In my practice as a Houston medical malpractice attorney, I frequently speak with people who were injured at public hospitals or by the negligence of doctors or nurses who are employed by the State of Texas or a local government. They are always surprised when I share how the rules are very different when the state or local government is involved.
Texas Tort Claims Act: Limited lawsuits allowed
Unlike private individuals, companies, or organizations, you cannot sue the government except under very limited circumstances described in a statute.
In Texas, the statute is called the Texas Tort Claims Act, and it allows lawsuits for negligence to proceed if they fall within two exceptions to sovereign immunity. If the negligence does not fit within the two exceptions, a negligence lawsuit is still barred by law.
First, you can file a negligence suit against the state or a local government if there is injury or death caused by the condition, operation, or misuse of a motor vehicle. For example, if you are injured as a passenger in a government-owned ambulance that was negligently driven by a government employee, your suit against the government can go forward.
Most medical malpractice suits fall under the second exception, which allows a negligence suit if there is injury or death caused by the condition, use, or misuse of tangible personal property. “Tangible personal property” is property that you can feel. In health care setting, it usually refers to medical equipment and supplies.
Let’s say that a UT surgeon uses a scalpel and causes an injury by cutting an artery by mistake. The scalpel is tangible personal property, and the surgeon misused it, so it falls within the exception and you can file a negligence lawsuit against the government.
On the other hand, most of the classic medical malpractice lawsuits are barred by the Texas Tort Claims Act because they do not involve tangible personal property. Information and decision-making are not tangible—you cannot feel them. Thus, if a doctor employed by the state makes the wrong diagnosis, does not order a test that he should have ordered, or misinterprets a CT scan or MRI, a negligence lawsuit is barred.
Texas Tort Claims Act: Notice requirements
Even if the medical negligence of a state employee or hospital falls within the narrow contours of Tort Claims Act, there are still more requirements in order to be able to file a lawsuit. And you have to keep your eye on the ball.
Some people are aware that the general Texas statute of limitations for negligence is two years (it can be extended, in some circumstances, by the discovery rule or for minors). That means, generally, that you have two years to file a negligence lawsuit.
But if you are suing the Texas government, a local government, or government employees, beware of another, much shorter deadline.
The Texas Tort Claims Act requires a “notice of claim” to be filed with the appropriate government unit within six months of the date that the government or its employee negligently caused injury. The law requires the notice to contain a description of the injury, how it happened, and the time and place it occurred. Some cities have even shorter notice time limits. For the City of Houston, for example, the notice deadline is only 90 days.
The notice requirement doesn’t apply if the government had actual knowledge of the death or injury. Expect a fight on this one, though. The Texas Supreme Court held in City of San Antonio v. Tenorio, 543 S.W.3d 772 (Tex. 2018) that “[k]knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.”) This makes proving actual notice rather tough for most plaintiffs.
Texas Tort Claims Act: Damages caps
Even when the negligence of a state hospital or employee falls with the limited exceptions of the Texas Tort Claims Act, and you meet the notice requirements, the law also imposes dollar limits on what you can collect as damages in a negligence lawsuit.
Generally speaking, the limits against the state government and its employees are $250,000 per person for bodily injury ($500,000 per occurrence, if more than one person was injured), and $100,000 per occurrence for damaged property. Local governments have even lower damages caps.
Houston-area hospitals & the Texas Tort Claims Act
There are several public hospitals in the Houston area where the Texas Tort Claims Act applies. In Harris County, there is Ben Taub Hospital, Lyndon B. Johnson Hospital, Quentin Mease Hospital, and The University of Texas M.D. Cancer Center. In Galveston, there is the University of Texas Medical Branch (UTMB) John Sealy Hospital.
But there are also private hospitals where public medical school doctors and residents treat patients. For example, the University of Texas Health Science Center at Houston (UT) employs hundreds of physicians who work in the Houston area. Some of them work at Memorial Hermann Hospital, a private hospital located in the Texas Medical Center.
If you are a patient at Memorial Hermann Hospital and are injured by a doctor’s mistake or negligence, there is a good chance that the doctor is a UT employee and, thus, the Texas Tort Claims Act applies. UT physicians also work at Texas Heart Institute at CHI St. Luke’s Health - Baylor St. Luke’s Medical Center.
