The Austin Court of Appeals has affirmed a trial court order denying a plea to the jurisdiction and summary judgment motions in a medical practice case brought against the University of Texas Southwestern Medical Center and one of its physicians.
The University of Texas Southwestern Medical Center v. Cindy Matias, Individually and as Representative of the Estate of Sindy Ivery, Deceased Minor (No. 03-21-00575-CV; filed November 30, 2023) arose from the death of an infant undergoing treatment for a congenital heart defect at Dell Children’s Medical Center in Austin. The infant was born in October 2016 at 32 weeks at Seton Medical Center and was transferred to Dell Children’s Pediatric Intensive Care Unit. In January 2017, a pediatric heart surgeon employed by UT Southwestern performed surgery to correct the defect, but the infant developed complications and was placed on external life support. Two subsequent surgeries on January 14 and 15 followed, which resulted in the infant being briefly removed from life support before once again developing complications. The surgeon returned the infant to life support by inserting a new central aortic arterial cannula into the infant’s aorta and suturing it in place. She returned the infant to the physicians in the PICU in the early morning hours of January 18. When the infant developed complications with her airway overnight, the surgeon returned early in the morning to reinsert the cannula. By that time, however, radiological tests showed that the infant suffered fatal bleeding in the brain. She was taken off life support and died later that day.
On May 18, 2018, the surgeon received a notice of claim letter from plaintiff’s counsel, and plaintiff filed suit in January 2019 against UT Southwestern. UT Southwestern filed a plea to the jurisdiction, as well as traditional and no-evidence summary judgment motions, alleging that plaintiff had failed to provide the six-month presuit notice required by §101.101, CPRC (Tort Claims Act) and that it had no actual notice of the claim until May 18, 2018, when the cardiologist received a notice of claim. Plaintiff countered that UT Southwestern had actual notice of the claim under § 101.101(c), an exception to the formal presuit notice requirement that applies when the governmental unit has actual notice that a death has occurred, that the claimant has received an injury, or that the claimant’s property has been damaged. After a hearing, the trial court denied UT Southwestern’s plea to the jurisdiction and summary judgment motions. UT Southwestern filed an interlocutory appeal.
The court of appeals affirmed. The issue before the court was whether plaintiff raised a genuine issue of fact that UT Southwestern “was subjectively aware that its alleged acts or omissions contributed to or produced injuries in the way claimant alleged” (citations omitted). Plaintiff argued that such subjective awareness could be imputed from evidence showing that the infant’s discharge summary from Dell Children’s indicated that the misplaced cannula could be “concerning” in view of the infant’s brain injury, that the surgeon reviewed her course of care and met with the family to review the infant’s autopsy report, that during a premeeting with the infant’s father before the autopsy review the surgeon stated that she might have misplaced the cannula, and that Dell’s cardiologists and x-ray confirmed the placement of the cannula. The court of appeals agreed and held that plaintiff had presented more than a scintilla of evidence of UT Southwestern’s subjective awareness of the claim.
SCOTX has held that actual notice must provide the same notice to the governmental unit as formal notice. University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 548–49 (Tex. 2010). As this case demonstrates, “subjective awareness,” the test for actual notice, involves a fact-intensive analysis that must eventually be resolved by the finder of fact. It is interesting to note that the court of appeals appears to have determined that UT Southwestern had subjective knowledge based primarily on the evidence UT Southwestern itself produced in support of its plea to the jurisdiction. This evidence, it seems to us, may provide some links in the chain leading from the event to subjective awareness of the claim, but it does not really pinpoint the moment in time that UT Southwestern became aware of the claim. In any event, trial and appellate courts have to make very difficult decisions on tragic facts, and this is certainly one of them.
