Opinion issued January 5, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00136-CV
ERNESTINE CASANOVER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ROSA LEE EVANS, AND ERNEST EVANS AS HUSBAND AND WIDOWER OF ROSA LEE EVANS, Appellants
V.
TOMBALL REGIONAL HOSPITAL AUTHORITY D/B/A TOMBALL REGIONAL HOSPITAL A/K/A TOMBALL REGIONAL MEDICAL CENTER, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2003-15266
MEMORANDUM OPINION
This is an appeal from a summary judgment rendered in favor of appellee, Tomball Regional Hospital Authority d/b/a Tomball Regional Hospital a/k/a Tomball Regional Medical Center (“the Hospital”). Appellants, Ernestine Casanover, individually and as adminstratrix of the estate of Rosa Lee Evans, and Ernest Evans as husband and widower of Rosa Lee Evans (“Mrs. Evans”), deceased, filed a suit for damages arising out of treatment Mrs. Evans received after her admission as the Hospital’s patient. In three points of error, appellants contend that the trial court erred in granting the Hospital’s motion for summary judgment on the basis of appellants’ alleged failure to give notice because (1) appellants provided timely, proper notice to the Hospital and (2) proof of notice was dispensed with by the Hospital’s failure to file a verified special denial. We affirm.
BACKGROUND
On March 22, 2001, Mrs. Evans was driven to the Hospital for kidney dialysis. After completing her dialysis treatment, Mrs. Evans fell and fractured her right hip as she was leaving the Hospital. Mrs. Evans was admitted to the Hospital, X-rayed, and the Hospital determined that she would require surgery. Because the Hospital was full, Mrs. Evans was placed on a gurney in the emergency room on a telemetry monitor overnight while she waited for a hospital bed. Early the next morning, on March 23, 2001, Mrs. Evans suffered a sudden cardiac death. Nurse Diane Williams, while on routine rounds, discovered Mrs. Evans.
On March 26, 2001, J. Ronald Tucker, as counsel for appellants, wrote two letters to the Hospital requesting medical and billing records. On June 19, 2002, Tucker wrote another letter to the Hospital demanding records. On March 11, 2003, Tucker wrote a letter to the Hospital, in which he asserted that the Hospital’s employees were negligent in treating Mrs. Evans and proximately caused her death. Plaintiff filed suit against the Hospital on March 24, 2003.
The Hospital filed a motion for summary judgment, asking for judgment because appellants did not give the Hospital actual notice or timely, written notice of their claim within six months of Mrs. Evans’ treatment as required by section 101.101 of the Texas Tort Claims Act (“TTCA”). Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005).
DISCUSSION
Standard of Review
In reviewing a summary judgment, an appellate court must consider whether the successful movant at the trial level carried its burden of showing that there was no genuine issue of material fact and judgment should be rendered as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We assume all of the non-movant’s evidence is true and indulge every reasonable inference in favor of the non-movant. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the movant can show it is entitled to judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The reviewing court should render such judgment as the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). When the trial court’s order does not specify the grounds on which a motion for summary judgment was granted, we will affirm the summary judgment if any theory advanced in the motion is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).
TTCA Notice
In their first and second points of error, appellants contend that the trial court erred by granting the Hospital’s summary judgment motion because (1) the Hospital had written notice; (2) the Hospital had actual notice; (3) appellants raised material fact issues as to the existence of actual notice; and (4) the Hospital’s summary judgment proof of actual notice was legally insufficient because of controverting proof of actual notice.
Under the TTCA, a governmental unit is liable for “personal injury and death so caused by a condition or use of tangible personal property 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) (Vernon 2005). It is undisputed that appellants’ claims against the Hospital are subject to the limitations imposed by the TTCA. See Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) (stating negligence claims fall under TTCA). Because the Hospital is a governmental unit, any such claim brought against it must be brought under the TTCA or the claim will be precluded by the doctrine of sovereign immunity. See Benavides v. Dallas-Fort Worth Int’l Airport Bd., 946 S.W.2d 576, 578 (Tex. App.—Fort Worth 1997, no writ).
Section 101.101(a) of the TTCA states:
A governmental unit is entitled to receive notice of a claim against it under this chapter not later that 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 2005). Section 101.101(c) makes this notice requirement inapplicable “if the governmental unit has actual notice . . . that the claimant has received some injury.” Id. § 101.101(c). The failure to provide such notice is a complete defense to suit, but does not deprive the court of subject matter jurisdiction. Univ. of Tex. Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 354 (Tex. 2004). Even though not jurisdictional, the notice requirement is nonetheless mandatory and a lack of notice bars any action under the TTCA. Id. at 365.
Statutory Notice
We first consider whether the Hospital received adequate statutory notice, as required by section 101.101(a). As noted above, such notice must reasonably describe (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. § 101.101(a).
In Loutzenhiser, the plaintiff was born with a deformed hand. 140 S.W.2d at 354. After the child’s birth, his father called the hospital and told them that he had seen in a magazine that a certain procedure, which had been performed on the child before his birth, possibly caused limb reduction. Id. at 357. The child’s father thought that the hospital might be interested in the information he had seen “for [their] records.” Id. The supreme court held that this telephone call did not provide adequate statutory notice to the hospital because (1) it did not make clear that the medical procedure had been performed at the hospital, nor did it (2) give the hospital the time of the injury. Id. at 357–58.
In this case, the record shows that three days after Mrs. Evans’s death, appellants’ counsel wrote two similar letters to the Hospital. Both letters informed the Hospital that the undersigned was representing appellants for “injuries sustained” by Mrs. Evans on or about March 23, 2001. The first letter requested medical records for Mrs. Evans and attached a blank medical records affidavit to be signed by the Hospital’s records custodian. The second letter requested billing records for Mrs. Evans and attached a blank hospital bill affidavit to be signed by the Hospital’s records custodian. Because the record contains no other form of notice sent to the Hospital within the six-month period after the day that the incident giving rise to the claim occurred, we will look only to these two letters to determine if section 101.101(a)’s statutory notice requirements have been fulfilled.
Neither of these letters fulfill the statutory notice requirements. Neither letter reasonably describes the damage or injury claimed. In fact, the letters do not even indicate that Mrs. Evans had died, as the letters from appellants reference only a “DOI” or date of injury. The letters do not mention any incident at all, much less provide a reasonable description of the incident. The letters merely refer to “injuries sustained on the referenced date.” The letters do not indicate that the Hospital is responsible for the injury. See Texana Comm’ty MHMR Cntr. v. Silvas, 62 S.W.3d 317, 324 (Tex. App.—Corpus Christi 2001, no pet.) (holding notice that does not indicate possible fault of governmental entity is inadequate). We hold that appellants’ letters do not satisfy the statutory notice requirements of section 101.101(a). See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a).
Actual Notice
We next determine if the written notice requirements of section 101.101(a) were excused by the Hospital’s actual notice of the incident. Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). Actual notice to a governmental unit requires 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, 900 S.W.2d at 341. To have actual notice, the governmental unit must have knowledge that amounts to the same notice of information to which it is entitled by the formal notice requirements and actual, subjective awareness that its fault produced or contributed to the claimed injury. Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex. 2004). Mere notice that an incident has occurred is not enough to establish actual notice for purposes of the TTCA. Putthoff v. Ancrum, 934 S.W.2d 164, 173 (Tex. App.—Fort Worth 1996, writ denied). Nor is it enough that a governmental unit could or even should have learned of its possible fault by investigating the accident. Simons, 140 S.W.3d at 347. The determination of whether a governmental unit received actual notice is a question of fact when the evidence is disputed. Id.; Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex. 1985). “In many instances, however, actual notice can be determined as a matter of law.” Simons, 140 S.W.3d at 348.
In Cathey v. Booth, the plaintiffs’ child was stillborn and the plaintiffs sued the hospital alleging medical negligence. 900 S.W.2d at 341–42. The plaintiffs further alleged that the hospital had actual notice, as required by section 101.101, through its own medical records, which showed that a Cesarean section was not performed for more than an hour after the time it was called for. Id. at 341. The court of appeals reviewed medical evidence and an expert affidavit based solely upon those records, Booth v. Cathey, 893 S.W.2d 715, 720 (Tex. App.—Texarkana 1995), reversed, 900 S.W.2d 339 (Tex. 1990), and held that, because the expert was able to conclude solely from the medical records that the standard of care had not been met, the hospital had actual notice through its own medical records, that it may have been at fault. Id. The Texas Supreme Court reversed the court of appeals, holding that, even assuming that the hospital was aware of the information in its medical records, the information failed as a matter of law to show the hospital’s possible culpability for injuries to the plaintiffs. Cathey, 900 S.W.2d at 341-42.
Appellants contend that the Hospital had actual notice as demonstrated by (1) the above-mentioned letters from appellants’ counsel to the Hospital; (2) an expert opinion by Leona Kemp, R.N. addressing Nurse Diane Williams’s alleged misuse of Mrs. Evans’s cardiac monitor; (3) the affidavit of expert Dr. William Lent; (4) Hospital’s policies and forms; and (5) the Hospital’s own medical records for Mrs. Evans.
Contrary to the statements made in appellants’ counsel’s affidavit, the letters did not provide sufficient actual notice to the Hospital that its fault allegedly produced or contributed to the claimed injury. See Simons, 140 S.W.3d at 347. Appellants also contend that the Hospital’s own medical records provide actual notice, but these medical records do not satisfy the necessary elements of actual notice. See Cathey, 900 S.W.2d at 341. The medical records, including Mrs. Evans’s code blue record and death documentation record, describe Mrs. Evans’s injury and death, but they fail to provide awareness to the Hospital that its fault produced or contributed to Mrs. Evans’s injury. Mere awareness of an accident is often insufficient to constitute actual notice. City of San Angelo v. Smith, 69 S.W.3d 303, 307 (Tex. App.—Austin 2002, pet. denied).
The only evidence presented by appellants concerning the Hospital’s knowledge that its fault produced or contributed to the claimed injury is an affidavit by Dr. Lent, a doctor of internal medicine who reviewed Mrs. Evans’s records and determined that the Hospital’s nursing staff fell below the standard of care in their treatment of Mrs. Evans, and an expert report written by Nurse Leona Kemp, who also reviewed Mrs. Evans’s medical records and determined that Nurse Williams, who assumed care of Mrs. Evans in the hours before her death, fell below the standard of care in her nursing care of Mrs. Evans. These reports, however, were not presented to the Hospital within the statutory time frame. The Texas Supreme Court recently clarified that “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.” Simons, 140 S.W.3d at 347. Indulging every reasonable inference in appellants’ favor, the evidence fails to demonstrate any genuine issue as to the fact that the Hospital did not receive actual notice. Even if the Hospital were aware of the information in its medical records relied upon by Dr. Lee and Nurse Kemp in forming their opinions, we hold that this information failed to adequately convey the Hospital’s subjective awareness that its fault produced or contributed to the claimed injury. See id. at 348; Cathey, 900 S.W.2d at 342. The evidence submitted by appellants cannot suffice as actual notice sufficient to invoke the TTCA’s waiver of sovereign immunity.
Because appellants failed to give timely, written notice as required by section 101.101(a) of TTCA and the Hospital did not have actual notice of appellants’ claims, appellants’ claims against the Hospital are foreclosed under the Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a); Loutzenhiser, 140 S.W.3d at 365. Accordingly, we overrule appellants’ first and second points of error.
Verified Special Denial
In their third point of error, appellants contend that the trial court erred in granting the Hospital’s motion for summary judgment because the Hospital’s failure to file a verified special denial dispensed with the necessity of appellants’ proof of notice in compliance with the TTCA. However, the record indicates that appellants’ trial counsel did not present this ground for avoiding summary judgment to the trial court. Issues a non-movant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (“the non-movant must expressly present to the trial court any reasons seeking to avoid movant’s entitlement . . .”). Appellants have preserved nothing for our review under this point. Tex. R. App. P. 33.1. Accordingly, we overrule appellants’ third point of error.
CONCLUSION
Because the trial court did not err in granting summary judgment, we affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.