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A little-known Texas law gives some medical malpractice victims only 6 months to give notice of their claims

Ancient legal doctrines dating back hundreds of years to England are still at play in Texas when it comes to holding government healthcare providers responsible for poor care. Many injured patients and family members are surprised to learn how sovereign immunity and official immunity cheat them out of justice.

These common-law concepts still exist in every state. The basic idea comes from the old belief that “the king can do no wrong,” meaning, of course, that it’s out of the question to even think of suing the king. In more modern times, states have enacted statutes to allow plaintiffs to pursue tort claims under limited circumstances.

In Texas, our statute is called the Tort Claims Act. You can read more about this unfair law in one of my other articles here.

One of the surprising things to many people is that the Tort Claims Act not only applies to government hospitals, like MD Anderson Cancer Center, LBJ Hospital, UTMB, or Ben Taub, but it also protects physicians who are employed or affiliated with a government institution, even if they are working in their own clinic or at a private hospital.

For example, many of the physicians who work at Memorial Hermann Hospital, in the Texas Medical Center, are faculty members or residents affiliated with the University of Texas Health Sciences Center in Houston. They are protected by the Tort Claims Act, even though Memorial Hermann isn’t a government hospital.

There are similar arrangements at other hospitals that aren’t even major academic hospitals located in a medical center setting. We recently learned that many of the physicians at St. Joseph Medical Center, in downtown Houston, are faculty members or residents affiliated with UTMB Medical Branch, in Galveston. These doctors, too, benefit from the protections of the Tort Claims Act, even though they’re working at a private hospital.

While the Texas Tort Claims Act is generally a parade of horribles for medical malpractice plaintiffs, there is one particular risk that I want to highlight today—it’s the notice requirement.

Even when there is medical negligence that otherwise falls within the narrow confines of the statute, Section 101.101 of the Texas Tort Claims Act requires that the governmental unit receive the notice of claim against it within six months after the day of the incident giving rise to the claim. The notice of claim has to describe the damage or injury claim, the time and place of the incident, and the incident itself.

The statutory requirement for a notice of claim doesn’t 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.” This clear language from the legislature leaves wiggle room for bypassing the notice of claim requirement if the hospital was aware of the death or injury; however, the Texas Supreme Court decided it would have none of that!

In the case styled City of San Antonio v. Tenorio, 543 S.W.3d 722 (Tex. 2018), the court entered an opinion finding that, “Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for [Texas Tort Claims Act] purposes.” Instead, the court ruled, the governmental unit “must have the same knowledge it is entitled to receive under the written notice provisions” of the statute.

While this requirement is found nowhere in the statute passed by the Texas legislature, the Texas Supreme Court’s interpretation of the statute is the law and binding on potential plaintiffs.

In my view, this is important for two reasons.

First, if anyone is under the belief that the Texas Supreme Court might overturn the Tort Claims Act as unjust or unfair to injured patients, this opinion should clearly disavow them of any such wishful thinking.

Second, it underscores the importance for patients and family members to contact a top-rated experienced Houston, Texas medical malpractice attorney for advice as soon as possible after an incident of medical negligence occurs. This gives ample time, within the six-month notice period allowed by the Texas Tort Claims Act, for an investigation to determine whether employees or affiliates of governmental institutions were involved in the relevant healthcare. If so, then timing is of crucial importance in getting proper notice of claim letters served to preserve all potential claims that are allowed by law.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.

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