Reversed and Rendered and Majority and Dissenting Opinions filed May 6, 

2014.

In the

Fourteenth Court of Appeals

NO. 14-13-00605-CV

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT 

HOUSTON, Appellant

V.

TERESA MCQUEEN AND CLARENCE MCQUEEN, JR., Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2012-07983

MAJORITY OPINION

In this health care liability case, appellant the University of Texas Health 

Science Center at Houston (“UTHSCH”) challenges on interlocutory appeal the 

trial court’s denial of its plea to the jurisdiction based on sovereign immunity in 

favor of appellees Teresa McQueen and Clarence McQueen. Concluding that the 

trial court erred when it denied UTHSCH’s plea to the jurisdiction, we reverse the 
court’s order and render judgment dismissing the McQueens’ suit. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Teresa McQueen underwent a robotic-assisted total laparoscopic 

hysterectomy and bilateral salpingo oophorectomy (“hysterectomy”) at Memorial 

Hermann Hospital on September 10, 2009. Dr. Karen Schneider was the primary 

physician who performed the hysterectomy. At the time, Schneider was employed 

by UTHSCH as an associate professor in the Department of Obstetrics and 

Gynecology, and as an assistant residency program director. Dr. Pamela Berens, 

another UTHSCH physician, and Dr. Gus Zamora, a third-year UTHSCH resident, 

assisted Schneider during the hysterectomy.

Teresa was discharged on September 12, 2009. Two days later, on 

September 14, she presented to Memorial Hermann’s emergency room

complaining of abdominal pain, fever, and other symptoms. An attending 

physician examined Teresa and suspected a possible bowel perforation. On 

September 15, 2009, Berens performed a diagnostic laparoscopic surgery and 

discovered fecal material in Teresa’s lower abdomen. Dr. Elizabeth Lawrence, 

another UTHSCH physician attending the procedure, then examined Teresa’s

small bowel, discovered a 1 cm by 1 cm area of perforation in the sigmoid colon, 

and performed a bowel resection.

On February 8, 2012, the McQueens filed suit against Schneider.1

 In their 

live petition, the McQueens alleged Schneider’s negligence in, among other 

things,2 injuring Teresa’s bowel through negligent use of a trocar, laparoscopic 

1 The McQueens added as a defendant but later nonsuited UT Physicians f/k/a University 

Care Plus.

2 The McQueens also alleged Schneider’s negligent failures to monitor, diagnose, treat, 

and provide medical and nursing care reasonably required for Teresa’s condition. Within its 

third issue, UTHSCH argues that these particular alleged failures do not involve use of tangible 

2

 
instrument, and/or monopolar cautery instruments. After Schneider filed a motion 

to dismiss as a government employee pursuant to section 101.106(f) of the Texas 

Tort Claims Act (“TTCA”), the McQueens substituted in UTHSCH on June 13, 

2012. 

UTHSCH filed a verified answer, specifically denying receipt of notice

pursuant to section 101.101 of the TTCA. UTHSCH then filed its plea to the 

jurisdiction, specifically arguing that it had no notice of the McQueens’ claims 

within six months and that their claims do not waive UTHSCH’s sovereign 

immunity. UTHSCH supported its plea with an affidavit signed by its risk 

manager, Catherine Thompson.3

 In her affidavit, Thompson stated that she had 

found no record of any written or actual notice of a claim received from or on 

behalf of the McQueens within six months of the incident, including the September 

10, 2009 surgery. Thompson also stated:

UTHSCH had no notice, either actual or written, of: 1) the injuries or

damages claimed by Teresa McQueen and Clarence McQueen, Jr. in

this lawsuit; 2) the time and the place of the incidents alleged by

Teresa McQueen and Clarence McQueen, Jr. in this lawsuit; or 3) the

incidents alleged in this lawsuit by Teresa McQueen and Clarence

McQueen, Jr. within six (6) months after the day that the alleged

incidents giving rise to Teresa McQueen and Clarence McQueen

Jr.’s claims occurred. UTHSCH had no knowledge of its alleged

fault producing or causing injury to Teresa McQueen or Clarence

McQueen, Jr. within six (6) months after the day that the alleged

incidents giving rise to Teresa McQueen and Clarence McQueen Jr.’s

claims occurred.

property and thus do not waive UTHSCH’s sovereign immunity under section 101.021 of the 

Texas Tort Claims Act. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 

880–81 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Because we reverse based on 

actual notice, however, we do not reach this argument. See Tex. R. App. P. 47.1.

3 UTHSCH also presented medical records and excerpts from the McQueens’ and 

Schneider’s depositions.

3

 
The McQueens filed a response to UTHSCH’s plea and attached evidence, 

including Memorial Hermann medical records, Schneider’s deposition testimony, 

and the affidavit of expert Dr. Frank Battaglia, who opined that Schneider’s 

substandard surgical technique represented a deviation from the standard of care. 

UTHSCH filed its reply and also filed objections to the Battaglia affidavit. The 

trial court overruled UTHSCH’s objections and denied its plea. UTHSCH timely 

filed this interlocutory appeal pursuant to section 51.014(a)(8) of the Texas Civil 

Practice and Remedies Code.

On appeal, UTHSCH argues that the trial court erred in denying its plea 

because (1) the McQueens failed to provide UTHSCH with timely written notice 

of their claim pursuant to section 101.101(a) of the TTCA and (2) the McQueens 

did not raise a fact issue with regard to whether UTHSCH had actual notice of the 

McQueens’ claim pursuant to section 101.101(c) of the TTCA. To the extent a 

fact issue exists as to actual notice, UTHSCH argues the trial court erred in 

denying its plea because the McQueens failed to allege or establish that their 

claims were caused by a negligent condition or use of tangible property pursuant to 

the TTCA. Finally, UTHSCH contends that the trial court erred in overruling 

UTHSCH’s objections to the Battaglia affidavit.

II. ANALYSIS

A. Governmental immunity and notice under the TTCA

Absent a waiver, governmental entities, like UTHSCH, are generally 

immune from suits for damages. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. 

Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). The TTCA waives 

governmental immunity for negligent acts in certain circumstances, including for 

personal injury caused by the condition or use of tangible personal or real property. 

See Tex. Civ. Prac. & Rem. Code § 101.021(2) (West 2011). To take advantage of 

4
this waiver and overcome the shield of governmental immunity, a claimant must 

notify the governmental unit of the negligent act not later than six months after the 

incident. See id. § 101.101(a) (West 2011). The notice must reasonably describe 

the injury, the time and place of the incident, and the incident itself. Id. The 

purpose of the TTCA’s notice provision is to enable the governmental unit to 

investigate while the facts are fresh and the conditions are substantially similar in 

order to guard against unfounded claims, settle claims, and prepare for trial. 

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Garcia v. Tex. 

Dep’t of Criminal Justice, 902 S.W.2d 728, 731 (Tex. App.—Houston [14th Dist.] 

1995, no writ).

The failure to give notice under section 101.101 requires dismissal of a suit 

for lack of jurisdiction because the Texas legislature has determined that the 

TTCA’s notice requirement is jurisdictional in nature. Tex. Gov’t Code Ann. 

§ 311.034 (West 2013) (“Statutory prerequisites to a suit, including the provision 

of notice, are jurisdictional requirements in all suits against a governmental 

entity.”); Arancibia, 324 S.W.3d at 546, 548 (“[T]he purported failure to provide 

notice would deprive the trial court of jurisdiction[.]”); see Prairie View A & M 

Univ. v. Chatha, 381 S.W.3d 500, 511, 513 (Tex. 2012) (“Although section

311.034’s scope is fairly sweeping, it is consistent with the purpose of sovereign 

immunity and within the Legislature’s discretion to determine the procedures 

required before the State’s immunity is waived.”).

However, formal written notice is not required where the governmental unit 

“has actual notice” that “the claimant has received some injury.” Tex. Civ. Prac. & 

Rem. Code § 101.101(c). Mere knowledge that an incident has occurred, however,

is not enough to establish actual notice. Cathey, 900 S.W.2d at 341. The Texas 

Supreme Court has “rejected an interpretation of actual notice that would require 

5
only that a governmental unit have knowledge of a death, an injury, or property 

damage[] because a defendant, like a hospital, would then have to investigate the 

standard of care provided to each and every patient that received treatment, 

eviscerating the notice requirement’s purpose.” Arancibia, 324 S.W.3d at 548 

(internal quotation marks omitted) (citing Cathey, 900 S.W.2d at 341).

Under the TTCA, actual notice to a governmental unit requires the 

governmental unit’s: (1) knowledge of a death, injury, or property damage; (2) 

subjective awareness of its fault, as ultimately alleged by the claimant, in 

producing or contributing to the claimed death, injury, or property damage4

; and 

(3) knowledge of the identity of the parties involved. Id. at 548–59 (discussing 

Cathey’s “subjective awareness” requirement as further explained by the court in 

Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004)); 

Simons, 140 S.W.3d at 344–48; see Cathey, 900 S.W.2d at 341 (outlining three 

elements). In other words, the governmental unit must have knowledge that 

amounts to the same notice to which it is entitled under section 101.101(a), which 

“includes subjective awareness of its fault, as ultimately alleged by the claimant, in 

producing or contributing to the claimed injury.” Arancibia, 324 S.W.3d at 548–

49 (citing 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.” 

Id. at 550. Subjective awareness often will be proved “if at all, by circumstantial 

evidence.” Id. (citing Simons, 140 S.W.3d at 348).

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. 

Univ. of Tex. Health Sci. Ctr. at San Antonio v. Stevens, 330 S.W.3d 335, 339–40

4 The dispute here concerns this “subjective awareness” requirement.

6

 
(Tex. App.—San Antonio 2010, no pet.) (actual notice imputed where pediatrics 

residency program director conducted faculty review of chemical burn incident 

involving mistaken injection of topical anesthetic into wound by resident and, 

according to operating agreement between residency program and hospital, had 

agreed to conduct investigations into problems involving residents); see Dinh v. 

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

1995, writ dism’d w.o.j.). Actual notice thus is not limited to only a particular 

government official or employee, such as a director of risk management or hospital 

administrator. See Stevens, 330 S.W.3d at 339; Dinh, 896 S.W.2d at 253.

If a governmental unit has this subjective awareness of fault, then requiring 

formal, written notice would do nothing to further the statutory purposes of 

information gathering, settling claims, and preparing for trial. Arancibia, 324 

S.W.3d at 549; Simons, 140 S.W.3d at 347. However, “[i]f 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.

B. Plea to the jurisdiction

A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause 

of action without regard to whether the claims asserted have merit.” Bland Indep. 

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial 

court’s jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep’t 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a 

governmental unit has immunity from a pending claim, a trial court lacks subject 

matter jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 

(Tex. 2012). We review a trial court’s ruling on a plea to the jurisdiction de novo. 

7
Miranda, 133 S.W.3d at 228.

A plaintiff bears the burden of alleging facts that affirmatively demonstrate 

the trial court’s jurisdiction. Id. at 226 (citing Tex. Ass’n of Bus. v. Tex. Air 

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). When a trial court’s decision 

concerning a plea to the jurisdiction is based on the plaintiff’s petition, we must 

accept as true all factual allegations in the petition, construe the pleadings liberally, 

and look to the pleader’s intent. Id. at 226–27. A plea to the jurisdiction may be 

granted without allowing amendment if the pleading affirmatively negates the 

existence of jurisdiction. Id. at 227.

Where the governmental unit challenges the existence of jurisdictional facts, 

and the parties submit evidence relevant to the jurisdictional challenge, we 

consider that evidence when necessary to resolve the jurisdictional issues raised. 

Id. We credit as true all evidence favoring the nonmovant and draw all reasonable 

inferences and resolve any doubts in the nonmovant’s favor. Id. at 228

(acknowledging standard generally mirrors that of traditional summary judgment).

If the movant discharges its burden to establish that the trial court lacks 

jurisdiction, the nonmovant must present evidence sufficient to raise a material 

issue of fact regarding jurisdiction, or the plea will be sustained. Id.

In its first two issues, UTHSCH argues that the trial court erred in denying 

its plea to the jurisdiction because the McQueens failed to comply with the 

jurisdictional notice requirement—written and actual notice—of the TTCA. 

Because the statutory prerequisite of notice to suit against a governmental unit 

under the TTCA is a jurisdictional requirement, it is properly asserted in a plea to 

the jurisdiction. See Arancibia, 324 S.W.3d at 546; Colquitt v. Brazoria Cnty., 324 

S.W.3d 539, 543 (Tex. 2010) (per curiam) (failure to meet section 101.101’s notice 

requirement “operate[s] to preserve the government’s immunity”).

8
Although actual notice may be a fact question when the evidence is disputed, 

it can be determined as a matter of law if the pertinent facts are uncontested. 

Arancibia, 324 S.W.3d at 549; Simons, 140 S.W.3d at 348 (“In many instances, 

however, actual notice can be determined as a matter of law.”). Here—apart from 

Battaglia’s affidavit5

—the parties do not dispute the facts presented on the 

jurisdictional issue, they simply dispute the legal significance of that evidence. 

Accordingly, we review the trial court’s ruling as a matter of law. See Simons, 140 

S.W.3d at 348; Miranda, 133 S.W.3d at 226.

C. UTHSCH did not have formal notice of the McQueens’ claims.

With regard to formal notice, with its plea UTHSCH presented Thompson’s 

affidavit verifying that the McQueens did not provide written notice to UTHSCH 

within six months of the incident giving rise to their claims.6

 

The McQueens do not dispute that, for jurisdictional purposes, they brought 

their claims against UTHSCH under the TTCA. They also do not dispute that they 

did not provide written, formal notice pursuant to section 101.101(a). However, on 

appeal, they contend that they should not be subject to the six-month notice 

requirement of the TTCA at all here where they complied with the requirement to 

provide notice to Schneider six months prior to bringing a health care liability 

claim under section 74.051 of the Texas Civil Practice and Remedies Code.7

 

5 Solely for purposes of our analysis, we presume without deciding that Battaglia’s 

affidavit would be admissible.

6 UTHSCH also presented deposition excerpts from the McQueens wherein they 

acknowledged that they did not ever personally contact UTHSCH, Schneider, or any other 

UTHSCH employee to complain about the care provided to Teresa.

7 Section 74.051, Notice, provides:

(a) Any person or his authorized agent asserting a health care liability 

claim shall give written notice of such claim by certified mail, return receipt 

requested, to each physician or health care provider against whom such claim is 

being made at least 60 days before the filing of a suit in any court of this state 

9

 
Specifically, they argue that a conflict exists between the notice provisions in 

sections 74.051 and 101.101 “because Chapter 74 authorizes a limitations period of 

2 years and 75 days from the date of the incident for a health care liability claim 

while § 101.101 would shorten that limitations time period to six (6) months.” See

Tex. Civ. Prac. & Rem. Code §§ 74.051(c) (75-day tolling period), 74.251(a) (twoyear statute of limitations).

However, our review of the record does not reveal that the McQueens raised 

this conflict issue before the trial court. Thus, the McQueens have failed to 

preserve error as to this argument, and we do not address their conflict issue. See

Tex. R. App. P. 33.1; Karaali v. Petroleum Wholesale, L.P., No. 14-11-00577-CV, 

2013 WL 6198349, at *5 (Tex. App.—Houston [14th Dist.] Nov. 26, 2013, no pet.)

(mem. op.); Fontenot v. Stinson, 369 S.W.3d 268, 276 n.10 (Tex. App.—Houston

[14th Dist.] 2011, pet. filed) (substitute op. on reh’g).

8

based upon a health care liability claim. The notice must be accompanied by the 

authorization form for release of protected health information as required under 

Section 74.052.

(b) In such pleadings as are subsequently filed in any court, each party 

shall state that it has fully complied with the provisions of this section and Section 

74.052 and shall provide such evidence thereof as the judge of the court may 

require to determine if the provisions of this chapter have been met.

(c) Notice given as provided in this chapter shall toll the applicable statute 

of limitations to and including a period of 75 days following the giving of the 

notice, and this tolling shall apply to all parties and potential parties.

. . . .

Tex. Civ. Prac. & Rem. Code § 74.051 (West 2011). In their petition, the McQueens alleged 

performance of all conditions precedent and compliance with sections 74.051 and 74.052.

8 Even if the McQueens had raised this conflict issue below, section 101.101 of the 

TTCA has no direct impact on the timing or operation of the health care liability statute of 

limitations or tolling of that statute, and the two provisions “may, and often do, operate 

independently of one another.” See Timmons v. Univ. Med. Ctr., 331 S.W.3d 840, 844–46 (Tex. 

App.—Amarillo 2011, no pet.) (citing Chilkewitz v. Hyson, 22 S.W.3d 825, 829–30 (Tex. 1999), 

in rejecting argument that section 101.101’s jurisdictional notice requirement conflicts with 

timing provided within and is trumped by section 74.251’s two-year statute of limitations). 

10

 
D. UTHSCH did not have actual notice of the McQueens’ claims.

With regard to actual notice, UTHSCH argues that the McQueens have not 

raised a fact issue on whether UTHSCH had actual notice of their claims under 

section 101.101(c) within six months. In particular, UTHSCH points out that the 

incident did not occur at UTHSCH, but rather at Memorial Hermann Hospital.9

 

UTHSCH contends it presented Thompson’s uncontroverted affidavit establishing

that its risk management department did not have actual notice of the McQueens’ 

claims within six months.10 UTHSCH argues that the fact that Schneider, Berens, 

and Lawrence may have been aware of the occurrence of Teresa’s bowel injury is 

not sufficient to impute actual notice to UTHSCH. According to UTHSCH, none 

of these physicians had a duty to investigate or report claims, and did not report to 

UTHSCH that they had knowledge and “subjective awareness” that UTHSCH’s 

fault produced or contributed to Teresa’s bowel injury. UTHSCH argues at the 

Moreover, limitations is an affirmative defense, which is waivable and distinct in nature from the 

TTCA’s notice requirement, which is a jurisdictional prerequisite to suit. See id. at 846. Further, 

chapter 74 expressly states that it does not waive sovereign immunity. Tex. Civ. Prac. & Rem. 

Code § 74.003 (West 2011).

9 While this appears to be the case, for purposes of supporting its plea, UTHSCH relied 

on Memorial Hermann’s medical records.

10 In Huffine v. Tomball Hospital Authority, this court considered whether the affidavit of 

the president/CEO of the hospital, a governmental entity, was legally sufficient summary 

judgment evidence for purposes of proving the nonreceipt of notice under the TTCA. 979 

S.W.2d 795, 801–02 (Tex. App.—Houston [14th Dist.] 1998, no pet.). There, the hospital 

president/CEO testified that the only notice the hospital received was the letter from the 

plaintiff’s attorney making a claim against the hospital, and that the hospital did not have actual 

notice before receiving the letter. Id. at 801 (noting similar affidavit held sufficient in Cathey). 

This court found the hospital president/CEO’s affidavit “was clear, positive and direct, otherwise 

credible and free from inconsistencies, and could have been readily controverted.” Id. at 802. 

This court concluded that “[a]bsent any controverting proof of actual notice of any alleged 

culpability on its part producing or contributing to any injury to appellant, the Hospital’s 

summary judgment evidence was legally sufficient to prove that the appellant failed to comply 

with the notice provisions of section 101.101(a) and (c), Texas Tort Claims Act, and the Hospital 

was entitled to summary judgment as a matter of law on their affirmative defense of no notice of 

injury.” Id. So, too, is Thompson’s affidavit here.

11

 
most it had knowledge that a known complication of hysterectomy occurred.

The McQueens respond that, particularly analogizing to the Arancibia

decision, these facts show actual notice to UTHSCH and the trial court properly 

denied UTHSCH’s plea. They contend Teresa’s medical records provided actual 

notice to UTHSCH. The McQueens also point to their expert Battaglia’s affidavit, 

wherein he reviewed the medical records and opined that the injury to Teresa’s 

sigmoid colon “as a result of the misapplication misuse (negligent surgical 

technique) of surgical instruments (trocars and/or other sharp instruments and/or 

monopolar cautery)” represented a breach of the standard of care by Schneider. 

The McQueens argue that the evidence conclusively establishes that UTHSCH had 

actual notice by at least September 15, 2009. In addition, they argue that 

UTHSCH cannot evade subjective awareness by subjectively refuting fault. See 

Arancibia, 324 S.W.3d at 550. Finally, they maintain that Schneider had 

knowledge of the incident and “her fault in causing the incident,” and that 

Schneider and other UTHSCH physicians Berens and Lawrence had a duty to 

gather facts and report such that actual notice should be imputed to UTHSCH.

While there are some similarities between this case and Arancibia—

particularly regarding the type of injury and the issue of actual notice to be decided 

as a matter of law on interlocutory appeal from the denial of a plea to the 

jurisdiction—we ultimately conclude that here the circumstances do not present a 

fact question on UTHSCH’s actual notice.

In Arancibia, Irene Arancibia died three days after two resident physicians 

performed laparoscopic hernia surgery on her. See 324 S.W.3d at 546. Irene was 

discharged from the hospital the same day of the surgery but returned to the 

emergency room two days later with abdominal pain. Id. Emergency surgery 

showed that during the hernia operation, her bowel was perforated, leading to acute 

12
peritonitis, sepsis, and ultimately her death. Id. Here, Teresa underwent a roboticassisted laparoscopic hysterectomy, was subsequently discharged, presented to the 

emergency room two days later with abdominal pain, and had to undergo 

additional emergency surgery as a result of bowel perforation during her 

hysterectomy. In Arancibia, there was only one possible instrumentality of the 

harm—the governmental actor. See id. at 549–50 (distinguishing City of Dallas v. 

Carbajal, 324 S.W.3d 537 (Tex. 2010) (per curiam), where police report did not 

indicate that city was responsible for missing road barricades). Likewise, here, 

there is no real dispute that, as reflected in the medical records and Schneider’s 

testimony, Teresa’s injury occurred sometime during her hysterectomy as 

performed by UTHSCH physicians.

The key question here is whether the medical records and Schneider’s

knowledge, assuming it is properly to be imputed to UTHSCH, constitute the 

requisite level of “subjective awareness” to put UTHSCH on actual notice of its 

fault, as ultimately alleged by the McQueens, in producing or contributing to 

Teresa’s injury. See id. at 549. In Arancibia, the record showed that the 

governmental actor, University of Texas Southwestern Medical Center at Dallas

(“Southwestern”), was subjectively aware, within days of the fatality, of its fault, 

as ultimately alleged by the Arancibias, in producing or contributing to Irene’s 

death. See id. The proof of actual notice there was not just the “bad result,” but 

rather “went beyond the mere fact of [Irene’s] death.” Id. at 550. Thus, 

Southwestern had actual notice as required by section 101.101(c). Id.

The record in Arancibia revealed that Dr. Watson, an attending physician, 

was present while the two resident physicians performed the hernia repair. Id. at 

549. The day after Irene’s death, Watson emailed his immediate supervisor, who 

was the chief of the gastrointestinal/endocrine division. Id. at 546, 549. Watson 

13
wrote that he wanted to give his supervisor a “heads up on a terrible outcome with” 

a patient. Id. at 549. He described the surgery, which he believed went well, and 

Irene’s return to the emergency room with “an unrecognized bowel injury.” Id.

He specifically stated that “I have already spoken with risk [management].” Id.11 

In addition, at the time, Watson surmised that the bowel perforation resulted from a 

retraction injury. Id. The supervisor forwarded Watson’s email to the surgical 

department chair, who indicated that he had “heard about” the incident. Id.

Shortly thereafter, having reviewed Irene’s treatment, Watson’s supervisor 

concluded that a “technical error occurred during the original hernia operation 

resulting in” two perforations in Irene’s bowel. Id. The supervisor stated that 

“[a]lthough unfortunate, this is a recognized complication of laparoscopic hernia 

surgery. No standard of care issues were identified upon review.” Id. The 

supervisor also indicated, however, that “[c]linical management contributed to” 

Irene’s death and that the care “was not necessarily consistent with established 

standards.” Id. The Arancibia court concluded that Southwestern was subjectively 

aware of its fault as ultimately alleged by the Arancibias, and that Southwestern 

could not evade the actual-notice determination by subjectively refuting its fault. 

Id. at 550. The Arancibia court observed that the purpose of the notice 

requirement is to enable governmental units to investigate and address claims 

appropriately, which was satisfied by Southwestern’s actual notice. Id.

11 The Arancibia court noted that there was no direct “evidence of why [Watson] did so 

or what he reported” to risk management, but that Watson and his superiors knew Irene had died 

of multiple organ failure caused by sepsis, her bowel was perforated in two places probably as a 

result of surgical tool retraction injury, and risk management had been alerted. 324 S.W.3d at 

550. In University of Texas Health Science Center at San Antonio v. Bailey, the Texas Supreme 

Court characterized Arancibia as “concluding that a physician’s report to a medical center’s risk 

manager, under the circumstances, provided actual notice of a patient’s claim.” 332 S.W.3d 395, 

398 n.10 (Tex. 2011).

14

 
In contrast, here, the evidence consists of medical records, including

Schneider’s notation in a progress report of a “bowel injury during hysterectomy”

that would delay Teresa’s recovery. No physician here spoke with or notified risk 

management; any supervisor, such as Dr. Alan Katz who supervised Dr. Schneider 

in obstetrics and gynecology; or a department chair to provide a “heads up” about 

the incident. No investigation or review was completed, much less one leading to 

any assessment by UTHSCH that any particular error, even if “technical,” probably 

had occurred or that any portion of Teresa’s care “contributed” to her injury. No 

evaluation involving the “standard of care” affiliated with the incident took place

at the time. In addition, the record includes testimony from Schneider regarding 

the incident, albeit in the context of a deposition three and a half years later. At her 

deposition, Schneider acknowledged that the most likely possible cause of Teresa’s 

bowel injury was a thermal injury from the cautery tools, although she did not see

or note any direct contact of any tool to her bowel or any coupling between tools. 

Schneider indicated that if she had noted a bowel injury during the hysterectomy, 

she would have documented it and called in general surgery to evaluate the bowel. 

And during follow-up, Schneider told Teresa she “didn’t know how it was caused.” 

Schneider described Teresa’s injury as a “complication associated with the 

procedure.” She could not think of anything “unusual” and would not change 

anything she did during the procedure. Schneider also stated that she did not 

believe that her use of any of the cautery tools fell below the standard of care.12

In sum, the evidence presented by the medical records13 and Schneider’s 

12 The McQueens also acknowledged they never complained to anyone at UTHSCH 

about Teresa’s care.

13 Pre Simons and Arancibia, this court has concluded a fact issue existed on actual notice 

based on medical records. See Angleton Danbury Hosp. Dist. v. Chavana, 120 S.W.3d 424, 

427–28 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Chavana involved an incorrect 

injection given during cataract surgery. In Chavana, the doctor filled out a hospital quality 

15

 
knowledge14 was that a bowel injury complication occurred at some point during 

Teresa’s hysterectomy; Schneider did not know what caused the perforation and 

did not attribute it in any way to anything she or anyone else particularly did or 

failed to do.

15 Even assuming, without deciding, solely for purposes of our 

analysis that Schneider in her particular hospital employee role was charged with a 

duty to investigate and report, on this record, imputing her knowledge to her 

supervisor or risk management would not have provided UTHSCH with subjective 

awareness of its fault or implicit responsibility, as ultimately alleged by the 

McQueens, in producing or contributing to Teresa’s injury. See id. at 549–50.

While we acknowledge that “an unqualified confession of fault” is not 

required, see id. at 550, and that “a government cannot evade the determination [of 

liability] by subjectively refuting fault,” see id., we conclude there must exist

something in the circumstances to provide a subjective signal to the governmental 

unit within the six-month period that there might be a claim, even if unfounded, at 

issue. There must be something more than the mere fact of a “bad result,” even 

one that perhaps a prudent person or physician would have investigated. See id.; 

Simons, 140 S.W.3d at 347–48. Otherwise, the hospital would then be charged 

assurance report on the date of the occurrence wherein he stated he incorrectly injected saline 

into the plaintiff and listed a district nurse as a “witness to the occurrence.” Id. at 427. The 

report stated it was to be delivered to the human resources director/risk manager, and 

handwritten notations reflected additional investigation of the incident. Id. at 428.

14 The record contains no evidence, aside from the medical records, regarding the 

knowledge of any other UTHSCH employee.

15 According to Schneider, the resident physician Zamora did not use the cautery tools, 

only the trocars. Schneider testified that the trocars could not have caused the perforation based 

on distance. Schneider indicated that if anyone else used the cautery tools, it was Berens. 

However, Schneider indicated she “truly [doesn’t] remember what part of the procedure [Berens] 

did.” See Muniz v. Cameron Cnty., No. 13-10-00689-CV, 2012 WL 1656326, at *7 (Tex. 

App.—Corpus Christi May 10, 2012, pet. denied) (mem. op.) (“[S]ince the fatal collision, 

witnesses have expressed difficulty recalling facts in their depositions taken over two years after 

the collision” and police cruiser at issue had since been destroyed in another accident).

16

 
with actual notice in and need to investigate every instance where a risk or possible 

complication generally attributable to a surgical or other procedure resulted in an 

injury. While this might not fully “eviscerate” the notice requirement’s purpose, it 

certainly appears to be in tension with it. See Cathey, 900 S.W.2d at 341. Cathey

and Simons, as reaffirmed in Arancibia, cannot fairly be read to require such a 

result.16

Further, even taking into account Battaglia’s assessment, based on his 

review of the medical records, that Schneider’s “negligent surgical technique”—

injuring an organ “not part of the operative surgical field” by some “misapplication 

misuse . . . of surgical instruments”—allegedly breached the standard of care, we 

cannot agree that the medical records in this case raised a fact issue to convey

subjective awareness to UTHSCH of its fault sufficient to meet section 101.101(c). 

Compare Cathey, 900 S.W.3d at 341–42 (no fact issue as a matter of law on actual 

notice where expert reviewed medical records and opined negligent delay of 30 

minutes in C-section resulted in stillbirth), with Dinh, 896 S.W.2d at 253 (fact 

issue on actual notice where medical records indicated not only plaintiff suffered a 

cerebral vascular “accident,” but also evidenced delays as long as eight hours by 

hospital personnel in examining plaintiff and providing blood transfusion, and 

detailed plaintiff’s deteriorating condition, and where expert opined plaintiff 

suffered stroke while in hospital).

16 See Arancibia, 324 S.W.3d at 548 (Cathey rejected interpretation of notice requirement 

that would require only knowledge of injury by hospital); Simons, 140 S.W.3d 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. Interpreted so 

broadly, subsection (c) would become the rule, leaving subsection (a) as the exception for 

situations when the governmental unit was wholly unaware that any incident had occurred at all. 

Governmental units would not be given notice of most incidents and would thus have some need 

to investigate them all, which, as we explained in Cathey, would defeat the purpose of the notice 

provision.”).

17

 
Even viewed in the light most favorable to the McQueens and resolving all 

doubts in their favor, this record demonstrates, as a matter of law, that UTHSCH

was not subjectively aware of its fault, as ultimately alleged by the McQueens, 

until well beyond the six-month notice period after the incident. Therefore, on this 

record, because the McQueens did not present evidence sufficient to raise a fact 

question on actual notice, we conclude that the trial court erred in denying 

UTHSCH’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 228. 

We sustain UTHSCH’s second issue. Because we dispose of this 

interlocutory appeal based on notice and the trial court’s lack of subject matter 

jurisdiction, we do not reach UTHSCH’s third and fourth issues. See Tex. R. App. 

P. 47.1.

III. CONCLUSION

Accordingly, we reverse the trial court’s denial of UTHSCH’s plea to the 

jurisdiction and render judgment dismissing the McQueens’ claims for want of 

jurisdiction.

/s/ Marc W. Brown

Justice

Panel consists of Justices Boyce, Christopher, and Brown. (Christopher, J., 

dissenting).

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