Wesela v. University of Texas Medical Branch at Galveston

ANDERSON, Justice

(concurring).

I concur with the majority opinion but write separately in order to articulate why I believe UTMB did not have “actual notice” of an injury to Wesela as required by Tex.Civ. Prao. & Rem.Code Ann. § 101.101(c) (Vernon 1986).

The only issue to be decided in this ease is whether or not Wesela raised a fact issue. The fact issue is: did UTMB have “actual notice that ... the claimant [Wesela] had received some injury....” Actual notice means the governmental entity must receive the same knowledge that it would have received if the Plaintiff had complied with the formal notice requirement. Collier v. City of Texas City, 598 S.W.2d 356, 358 (TexApp.—Houston [14th Dist.] 1980, no writ). This equates to a reasonable description of (1) the damage or injury claimed, (2) the time and place of the incident, and (3) the incident itself. Tex.Civ.PRAC. & Rem.Code Ann. § 101.101(a) (Vernon 1986). In other words, to raise a fact issue, Wesela had to present summary judgment evidence establishing UTMB had information in its possession which put it on notice that (1) an injury had occurred to Wesela, (2) when and where the injury occurred, and (3) how the injury occurred.

UTMB’s summary judgment proof conclusively demonstrates such information was not in its possession; ergo, UTMB did not have actual notice. What the evidence does show is that the tumor was in a very difficult position, and may have shifted or obscured the fourth cranial nerve. Although Dr. Ei-senberg testified that sacrificing the nerve during surgery was “unusual,” he conceded that due to difficulty in reaching the tumor, cutting the nerve was not an unacceptable choice. Thus, UTMB’s staff, reviewing the medical records, would not be put on notice that an injury occurred to Wesela’s fourth cranial nerve on December 10, 1987, during the course of the surgery. What they would see are records indicating the sacrifice of a nerve probably in order to reach an otherwise inaccessible tumor.1 This is not enough to alert UTMB to possible liability so that they could begin an immediate investigation while the events were still reasonably fresh in the minds of the staff and persons concerned. To require the hospital staff to “speculate,” or otherwise “guess” that sacrificing the nerve was unnecessary, and thus an “injury,” would unduly burden public providers. There simply is not enough evidence to raise a fact issue suggesting UTMB had actual notice that the damage to Wesela’s fourth cranial nerve fell outside the normal *296parameters for the surgical procedure performed — the removal of a brain tumor.

. The relevant medical record read:

The fourth nerve was sacrificed on that side, knowing that the patient had diplopia [double vision], moderately severe prior to operation and that the diplopia and brain stem origin probably would not resolve. Because of the mass in the mid brain and medulla, the fourth nerve was tented upwards and stretched in a fashion that it made it almost impossible to open the margin of the tentorium without sacrificing the fourth cranial nerve.

In his deposition, Dr. Eisenberg stated sacrificing the fourth cranial nerve "can happen.” He then clarified that statement:

... one would do whatever they could to identify and protect the fourth nerve. For some reason, it was difficult to identify. It may be that the tumor was so rotated that it obscured the fourth nerve. That, I can't remember-