim based on immunity. We reverse the trial court’s order
and render judgment dismissing Cheatham’s claim against the Health Science
Center.
                                       BACKGROUND

       The Health Science Center, a Texas governmental unit, employs Dr. Hazim
Safi and Dr. Anthony Estrera. Drs. Safi and Estrera performed partial left heart
bypass surgery on Cheatham at Memorial Hermann Hospital on April 9, 2008.
Several nurses employed by Memorial Hermann assisted the doctors with the
procedure. Cheatham was taken for a routine X-ray shortly after the doctors
completed his surgery. The X-ray revealed a curved, metallic density within
Cheatham’s chest. Cheatham was returned to the operating room, where Dr.
Estrera removed a surgical needle from Cheatham’s chest.

       Cheatham sued Dr. Safi, Dr. Estrera, and Memorial Hermann alleging that
the doctors and hospital negligently left a needle inside Cheatham’s chest during
surgery.     Drs. Safi and Estrera moved to dismiss Cheatham’s claims as
governmental employees pursuant to section 101.106(f) of the Texas Civil Practice
and Remedies Code,1 and the trial court granted the doctors’ request.

       Cheatham thereafter filed an amended petition adding the Health Science
Center as a defendant.2 The Health Science Center answered Cheatham’s petition
and filed a plea to the jurisdiction, asserting that immunity precludes Cheatham’s
suit against the Health Science Center.3 According to the Health Science Center,

       1
         Texas Civil Practice and Remedies Code section 101.106(f) provides: “If a suit is filed
against an employee of a governmental unit based on conduct within the general scope of that
employee’s employment and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in the employee’s official
capacity only. On the employee’s motion, the suit against the employee shall be dismissed
unless the plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion is filed.” See
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2011).
       2
        In his amended petition Cheatham asserts claims against the Health Science Center and
Memorial Hermann. Memorial Hermann is not a party to this appeal.
       3
       The Health Science Center filed a motion to dismiss pursuant to Texas Civil Practice
and Remedies Code section 74.351 before filing its plea to the jurisdiction. See Tex. Civ. Prac.
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the trial court lacked subject matter jurisdiction because Cheatham’s claim did not
fall within a limited waiver of immunity provided by the Texas Tort Claims Act
due to the absence of formal or actual notice of Cheatham’s claim. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.101 (Vernon 2011). Additionally, the Health
Science Center asserted that the alleged injury was not caused by a condition or the
Health Science Center’s use of tangible personal property. See id. § 101.021(2)
(Vernon 2011). The Health Science Center filed evidence in the trial court to
support its plea. Cheatham did not contest the admissibility of this evidence and
relied on it in his response. The Health Science Center timely appealed after the
trial court denied its plea.

                                         ANALYSIS

       We have jurisdiction over this interlocutory appeal pursuant to Texas Civil
Practice and Remedies Code section 51.014(a)(8). See id. § 51.014(a)(8) (Vernon
2015). Cheatham does not dispute that, for jurisdictional purposes, he brought his
claim against the Health Science Center under the Tort Claims Act. We address
only whether the Health Science Center received formal or actual notice of
Cheatham’s claim as required by the Tort Claims Act because this issue is
dispositive of the trial court’s jurisdiction.

I.     Immunity

       The State of Texas, its agencies, and subdivisions, such as the Health
Science Center, generally enjoy immunity from suit and from liability unless
immunity has been waived. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554

& Rem. Code Ann. § 74.351 (Vernon Supp. 2014) (requiring a plaintiff asserting a health care
liability claim to serve an expert report on each defendant not later than 120 days after the
defendant answers). The trial court denied the Health Science Center’s motion, and we affirmed.
See Univ. of Tex. Health Sci. Ctr. at Houston v. Cheatham, 357 S.W.3d 747, 748 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied).

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(Tex. 2002); Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen, 431 S.W.3d
750, 754 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Absent a waiver,
governmental entities, like [the Health Science Center], are generally immune from
suits for damages.”).

       The Tort Claims Act embodies limited waivers of immunity. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.025 (Vernon 2011); Rusk State Hosp. v. Black, 392
S.W.3d 88, 94 (Tex. 2012). The Act provides, among other waiver provisions, that
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). To invoke a Tort Claims Act
waiver, a claimant must give a governmental unit pre-suit notice of its claim. See
id. § 101.101. Failure to give notice pursuant to the Act requires dismissal of the
suit against the governmental unit for lack of subject matter jurisdiction. See Tex.
Gov’t Code Ann. § 311.034 (Vernon 2013); McQueen, 431 S.W.3d at 754.4

       The Tort Claims Act notice provision states in pertinent part:

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


       4
          Cheatham argues that the Health Science Center “waived lack of notice as an
affirmative defense” by “wait[ing] nearly four years to amend its answer to specifically deny
receiving notice.” We reject Cheatham’s argument because notice pursuant to the Tort Claims
Act is a requirement for subject matter jurisdiction, which “is never presumed and cannot be
waived.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); see
Tex. Gov’t Code Ann. § 311.034 (“Statutory prerequisites to a suit, including the provision of
notice, are jurisdictional requirements in all suits against a governmental entity.”); see also Univ.
of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010) (the
Texas Legislature amended Government Code section 311.034 in 2005 to provide that the
requirements for Tort Claims Act notice are jurisdictional).

                                                 4
      (1) the damage or injury claimed;

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

      (3) the incident.

      ...

      (c) The notice requirements provided . . . by Subsection[] (a) . . . 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.

      It is undisputed that Cheatham did not give the Health Science Center formal
notice of his claim as provided by section 101.101(a). Cheatham argues that the
Health Science Center had actual notice as provided by section 101.101(c).

      To impute actual knowledge of an injury to a governmental unit, a party
must show that the governmental unit had “knowledge of (1) a death, injury, or
property damage; (2) the governmental unit’s alleged fault producing or
contributing to the death, injury, or property damage; and (3) the identity of the
parties involved.” Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); see also
Tex. Dep’t. of Criminal Justice v. Simons, 140 S.W.3d 338, 344-48 (Tex. 2004)
(discussing the Cathy elements). Standing alone, knowledge that an injury has
occurred does not establish actual notice. McQueen, 431 S.W.3d at 755 (citing
Cathey, 900 S.W.2d at 341). “It is not enough that a governmental unit should
have investigated an incident as a prudent person would have, or that it did
investigate, perhaps as part of routine safety procedures, or that it should have
known from the investigation it conducted that it might have been at fault.”
Simons, 140 S.W.3d at 347-48. Instead, a governmental unit must have knowledge
that amounts to the same notice to which it is entitled under section 101.101(a),

                                          5
which “‘includes subjective awareness of its fault, as ultimately alleged by the
claimant, in producing or contributing to the claimed injury.’” Univ. of Tex. Sw.
Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548-49 (Tex. 2010)
(quoting Simons, 140 S.W.3d at 347). “Fault, as it pertains to actual notice, is not
synonymous with liability; rather, it implies responsibility for the injury claimed.”
Arancibia, 324 S.W.3d at 550.

      The Tort Claims Act notice requirements “‘ensure prompt reporting of
claims in order to enable governmental units to gather information necessary to
guard against unfounded claims, settle claims, and prepare for trial.’” Simons, 140
S.W.3d at 344 (quoting Cathy, 900 S.W.2d at 341). “If a governmental unit is not
subjectively aware of its fault, it does not have the same incentive to gather
information that the statute is designed to provide, even when it would not be
unreasonable to believe that the governmental unit was at fault.” Simons, 140
S.W.3d at 348.

II.   Standard of Review

      We review a trial court’s ruling on a plea to the jurisdiction de novo. Tex.
Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). “‘[I]f a
plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised,’ even where those facts may implicate the merits of the
cause of action.” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009)
(quoting Miranda, 133 S.W.3d at 227). If the evidence creates a fact question
regarding jurisdiction, the trial court cannot grant the plea, and the fact question
will be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28. If the relevant
evidence is undisputed or fails to raise a fact question, the trial court rules on the
plea as a matter of law. Id. at 228.

                                          6
       The standard of review for a plea to the jurisdiction based on evidence
“generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c).” Id.; see Thornton v. Ne. Harris Cnty. MUD 1, 447 S.W.3d 23,
32 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under this standard, we
take as true all evidence favoring the nonmovant and draw all reasonable
inferences and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d
at 228. “[A]ter the state asserts and supports with evidence that the trial court
lacks subject matter jurisdiction, we simply require the plaintiff[], when the facts
underlying the merits and subject matter jurisdiction are intertwined, to show that
there is a disputed material fact regarding the jurisdictional issue.” Id.; see City of
Galveston v. Murphy, No. 14-14-00222-CV, 2015 WL 167178, at *2 (Tex. App.—
Houston [14th Dist.] Jan. 13, 2015, no pet.) (if the movant presents conclusive
proof that the trial court lacks subject matter jurisdiction, then the nonmovant must
present evidence sufficient to raise a material issue of fact regarding jurisdiction, or
the plea will be sustained).

III.   Evidence Adduced in the Trial Court

       The Health Science Center’s evidence consists of (1) excerpts from Dr.
Safi’s and Dr. Estrera’s deposition testimony; (2) Dr. Safi’s curriculum vitae; (3)
an affidavit from the Health Science Center’s healthcare risk manager; (4)
Cheatham’s medical records; and (5) the report of Cheatham’s medical expert.
Cheatham did not dispute the admissibility of this evidence, but relied on the
evidence to argue that a fact issue precluded dismissal of his claim against the
Health Science Center for lack of jurisdiction.

       Dr. Estrera testified in his deposition that a needle was unintentionally left in
Cheatham’s chest during his left heart bypass surgery. Dr. Estrera stated that he
could not recall Cheatham’s bypass surgery and could only speculate as to how a

                                           7
needle was left in Cheatham’s chest. Dr. Estrera testified that typically a needle is
used to suture an incision. According to Dr. Estrera, after a doctor sutures an
incision, the surgical needle is handed to a nurse, who cuts the suture from the
needle. The doctor then ties the suture down without the needle attached. Dr.
Estrera testified that, at some point during suturing, both the doctor and the nurse
have a hand on the needle. Dr. Estrera stated that it is the nurse’s responsibility to
keep track of the needles and other instruments used during surgery. Dr. Estrera
testified that the nurses who assisted with Cheatham’s surgery were employed by
Memorial Hermann.

      Dr. Safi testified in his deposition that a needle was left in Cheatham’s chest
in error. Dr. Safi could not explain how the error occurred. He stated, that during
suturing: “[W]hat we do is cut the needle — the string, so we tie [sic]. And we
give the two needles to the nurse. These two needles sometimes have life [sic] of
its [sic] own. Sometimes they fall, you know, by accident.” According to Dr. Safi,
typically, a doctor will not close an incision unless a nurse reports three times that
all surgical needles have been accounted for. Dr. Safi stated that the nurses who
assisted with Cheatham’s surgery were employed by Memorial Hermann. Dr. Safi
testified that he could not recall telling Cheatham to file a lawsuit against him.

      The Health Science Center’s healthcare risk manager averred in her affidavit
that she has responsibility for handling all tort claim notices received by the Health
Science Center. She stated that her office first received notice of Cheatham’s
claim against the Health Science Center through a formal notice letter received by
her office on November 19, 2009, which was over six months after Cheatham’s
surgery.

      Cheatham’s medical records show that on April 9, 2008, Cheatham
underwent left heart bypass surgery to repair his aorta. A perioperative record

                                           8
shows in the line labeled “Count Results” that checkmarks are next to the words
“Correct” and “MD Notified.”       A post-operative radiology report states:      “A
curved metallic density . . . overlying the hemidiaphragm has the appearance of a
surgical needle.” Cheatham’s discharge summary states: “On April 9, 2008, Dr.
Estrera performed repair of descending thoracoabdominal aortic aneurysm. On the
same day the patient was taken back to the operating room for an exploratory
thoracotomy and foreign body removal.”

      The Health Science Center also filed the report of Cheatham’s medical
expert. The expert states in his report that he has reviewed Cheatham’s medical
records. He further states:

      The standards of care require the surgeons and operating room
      personnel to ensure that no foreign materials are inadvertently left in a
      body cavity, such as instruments, sponges and needles.                All
      instruments, sponges and needles must be counted before the surgery
      and again after the surgery to ensure that none are left inside the
      patient. The counts must be done accurately to ensure that they are
      correct.

      The standard of care was breached by [Drs.] Safi and Estrera who
      were employed by [the Health Science Center] when they left a needle
      in Mr. Cheatham’s chest cavity. The standard of care was breached
      by the operating room technician and circulating nurse when they
      incorrectly reported that the needles were all accounted for.

IV.   Discussion

      We determine that the evidence filed in the trial court conclusively
establishes that the Health Science Center did not have subjective awareness of its
fault, as alleged by Cheatham, in producing or contributing to Cheatham’s claimed
injury. See Arancibia, 324 S.W.3d at 548-49. Even if Dr. Safi’s and Dr. Estrera’s
knowledge is imputed to the Health Science Center, at most this is imputed
knowledge that Cheatham suffered an injury resulting from a needle being left

                                         9
inside Cheatham’s chest in error.5

       Although it was error to leave a needle inside Cheatham’s chest, the
evidence shows that the Health Science Center did not know how this error
occurred, nor did it accept responsibility for the error. Cf. id. at 550 (governmental
entity was subjectively aware of its fault because it conceded “that its surgical error
perforated [a patient’s] intestine, resulting in sepsis, multiple organ failure, and
death”). While subjective awareness of fault may be shown by circumstantial
evidence, Dr. Safi’s and Dr. Estrera’s testimony and the medical records suggest,
at most, that the Health Science Center should have conducted an investigation,
which may have revealed its fault.           See Simons, 140 S.W.3d at 348.            These
circumstances do not establish the Health Science Center’s subjective awareness of
fault. See id. at 347 (“Cathey cannot fairly be read to suggest that a governmental
unit has actual notice of a claim if it could or even should have learned of its
possible fault by investigating the incident.”).

       Cheatham and his expert rely on the medical records to assert that Drs. Safi
and Estrera were responsible for leaving the needle inside Cheatham’s chest. The
medical records, however, do not apportion fault to the doctors, nor do the records
otherwise suggest that the Health Science Center was subjectively aware of its
fault in producing or contributing to Cheatham’s injury.               See Arancibia, 324
S.W.3d at 548-49.        Instead, the medical records, together with the doctors’
deposition testimony, show that Memorial Hermann nurses may have been the sole
producers or contributors of Cheatham’s injury; therefore, the medical records do
not show the Health Science Center’s fault even if they show error. See City of
       5
         We assume, for argument’s sake only, that Dr. Safi’s and Dr. Estrera’s knowledge can
be imputed to the Health Science Center. See McQueen, 431 S.W.3d at 755 (“Actual notice may
be imputed to the governmental entity by an agent or representative who receives notice of the
Cathey elements and who is charged with a duty to investigate the facts and report them to a
person of sufficient authority.”).

                                             10
Dallas v. Carbajal, 324 S.W.3d 537, 539 (Tex. 2010) (police report showing that
barricades were missing was not evidence of a governmental unit’s subjective
awareness of its fault after an accident, because “a private contractor or another
governmental entity (such as the county or state) could have been responsible for
the [missing barricades]”).

      Cheatham did not contest the Health Science Center’s evidence or file
controverting evidence in the trial court. Cheatham asserts on appeal that Dr. Safi
told him that there was “no excuse” for leaving a needle inside Cheatham’s chest.
We have reviewed the record. There is no proof in the record that Dr. Safi made
such a statement.

      Under these circumstances, we determine that the Health Science Center
conclusively proved, as a matter of law, that the trial court lacked subject matter
jurisdiction because the Health Science Center did not have subjective awareness
of its fault, as alleged by Cheatham, in producing or contributing to Cheatham’s
claimed injury, or otherwise have sufficient notice pursuant to the Tort Claims Act.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.101; Tex. Gov’t Code Ann. §
311.034; Arancibia, 324 S.W.3d at 548-49; see also City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005) (“Evidence is conclusive only if reasonable people
could not differ in their conclusions.”).    Cheatham did not present evidence
sufficient to raise a material issue of fact regarding jurisdiction after the Health
Science Center proved that the trial court lacked jurisdiction; therefore, we hold
that the trial court erred in denying the Health Science Center’s plea to the
jurisdiction, and we render judgment dismissing Cheatham’s claim. See Miranda,
133 S.W.3d at 228; Murphy, 2015 WL 167178, at *2.

                                   CONCLUSION

      We reverse the trial court’s order denying the Health Science Center’s plea
                                        11
to the jurisdiction and render judgment dismissing Cheatham’s claims against the
Health Science Center for lack of subject matter jurisdiction.



                                       /s/    William J. Boyce
                                              Justice


Panel consists of Chief Justice Frost and Justices Boyce and McCally.




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