## In the Cou rt of Appeals Second Appellate Distr ict of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00299

- CV

___________________________

On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067

- 317133

- 20

Before Sudderth, C

.

J.; Bassel and W omack, JJ. Memorandum Opinion by Ju s tice Womack 

### T ARRANT 

### C OUNTY 

### H OSPITAL 

### D ISTRICT D 

### / B 

### / A 

### JPS H EALTH 

### N ETWORK 

### , Appellant

V



### . S andra D owdy , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTION
In two issues in this interlocutory appeal , 1 A p pellant Tarrant County Hospital District d/b/a JPS Health Network (TCHD) complains abou t the trial court ’ s ( 1) denial of its plea to the jurisdiction allegi ng t hat Appellee Sandra Dowdy did not provide the req uired statutory notice of her health care liability claim and (2) overruling of its objections to Dowdy ’ s expert report and den ial of its motion to
dismiss . We hold that because TCHD did not have the requi s it e timely notice of the
claim , the trial court erred in denying the plea to the jurisdiction

. T herefore, we need
not addres s the second issue regarding the expert report, and w e rev erse and render judgm ent that Dowdy ’ s claims against TCHD are dismissed

. II
. B ACK GROUND
A
. Pro cedural Dowdy sued TCHD and Dr. Kyle Orr 2

— who had performed a dental extraction in May 2018

— on June 1, 2020, and alleged the following:
On or about Ma y 12, 201 8, [Dowdy] sought hel p for her sy mptoms of excessive swelling and pain at an Urgen t Car e Center w here she was given antibio ti c s for the firs t time. [Dowdy ’ s] symptoms worsened, and she returned to [

TCHD] on or about May 25, 2018, s uffered sei zures,

1 See T ex. Civ. Pr ac. & Rem. Code Ann. § 51.0 14 (a) (8), (9).

2 T he record refers to Dr. Orr at vari ou s t imes as “ DDS, MD, ” “ DDS , ” and

“ DMD

. ” For ease of refere nce, we w ill refer to him as “ Dr. Orr ” except where quoting fr om the record.3

heart damage, bra in abscess , an ane u r [y s] m and severe complications from infection. At all t

imes material hereto, [Dowdy] was a pa t i en t und er the c are of Defendants, Kyle Orr, and [TCHD], having sought Defen dants ’ professional expertise, judg ment, skil l, compet ence, advice and trea tment for surgical removal of all of her teeth. The care or tre at ment consisted of a complete dental ex t r ac ti on, and beg an o n or about May 3, 2018 and has continued through the present date.
T he pe tition stat ed that formal no tice of the claim pursu ant to Sections 74.051 and
74.052 of the Texas Civil Practice an d Remedies Code was given on March 2 7, 2 02 0 , via a “ statutory notice letter. ” See Tex. Civ. Prac. & Rem. Code Ann . § § 74.051,

. 052

. The petition d id not ment ion notice of a claim under Section 1 01.101 of the Texas
Civil Practice and Remedies Co de (the Texa s Tort Claims Act, or TT CA ). See id. § 101.101. Dowdy desc ribed her damage s and injuries as including “ brain inj ury and
heart d amage , resul ting in [Dowdy ’ s ] being placed on a PICC or periphera lly inserted
central catheter for approximately four weeks ” ; “ an xiety, pain, a nd il lness ” ; as well as

“ a broken jaw, life threatening infections, seizures, a brain abscess, and aneurysm
. ” Attached to the petiti on w ere two March 27, 2020 letter s from Dowdy ’ s a t tor ney to Dr. Orr and TCHD ; a March 27, 2020 list naming sixt een physi cians and health care providers of Dowdy ’ s; and an authorization form for release of protected health
information.
In resp on se, TCHD and Dr. Orr filed the ir an swe r
. It contain ed num erous affirm ative defenses, including th at TCHD and D r. Orr “ deny that they received timely, w ritten or actual notice as required by t he Texas Tort Claims Act, Tex. Civ.
Prac. & Rem. Code § 101.101. ”4

Several months later, TCHD and Dr. Orr filed their objection s to Dowdy ’ s

e xpert report. Dow dy r e sponded to the objection s and filed a suppleme ntal expert
report. The trial court ultimately sustained the obje ctio n s and dismis sed Dowdy ’ s claims with prej udice. T hereafter, Dowd y filed a moti on for new tri al and a motion
reques ting a thirty

- day extension to address the issues rai sed in the objection s . The trial court granted the mo tio n for extensi on and a new trial

. TCHD and D r. Orr

renew ed their objection s to the expert report.
In May 2 021, TCHD filed a motion to dismiss Dr

. Orr pursuant to Texa s Civil Practice and Remedies Code § 101.106 (e) , which requ ires di smissal of a governmental
unit ’ s employee on the governmental unit ’ s motion in a suit ag ainst both

. See id. § 101.106 (e)

. The trial court grante d the motion and dismissed all of Dowdy ’ s claims against Dr. Orr with prejudice. In J une 20 21, TCHD 3 filed a plea to the jurisdic tion a lleg i ng th at (1) Dowdy did not provide notice of he r claim pursuant t o Section 101.101 of the Texas Civil
Pract ice and Remedies Code and (2) Dowdy ha d not ple d sufficient facts demonstrating th at the trial court ha d subject

- matter jurisdiction. Spec ifica lly, TCHD

asse r t ed that it had not re ceived timely written or ac tual notice of Dowdy ’ s claim and
that it was immune fro m the complaints of negligence because none of the claims
involve d the ne glige nt use or misuse of tangible personal pr o per ty. The plea to the

3 Dr. Orr also originally joi n ed in the plea to the jurisdiction be cause, at the t ime it was filed, he had not been dismissed from the c ase.5

juris dictio n in cluded (1) an affidavit by TCHD ’ s Legal Claims Manager stating that
TCHD did not have w ritt en noti ce of Dowdy ’ s health car e liabil ity claim un til April 13, 2020, w hen it recei ved the letter dated March 27, 2020 , from Dowdy ’ s attorney , and therefore did not have “ ac tu al knowledge of its alleged fault producing

or c ausing injury to [Dowdy] within six (6) months after the day that the alle ged
incide nt (s) giving rise to [Dowdy ’ s] alleged claim s o ccurred ” ; a nd (2) an affidavit by
TCHD ’ s custodian of records a ttaching e leven pages of medical records pertaining to Dowdy

. Dowdy amended her pleadings and filed response s to the plea to the jurisd iction and TCHD ’ s o bjections to the expert report

. In the response to the plea
to th e j urisd ic tion , Do wdy stated that she “ does not argue that she has prov ided
written notice to ” TCHD , but instead argue d that it had “ ac tual notice of the claim
sho rtl y afte r the injury was visited up on [Dowdy]. ” Dowdy ’ s response relied entir ely

on t he medical records attached to TCHD ’ s p lea to the jurisdiction to show what she
described as her “ concerted effort

. . . to notify [ TCHD ] of her injuries

. ” After a hearing , the trial court denied the plea to the jurisdiction , overr uled the o bjections to the expert report, and deni ed the Chapter 74 motion to dismiss

. This appeal
fo llowed.
B. Evidentia ry Both at t he trial court and on appea l, the parties re ly on the medical re cords
attached to the plea to the ju risdict i on to support their arguments about a ctual n otice6

of the claim

. Therefore, we will first exa m in e the medical records in chronological
order

. The f

irst p age of the records is a disclosure and consent form signed on May 3, 2018, wherein Dowdy requ e sted “ EX TR ACTION OF TO OTH (TEETH) One or more diseased, non

- func ti onal, malpositioned, or impact ed te eth ” and

“ ALVEOPLASTY M alformed or sharp bone in the ja w tha t prevents the comfort able
fit of dental appliances , or cau ses discomfort. ” 4 Accordi ng to t he disclosure and
consent form , t he al veoplasty procedure “ involves smoothi ng uneven or sharp b one in the jaw, usually in areas that have previously lost t eeth. ” The listed s ide effect s include swelling, pain, discomfort, numbness , infectio n , frac tu re s, and damage to the jaw , jawbone, or nearby structures
. On the same day tha t the dis closure and consent for m was signed, the
pro c e d ure was performed. In the progre ss note s , Dr. Orr d escr ibed the procedure
and concluded with t he following: “ The pa t ient was given ver bal and written post

operative instru ctions. T here we re no intraoperative complications and the patient
tole rated the procedure well. Good hemosta sis was obtained and the pa t ient was discharged home. ”
T he next record entry wa s on May 4, 2018 , and refle ct ed a “ Telephone
Encou nter ” at 10:06 a.m.:

4 Capit alizations, omissions, abbrevi atio ns, and typographic al errors in the medical records are unaltered.7

P atient called request

ing that Dr. Long 5 write her a pre scripti on for some antibiotics due to mout h swelling from Oral surgery yest erday 5/3/18. She was o nly pre sc ribed pain medication and canno t be seen by dental clinic for 2 weeks. P A tient is goin g out of town tomorrow and stat es it is urgent. Please al l p atient to advise. At 2:44 p .m . on the s ame day , a license d vocational nu rse noted , R eturned pt call. Pt s tated she had oral surg ery yesterday and would like an rx for ab x. Pt stated the oral surgeon yes terday told her that she did not need th em “ because of something like resistance

. ” I advis ed the pt if she was having any i ssu es she ne eded to speak with the clinic that did the pr ocedure or go to the UCC/ER. P t stated she didn ’ t really want to speak with the oral surgery clinic because “ I w as not really impresse d with them any

way. ” Again adv

ised pt to seek are in UCC or ER for an y urgent concerns. Pt verbalized understandi ng. The next entry in the medical re cords is twenty days later, on May 24, 2018 , at 4:39 p.m. , in the form of a registered nurse ’ s note bas ed on a “ Teleph one Encounter

. ”
That note reads , Re ason for Di sposition

• Swel li ng is painful to touch
Answer Assessment
– Initial Assess ment Que stions 1. ONSET: “ When did t he swelling start? ” (e.g., minutes, hours, days) This m orning 2. L OCATION: “ What part of the fac e is s wollen? ” Lower left side and neck 3. SE VERIT Y: “ How swollen is it? ” Twice the size
The following day, on May 25, 2018 , at 8:30 a.m. , a medical d octor note d ,

5 Ther e i s no t hing in the r ecord s iden tifying “ Dr. Long ” or explaining Dr. L ong ’ s relations hip to Dowdy

.8

Patient cam e to clinic tod ay for the c/o seve re pain with swelling on left fac e , with swel ling and pus discharge on left jaw a rea s ince yes terday. Pt told she had all teeth extracted on begi nning part of May, 2018 at JPS by oral surgeon, and she was doing well after the surgery, b ut started getting pain on this area when sh e was on vacation in other State. Pt told she went to E R ov er there, where s h e had lab done, which shown WBC was ele vate d, and she was given Augmenti n [ 6 ] for 10 days, p t told she taken those medication, but sinc e yesterday it got wo rse, and swelling dev el oped , pt told she ca lled JPS Nurse triage yest erday who made this app ointment wi th Provider to be seen today at JPS Watauga clinic. Patient denied any other c omplaints, like no fever or chills, no chest pain, no Short of Breath, n o dizziness, no distress, no N/V/D, no bowel
or bladder problems, n o weakness or numbness.
Other notes on this day stated , This is a recurrent problem. The current episode started yesterday . The problem has been unchanged. The pain i s a t a s everity of 10/10. The pain is severe. Ass ociated sy mptoms include facial pain and thermal sensitivi ty . Pertinent ne gatives include no difficulty swallowing, fever, oral bleeding or sinus pressure. She has tried NSA IDs for the symptoms. The treatment p rovided no relief.
In th e “ Revie w of Systems, ” the doctor noted, “ Se vere pain with swellin g of lef t fac e, with pus discharge inside mouth on left ja w area since yesterday. ”
In the “ Subj ective ” portion of the pr ogress notes made on June 2, 2 018 , the
record sta te s , After surgery the patient r eports that after the surgery she ha d numbness of the left lowe r lip , left chin a nd lef t lower teeth. She left town after sur gery and reports th at 4 days later she began having left side fac ial swelling

. She presented to a local UC and was given antibiot ics which helped the swelling resolv e. She reports tha t the nu mb nes s continued.

6 Aug me ntin has been described as “ a type of penicil lin. ” Stine v. Brown , No. 01

- 94

- 0 0242

- CV , 1994 WL 54 3477, at *1 (Tex. App.

— Houston [1 st Dist.] Oct. 6, 1994, writ den ied) (not designate d for publ ication)

.9

On 5/ 24 /18 she began having left side facial swelling ag ain and presented to JPS ED on 5/25/18 with worsen ing swelling, d if ficulty swallowing and trismus. She was found to h ave a Left mandibular angle fra ct ure , left lateral pharyngeal s pa ce, left submandibular s pace abscess
vs possible osteomyelitis. She was admitted to OMF S for IV Unasyn

. The June 2 records also p rovided a brief summary of Dowdy ’ s symptoms from
th e previous week. They re f lect that on Ma y 26, Dowdy “ reports feeling that pain i s

u nder bett er control but she feels like the swelling has stayed the same. ” By t he following day, the “ swe ll ing has decrease d, n o pain. ” On May 28, Dowdy was

“ having epis odes of aphasia and left arm tremor, stroke tea m activated. ” At that ti me,

“ CT head, M RI brain and CTA head and neck ordered. ” Results from the tests were
noted on M ay 29 , and brief progr e s s notes were added on May 30, 31, and June 1

. The last entry in the medical records wa s on June 2 : “ Pain controlled. Drain removed

yes t erday. Denies n/v /f/c/ d. Ambulating. Continuing to tolerate PO

. ”
III. D ISCUSSION
A. Sta ndard of Re view
A trial court ’ s ruling on a plea to the jurisdiction alleging lack of su bject

- mat ter jurisdic tion is r eviewed d e novo. Univ. of N. Tex. Health Sc i. Ctr. v. Jimenez

, No. 02

- 16

- 0 0368

- CV, 2017 WL 3298396, at *3 (Tex. App.

— Fort Worth Aug. 3, 2 017, pet.
denie d) (mem. op.)

. If the plea t o the jurisdiction ch a llenges the existence of jurisdictional fac ts, we co nsider relevant evidence submitted by the pa rties when

necessa ry to resolve the jurisdictional issues raised, just as th e trial court mu st
. Tex. Dep ’ t o f Parks & Wild

life v. Miranda , 133 S.W.3d 217, 227 (Tex. 2 004); Bland Ind ep. Sch.10

Dist. v. Blu e , 34 S

. W .3d 547, 554 (Tex. 2000 ); Jimenez , 2017 W L 3 298396, at *3. If
ther e is a fact question on the jurisdictional issue, the trial court can no t grant the ple a to the j urisdiction, and th e factfinder will resol ve the question. Mir anda , 133 S.W.3d at
2 27

– 28; Ji menez , 2017 WL 3298396, at *3. However, if the evi dence is un dispu ted or fails to raise a fact question on the jurisdictional issue, th en the trial cour t rules on the plea as a matt er of law. Miranda , 133 S.W. 3d at 228; City of Wichita Falls v. Jenkins , 307 S. W. 3d 854, 857 (Tex. App.

— Fort Worth 20 10, pet. denied)

. When , a s in Jimenez
and here , “ the parties do not dispute the evidence presented on the ju ri sdictional issue [but] simply dispute its legal s ig nific ance, ” we will review the trial cour t ’ s ruling as a
matter of law. Jimenez

, 2017 WL 32 98 396, at *4.
B. Ap plica b le Law
Governme ntal immunity protects political subdivisions of the State from
lawsu it s for damages. H

arris C n ty. Hosp. Dist. v. Tombal

l Reg ’ l Hosp. , 283 S.W.3d 838, 842 (Tex. 2 009). Hospital districts such as TCHD 7 have governmen tal immunity. Id

.

7 T CHD was “ created under the auth orit y of the Texas C onstitution and [C ] hapter 281 of the Texas Health and Safety Code. ” Tarrant C n ty

. Hosp. Dist. v. GE Auto. Serv s. , 156 S.W.3d 885, 891 (Tex. App.

— Fort Worth 2005, no pet.) (citing Tex

. Const. art. IX, § 4, and the former versions of cur rent T e x. Health & S af ety Code Ann. §§ 281.001

– .124) ; Armendarez v. Tarrant C n ty. Hosp. Dist. , 781 S.W.2d 301, 303 (Tex. App.

— Fort Worth 1989, writ dism ’ d) ( “ It is und isputed that the Hospital District i s a governmental enti ty to which the d octrine of gove rnment al immunity
wo ul d be applicable. ” ).11

Ab sent a waiver of sovereign 8 immunity, a cour t has no subject

- matter jurisd iction to en te rtain a suit against a governmental unit. Tex. Dep ’ t of Tran sp . v

. Jones , 8 S.W.3d 636, 638 (Tex. 199 9). T he T TCA provides a limited waiver of immu nity.
Miranda , 13 3 S.W.3d at 224

. However, that waiver occurs only when notice of a claim against the g ov ernmental entity is p rovided as the Act presc ribes. City o f San Antonio v.
Tenorio , 543 S .W.3d 772, 775

– 76 (Tex. 201 8). With regard to notice , the TTCA states , (a) A gove rnmental unit is entitled to receive notice of a claim against it under this chapter n ot late r than six months after the day that the incident giv ing ri se t o the claim occurred. The notic e must reasonably d escribe: (1) t he da mage or i njury claimed; (2) t he time and place of the incident; and (3) t he incident.
Tex. Civ. Prac. & Re m . Code Ann. § 101 .1 01(a). The pur pose of the notice requirement is to ensure th e pr omp t re porting of claims to enable gove rnmen tal units to gather information nece ssary to guard agai n st

u n founded claims, settle claims , and prepare for trial. Cathey v. Booth , 900 S.W.2d 33 9,

8 The immunity enjoyed by a political subdivision is referred to as

“ governmental immuni t

y , ” while the immunity enjoyed by th e State is “ s over eig n immunity. ” Os

man v. City of Fort Worth , No. 02

- 21

- 0 0117

- CV, 20 22 W L 1879 84 , at *8 n.15 ( Tex. App

. — Fort Worth Jan. 20, 2022, no p et. h.) (mem. op.) (citing Reata Const r . Corp. v. City of Dall

as , 197 S.W .3d 371, 374 (Tex. 2006) )

. For ease of reference, we use the phrase “ sovereig n immunity ” for both concept s. See Reata C onstr. Corp

. , 197 S. W. 3d at 374 n.1 (d oing similarly).12

34 1 (Tex. 1995)

. Failure to comply with the notice provisi on r equ ires dismissal.
Tenorio , 543 S .W.3d at 775

– 76

. However, the notice requirem ents of Section 101

. 101( a) “ do not apply if the governmental unit has actual notice that death has occurred, t ha t the claimant has received some injur y, or tha t the claimant ’ s pr o pert y has been damaged. ” Tex. C iv.
Prac. & Rem. Code Ann. § 101.101 (c ). As we recently explain e d,
M ore than a quarter of a century ago, in Cathey v. Booth , the Texas Supreme Court con st ru ed the Texas Tort Claims Act ’ s act ual

- notice provision to requir e “ know ledge of (1) a death, injury, or pr operty damage; ( 2) the governmental un it ’ s alleged fault p rodu cing or contributing to the death, injury, or property damage; and (3) the identity of t he parties involved. ” 900 S.W.2d at 34 1 . All three el ements ar e r equired : “ [s] tandin g a lon e, knowled ge that an injury has occurred does not e stablish actual not i ce. ” Jimenez , 2017 WL 3298396, at *4 (quoting Univ. of Tex. Healt

h Sci. Ctr. at Houston v

. Cheatham , No. 14

- 1 4

- 00628

- CV, 2015 WL 3878111, at *3 (T ex. App.

— Hou ston [14 th Dist.] Ju ne 23, 2 015 , no pet .) (mem. op.)). Cathey is still the l aw of the land, and it i s binding prece dent on this court.
Osman , 2022 WL 187984, at *9. The governmental un it must have knowle dge equivalent to what a formal
S ectio n 101.10 1 (a) notice would have pro vided, which “ in cludes subjective aware ness of its fault , as ultimately all e ged by the claimant, in producing or contribu ting to the
claimed in jury. ” Jimenez

, 2017 WL 3298396, at *4 ( ci ting Univ. of Tex. Sw. Med. Ctr. at
Dall

. v. Es t

. of Arancibia , 324 S.W.3d 544, 548

– 49 (Tex. 2010) (quoting Tex. De p ’ t of
Crim

. Just

. v. Simons , 1 40 S.W.3d 338, 347 (Tex. 2004) ) )

. Medical records may create a
fact issue on actual not ic e only if t hey “ indicate to the [government] hospit al its13

po ssible c ulpab ility i n c ausing the injur ies. ” Id. ( qu oting Din h v. Harris C n ty. Hosp.
Dist. , 896 S.W.2d 24 8, 253 (Tex. App.

— Houston [1 st Dist.] 1995, writ dism ’ d w.o.j.) )

. C. Analysis
In its fi rs t issue, TCHD argues tha t it did not hav e actual noti ce of t he claim
be cause the “ evidence relied upon by [Dowdy], TCHD ’ s medical records, did not
show that TCHD ha d sub jective aware ness of its fault, as a lleged b y [Dowdy], in contributing to o r producin g her injury. ” Do wdy res ponds that sh e “ prod uced
eviden ce fr om her medical records to the trial court that showed that TCHD was
aware of the natu re of the injury as we ll as the identi ty of the responsible employee, satisfying th e TTCA req u i rements. ” 9 T o s upport her actual

- no tice argument , Dowdy

re lies on the entries made in the medical records on May 4, 24, and 25 , and on June 2. After reviewing t he medical reco rds a nd applying Cathey ’ s three

- element a ct ua l

notice standard, we cannot find wit hin the m anything th at would provide TCHD subjective aware ness that it was at fault in producing or contr ibuting to Dowdy ’ s injuries. On the day of the ext rac tion , also the fir st e ntry in the medical records , D r.
Orr d etailed the medical proc edure th a t he pe rformed and not ed tha t “ [t] here were no intraoperative complication s . ” Although Dowdy call ed the hos pital the next morning

9 In her brief, Dowdy agrees that “ TCHD is a hospi tal district controlled and managed by Tarrant County, a nd t her efore, pursuant to C hap ter 281 of th e Texas He alth and Safety Code, it is a governmenta l ent ity and any claim a gainst it is sub ject to the Texas Tort Claims Ac t. ” Dowdy also acknowledges in her brief th at she “ did not provide w ritt en n oti ce of her claim to TC HD until outside of the 6

- month timeframe required under the Tex as T or t Claims Act , ” but s h e states tha t “ TCHD did have actual notice of the errors and negligence committed by June 2, 2018. ”14

and requested a prescription for antibiotics “ d ue to m outh swelling, ” there is n o other
indicat ion of pain or possi ble infec tion. To the contrary, Dowdy sa i d that she had
been prescribed pain medication and expressed urgency only because she was going
out of town the next day

. When the te lephone call wa s re tu rne d that afternoon , Dowdy said she “ would like ” a prescri ption f or antibio tics

. Dowdy was ad vised to

“ speak with the clinic that did the procedure or go to the UCC /ER. ” However, Dowdy stated that “ she didn ’ t really want to speak with the o ral surg er y clinic. ” She

wa s then ag ain advi sed to seek care “ in UCC or ER for any urgent c oncerns , ” and she acknowledged that she underst ood.
The n e xt entry in the medical records is twenty days later, on May 24, when Dowdy again called t he h o spital. The reco rd r eflects that her lower left s ide and neck
were swollen and that t he swelling had started that morning. When she appeared the next day for a cli nical assessment due to “ s e vere pai n with s w elling o n left face, wi th swelling and pus di scharge on left ja w ar ea si nce yeste rday , ” Do wdy said that “ she was doing well aft er the surgery, but started getting pain on this area when she was on vacation in [an] other State. ” Do wdy f urt her said
that although she h ad been “ given Augmentin for 10 day s, ” it was just si nc e the prior day, May 24, that the pain had go tten “ wo rs e , and swelling developed. ” It was noted again that “ [t]he current episode started yesterd ay. ”
On t he last page of the med ic al record s , the notes state that Dowdy ’ s teeth ha d
bee n extracted ; that “ [ s] he left town a f ter surgery and

. . . 4 days l ater she began15

having left side fac ial swe lling, ” went to a loca l urgent care cli nic , and “ was given
antibiotics which helped the swe ll ing resolve ” ; and that “ [o]n 5/24/ 18 she began having left side facial s we ll ing again and p res ented to JPS ED on 5/25/1 8 with worsening swelling, difficulty swall owing and trismus. ” At that time, she “ was found
to have a Left mandib ular angle fr act ure, left lateral pharyngeal space, left submandibular space a bscess v s possibl e os teo myeli tis. ”
Ther e is nothing in the medical records to indicate

• the injur ies occurred as Dowdy allege d in he r pleadings

— “ s evere gran d mal

se izure s, a broken j aw, hear t damage, brain abscess, tremors, and aneur [y s] m attributable to the infection caus e d by [TCHD and Orr] ” ; 10

• why the injury occurred ; 11

10 See Univ. of Tex. Sw

. Med

. Ctr. v. Alcantar

, No. 05

- 18

- 01320

- CV, 2019 WL 39 40980 , at *3 (T ex. App.

— Dallas Aug. 21, 2019 , pet. denie d) (m em. op.) ( “ We ag ree with UT SW that Alcantar ’ s medical records are insufficient to establish that an injury
oc curred as she allege s , i.e., because of a cu t to the rectum. ” ). Although the records do show Dowdy had a brok en jaw and was having sy mptoms t hat c aused acti vation of the stroke team, nothing in the records links these symptoms to Dr. Orr or TCHD.

11 See Tex. Tech Univ. Health Sci. Ctr. v. Lozano , 570 S.W.3d 740, 74 7 (Tex. App.

— El Paso 2018, pet. denied) ( “ [W] e find nothing in the medical record s how in g that the nerve injury resulted from an error by a Texas Tech agent or e mployee.

. . . Without an indication of why the injury occur red, Texas Tech was not s ubjectively aware of a possible claim. ” ).16

• TCHD ’ s or Dr. Orr ’ s fault in causing either the infection or the need for
post

- surg ical treatment ; 12

• TCHD ’ s s ubj e c tive awaren ess 13 of its alle ged fault ; 14 or

12 See Osman , 2022 WL 1879 84, at *10 ( “ [T]his evide nce g ave no ind icatio n that the Governmen t al Entities had notice that they wer e allegedly at faul t for producing or cont ributing to Abdillahi ’ s dea th. ” ) ; Reynosa v. Be x ar C n ty. Hosp. Dist. , 943 S.W.2d 74, 78 (Tex. App.

— San An tonio 1997, writ denied ) ( “ [R ]e cor ds must comm unicat e culpability in Davi d Reynosa ’ s injury. ” )

.

13 See Univ. of N. Tex. Health S ci

. Ctr. v. Walton , No. 02

- 19

- 00193

- CV, 2020 WL 24138 3, at *8 (Tex. App.

— Fort Worth Ja n. 16, 2020, no pet.) (mem. op.) ( “ Dur ing this t ime frame, there was no ref ere nc e in these recor ds to wron g level rib sur gery or tha t anything done or no t done in Walton ’ s care and treatment was wrong ful or a cause of her o ngo ing compl aints. Since the test for actual knowledge requires a subj ective awa reness of fault in causin g the a lleged inj uries, these rec ord s are in sufficient to raise a fact issue of actual notice. ” ); Jimenez , 2017 WL 3298396, at *5 ( “ We ha ve reviewed U NT Health ’ s records and cannot find w ithin them anything that rises to the level of subjective awareness tha t U NT Health wa s at f ault in pr oducing or contribu ting to Knight ’ s injuries. ” ) ; Cheatham , 2015 WL 3878111, at *5 ( “ Although i t was error to leave a needle inside Cheatham ’ s chest, the evidence shows tha t the Heal th Scie nce Center did not know how this erro r o cc urred, nor di d i t accept responsibili ty for the error. . . . These circu mstances do not e stablish the Health Science Ce nter ’ s subjective a ware ness of fault. ” ) ; Casanov er v. Tomb all Reg ’ l Hosp. Auth. , No. 01

- 04

- 001 36

- CV, 200 6 WL 23407, a t *4 (Tex. App

. — H ou ston [1 st Dist.] Jan. 5, 2006, no pet .) (mem. op.) ( “ Even if the Hos pital were aw are of th e information in its medical r ecords relied upon by D r. Lee and Nurse Kemp in forming their opinions, we hold that this info rmation fa iled to adequately c onvey t he Ho spital ’ s s ubject ive awareness that it s fault produced or contri bute d to t he claim ed injury

. ” ).

14 “ Fault, as it pertains to actual notice, is no t synonymous with liability; rather, it implies responsibility for the injury claimed. ” Aranci bia , 324 S .W. 3d at 5 50

.17

• a pportionment of fault betw ee n T CHD and Dr. Or r and an y of the other
he a l th care pro viders

. 15 In her response to the ple a to the jurisd iction, Dowdy state d that she was alleg ing “ inju ry due to negligen t surge ry (i mproper extraction leading to broken mandible, infecti on) as well as negl igent post

- surgery tre atme nt (in fection not treated
pr o mptly or properly, spreading and ca using ab scess, ane ur ysm, and brain damage). ” However, t here is noth ing in the me dic al records showing th at any of Dowdy ’ s injuries result ed from a n e rror by either D r. Orr or TCH D. See L ozan o , 570 S.W.3d

at 747

. T hat proof is neces sary to put TCH D on notice of its fault as opposed to a
bad result, which standing alone, does not cr ea te a fact issue on actual notice. See
Wal ton , 2020 WL 241383, at *6. According t o Dowdy ’ s brief , her ex pert ’ s supplemental report “ focused on the two types of neglige nce claims ” she made : “ the negligence claim concerning the dental surgery (specific al ly, the dental extraction and alveopla sty) that was do ne by Dr
Orr and ‘ TCHD staff

’ o n May 3 , 2018 , ” and “ t h e po stoperative negligen c e claims asserted against Dr. Kyle Orr and the TCHD healthcare providers/staff. ” However,
with the exce pt

ion of Dr . Orr, Dow dy fails to detail which TCHD “ healthcare
pr oviders/staff

” were negligen t even thou gh her resp onse to the plea r e fers to

15 S ee Cheatham , 2015 WL 38781 11, at *5 ( “ T he medical record s , however, do not apportion fa ult to the doctors, nor do the records othe rwise suggest tha t the Health Science Center was subjectively aware of its f ault in producing or contribu tin g to Cheatha m ’ s in jury. ” ).18

“ employee Robert Forsyth, ” “ Michae l Haseloff, LVN, ” “ nurse Eleni R ichar d son, ”
and “ empl oyee Mohd Rakib Uddin, MC

. ” Moreover, her pleadings state that while a t TCHD, Dowdy “ was placed under the care of Dr. Azhar Afaq, Dr. Kyle Orr, Dr.
Geor g e Cr avens, Dr. Robert Ge rmann, Dr. Aarth Narasimhan, Dr. Isherpreet
Sh ergill, Dr . Michael Siew, Dr. Sohaib S ol ima n, Dr. Mohd Uddin, Dr. Kumar Onali, Dr. Ratna Reddy, Dr. Mat thew Fi est a and Dr. Herman Ka o , ” and she attached a list

nam ing sixteen medical provi d ers as giving her care
. A gain, she fails t o apportion fault among these individuals

. See Cheatham , 2015 WL 387 81 11, at *5

. TCHD contends that , at most, the medical record s in this case demonstrate
that it had knowledge of Dowdy ’ s treatment at TCHD bu t do n ot re veal s u bjec tive
awareness of TC HD ’ s fault or its potential culpability

. We a gree. T he records note
that “ [t]here w ere no intra ope rativ e complications, ” an d, according to Dowdy her self on May 25, “ she was doing well aft er th e surgery. ” At no po in t do the recor d s

co nnect her complaints with t he alleged errors in treat me nt received at TCHD. Through out her response to the plea to the jurisdic tion and in her brief, Dowdy po ints to the fact that she had pain and in fecti on afte r the surgery
. However,
there is no men t

ion of pain or infection the day a fter surgery , only swelling

. And
there is no mention of anything connecting the later pain and infecti on to the
pr ocedure p erformed by Dr. Orr

. T o the extent t hat Do wdy s uffered kn own side
effects of t he procedure

— which the medical recor ds reflect includ e swe lling, pain, discomfort, numbness, infection, fractures, and da mage to t he jaw , jawbone, or19

nearb y structures

— the occurrence of thes e alone cannot rise to actual notic e. See
We se la v. Univ. of Tex. Med. Branch at G a l ve st on , 899 S.W.2d 292, 294 (Tex. Ap p.

— Houston [14 th Dist.] 1995, no wri t) ( “ [T]he occurrence of known side effects o r known potential co mplications of brain surgery cann ot rise to ‘ actual notice ’ of negligence. ” )
Do wd y also points t o notice of her injur i e s as reflect ed in the medical reco rd s

a s comporting with h er duty to notify TCHD of her claim. However, it is we ll settled
that notice of injuries is insufficient to put a hospital on notice of a possible claim. As explain ed by th e Texas Supreme Court,
M an y governme ntal units may, in the o rdi nary course of events, have knowl edge of de aths, injuries, or property damage but not wa rning

— “ n otice ”

— that a lawsuit might eventually be filed alleging th e governmental unit wa s responsible in some way, sh ap e, or fo r m. . . . Bu t mere knowledge that so met hing happened somewhere to someon e or something would h ardly ever be enoug h to alert a g overnmental unit of alleged wrongdoing and the necessity of mountin g a defense.

. . . . Hospitals are in nately epicente rs of u n hap p y outcome s of va rying degrees. The re is no warning in mere knowledge of that fact.

. . . . We have consistently made clear that actual notice does not mean potential notice and that to ac tu ally be on notice, t he governmental un it must be sub j ective l y aw are of fau lt in the way allege d, me aning potential responsibility.20

Wo rsdale v. City of Killeen , 578 S.W.3d 57, 72

– 76 (Tex. 2 019). Here, the medical records
relied upon b y Dowdy to meet her b urden of p roving act ual notice of her claim fail to

m eet th e sta ndard arti cu lated by the supre me co urt.
TCHD ’ s plea to the juri sdict ion should have been granted on the lack

- of

- notice ground . Therefore, we sustain TCHD ’ s first issue.
IV. C ONCLUSION
Hav ing sustained TCHD ’ s first iss ue and n ot needing to a ddress its seco nd
iss ue, 16 we revers e the t ri al court ’ s order denying the plea to the jurisdiction and render judgment that Do wdy ’ s claims against TCHD are dismissed

.
/s/ Dana Womack
Dana Womack Justice
Delivered: March 10, 202 2

16 See Tex. R. App. P. 47.1.