                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00368-CV


UNIVERSITY OF NORTH TEXAS                            APPELLANT
HEALTH SCIENCE CENTER

                                       V.

JESSICA JIMENEZ, JENNIFER                            APPELLEES
GALO, CATHERINE FRANK, IN
THEIR INDIVIDUAL CAPACITIES,
AND WILLIAM TYLER II, AS
INDEPENDENT ADMINISTRATOR
OF THE ESTATE OF PAMELA J.
KNIGHT, DECEASED

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         FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 352-275721-14



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                         MEMORANDUM OPINION1

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    1
        See Tex. R. App. P. 47.4.
       We are asked to decide, under section 101.101(c) of the civil practice and

remedies code, whether certain entries in medical records equate to actual notice

to Appellant University of North Texas Health Science Center, a governmental

unit, of an injury to its patient Pamela Knight—an injury that is alleged to have

triggered a cascade of problems leading to her death. If the records sufficed to

put UNT Health on notice within the meaning of section 101.101(c), then the trial

court properly denied UNT Health’s motion to dismiss for lack of subject-matter

jurisdiction.2

       We hold that UNT Health did not have the requisite actual notice within the

meaning of the code and reverse the decision below.

                                  Background

       In the latter part of 2012, Pamela Knight became a patient of UNT Health

and its employee Dr. Albert H. Olivencia-Yurvati, D.O. Dr. Yurvati has been a

UNT Health faculty member for over two decades, and currently chairs UNT

Health’s Department of Surgery. The record does not reveal when Dr. Yurvati

       2
         In the trial court, both UNT Health and codefendant Columbia Plaza
Medical Center of Fort Worth had earlier and unsuccessfully challenged the
plaintiffs’ expert report under civil practice and remedies code section 74.351(a)
as inadequate. Plaza Medical appealed the trial court’s ruling; we affirmed.
Columbia Plaza Med. Ctr. of Fort Worth, Subsidiary, L.P. v. Jimenez, No. 02-15-
00275-CV, 2016 WL 2586738 (Tex. App.—Fort Worth May 5, 2016, no pet.)
(mem. op.). UNT Health did not similarly appeal but instead then moved to
dismiss on different grounds, this time based on (1) the plaintiffs’ conceded
failure to comply with the six-month-notice requirement of civil practice and
remedies code section 101.101(a) and (2) the alleged lack of the actual notice
that under section 101.101(c) can take the place of formal notice. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.101(a), (c) (West 2011).


                                        2
became department chair, nor does it show what sorts of duties—investigative,

reporting, risk-management-related, or otherwise—accompany that position.

      Knight, who was overweight, had undergone gastric lap-band surgery at a

weight-loss facility the previous year and, after complications necessitated the

band’s removal, ultimately developed a significant side effect known as

“nutcracker esophagus.” This painful condition results in such strong and

involuntary esophageal contractions that food has difficulty reaching the

stomach.

      After evaluating Knight, Dr. Yurvati recommended surgery—a “left

thoracotomy with extensive esophageal myotomy”3—and performed that

procedure on December 11, 2012. The next day, December 12, Dr. Yurvati

ordered an esophagram, which showed no problems. But in the days that

followed, Knight’s condition “began to markedly deteriorate”; she developed low

levels of oxygen concentration in her blood (hypoxemia) and needed support

ventilation in the form of bilevel positive airway pressure so that she could

breathe.

      After a thoracostomy procedure on December 17 that placed a chest tube

in Knight’s left lung—needed because of a loculated pneumothorax—her




      3
      In layman’s terms, this means making an incision in the chest wall to
access and to then cut away some of the outer tissue layers from the lower
esophagus.


                                       3
condition continued to worsen.4 Eight days after Knight’s initial surgery, a second

esophagram on December 19 revealed a leak in her esophagus that, according

to Appellees, had resulted from an esophageal perforation during the December

11 surgery. Despite Dr. Yurvati’s attempt to repair the perforation on December

20 through a second thoracotomy, Knight’s condition worsened to the point of

developing a massive infection.

      Months of additional medical problems and procedures culminated in

Knight’s death in May 2013 at the age of 56. In November 2014, Appellees—

Knight’s brother (as estate administrator) and Knight’s mother and two adult

daughters—sued UNT Health and Plaza Medical for medical negligence.5

                                UNT Health’s records

      Because both sides agree that UNT Health was not given written notice of

the incident forming the basis of the plaintiffs’ claims within six months of

December 11, 2012, see Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a), we

focus only on whether Knight’s medical records as maintained by UNT Health

provided “actual notice” to that entity that she had “received some injury.” Id.

§ 101.101(c).


      4
        A thoracostomy differs from a thoracotomy in that a thoracostomy involves
a small incision, whereas a thoracotomy involves a larger opening so that a
surgeon can access internal organs and areas such as the esophagus. A
“loculated pneumothorax” means an air pocket in the pleural space between
someone’s lung and the chest wall.
      5
          Dr. Yurvati was originally also a named defendant but is no longer a party.


                                           4
       Knight’s family points us to Dr. Yurvati’s December 20, 2012 operative

report, which contains entries that they contend satisfy the statute:

       PREOPERATIVE DIAGNOSES:
       1. Distal esophageal perforation.
       2. Status post esophageal myotomy.

       PROCEDURES PERFORMED:
       1. Left thoracotomy with repair of esophageal perforation utilizing modified
          T-tube repair.
       2. Decortication. (Emphases added.)

This operative report also includes these details in its “Findings” section:

       At the time of [the December 11] surgery, there appeared to be no
       evidence of any injury to the esophagus or perforation. As a matter
       of fact, she had a postoperative esophagram that was completely
       clean. About 4 days after surgery, she was having significant pain
       and discomfort in her chest. She developed what appeared to be a
       loculated hemopneumothorax after her drains had been removed. A
       small bore catheter was placed and re-expanding the upper portion
       of the lung; however, she did not do well and had evidence of a
       leaky drainage from her chest tube site. This became quite apparent
       yesterday [December 19] and an esophagram confirmed that there
       was a distal leak. It was recommended that she urgently should
       undergo surgical intervention. . . . She was brought to the operating
       room and once we cleared away and were able to identify the
       esophagus, there appeared to be a 5cm linear tear in the
       esophagus. This appeared to be secondary to some ischemia and
       then a perforation. The edges appeared to be viable and clean.
       [Emphases added.]

Further into the report, Dr. Yurvati described the December 20 procedure, noting

that when the esophagus was exposed during this thoracotomy, “[a]bout the

distal 1/3, there appeared to be evidence of a linear 5cm perforation which was

clearly visible.”




                                          5
      Our review of the record also reveals that nearly a month later, on January

18, 2013, Dr. Yurvati signed a medical certification requested by Knight’s Family

and Medical Leave Act coverage provider. There, he recounted her various

procedures, including “12-20-2012 left thoracotomy [with] repair of esophageal

perforation utilizing modified T-tube repair and decortication.”

      This document is part of UNT Health’s medical records, as is Dr. Yurvati’s

“History and Physical” from slightly earlier (the fax heading is dated January 9,

2013), which described Knight’s difficulties following the December 11 surgery:

             Subsequently, she started having some milky fluid out from
      her chest drains. Then she became quite hypoxic and short of
      breath. A chest x-ray film showed a loculated left pneumothorax. A
      small bore catheter was placed to help reinflate the lung and
      [resolve] this. I was very concerned with a possible delayed per.
      Immediately postoperatively about day 1-2, she did have an
      esophagram that showed excellent flow through without any
      evidence of perforation at that time. This was a clean study.
      However, [w]as concerned now few days later with her
      symptomatology and a loculated pneumothorax and the drainage,
      that indeed we may have had a problem.

      The repeated references in UNT Health’s records to an esophageal

“perforation” contrast with Dr. Yurvati’s affidavit, which UNT Health filed with its

motion to dismiss and in which he discussed the December 20 procedure:

“During the procedure, I located a linear tear in Ms. Knight’s esophagus. I

determined that the tear did not occur[] as a result of any act or omission on the

part of myself or any other health care provider.” As indicated in Dr. Yurvati’s

December 20 operative report quoted earlier, however, a “tear” and a

“perforation” do not appear to be synonymous. Nonetheless, neither UNT


                                          6
Health’s medical records nor the appellate record as a whole demonstrates that a

perforated esophagus necessarily—or even most likely—must result from

medical error.6

                               Standard of review

      We review de novo a trial court’s ruling on a plea to the jurisdiction, which

is essentially what UNT Health raised through its motion to dismiss for lack of

subject-matter jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,

554 (Tex. 2000) (noting that absence of subject-matter jurisdiction may be raised

by different procedural vehicles); In re Tex. Dep’t of Transp., 510 S.W.3d 701,

705 (Tex. App.—El Paso 2016, orig. proceeding) (citing Bland ISD and noting

that “jurisdictional challenge[s] can be raised by a number of procedural vehicles,

including a plea to the jurisdiction, a motion to dismiss, or a motion for summary

judgment”).

      If a plea to the jurisdiction or comparable procedure challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised, just as the trial

court must. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.


      6
       Appellees’ brief states that there can “be no doubt that the perforation
noted in [UNT Health’s] records could only have occurred during the surgical
procedure previously performed by Dr. Yurvati.” That could well be true, but
absent some record support, we cannot so conclude. The medical records might
imply, at least to laymen like us, that esophageal perforations do not occur
without human agency, but that is not the same as the kind of evidence from
which actual notice can be fairly assumed or from which a fact issue arises.


                                         7
2004); Bland Indep. Sch. Dist., 34 S.W.3d at 555; City of Wichita Falls v. Jenkins,

307 S.W.3d 854, 857 (Tex. App.—Fort Worth 2010, pet. denied). If the evidence

creates a fact question on the jurisdictional issue, then the trial court cannot grant

the   plea       to     the    jurisdiction,     and    the    factfinder    will   resolve    the

question. Miranda, 133 S.W.3d at 227–28; Jenkins, 307 S.W.3d at 857. But if the

relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional        issue,   the   trial     court   rules   on   the     plea    as   a    legal

matter. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard

generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d at

228; see Tex. R. Civ. P. 166a(c).

       Although actual notice is a fact question when the evidence is disputed, in

many instances it can be determined as a matter of law. Tex. Dep’t of Criminal

Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004). Here, the parties do not

dispute the evidence presented on the jurisdictional issue; they simply dispute its

legal significance. Accordingly, we will review the trial court’s ruling as a matter of

law. See id.; Miranda, 133 S.W.3d at 228.

       We have jurisdiction over the trial court’s interlocutory order under section

51.014(a)(8) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(8) (West Supp. 2016).

                                             Discussion

       Because Appellees concede that they did not give UNT Health formal

written notice of their claims within six months of December 11, 2012, we thus


                                                   8
sustain UNT Health’s first issue and analyze only UNT Health’s second issue,

which questions whether UNT Health had actual notice sufficient to satisfy the

Texas Tort Claims Act’s requirements. If it did, its sovereign immunity was

waived, and the trial court properly denied UNT Health’s motion to dismiss. See

id. §§ 101.021(2) (West 2011), 101.101(a), (c).7

      Actual notice acquired within six months can replace the need for formal

notice if a governmental unit knows of (1) a death or an injury, (2) its alleged fault

in producing or contributing to that death or injury, and (3) who exactly died or

was injured. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Jenkins,

307 S.W.3d at 858. But “[s]tanding alone, knowledge that an injury has occurred

does not establish actual notice.” Univ. of Tex. Health Sci. Ctr. at Houston v.

Cheatham, No. 14-14-00628-CV, 2015 WL 3878111, at *3 (Tex. App.—Houston

[14th Dist.] June 23, 2015, no pet.) (mem. op.) (citing Univ. of Tex. Health Sci.

Ctr. at Houston v. McQueen, 431 S.W.3d 750, 755 (Tex. App.—Houston [14th

Dist.] 2014, no pet.)). The supreme court put it succinctly in Cathey: the plaintiffs

“argue that section 101.101(c) requires only that a governmental unit have


      7
       In a case against a governmental unit, sovereign immunity is not waived
under the Texas Tort Claims Act unless a claimant satisfies the prerequisite
either of (1) providing formal notice “not later than six months after the day that
the incident giving rise to the claim occurred” that “reasonably describe[s]” the
“damage or injury claimed,” “the time and place of the incident,” and “the
incident”; or (2) showing that the governmental unit had “actual notice [within that
same six-month period] 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(a), (c).


                                          9
knowledge that a death, an injury, or property damage has occurred. We

disagree.” 900 S.W.2d at 341.

      It is also not enough even that the 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. Rather, the governmental unit must have

knowledge equivalent to what a formal section 101.101(a) notice would have

provided, 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). In a case such as this one, medical

records may create a fact issue on actual notice only if they “indicate to the

[government] hospital its possible culpability in causing the injuries.” Dinh v.

Harris Cty. Hosp. Dist., 896 S.W.2d 248, 253 (Tex. App.—Houston [1st Dist.]

1995, writ dism’d w.o.j.).

      We have reviewed UNT Health’s records and cannot find within them

anything that rises to the level of subjective awareness that UNT Health was at

fault in producing or contributing to Knight’s injuries. References to a perforated

esophagus, in and of themselves, simply do not suffice. Our conclusion comports

with caselaw similarly dealing with medical records as the purported basis for

actual notice. See Cathey, 900 S.W.2d at 341–42 (finding no knowledge on


                                        10
government hospital’s part of alleged culpability for stillbirth where medical

records might have revealed only that Cesarean section was performed more

than half an hour after it should have been); McQueen, 431 S.W.3d at 760–61

(holding no subjective awareness of fault from medical records that noted “bowel

injury during hysterectomy”); Reynosa v. Bexar Cty. Hosp. Dist., 943 S.W.2d 74,

78 (Tex. App.—San Antonio 1997, writ denied) (holding insufficient, for actual-

notice purposes, medical records concerning brain-damaged baby where those

records consisted of handwritten reports by doctors and nurses documenting

extent of baby’s injuries, a fetal-heart-tone-monitoring strip, and a nurse’s

handwritten note); see also Cheatham, 2015 WL 3878111, at *5 (holding, in case

involving overlooked surgical needle, that government healthcare entity lacked

subjective awareness where records suggested nothing more than that private-

hospital surgical nurses, whose job it was to account for all needles, may have

been the sole producers of or contributors to plaintiff’s injury by missing one of

them).

      Our inquiry does not end here, though, because in addition to the actual

notice that might appear wholly within an entity’s records—but here does not—a

governmental unit’s agent’s or representative’s knowledge of the three Cathey

factors may be imputed to the entity under certain circumstances. E.g.,

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


                                       11
report them to a person of sufficient authority.”); Univ. of Tex. Health Sci. Ctr. at

San Antonio v. Stevens, 330 S.W.3d 335, 340–41 (Tex. App.—San Antonio

2010, no pet.) (disagreeing that only a designated risk manager’s knowledge

may be imputed and holding that actual notice was imputed where pediatrics-

residency-program director conducted faculty review of incident involving

resident’s administering wrong medication and, under the contract between

residency program and hospital, the director had agreed to investigate any

problems involving residents); Johnson v. Nacogdoches Cty. Hosp. Dist.,

109 S.W.3d 532, 537 (Tex. App.—Tyler 2001, pet. denied) (holding that hospital

director’s awareness that decedent had come to the emergency room and not

been treated, and director’s awareness of potential for liability, raised fact

question about whether hospital had actual notice).

      But not all government-hospital employees—even treating physicians—

hold positions from which their own knowledge will be imputed to the entity.8

Caselaw most often highlights the doctor’s particular role: a government doctor

who has oversight responsibilities tends to have his or her knowledge treated as

tantamount to that of the entity itself. That was true in Stevens, and it was true

when, some two months later, the supreme court decided Arancibia.

      There, in affirming the trial and appellate courts’ denial of UT

Southwestern’s jurisdictional challenges on actual-notice grounds, the Arancibia

      8
        Appellees’ discussion of imputed knowledge relies simply on the records
of Dr. Yurvati’s treatment.


                                         12
court set out the following chain of events and knowledge on a supervisor’s part

concerning a patient’s death after two surgical residents botched a hernia

surgery by perforating her bowel:

      Dr. Watson [an assistant professor of surgery who supervised the
      procedure] was present during Arancibia’s laparoscopic hernia
      repair. The day after her death, Watson emailed his immediate
      supervisor, who was chief of the division. The email begins, “I
      wanted to give you a heads up on a terrible outcome with a Surgery
      A patient.” Watson described the surgery, which he believed went
      well, and Arancibia’s return to the emergency room two days later. A
      laparotomy at that time “showed an unrecognized bowel injury,” and
      Arancibia died the next day of multiple organ failure. Watson’s email
      concluded, “I have already spoken with risk mgt.”

324 S.W.3d at 549. Dr. Watson’s supervisor then contacted the chair of the

surgery department, who in turn responded with an email outlining several

reasons why a patient such as Arancibia might present with her symptoms more

than 24 hours after surgery. Id. Despite the supervisor’s later conclusion that

bowel perforation was a known complication of the surgery and that no standard-

of-care issues were implicated, the supreme court nevertheless found that the

supervisor’s “ultimate conclusion that those errors were acceptable does not

detract from his subjective awareness that medical error contributed to

Arancibia’s death.” Id. at 549–50.

      From these facts the court had little trouble concluding that UT

Southwestern was subjectively aware of its fault, particularly when “the sole

instrumentality of harm [was] the government itself.” Id. at 550 (distinguishing

City of Dallas v. Carbajal, 324 S.W.3d 537, 539 (Tex. 2010), in which the court



                                       13
found no subjective awareness of fault on City’s part where missing barricades

led to plaintiff’s driving into roadway excavation because “a private contractor or

another governmental entity (such as the county or state) could have been

responsible” for the missing barricades).

      In contrast here, Knight’s surgery occurred not at UNT Health but at Plaza

Medical, a private hospital. Although an injury’s location is not outcome-

determinative,9 the possibility of nongovernmental actors’ involvement with a

particular injury is a factor bearing on the subjective-awareness component.

      But even assuming that Dr. Yurvati believed (but never expressed) that he

had negligently perforated Knight’s esophagus, another obstacle for Knight’s

family in defeating governmental immunity is that we have no evidence about Dr.

Yurvati’s position or duties from which we can conclude that his knowledge

should be imputed to UNT Health. Cf. id. (stating that the government, in the form

of UT Southwestern, had “conceded that its surgical error perforated Arancibia’s

intestine, resulting in sepsis, multiple organ failure, and death”; it was

“undisputed” that UT Southwestern “was aware that its surgeons’ errors caused




      9
         For example, Stevens involved an incident at a nongovernmental hospital
at which the UT Health San Antonio pediatrics-residency director officed, and
from which he supervised the pediatrics residents. 330 S.W.3d at 337. On the
other hand, actual notice was absent even where “the events of which the
[plaintiffs] complained all happened in the [government] hospital and involved
hospital personnel.” Simons, 140 S.W.3d at 344 (discussing Cathey, 900 S.W.2d
at 341–42).


                                        14
those perforations and that clinical management contributed to [Arancibia’s]

death”). Here, UNT Health has conceded nothing similar.

      Beyond the facts that—as his affidavit states—Dr. Yurvati has been a UNT

Health faculty member for over 20 years and at some unknown time became

chair of UNT Health’s Department of Surgery, the record does not suggest that

simply by virtue of being a faculty member or department chair he was tasked

with investigating or reporting incidents. Appellees do cite one case to posit that

physicians, by their very nature, have a duty to gather facts and investigate

incidents. See Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402,

412 (Tex. App.—El Paso 1994, writ denied) (“Dr. Lakho and Dr. Rosen, as

physicians, did have the duty to gather facts and investigate the incident.”). But

Apodaca involved additional facts that the court recited immediately following the

above quotation:

      Further, the incident was reported to Appellant [Texas Tech HSC] by
      virtue of the Incident Report signed by Dr. Lakho. The report itself is
      printed on a form containing Appellant’s name, and shows that it
      was reviewed by a member of Appellant’s “risk management”
      department two days after the incident.

Id. We are unaware of any case holding that a treating physician’s knowledge is

automatically imputed to his or her governmental-unit employer, and Apodaca

does not stand for that proposition.

      Consistent with Cathey and Simons, then, actual notice cannot be imputed

from knowing that a patient received treatment from one of its doctors, or even

that the patient died; otherwise, a hospital “would be required to investigate the


                                        15
standard of care provided to each and every patient that received treatment.”

Simons, 140 S.W.3d at 344 (quoting Cathey, 900 S.W.2d at 341). UNT Health’s

motion to dismiss should have been granted on lack-of-notice grounds, and we

therefore sustain UNT Health’s second issue.

                                 Conclusion

       Having sustained UNT Health’s first and second issues, we reverse the

trial court’s order denying UNT Health’s motion to dismiss and render judgment

dismissing Appellees’ claims against UNT Health for lack of subject-matter

jurisdiction.




                                               /s/ Elizabeth Kerr
                                               ELIZABETH KERR
                                               JUSTICE

PANEL: WALKER, GABRIEL, and KERR, JJ.

DELIVERED: August 3, 2017




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