medical malpractice litigation under the … common law at common law, governmental entities enjoyed...

MEDICAL MALPRACTICE LITIGATION UNDER THETEXAS TORT CLAIMS ACT

BRIAN G. JACKSON POST OFFICE BOX 1588, AUSTIN, TEXAS 78767

9TH FLOOR - ARBORETUM PLAZA I - SUITE 9509442 CAPITAL OF TEXAS HIGHWAY

AUSTIN, TEXAS 78759TELEPHONE 512-343-6248

FAX 512-343-0121

State Bar of TexasTraps and Pitfalls in Medical Malpractice Litigation Under the Texas Tort

Claims ActMarch 14-15, 2002San Antonio, Texas

Chapter 12

BRIAN G. JACKSONDAVIS & DAVIS

__________________________A PROFESSIONAL CORPORATIONATTORNEYS AND COUNSELORS AT LAW

POST OFFICE BOX 1588, AUSTIN, TEXAS 787679TH FLOOR - ARBORETUM PLAZA I - SUITE 950

9442 CAPITAL OF TEXAS HIGHWAYAUSTIN, TEXAS 78759

TELEPHONE 512-343-6248

FAX 512-343-0121

Davis & Davis, P.C. is known for exacting standards, attentiveness to clientslarge and small, cost-efficient and aggressive representation, and a degree of legalsophistication more common in the nation's largest cities. The firm was establishedin Austin, Texas in 1961 by C. Dean Davis. The firm continues to be A.V. rated andattributes its success to well respected clients and the issues that concern them.

BRIAN G. JACKSON is a shareholder in this firm and has successfullyrepresented its clients for more than 10 years. His practice areas include civillitigation, probate, estate planning, trusts, and healthcare directives. His educationalbackground and professional activities are as follows:

Admitted to bar, 1990, Texas; also admitted to practice before U.S.District Court, Western District of Texas. Preparatory education, AbileneChristian University (B.A. 1987); legal education, University of HoustonSchool of Law (J.D., 1990). Member: Travis County Bar Association;Williamson County Bar Association, Dallas County Bar Association,Austin Young Lawyers Association; Texas Association of DefenseCounsel; American Bar Association; State Bar of Texas.

Medical Malpractice Litigation Under the Texas Tort Claims Act Chapter 12

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Table of ContentsTable of Authorities..................................................................................................................................... ii

I. Introduction.......................................................................................................................................1

II. History of Sovereign Immunity at Common Law ...................................................................................1

III. Statutory Waiver of Immunity................................................................................................................2

A. Provisions of the TTCA..............................................................................................................2

IV. Governmental Entities............................................................................................................................2

V. Liability Established under the TTCA.....................................................................................................3

A. Liability for the Condition or Use of Tangible...........................................................................3Personal Property

1. What is tangible personal property? ..............................................................................3a. Records ..............................................................................................................4b. Other property ...................................................................................................4c. Who owns the property?....................................................................................4

2. What is the difference between misuse and a nonuse?..................................................43. Is the use/misuse by an employee?...............................................................................5

VI. Limitations and Exclusions found in the TTCA ....................................................................................6

A. Exemplary Damages...................................................................................................................6

B. Discoverability of Insurance Policies .........................................................................................6

C. Notice Provisions........................................................................................................................6

1. Written of Actual Notice .............................................................................................62. The Discovery Rule does not apply to Section 101.101..............................................73. Are employees entitled to Notice? ..............................................................................84. Notice defense must be pled .......................................................................................85. City Charters ...............................................................................................................8

D. Limitation on Damages ..............................................................................................................8

E. Civil Disobedience and Intentional Torts ...................................................................................9

VII. Municipalities .......................................................................................................................................9

VIII. Claims against Employees of Governmental Entities .......................................................................10

Conclusion...................................................................................................................................................11


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Table of Authorities

CasesAlvarado v. City of Lubbock, 685 S.W.2d 646(Tex. 1985).

Bellnoa v. City of Austin, 894 S.W.2d 821,826 (Tex. App.-Austin 1995, no writ).

Bennett v. Brown Water ImprovementDistrict No. 1, 272 S.W.2d 498 (Tex. 1954).

Bossley v. Dallas County MHMR, 934 S.W.2d 689 (Tex. App. – Dallas [5th Dist.] 1995).

Brown v. Montgomery County Hospital District,905 S.W.2d 481 (Tex. App.-Beaumont 1995, no writ).

Castillo v. Tropical Texas Center for MentalHealth and Mental Retardation, 962 S.W.2d 622(Tex. App.-Corpus Christi 1997, no writ).

Cathey v. Boothe, 900 S.W.2d 339 (Tex. 1995).

City of Austin v. Cooksey, 570 S.W.2d 386(Tex. 1978).

City of Baytown v. Townsend, 548 S.W.2d 935 (Tex. App. – Houston [14th Dist.] 1977 ref’d n.r.e.).

City of Bedford v. Schattman, 776 S.W.2d 812(Tex. App.-Fort Worth 1989, no writ).

City of Denton v. Maths, 528 S.W.2d 625 (Tex. Civ. App.-Fort Worth 1975, writ ref’d n.r.e.).

City of Houston v. Arney, 680 S.W.2d 867(Tex. App.-Houston [1st Dist.] 1984, no writ).

City of Houston v. Torres, 621 S.W.2d 588 (Tex. 1981).

City of Texarkana v. Nard, 575 S.W.2d 648,651-652 (Tex. Civ. App.-Tyler 1978, writ ref’d n.r.e.).

County of Brazoria v. Radtke, 566 S.W.2d 326,328 and 329 (Tex. Civ. App.-Beaumont 1978,writ ref’dn.r.e.).

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=685&edition=S.W.2d&page=646&id=46382_01
















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Dallas County v. Harper, 913 S.W.2d 207(Tex. 1995).

Davis v. City of San Antonio,752 S.W.2d 518, 519 (Tex. 1988).

Delaney v. University of Houston,835 S.W.2d 56, 59 (Tex. 1992).

Dillard v. Austin Independent School District,806 S.W.2d 589, 592 (Tex. App.-Austin 1991,writ denied).

Dinh v. Harris County Hospital District,896 S.W.2d 248 (Tex. App.-Houston [1st Dist.]1995, writ dism’dw.o.j.).

Dumas v. Muenster Hospital District, 859 S.W.2d 648 (Tex. App.- Fort Worth [2nd Dist.] (1993).

Gaskin v. Titus County Hospital District, 978 S.W. 2d 178 (Tex. App. – Texarkana 1998).

General Electric Company v. City of Abilene,795 S.W.2d 311, 312-313 (Tex. App.-Eastland1990, no writ).

Huckabay v. Irving Hospital Authority,879 S.W.2d 64 (Tex. App.-Dallas 1993,writ dism’d by agr.).

In Re Sabine Valley Center, 986 S.W.2d 612 (Tex. 1999).

Jezek v. City of Midland, 605 S.W.2d 544 (Tex. 1980).

Kassen v. Hartley, 887 S.W.2d 4, 14 (Tex. 1994).

Kerrville State Hospital v. Clark, 923 S.W.2d 582 (Tex. 1996).

LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).

Lowe v. Texas Tech University,540 S.W.2d 297 (Tex. 1976).

McBride v. Texas Department of CriminalJustice-Institutional Division, 964 S.W.2d 18(Tex. App.-Tyler1997, no writ).

McDonald v. State, 936 S.W.2d 734(Tex. App.-Waco 1997, no writ).



















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Mitcham v. University Medical Branch, 818 S.W.2d 523 (Tex. App.- Houston [14th Dist.] (1991).

Mount Pleasant Indep. School Dist. v. Estateof Lindburg, 766 S.W.2d 208, 211 (Tex. 1989).

Pontarelli Trust v. City of McAllen,465 S.W.2d 804, 807-808(Tex. Civ. App.-Corpus Christi 1971, nowrit).

Putt Hoff v. Ancrum, 934 S.W.2d 164(Tex. App.-Fort Worth 1996, writ denied).

Robinson v. Central Texas MHMR Center,780 S.W.2d 169, 171 (Tex. 1989).

Sanford v. Texas A&M University, 680 S.W.2d 650(Tex. App.-Beaumont 1984, writ ref’d n.r.e.).

Salcedo v. El Paso Hospital District, 659 S.W.2d at 30, (Tex 1983).

Sem v. State, 821 S.W.2d 411 (Tex. App. – Fort Worth 1991).

State Department of Highways and PublicTransportation v. Dopyera, 834 S.W.2d 50 (Tex. 1992).

State v. Snyder, 18 S.W. 106, 109 (Tex. 1886).

Streetman v. University of Texas HealthScience Center at San Antonio, 952 S.W.2d 53(Tex. App.-SanAntonio 1997, writ denied).

The University of Texas Medical Branch of Galveston v. Greenhouse, 889 S.W.2d 427 (Tex.App. - Houston, 1994).

Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997).

University of Texas Medical Branch of Galveston v. Davidson,882 S.W.2d 83, 86 (Tex. App.-Houston[14th Dist.]1994, no writ).

University of Texas Medical Branch ofGalveston v. York, 871 S.W.2d 175 (Tex. 1994).

Zacharie v. City of San Antonio By and ThroughSan Antonio Water System Board of Trustees,952 S.W.2d56 (Tex. App.-Austin 1997, no writ).

















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Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A).

Tex. Civ. Prac. & Rem. Code Ann. § 101.023.

Tex. Civ. Prac. & Rem. Code, § 101.001(3).



Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(4).






Author's Credit:

Gene L. Locke and Michael Schaunessy


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MEDICAL MALPRACTICE LITIGATION UNDER THE TEXAS TORT CLAIMS ACT

I. INTRODUCTION

Welcome to the strange and mysteriousworld of litigating medical malpractice casesunder the Texas Tort Claims Act. In this world,seemingly irrelevant facts may determine theoutcome of a case and you must constantly be onyour guard to avoid the many pitfalls whichawait the unsuspecting plaintiff’s attorney or theill prepared defense counsel. This is not a worldwhere you can merely trust your instincts anduse common sense to determine whether or not aplaintiff has an actionable claim. You mustthrow your instincts out the window and rely onyour knowledge of the twists and turns of caselaw interpreting one of Texas’ strangest statutes.

You must pay close attention to these typesof questions:

1. What is tangible personal property?2. What is a use or misuse of tangible

personal property?3. Why isn’t a nonuse of tangible

personal property actionable?4. Why is a non-use of tangible personal

property actionable if it involves a safetydevice?

5. What if the Plaintiff cannot give noticewithin 6 months of the incident because no-oneknows a cause of action might exist?

I hope these materials and our discussionsof these topics are useful to you. We will try tounderstand why the Texas Tort Claims Act doesnot allow a plaintiff to sue a hospital if a nursenegligently fails to record important informationin a patient’s medical chart, but does allow aplaintiff to sue a hospital if a hospital employeemisinterprets an electrocardiogram. Or why youcannot sue a hospital for failing to giveprescribed medication but you can sue if they

fail to raise the rails on a hospital bed. Just besure you check your instincts at the door.

II. HISTORY OF SOVEREIGN IMMUNITYAT COMMON LAW

At common law, governmental entitiesenjoyed complete sovereign immunity. State v.Snyder, 18 S.W. 106, 109 (Tex. 1886).Sovereign immunity contains two components:(1) A state is immune from being sued withoutconsent even if there is no dispute regarding thestate’s liability; and (2) a state has immunityfrom liability even when the state has consentedto being sued. See. Dillard v. AustinIndependent School District, 806 S.W.2d 589,592 (Tex. App.-Austin 1991, writ denied).Therefore, in order to bring a suit at commonlaw against the State of Texas, a plaintiff had toprove the state had waived both immunity fromsuit and immunity from liability. City ofHouston v. Arney, 680 S.W.2d 867 (Tex. App.-Houston [1st Dist.] 1984, no writ).

At common law sovereign immunityextended to include agencies, commissions,boards, departments and state universities. Lowev. Texas Tech University, 540 S.W.2d 297 (Tex.1976). Sovereign immunity is applied togovernmental units such as mental healthcenters, Castillo v. Tropical Texas Center forMental Health and Mental Retardation, 962S.W.2d 622 (Tex. App.-Corpus Christi 1997, nowrit); water system board of trustees, Zachariev. City of San Antonio By and Through SanAntonio Water System Board of Trustees, 952S.W.2d 56 (Tex. App.-Austin 1997, no writ);county hospital districts, Brown v. MontgomeryCounty Hospital District, 905 S.W.2d 481 (Tex.App.-Beaumont 1995, no writ); hospitalauthorities, Huckabay v. Irving HospitalAuthority, 879 S.W.2d 64 (Tex. App.-Dallas1993, writ dism’d by agr.); and water control











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districts and counties, Bennett v. Brown WaterImprovement District No. 1, 272 S.W.2d 498(Tex. 1954).

III. STATUTORY WAIVER OFIMMUNITY

The Texas Tort Claims Act was enacted bythe Texas legislature in 1969 and allowedgovernmental entities (hospital districts andhospital authorities) to be sued for acts occurringafter January 1, 1970.

The TTCA waived immunity from both suitand liability for certain tort claims broughtagainst governmental entities. The TTCApermits suits against governmental entities onlyto the extent liability is imposed on an individualby state law and only upon the occurrence ofparticular fact patterns. State Department ofHighways and Public Transportation v.Dopyera, 834 S.W.2d 50 (Tex. 1992).

Without the TTCA, hospital districts andauthorities could not be sued. The TexasSupreme Court has held that only the Legislatureof the State of Texas may waive immunity fromsuit. University of Texas Medical Branch ofGalveston v. York, 871 S.W.2d 175 (Tex. 1994).

It is important to note that the TTCA doesnot create a cause of action; it merely waivessovereign immunity as a bar to suit that wouldotherwise exist. Tyler v. Likes, 962 S.W.2d 489(Tex. 1997).

The burden is on the plaintiff to show thatwaiver of sovereign immunity has been metunder the TTCA or some other legislativematerial. Turvey, 602 S.W.2d at 519.

However, defendants must remember thatSovereign immunity is an affirmative defensewhich may be waived if not properly raised bythe pleadings. See. Davis v. City of San Antonio,752 S.W.2d 518, 519 (Tex. 1988).

A. Provisions of the TTCA

The provisions of the TTCA are brokendown into three categories: (1) entities that arecovered by the TTCA; (2) how liability isestablished under the Act; and (3) limitationsand exclusions found in the TTCA.

IV. GOVERNMENTAL ENTITIES

Section 101.001(3) defines “governmental unit”as follows:

(3) “Governmental unit” means:

(A) this state and all the severalagencies of government thatcollectively constitute thegovernment of this state,including other agencies bearingdifferent designations, and alldepartments, bureaus, boards,commissions, offices, agencies,councils, and courts;

(B) a political subdivision ofthis state, including any city,county, school district, juniorcollege district, leveeimprovement district, drainagedistrict, irrigation district, waterimprovement district, watercontrol and improvementdistrict, water control andpreservation district, freshwatersupply district, navigationdistrict, conservation andreclamation district, soilconservation district,communication district, publichealth district, and riverauthority;

(C) an emergency serviceorganization; and







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(D) any other institution,agency, or organ of governmentthe status and authority of whichare derived from theConstitution of Texas or fromlaws passed by the legislatureunder the constitution.

Although “governmental unit” is a broaddefinition, it does not allow for suits to bebrought against departments or subdivisions ofcity or county governments. County of Brazoriav. Radtke, 566 S.W.2d 326, 328 and 329 (Tex.Civ. App.-Beaumont 1978, writ ref’d n.r.e.).

As noted in the common law section, thefollowing have also been held to begovernmental entities by case law: hospitaldistricts, hospital authorities, and mental healthcenters (owned by appropriate governmentalunits).

V. LIABILITY ESTABLISHED UNDERTHE TTCA

Governmental liability is established by§ 101.021 of the Texas Civil Practice andRemedies Code. It holds as follows:

§ 101.021. Governmental Liability

A governmental unit in the state is liablefor:

(1) property damage, personal injury,and death proximately caused by thewrongful act or omission or thenegligence of an employee acting withinhis scope of employment if:

(A) the property damage,personal injury, or deatharises from the operation oruse of a motor-drivenvehicle or motor-drivenequipment; and

(B) the employee would bepersonally liable to theclaimant according toTexas law; and

(2) personal injury and death so causedby a condition or use of tangiblepersonal or real property if thegovernmental unit would, were it aprivate person, be liable to the claimantaccording to Texas law.

Section 101.021 is broken down into fourmajor sections: (1) the operation or use of amotor driven vehicle or motor driven equipment;(2) the personal injury or death caused by acondition or use of tangible personal property;(3) premises liability claims (general liability);and (4) special defects. Medical malpracticeclaims are filed under category #2.

A. Liability for the Condition or Use ofTangible Personal Property

For a plaintiff to establish liability against agovernmental unit for medical malpractice, theplaintiff must show that personal injury or deathwas caused by a “condition or use of tangiblepersonal” property. Tex. Civ. Prac. & Rem.Code 101.021(2). The Plaintiff must also showthat the misuse was by the entity’s employee.See. Dumas v. Muenster Hospital District, 859S.W.2d 648 (Tex. App. – Fort Worth [2nd Dist.](1993).

There are three issues to address here: (1)What constitutes tangible personal property?,and (2) What is a use/misuse of tangiblepersonal property? (3) Is the person whoallegedly misused the property an “employee”?

1. What is tangible personal property?

The Texas Supreme Court recently definedtangible personal property as “something thathas a corporeal, concrete and palpableexistence.” York, 871 S.W.2d at 178. Beforefiling a case against a tort claims entity you must






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decide if the property you contend was misusedmeets the York definition.

a. Records

Records and documents of all nature havebeen held not to constitute tangible personalproperty, including: medical records of all types,police reports, and permits. The Texas SupremeCourt further solidified Texas law along theselines in the York decision. Prior to York therewere several cases holding governmental entitiesliable based on medical records and otherdocuments concerning the misuse of variousmachinery. York dealt with a plaintiff whoreported with a red and swollen hip andsignificant change in demeanor. Id. at 176. Thelower courts held the treating physician hadmisused the information in the medical recordsin failing to diagnose a broken hip. Thesupreme court rejected this circular reasoningand held, “[i]nformation is intangible; the factthat information is recorded in writing does notrender the information tangible property.” Id at179.

In 1995 the Texas Supreme Court appliedthe York decision in a case involving a districtclerk releasing a plaintiff’s indictment for theft.The Waco Court of Appeals held sovereignimmunity was waived as to the plaintiff’s claimsagainst Dallas County because the indictmentwas tangible personal property. Dallas Countyv. Harper, 913 S.W.2d 207 (Tex. 1995). TheTexas Supreme Court reversed the Waco Courtof Appeals and rendered judgment for DallasCounty by reiterating the indictment was awritten statement of a grand jury and was nottangible personal property for purposes ofwaiving sovereign immunity under the TTCA.Id at 207-208.

Use or misuse of information contained inrecords simply does not suffice as tangiblepersonal property for purposes of waivingimmunity under the TTCA. This is an importantdefense in medical malpractice cases because iteliminates claims of negligence for failing to

document, improper charting, failing to conveyinformation to a physician, etc.

b. Other property

Court have held that the following types ofitems are tangible personal property:

Doors – Bossley v. Dallas County MHMR,934 S.W.2d 689 (Tex. App. – Dallas [5th Dist.]1995).

Bedrails – Overton Memorial Hospital v.McGuire, 518 S.W.2d 528 (Tex. 1975)

Bolts – City of Baytown v. Townsend, 548S.W.2d 935 (Tex. App. – Houston [14th Dist.]1977 ref’d n.r.e.).

Needles – Mitcham v. University MedicalBranch, 818 S.W.2d 523 (Tex. App.- Houston[14th Dist.] (1991).

c. Who owns the property?

There is no requirement that thegovernmental entity own the property to beliable under the statute. Sem v. State, 821S.W.2d 411 (Tex. App. – Fort Worth 1991).

2. What is the difference between a misuseand a nonuse?

Once you determine that a case involves the“tangible personal property,” you must nextdecide if the property was used or misused.“Use” is defined as “put or bring into actionor service.” See. Kassen v. Hartley, 887S.W.2d 4, 14 (Tex. 1994). A “nonuse” ofproperty is not actionable, but this was notalways the case. Up until 1995 plaintiffs hada basis for contending that non-use oftangible personal property could waiveimmunity pursuant to the TTCA. Twosupreme court cases found waiver andsubsequent liability where non-useallegations were at issue. In Robinson v.Central Texas MHMR Center, the TexasSupreme Court held the failure to provide alife preserver was a condition or use of












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personal property when MHMR employeestook the plaintiff’s son swimming.Robinson v. Central Texas MHMR Center,780 S.W.2d 169, 171 (Tex. 1989). In 1976the Texas Supreme Court held Texas Techliable when it failed to provide a footballplayer with protective equipment. Thesupreme court held this was misuse oftangible personal property. Lowe v. TexasTech University, 540 S.W.2d 297, 300 (Tex.1976).

Subsequent to the Robinson and Loweopinions, the supreme court held the non-use ofmedication was not actionable under the TTCA.Kassen v. Hartley, 887 S.W.2d 4, 14 (Tex.1994). The supreme court specifically held inKassen:

We have never held that a non-use ofproperty can support a claim under the TexasTort Claims Act. Section 101.021, whichrequires the property’s condition or use to causethe injury, does not support this interpretation.See LeLeaux v. Hamshire-Fannett Indep. Sch.Dist., 835 S.W.2d 49, 51 (Tex. 1992) (statingthat “use” means “to put or bring into action orservice; to employ for or apply to a givenpurpose”) (quoting Mount Pleasant Indep. Sch.Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211(Tex. 1989)). We conclude that the non-use ofavailable drugs during emergency medicaltreatment is not a use of tangible personalproperty that triggers waiver of sovereignimmunity. Kassen v. Hartley, 887 S.W.2d 4, 14(Tex. 1994). (emphasis added). It is interestingthe supreme court would make this boldstatement in light of its holdings in Robinsonand Lowe. Of course, the makeup of the courthad dramatically changed in Kassen.

The Texas Supreme Court further refinedthe Robinson and Lowe opinions in KerrvilleState Hospital v. Clark, 923 S.W.2d 582 (Tex.1996); however, it stops short of completelyshutting down an argument for non-use ofproperty. The supreme court stated in Clark:

[Robinson and Lowe], representperhaps the outer bounds of what we havedefined as use of tangible personalproperty. We did not intend, in decidingthese cases, to allow both use and non-useof property to result in waiver of immunityunder the Act. Such a result would betantamount to abolishing governmentalimmunity, contrary to the limited waiverthe Legislature clearly intended. Theprecedential value of these cases istherefore limited to claims in which aplaintiff alleges that a state actor hasprovided property that lacks an integralsafety component and that the lack of thisintegral component led to the plaintiff’sinjuries. For example, if a hospital provideda patient with a bed lacking bed rails andthe lack of this protective equipment led tothe patient’s injury, the Act’s waiverprovisions would be implicated.

Id. at 585. Therefore, non-use is a viableaction in the limited situation of failing toprovide safety equipment.

3. Is the Use/Misuse by an Employee?

The use or misuse must be by an employee.See Dumas v. Muenster Hospital District, 859S.W.2d 648 (Tex. App. – Fort Worth [2nd Dist.](1993). An employee is defined as “a person,including an officer or agent, who is in the paidservice of a governmental unit by competentauthority, but does not include an independentcontractor, an agent or employee of anindependent contractor, or a person whoperforms tasks the details of which thegovernmental unit does not have the legal rightto control.” See Section 101.001 (1). Physiciansthat have privileges at a hospital but claim to beindependent contractors are not employees. SeeDumas at 651. One difficult case to defend froma non-use standpoint involves failure to read orinterpret fetal heart monitor strips orelectrocardiogram results. In Salcedo v. El PasoHospital District, 659 S.W.2d at 30, (Tex 1983),the Supreme Court held that failure to accuratelyinterpret these tests (seemingly a non-use) was a











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mis-use because the test was a safety issue forthe patient. If you are defending one of thesecases, it is extremely important to note that thedoctor in the Salcedo case was an employee ofthe Hospital District. Defendants should alwaysargue that a physician’s misterpretation on oneof these tests is not actionable under the TTCAbecause the physician is not an employee.Salcedo has been criticized by many courts butnever overturned.

VI. LIMITATIONS AND EXCLUSIONSFOUND IN THE TTCA

A. Exemplary Damages

Exemplary damages are not allowed againsta tort claim entity pursuant to § 101.024, whichstates as follows:

This chapter does not authorizeexemplary damages.

The TTCA’s prohibition against exemplarydamages does not apply to proprietary activitiesof cities. Turvey, 602 S.W.2d at 519. TheTTCA allows a plaintiff to recover unlimiteddamages against a city for proprietary functions.Id. at 519.

B. Discoverability of Insurance Policies

Insurance policies of governmental entitiesare not discoverable pursuant to § 101.104 of theTexas Civil Practice and Remedies Code.Historically, if a governmental employee wassued individually, the courts held the insurancepolicy, of the governmental unit providinginsurance to the employee as an additionalinsured, discoverable. City of Bedford v.Schattman, 776 S.W.2d 812 (Tex. App.-FortWorth 1989, no writ). The Texas SupremeCourt recently disapproved to the Schattmanopinion and held the governmental unit’sinsurance policy is not discoverable even whenthe individual employee is named in the suit. InRe Sabine Valley Center, 986 S.W.2d 612 (Tex.1999).

C. Notice Provisions

1. Written or Actual Notice

The notice provisions of the TTCA aresignificant and in many cases totally preclude anaction surviving against a governmental entity.The notice provision of the TTCA is found in§ 101.101 which states as follows:

(a) A governmental unit is entitledto receive notice of a claim againstit under this chapter not later thansix months after the day that theincident giving rise to the claimoccurred. The notice mustreasonably describe:

(1) the damage or injuryclaimed;(2) the time and place of the I

incident; and(3) the incident.

(b) A city’s charter and ordinanceprovisions requiring notice within acharter period permitted by law areratified and approved.

(c) The notice requirementsprovided or ratified and approvedby Subsections (a) and (b) do notapply if the governmental unit hasactual notice that death hasoccurred, that the claimant hasreceived some injury, or that theclaimant’s property has beendamaged.

As stated in § 101.101, a governmental unitmust receive formal written notice of a claimwithin six months of the date of the incident. Ifthe plaintiff or claimant fails to provide thisnotice, each will contend the formal writtennotice is not required because the governmentalunit had actual notice that the claim occurredpursuant to subsection (c) of 101.101.




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The seminal case in this area is Cathey v.Boothe, 900 S.W.2d 339 (Tex. 1995). As statedby the Texas Supreme Court:

The purpose of the noticerequirement is to ensure promptreporting of claims in order toenable governmental units to gatherinformation necessary to guardagainst unfounded claims, settleclaims, and prepare for trial. SeeCity of Houston v. Torres, 621S.W.2d 588, 591 (Tex. 1981). Theinterpretation of section 101.101(c)urged by the Booths wouldeviscerate the purpose of thestatute, as it would impute actualnotice to a hospital from theknowledge that a patient receivedtreatment at its facility or died afterreceiving treatment. For a hospital,such an interpretation would be theequivalent of having no noticerequirement at all because thehospital would be required toinvestigate the standard of careprovided to each and every patientthat received treatment.

We hold that actual notice to agovernmental unit requires noticeof (1) a death, injury, or propertydamage; (2) the governmentalunit’s alleged fault producing orcontributing to the death, injury, orproperty damage; (3) the identity ofthe parties involved. Id. at 341.

If the governmental unit does not haveknowledge of all of these factors, suit will beprecluded. Streetman v. University of TexasHealth Science Center at San Antonio, 952S.W.2d 53 (Tex. App.-San Antonio 1997, writdenied).

However, Texas courts have also held thatgovernmental entities can be provided actualnotice through the knowledge of their agents andemployees. City of Texarkana v. Nard, 575

S.W.2d 648, 651-652 (Tex. Civ. App.-Tyler1978, writ ref’d n.r.e.). Although actual noticecan be imputed in this manner, the agent oremployee possessed of actual notice must have aduty to investigate the facts and report them to aperson of sufficient authority. McDonald v.State, 936 S.W.2d 734 (Tex. App.-Waco 1997,no writ). If the agent or employee does not havea duty with the governmental entity toinvestigate the facts and report them to a personwith sufficient authority, actual notice will notbe imputed. Id. at 738.

Additionally, Texas courts have held that apatient’s medical records can actually give ahospital notice of a claim that satisfies theTTCA notice requirement. See. Gaskin v. TitusCounty Hospital District, 978 S.W. 2d 178 (Tex.App. – Texarkana 1998). Plaintiffs oftensuccessfully argue that medical records raise afact issue about notice and preclude summaryjudgment.

2. The Discovery Rule does not applyto Section 101.101

The discovery rule does not apply to the sixmonth notice provision of the TTCA. Putt Hoffv. Ancrum, 934 S.W.2d 164 (Tex. App.-FortWorth 1996, writ denied); Sanford v. TexasA&M University, 680 S.W.2d 650 (Tex. App.-Beaumont 1984, writ ref’d n.r.e.). In TheUniversity of Texas Medical Branch ofGalveston v. Greenhouse, 889 S.W.2d 427(Tex. App. - Houston, 1994) the court heldthat the plaintiff failed to comply with thenotice provision in a case where the hospitalnegligently left a surgical need inside her.Neither the hospital nor the plaintiff knew theneedle was negligently left inside Plaintiff untileleven months after the surgery. The Court stilldirected the plaintiff’s case be dismissed.Similarly, the six month notice requirement isnot tolled by mental incapacity of the claimant.Dinh v. Harris County Hospital District, 896S.W.2d 248 (Tex. App.-Houston [1st Dist.] 1995,writ dism’d w.o.j.).














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However, case law has excused minorsfrom complying with the notice provisions of§ 101.101. Alvarado v. City of Lubbock, 685S.W.2d 646 (Tex. 1985); City of Denton v.Maths, 528 S.W.2d 625 (Tex. Civ. App.-FortWorth 1975, writ ref’d n.r.e.).

3. Are employees entitled to notice?

One Texas case has held that when agovernmental entity maintains its immunity dueto the plaintiff’s failure to provide noticepursuant to this section 101.101, individualemployees are also immunized from any furtherliability based on the lack of notice. See PuttHoff v. Ancrum, 934 S.W.2d 164 (Tex. App.-Fort Worth 1996, writ denied).

4. Notice defense must be pled

The lack of notice on the part of theplaintiff may need to be specifically pled asopposed to a general allegation of the plaintiff’sfailure to comply with the immunity provisionsof the TTCA. The Tyler Court of Appeals hasheld that the Texas Department of CriminalJustice-Institutional Division’s failure tospecifically plead lack of notice waived thataffirmative defense. McBride v. TexasDepartment of Criminal Justice-InstitutionalDivision, 964 S.W.2d 18 (Tex. App.-Tyler 1997,no writ).

5. City Charters

It should be noted pursuant to the expressprovisions of § 101.101 that city charters canlimit or shorten the time period for noticepursuant to its charter. The Torres case held thatsuch shortening of the time periods must bereasonable. City of Houston v. Torres, 621S.W.2d 588, 590-591 (Tex. 1981).

D. Limitation on Damages

Governmental units enjoy a significantlimitation on damages which is found in§ 101.023 of the Tex. Civ. Prac. & Rem. Code.It states as follows:

(a) Liability of the stategovernment under this chapter islimited to money damages in amaximum amount of $250,000.00for each person and $500,000.00for each single occurrence forbodily injury or death and$100,000.00 for each singleoccurrence for injury to ordestruction of property.

(b) Except as provided insubchapter (c), liability of a unit oflocal government under this chapteris limited to money damages in amaximum amount of $100,000.00for each person and $300,000.00for each single occurrence forbodily injury or death and$100,000.00 for each singleoccurrence for injury to ordestruction of property.

(c) Liability of a municipalityunder this chapter is limited tomoney damages in a maximumamount of $250,000.00 for eachperson and $500,000.00 foreach single occurrence forbodily injury or death and$100,000.00 for each singleoccurrence for injury to ordestruction of property.

(d) Except as provided bySection 78.001, liability of anemergency service organizationunder this chapter is limited tomoney damages in a maximumamount of $100,000.00 for eachperson and $300,000.00 foreach single occurrence forbodily injury or death and$100,000.00 for each singleoccurrence for injury to ordestruction of property.

Generally, the cap for the State of Texasand municipalities is $250,000.00. Liability for









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other units of local government, i.e. counties,hospital districts, hospital authorities and waterdistricts is $100,000.00. Additionally, theliability of an emergency service organization is$100,000.00. Section 101.023 Tex. Civ. Prac. &Rem. Code.

The constitutionality of these damage capshave been attacked numerous times by plaintiffs;however, the Texas courts have uniformlyupheld the damage limitations. Their reasoninghas been that at common law plaintiffs did nothave a cause of action against these variousgovernmental entities because each enjoyedsovereign immunity. Sovereign immunity waswaived in limited circumstances by the TexasLegislature; therefore, the Texas Legislature hadthe power to decide the extent of the waiver ofsovereign immunity. City of Austin v. Cooksey,570 S.W.2d 386 (Tex. 1978).

Another important aspect of the damagelimitations found in § 101.023 is the cap appliesto injured persons actually involved in theincident as opposed to the number of plaintiffs.The damage cap applies only to the personinjured as opposed to an aggrieved party orplaintiff who may have a cause of action as aresult of the injury. City of Austin v. Cooksey,570 S.W.2d 386 (Tex. 1978).

Special interest groups aggressively lobbiedthe Texas Legislature to raise these caps in 2001but were unsuccessful. A similar campaign isexpected in the next legislative session.

E. Civil Disobedience and Intentional Torts

In §§ 101.057, the TTCA excludes certainintentional torts’ activities from waiver ofsovereign immunity.

Section 101.057 also excludes civil liabilityfor the intentional torts of governmentalemployees. Delaney v. University of Houston,835 S.W.2d 56, 59 (Tex. 1992). However,where the governmental unit’s negligencecreates an atmosphere where an intentional tortcan be committed by a third party actor (not

governmental unit’s employee) immunity is notprotected under this section, and thegovernmental unit can be liable. Id.

VII. MUNICIPALITIES

Section 101.0215 of the Texas CivilPractice and Remedies Code distinguishesbetween proprietary and governmental functionsof municipalities. Similar to our discussionconcerning sovereign immunity at common lawat the beginning of this paper, municipalities arethe only entity that the distinction betweenproprietary and governmental functions applies.Jezek v. City of Midland, 605 S.W.2d 544 (Tex.1980).

Section 101.0215 states as follows:

(a) A municipality is liable underthis chapter for damages arisingfrom its governmental functions,which are those functions that areenjoined on a municipality by lawand are given it by the state as partof the state’s sovereignty, to beexercised by the municipality in theinterest of the general public,including but not limited to:

(1) police and fire protection andcontrol;(2) health and sanitation services;(3) street construction and design;(4) bridge construction andmaintenance and streetmaintenance;(5) cemeteries and cemetery care;(6) garbage and solid wasteremoval, collection, and disposal;(7) establishment andmaintenance of jails;(8) hospitals;(9) sanitary and storm sewers;(10) airports;(11) waterparks;(12) repair garages;(13) parks and zoos;(14) museums;






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(15) libraries and librarymaintenance;(16) civic, convention centers, orcoliseums;(17) community, neighborhood, orsenior citizen centers;(18) operation of emergencyambulance service;(9) dams and reservoirs;(20) warning signals;(21) regulation of traffic;(22) transportation systems;(23) recreational facilities,including but not limited toswimming pools, beaches, andmarinas;24) vehicle and motor drivenequipment maintenance;25) parking facilities;26) tax collection;27) firework displays;28) building codes and inspection;29) zoning, planning, and platapproval;30) engineering functions;31) maintenance of traffic signals,signs, and hazards;(32) water and sewer service;(33) animal control; and(34) community development orurban renewal activities undertakenby municipalities and authorizedunder Chapters 373 and 374, LocalGovernment Code.

(b) This chapter does not apply tothe liability of a municipality fordamages arising from itsproprietary functions, which arethose functions that a municipalitymay, in its discretion, perform inthe interest of the inhabitants of themunicipality, including but notlimited to:

(1) the operation and maintenanceof a public utility;(2) amusements owned andoperated by the municipality; and

(3) any activity that is abnormallydangerous or ultra hazardous.

(c) The proprietary functions of amunicipality do not include thosegovernmental activities listed underSubsection (a).

The laundry list under subsection (a) liststhose governmental functions for which amunicipality may be liable pursuant to the otherprovisions of the TTCA. Section 101.0215 isnot an independent waiver of governmentalimmunity; therefore, a plaintiff must stillestablish applicability of the TTCA under someother section before invoking § 101.0215.Bellnoa v. City of Austin, 894 S.W.2d 821, 826(Tex. App.-Austin 1995, no writ).

Subsection (b) of § 101.0215 establishesproprietary functions of the municipality. TheTTCA does not apply to these proprietaryfunctions, and the municipality enjoys noimmunity from suit or liability. Therefore, thereis no limitation on the amount of damages aplaintiff can recover from a municipalityengaging in these proprietary functions listed insubsection (b). Pontarelli Trust v. City ofMcAllen, 465 S.W.2d 804, 807-808 (Tex. Civ.App.-Corpus Christi 1971, no writ).

If there is a conflict between subsections (a)and (b) in determining whether an activity isproprietary or governmental, the conflict will beresolved in favor of the activity beinggovernmental. General Electric Company v.City of Abilene, 795 S.W.2d 311, 312-313 (Tex.App.-Eastland 1990, no writ).

VIII. CLAIMS AGAINST EMPLOYEESOF GOVERNMENTAL ENTITIES

Generally, employees of governmentalentities are not afforded the defenses andprotections under the Texas Tort Claims Act.See City of Bedford at 813. Many plaintiff’sattorneys are now suing employees individuallyinstead of suing the entity. This strategy negatesall of these defenses and the case becomes a





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basic negligence case for medical malpractice.It also puts the insurer in a difficult positionbecause of the entity’s insurance policy usuallymirrors the statutory cap but the individualsexposure is unlimited. Plaintiff is not entitled toknow the insurance limit so a Stower’s demandis difficult.

CONCLUSION

The TTCA is a significant roadblock in the vastmajority of cases brought against governmentalentities. You must pay close attention to thetwists and turns of case law interpreting thisstatute or your client will ultimately pay (or notpay) the price.


*About the Presenter

Brian G. Jackson is a shareholder at Davis & Davis, P.C. and has represented governmentalentities for more than a decade. His practice also includes medical malpractice defense, products liabilitycases and general negligence claims. His educational background and professional activities are asfollows: admitted to bar, 1990, Texas; also admitted to practice before U.S. District Court, WesternDistrict of Texas. Preparatory education, Abilene Christian University (B.A. 1987); legal education,University of Houston School of Law (J.D., 1990). Member: Travis County Bar Association; WilliamsonCounty Bar Association, Dallas County Bar Association, Austin Young Lawyers Association; TexasAssociation of Defense Counsel; American Bar Association; State Bar of Texas.

medical malpractice litigation under the … common law at common law, governmental entities enjoyed...

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