In the

Court of Appeals

Second Appellate District 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 Womack, JJ.

Memorandum Opinion by Justice Womack

TARRANT COUNTY HOSPITAL DISTRICT D/B/A JPS HEALTH NETWORK,

Appellant

V.

Sandra Dowdy, Appellee
2

MEMORANDUM OPINION

I. INTRODUCTION

In two issues in this interlocutory appeal,

1 Appellant Tarrant County Hospital 

District d/b/a JPS Health Network (TCHD) complains about the trial court’s 

(1) denial of its plea to the jurisdiction alleging that Appellee Sandra Dowdy did not 

provide the required statutory notice of her health care liability claim and 

(2) overruling of its objections to Dowdy’s expert report and denial of its motion to 

dismiss. We hold that because TCHD did not have the requisite timely notice of the 

claim, the trial court erred in denying the plea to the jurisdiction. Therefore, we need 

not address the second issue regarding the expert report, and we reverse and render

judgment that Dowdy’s claims against TCHD are dismissed.

II. BACKGROUND

A. Procedural

Dowdy sued TCHD and Dr. Kyle Orr2—who had performed a dental 

extraction in May 2018—on June 1, 2020, and alleged the following:

On or about May 12, 2018, [Dowdy] sought help for her symptoms of 

excessive swelling and pain at an Urgent Care Center where she was 

given antibiotics for the first time. [Dowdy’s] symptoms worsened, and 

she returned to [TCHD] on or about May 25, 2018, suffered seizures, 

1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8), (9).

2The record refers to Dr. Orr at various times as “DDS, MD,” “DDS,” and 

“DMD.” For ease of reference, we will refer to him as “Dr. Orr” except where 

quoting from the record.
3

heart damage, brain abscess, an aneur[ys]m and severe complications 

from infection. At all times material hereto, [Dowdy] was a patient 

under the care of Defendants, Kyle Orr, and [TCHD], having sought 

Defendants’ professional expertise, judgment, skill, competence, advice 

and treatment for surgical removal of all of her teeth. The care or 

treatment consisted of a complete dental extraction, and began on or

about May 3, 2018 and has continued through the present date. 

The petition stated that formal notice of the claim pursuant to Sections 74.051 and 

74.052 of the Texas Civil Practice and Remedies Code was given on March 27, 2020,

via a “statutory notice letter.” See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051, .052. 

The petition did not mention notice of a claim under Section 101.101 of the Texas 

Civil Practice and Remedies Code (the Texas Tort Claims Act, or TTCA). See id.

§ 101.101. Dowdy described her damages and injuries as including “brain injury and 

heart damage, resulting in [Dowdy’s] being placed on a PICC or peripherally inserted 

central catheter for approximately four weeks”; “anxiety, pain, and illness”; as well as 

“a broken jaw, life threatening infections, seizures, a brain abscess, and aneurysm.”

Attached to the petition were two March 27, 2020 letters from Dowdy’s attorney to 

Dr. Orr and TCHD; a March 27, 2020 list naming sixteen physicians and health care 

providers of Dowdy’s; and an authorization form for release of protected health 

information. 

In response, TCHD and Dr. Orr filed their answer. It contained numerous 

affirmative defenses, including that TCHD and Dr. Orr “deny that they received 

timely, written or actual notice as required by the Texas Tort Claims Act, Tex. Civ. 

Prac. & Rem. Code § 101.101.” 
4

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

expert report. Dowdy responded to the objections and filed a supplemental expert 

report. The trial court ultimately sustained the objections and dismissed Dowdy’s 

claims with prejudice. Thereafter, Dowdy filed a motion for new trial and a motion 

requesting a thirty-day extension to address the issues raised in the objections. The 

trial court granted the motion for extension and a new trial. TCHD and Dr. Orr 

renewed their objections to the expert report. 

In May 2021, TCHD filed a motion to dismiss Dr. Orr pursuant to Texas Civil 

Practice and Remedies Code § 101.106(e), which requires dismissal of a governmental 

unit’s employee on the governmental unit’s motion in a suit against both. See id. 

§ 101.106(e). The trial court granted the motion and dismissed all of Dowdy’s claims 

against Dr. Orr with prejudice. 

In June 2021, TCHD3filed a plea to the jurisdiction alleging that (1) Dowdy did 

not provide notice of her claim pursuant to Section 101.101 of the Texas Civil 

Practice and Remedies Code and (2) Dowdy had not pled sufficient facts 

demonstrating that the trial court had subject-matter jurisdiction. Specifically, TCHD 

asserted that it had not received timely written or actual notice of Dowdy’s claim and 

that it was immune from the complaints of negligence because none of the claims 

involved the negligent use or misuse of tangible personal property. The plea to the 

3Dr. Orr also originally joined in the plea to the jurisdiction because, at the time 

it was filed, he had not been dismissed from the case.
5

jurisdiction included (1) an affidavit by TCHD’s Legal Claims Manager stating that 

TCHD did not have written notice of Dowdy’s health care liability claim until 

April 13, 2020, when it received the letter dated March 27, 2020, from Dowdy’s 

attorney, and therefore did not have “actual knowledge of its alleged fault producing 

or causing injury to [Dowdy] within six (6) months after the day that the alleged 

incident(s) giving rise to [Dowdy’s] alleged claims occurred”; and (2) an affidavit by

TCHD’s custodian of records attaching eleven pages of medical records pertaining to 

Dowdy. 

Dowdy amended her pleadings and filed responses to the plea to the 

jurisdiction and TCHD’s objections to the expert report. In the response to the plea 

to the jurisdiction, Dowdy stated that she “does not argue that she has provided 

written notice to” TCHD, but instead argued that it had “actual notice of the claim 

shortly after the injury was visited upon [Dowdy].” Dowdy’s response relied entirely 

on the medical records attached to TCHD’s plea 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, overruled the objections to 

the expert report, and denied the Chapter 74 motion to dismiss. This appeal 

followed. 

B. Evidentiary

Both at the trial court and on appeal, the parties rely on the medical records 

attached to the plea to the jurisdiction to support their arguments about actual notice
6

of the claim. Therefore, we will first examine the medical records in chronological 

order.

The first page of the records is a disclosure and consent form signed on May 3, 

2018, wherein Dowdy requested “EXTRACTION OF TOOTH (TEETH) One or 

more diseased, non-functional, malpositioned, or impacted teeth” and 

“ALVEOPLASTY Malformed or sharp bone in the jaw that prevents the comfortable 

fit of dental appliances, or causes discomfort.”

4

 According to the disclosure and 

consent form, the alveoplasty procedure “involves smoothing uneven or sharp bone 

in the jaw, usually in areas that have previously lost teeth.” The listed side effects

include swelling, pain, discomfort, numbness, infection, fractures, and damage to the 

jaw, jawbone, or nearby structures. 

On the same day that the disclosure and consent form was signed, the 

procedure was performed. In the progress notes, Dr. Orr described the procedure 

and concluded with the following: “The patient was given verbal and written postoperative instructions. There were no intraoperative complications and the patient 

tolerated the procedure well. Good hemostasis was obtained and the patient was 

discharged home.” 

The next record entry was on May 4, 2018, and reflected a “Telephone 

Encounter” at 10:06 a.m.:

4Capitalizations, omissions, abbreviations, and typographical errors in the

medical records are unaltered.
7

Patient called requesting that Dr. Long5 write her a prescription for some 

antibiotics due to mouth swelling from Oral surgery yesterday 5/3/18. 

She was only prescribed pain medication and cannot be seen by dental 

clinic for 2 weeks. PAtient is going out of town tomorrow and states it 

is urgent. Please all patient to advise.

At 2:44 p.m. on the same day, a licensed vocational nurse noted,

Returned pt call. Pt stated she had oral surgery yesterday and would like 

an rx for abx. Pt stated the oral surgeon yesterday told her that she did 

not need them “because of something like resistance.” I advised the pt 

if she was having any issues she needed to speak with the clinic that did 

the procedure or go to the UCC/ER. Pt stated she didn’t really want to 

speak with the oral surgery clinic because “I was not really impressed 

with them anyway.” Again advised pt to seek are in UCC or ER for any 

urgent concerns. Pt verbalized understanding. 

The next entry in the medical records is twenty days later, on May 24, 2018, at 

4:39 p.m., in the form of a registered nurse’s note based on a “Telephone Encounter.” 

That note reads,

Reason for Disposition

• Swelling is painful to touch

Answer Assessment – Initial Assessment Questions

1. ONSET: “When did the swelling start?” (e.g., minutes, 

hours, days)

This morning

2. LOCATION: “What part of the face is swollen?”

Lower left side and neck

3. SEVERITY: “How swollen is it?”

Twice the size 

The following day, on May 25, 2018, at 8:30 a.m., a medical doctor noted,

5There is nothing in the records identifying “Dr. Long” or explaining Dr.

Long’s relationship to Dowdy.
8

Patient came to clinic today for the c/o severe pain with swelling on left 

face, with swelling and pus discharge on left jaw area since yesterday. Pt

told she had all teeth extracted on beginning part of May, 2018 at JPS by 

oral surgeon, and she was doing well after the surgery, but started getting 

pain on this area when she was on vacation in other State. Pt told she 

went to ER over there, where she had lab done, which shown WBC was 

elevated, and she was given Augmentin

[6]

for 10 days, pt told she taken 

those medication, but since yesterday it got worse, and swelling 

developed, pt told she called JPS Nurse triage yesterday who made this 

appointment with Provider to be seen today at JPS Watauga clinic. 

Patient denied any other complaints, like no fever or chills, no chest 

pain, no Short of Breath, no dizziness, no distress, no N/V/D, no bowel 

or bladder problems, no 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 is at a severity of 10/10. The 

pain is severe. Associated symptoms include facial pain and thermal 

sensitivity. Pertinent negatives include no difficulty swallowing, fever, 

oral bleeding or sinus pressure. She has tried NSAIDs for the 

symptoms. The treatment provided no relief. 

In the “Review of Systems,” the doctor noted, “Severe pain with swelling of left face, 

with pus discharge inside mouth on left jaw area since yesterday.” 

In the “Subjective” portion of the progress notes made on June 2, 2018, the 

record states,

After surgery the patient reports that after the surgery she had numbness 

of the left lower lip, left chin and left lower teeth. She left town after 

surgery and reports that 4 days later she began having left side facial 

swelling. She presented to a local UC and was given antibiotics which 

helped the swelling resolve. She reports that the numbness continued. 

6Augmentin has been described as “a type of penicillin.” Stine v. Brown, No. 01-

94-00242-CV, 1994 WL 543477, at *1 (Tex. App.—Houston [1st Dist.] Oct. 6, 1994, 

writ denied) (not designated for publication).
9

On 5/24/18 she began having left side facial swelling again and

presented to JPS ED on 5/25/18 with worsening swelling, difficulty 

swallowing and trismus. She was found to have a Left mandibular angle 

fracture, left lateral pharyngeal space, left submandibular space abscess 

vs possible osteomyelitis. She was admitted to OMFS for IV Unasyn.

The June 2 records also provided a brief summary of Dowdy’s symptoms from 

the previous week. They reflect that on May 26, Dowdy “reports feeling that pain is 

under better control but she feels like the swelling has stayed the same.” By the 

following day, the “swelling has decreased, no pain.” On May 28, Dowdy was 

“having episodes of aphasia and left arm tremor, stroke team activated.” At that time, 

“CT head, MRI brain and CTA head and neck ordered.” Results from the tests were 

noted on May 29, and brief progress notes were added on May 30, 31, and June 1. 

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

yesterday. Denies n/v/f/c/d. Ambulating. Continuing to tolerate PO.” 

III. DISCUSSION

A. Standard of Review

A trial court’s ruling on a plea to the jurisdiction alleging lack of subject-matter 

jurisdiction is reviewed de novo. Univ. of N. Tex. Health Sci. Ctr. v. Jimenez, No. 02-16-

00368-CV, 2017 WL 3298396, at *3 (Tex. App.—Fort Worth Aug. 3, 2017, pet. 

denied) (mem. op.). If the plea to the jurisdiction challenges the existence of 

jurisdictional facts, we consider relevant evidence submitted by the parties when 

necessary to resolve the jurisdictional issues raised, just as the trial court must. Tex. 

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland Indep. Sch. 
10

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Jimenez, 2017 WL 3298396, at *3. If

there is a fact question on the jurisdictional issue, the trial court cannot grant the plea 

to the jurisdiction, and the factfinder will resolve the question. Miranda, 133 S.W.3d at 

227–28; Jimenez, 2017 WL 3298396, at *3. However, if the evidence is undisputed or 

fails to raise a fact question on the jurisdictional issue, then the trial court rules on the 

plea as a matter 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 2010, pet. denied). When, as in Jimenez

and here, “the parties do not dispute the evidence presented on the jurisdictional issue

[but] simply dispute its legal significance,” we will review the trial court’s ruling as a 

matter of law. Jimenez, 2017 WL 3298396, at *4.

B. Applicable Law

Governmental immunity protects political subdivisions of the State from 

lawsuits for damages. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 

842 (Tex. 2009). Hospital districts such as TCHD7 have governmental immunity. Id.

7TCHD was “created under the authority of the Texas Constitution and 

[C]hapter 281 of the Texas Health and Safety Code.” Tarrant Cnty. Hosp. Dist. v. GE 

Auto. Servs., 156 S.W.3d 885, 891 (Tex. App.—Fort Worth 2005, no pet.) (citing Tex. 

Const. art. IX, § 4, and the former versions of current Tex. Health & Safety Code 

Ann. §§ 281.001–.124); Armendarez v. Tarrant Cnty. Hosp. Dist., 781 S.W.2d 301, 303 

(Tex. App.—Fort Worth 1989, writ dism’d) (“It is undisputed that the Hospital 

District is a governmental entity to which the doctrine of governmental immunity 

would be applicable.”).
11

Absent a waiver of sovereign8immunity, a court has no subject-matter 

jurisdiction to entertain a suit against a governmental unit. Tex. Dep’t of Transp. v. Jones, 

8 S.W.3d 636, 638 (Tex. 1999). The TTCA provides a limited waiver of immunity. 

Miranda, 133 S.W.3d at 224. However, that waiver occurs only when notice of a claim 

against the governmental entity is provided as the Act prescribes. City of San Antonio v. 

Tenorio, 543 S.W.3d 772, 775–76 (Tex. 2018). With regard to notice, the TTCA states,

(a) A governmental unit is entitled to receive notice of a claim against 

it under this chapter not later than 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).

The purpose of the notice requirement is to ensure the prompt reporting of 

claims to enable governmental units to gather information necessary to guard against 

unfounded claims, settle claims, and prepare for trial. Cathey v. Booth, 900 S.W.2d 339,

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

“governmental immunity,” while the immunity enjoyed by the State is “sovereign 

immunity.” Osman v. City of Fort Worth, No. 02-21-00117-CV, 2022 WL 187984, at *8 

n.15 (Tex. App.—Fort Worth Jan. 20, 2022, no pet. h.) (mem. op.) (citing Reata Constr. 

Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)). For ease of reference, we use 

the phrase “sovereign immunity” for both concepts. See Reata Constr. Corp., 

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

341 (Tex. 1995). Failure to comply with the notice provision requires dismissal. 

Tenorio, 543 S.W.3d at 775–76.

However, the notice requirements of Section 101.101(a) “do not apply if the 

governmental unit has actual notice that death has occurred, that the claimant has 

received some injury, or that the claimant’s property has been damaged.” Tex. Civ. 

Prac. & Rem. Code Ann. § 101.101(c). As we recently explained,

More than a quarter of a century ago, in Cathey v. Booth, the Texas 

Supreme Court construed the Texas Tort Claims Act’s actual-notice 

provision to require “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.” 900 S.W.2d at 341. All three elements are 

required: “[s]tanding alone, knowledge that an injury has occurred does 

not establish actual notice.” Jimenez, 2017 WL 3298396, at *4 (quoting 

Univ. of Tex. Health Sci. Ctr. at Houston v. Cheatham, No. 14-14-00628-CV, 

2015 WL 3878111, at *3 (Tex. App.—Houston [14th Dist.] June 23, 

2015, no pet.) (mem. op.)). Cathey is still the law of the land, and it is 

binding precedent on this court.

Osman, 2022 WL 187984, at *9.

The governmental unit must have knowledge equivalent to what a formal 

Section 101.101(a) notice would have provided, which “includes subjective awareness 

of its fault, as ultimately alleged by the claimant, in producing or contributing to the 

claimed injury.” Jimenez, 2017 WL 3298396, at *4 (citing Univ. of Tex. Sw. Med. Ctr. at 

Dall. v. Est. of Arancibia, 324 S.W.3d 544, 548–49 (Tex. 2010) (quoting Tex. Dep’t of 

Crim. Just. v. Simons, 140 S.W.3d 338, 347 (Tex. 2004))). Medical records may create a 

fact issue on actual notice only if they “indicate to the [government] hospital its 
13

possible culpability in causing the injuries.” Id. (quoting Dinh v. Harris Cnty. Hosp. 

Dist., 896 S.W.2d 248, 253 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.)).

C. Analysis

In its first issue, TCHD argues that it did not have actual notice of the claim 

because the “evidence relied upon by [Dowdy], TCHD’s medical records, did not

show that TCHD had subjective awareness of its fault, as alleged by [Dowdy], in 

contributing to or producing her injury.” Dowdy responds that she “produced 

evidence from her medical records to the trial court that showed that TCHD was 

aware of the nature of the injury as well as the identity of the responsible employee, 

satisfying the TTCA requirements.”

9

 To support her actual-notice argument, Dowdy 

relies on the entries made in the medical records on May 4, 24, and 25, and on June 2. 

After reviewing the medical records and applying Cathey’s three-element actualnotice standard, we cannot find within them anything that would provide TCHD

subjective awareness that it was at fault in producing or contributing to Dowdy’s 

injuries. On the day of the extraction, also the first entry in the medical records, Dr.

Orr detailed the medical procedure that he performed and noted that “[t]here were no 

intraoperative complications.” Although Dowdy called the hospital the next morning

9

In her brief, Dowdy agrees that “TCHD is a hospital district controlled and

managed by Tarrant County, and therefore, pursuant to Chapter 281 of the Texas 

Health and Safety Code, it is a governmental entity and any claim against it is subject 

to the Texas Tort Claims Act.” Dowdy also acknowledges in her brief that she “did 

not provide written notice of her claim to TCHD until outside of the 6-month 

timeframe required under the Texas Tort Claims Act,” but she states that “TCHD did

have actual notice of the errors and negligence committed by June 2, 2018.” 
14

and requested a prescription for antibiotics “due to mouth swelling,” there is no other

indication of pain or possible infection. To the contrary, Dowdy said that she had 

been prescribed pain medication and expressed urgency only because she was going 

out of town the next day. When the telephone call was returned that afternoon, 

Dowdy said she “would like” a prescription for antibiotics. Dowdy was advised 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 oral surgery clinic.” She 

was then again advised to seek care “in UCC or ER for any urgent concerns,” and she 

acknowledged that she understood. 

The next entry in the medical records is twenty days later, on May 24, when 

Dowdy again called the hospital. The record reflects that her lower left side and neck 

were swollen and that the swelling had started that morning.

When she appeared the next day for a clinical assessment due to “severe pain 

with swelling on left face, with swelling and pus discharge on left jaw area since 

yesterday,” Dowdy said that “she was doing well after the surgery, but started getting 

pain on this area when she was on vacation in [an]other State.” Dowdy further said 

that although she had been “given Augmentin for 10 days,” it was just since the prior 

day, May 24, that the pain had gotten “worse, and swelling developed.” It was noted 

again that “[t]he current episode started yesterday.” 

On the last page of the medical records, the notes state that Dowdy’s teeth had

been extracted; that “[s]he left town after surgery and . . . 4 days later she began 
15

having left side facial swelling,” went to a local urgent care clinic, and “was given 

antibiotics which helped the swelling resolve”; and that “[o]n 5/24/18 she began 

having left side facial swelling again and presented to JPS ED on 5/25/18 with 

worsening swelling, difficulty swallowing and trismus.” At that time, she “was found 

to have a Left mandibular angle fracture, left lateral pharyngeal space, left 

submandibular space abscess vs possible osteomyelitis.” 

There is nothing in the medical records to indicate

• the injuries occurred as Dowdy alleged in her pleadings—“severe grand mal 

seizures, a broken jaw, heart damage, brain abscess, tremors, and aneur[ys]m 

attributable to the infection caused by [TCHD and Orr]”;

10

• why the injury occurred;

11

10See Univ. of Tex. Sw. Med. Ctr. v. Alcantar, No. 05-18-01320-CV, 2019 WL 

3940980, at *3 (Tex. App.—Dallas Aug. 21, 2019, pet. denied) (mem. op.) (“We agree 

with UTSW that Alcantar’s medical records are insufficient to establish that an injury 

occurred as she alleges, i.e., because of a cut to the rectum.”). Although the records 

do show Dowdy had a broken jaw and was having symptoms that caused activation of 

the stroke team, nothing in the records links these symptoms to Dr. Orr or TCHD.

11See Tex. Tech Univ. Health Sci. Ctr. v. Lozano, 570 S.W.3d 740, 747 (Tex. App.—

El Paso 2018, pet. denied) (“[W]e find nothing in the medical record showing that the

nerve injury resulted from an error by a Texas Tech agent or employee. . . . Without 

an indication of why the injury occurred, Texas Tech was not subjectively aware of a 

possible claim.”).
16

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

post-surgical treatment;

12

• TCHD’s subjective awareness13 of its alleged fault;

14 or

12See Osman, 2022 WL 187984, at *10 (“[T]his evidence gave no indication that 

the Governmental Entities had notice that they were allegedly at fault for producing 

or contributing to Abdillahi’s death.”); Reynosa v. Bexar Cnty. Hosp. Dist., 943 S.W.2d 

74, 78 (Tex. App.—San Antonio 1997, writ denied) (“[R]ecords must communicate 

culpability in David Reynosa’s injury.”).

13See Univ. of N. Tex. Health Sci. Ctr. v. Walton, No. 02-19-00193-CV, 2020 WL 

241383, at *8 (Tex. App.—Fort Worth Jan. 16, 2020, no pet.) (mem. op.) (“During 

this time frame, there was no reference in these records to wrong level rib surgery or 

that anything done or not done in Walton’s care and treatment was wrongful or a 

cause of her ongoing complaints. Since the test for actual knowledge requires a 

subjective awareness of fault in causing the alleged injuries, these records are 

insufficient to raise a fact issue of actual notice.”); Jimenez, 2017 WL 3298396, at *5 

(“We have reviewed UNT Health’s records and cannot find within them anything that 

rises to the level of subjective awareness that UNT Health was at fault in producing or 

contributing to Knight’s injuries.”); Cheatham, 2015 WL 3878111, at *5 (“Although it 

was error to leave a needle inside Cheatham’s chest, the evidence shows that the 

Health Science Center did not know how this error occurred, nor did it accept 

responsibility for the error. . . . These circumstances do not establish the Health 

Science Center’s subjective awareness of fault.”); Casanover v. Tomball Reg’l Hosp. Auth.,

No. 01-04-00136-CV, 2006 WL 23407, at *4 (Tex. App.—Houston [1st Dist.] Jan. 5, 

2006, no pet.) (mem. op.) (“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.”).

14“Fault, as it pertains to actual notice, is not synonymous with liability; rather, 

it implies responsibility for the injury claimed.” Arancibia, 324 S.W.3d at 550.
17

• apportionment of fault between TCHD and Dr. Orr and any of the other 

healthcare providers.

15

In her response to the plea to the jurisdiction, Dowdy stated that she was

alleging “injury due to negligent surgery (improper extraction leading to broken 

mandible, infection) as well as negligent post-surgery treatment (infection not treated 

promptly or properly, spreading and causing abscess, aneurysm, and brain damage).” 

However, there is nothing in the medical records showing that any of Dowdy’s 

injuries resulted from an error by either Dr. Orr or TCHD. See Lozano, 570 S.W.3d 

at 747. That proof is necessary to put TCHD on notice of its fault as opposed to a 

bad result, which standing alone, does not create a fact issue on actual notice. See 

Walton, 2020 WL 241383, at *6. 

According to Dowdy’s brief, her expert’s supplemental report “focused on the 

two types of negligence claims” she made: “the negligence claim concerning the 

dental surgery (specifically, the dental extraction and alveoplasty) that was done by Dr 

Orr and ‘TCHD staff’ on May 3, 2018,” and “the postoperative negligence claims 

asserted against Dr. Kyle Orr and the TCHD healthcare providers/staff.” However, 

with the exception of Dr. Orr, Dowdy fails to detail which TCHD “healthcare 

providers/staff” were negligent even though her response to the plea refers to

15See Cheatham, 2015 WL 3878111, at *5 (“The medical records, however, do 

not apportion fault to the doctors, nor do the records otherwise suggest that the 

Health Science Center was subjectively aware of its fault in producing or contributing 

to Cheatham’s injury.”).
18

“employee Robert Forsyth,” “Michael Haseloff, LVN,” “nurse Eleni Richardson,”

and “employee Mohd Rakib Uddin, MC.” Moreover, her pleadings state that while at 

TCHD, Dowdy “was placed under the care of Dr. Azhar Afaq, Dr. Kyle Orr, Dr. 

George Cravens, Dr. Robert Germann, Dr. Aarth Narasimhan, Dr. Isherpreet 

Shergill, Dr. Michael Siew, Dr. Sohaib Soliman, Dr. Mohd Uddin, Dr. Kumar Onali, 

Dr. Ratna Reddy, Dr. Matthew Fiesta and Dr. Herman Kao,” and she attached a list

naming sixteen medical providers as giving her care. Again, she fails to apportion

fault among these individuals. See Cheatham, 2015 WL 3878111, at *5.

TCHD contends that, at most, the medical records in this case demonstrate 

that it had knowledge of Dowdy’s treatment at TCHD but do not reveal subjective 

awareness of TCHD’s fault or its potential culpability. We agree. The records note 

that “[t]here were no intraoperative complications,” and, according to Dowdy herself 

on May 25, “she was doing well after the surgery.” At no point do the records 

connect her complaints with the alleged errors in treatment received at TCHD.

Throughout her response to the plea to the jurisdiction and in her brief, 

Dowdy points to the fact that she had pain and infection after the surgery. However, 

there is no mention of pain or infection the day after surgery, only swelling. And 

there is no mention of anything connecting the later pain and infection to the 

procedure performed by Dr. Orr. To the extent that Dowdy suffered known side 

effects of the procedure—which the medical records reflect include swelling, pain, 

discomfort, numbness, infection, fractures, and damage to the jaw, jawbone, or 
19

nearby structures—the occurrence of these alone cannot rise to actual notice. See 

Wesela v. Univ. of Tex. Med. Branch at Galveston, 899 S.W.2d 292, 294 (Tex. App.—

Houston [14th Dist.] 1995, no writ) (“[T]he occurrence of known side effects or 

known potential complications of brain surgery cannot rise to ‘actual notice’ of 

negligence.”)

Dowdy also points to notice of her injuries as reflected in the medical records 

as comporting with her duty to notify TCHD of her claim. However, it is well settled 

that notice of injuries is insufficient to put a hospital on notice of a possible claim. As

explained by the Texas Supreme Court,

Many governmental units may, in the ordinary course of events, have 

knowledge of deaths, injuries, or property damage but not warning—

“notice”—that a lawsuit might eventually be filed alleging the 

governmental unit was responsible in some way, shape, or form. . . . But 

mere knowledge that something happened somewhere to someone or 

something would hardly ever be enough to alert a governmental unit of 

alleged wrongdoing and the necessity of mounting a defense.

. . . .

Hospitals are innately epicenters of unhappy outcomes of varying 

degrees. There 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 actually be on notice, the governmental unit must be 

subjectively aware of fault in the way alleged, meaning potential 

responsibility.
20

Worsdale v. City of Killeen, 578 S.W.3d 57, 72–76 (Tex. 2019). Here, the medical records 

relied upon by Dowdy to meet her burden of proving actual notice of her claim fail to 

meet the standard articulated by the supreme court.

TCHD’s plea to the jurisdiction should have been granted on the lack-of-notice 

ground. Therefore, we sustain TCHD’s first issue.

IV. CONCLUSION

Having sustained TCHD’s first issue and not needing to address its second 

issue,16 we reverse the trial court’s order denying the plea to the jurisdiction and 

render judgment that Dowdy’s claims against TCHD are dismissed.

/s/ Dana Womack

Dana Womack

Justice

Delivered: March 10, 2022

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