University of Texas v. Loutzenhiser, No. 02-0894.

• Court: Supreme Court of Texas
• Writing for the Court: Hecht
• Citation: 140 S.W.3d 351
• Decision Date: 09 July 2004
• Docket Number: No. 02-0894.
• Parties: The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Petitioner, v. Donna LOUTZENHISER, As Next Friend of Stephen Luke Loutzenhiser, a Minor, Respondent.

140 S.W.3d 351 The UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS, Petitioner,
v.
Donna LOUTZENHISER, As Next Friend of Stephen Luke Loutzenhiser, a Minor, Respondent. No. 02-0894. Supreme Court of Texas. Argued January 7, 2004. Decided July 9, 2004.

Appeal from the 160th Judicial District Court, Dallas County.

[140 S.W.3d 353]

Greg Abbott, Atty. Gen. of Texas, Howard G. Baldwin, First Asst. Atty. Gen. of Texas, Jeffrey S. Boyd, Thompson & Knight, Nelly R. Herrera, Philip A. Lionberger, Brown McCarroll, L.L.P., Barry Ross McBee, Rafael Edward Cruz and Ryan D. Clinton, Austin, for petitioner.

Mary Olga Ferguson, Thompson & Knight, Houston, Michael R. Mitchell, Mitchell Goff & Mitchell, LLP, Philipa Remington, Stinnett Thiebaud & Remington, Dallas, and Thomas H. Bleakley, Grosse Pointe Farms, MI, for respondent.

Justice HECHT delivered the opinion of the Court, joined by Chief Justice PHILLIPS, Justice OWEN, Justice JEFFERSON, Justice WAINWRIGHT, and Justice BRISTER.

The Texas Tort Claims Act provides that "[s]overeign immunity to suit is waived and abolished to the extent of liability created by [the Act]."¹ Section 101.101(a) of the Act states:

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.²

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Section 101.101(c) makes this requirement inapplicable "if the governmental unit has actual notice ... that the claimant has received some injury".³ In this case we hold that the plaintiff did not give notice within the six-month period as required, that lack of notice is a complete defense to suit but does not deprive the court of subject matter jurisdiction, and that the defendant did not waive its complaint of no notice by delaying to raise it. Accordingly, we modify the judgment of the court of appeals and affirm.⁴

I

Donna Loutzenhiser's son Stephen was born with a severely deformed left hand which she claims was caused by a prenatal diagnostic test performed by a governmental unit — the University of Texas Southwestern Medical Center at Dallas⁵ — more than six months earlier in her pregnancy. The test, a chorionic villus sampling (CVS), involves inserting a needle through the uterus into the chorion — the section of the placenta providing the fetus with nutrients via its blood supply — and removing a part of it for chromosomal testing. Limb reduction is a known risk of this procedure, particularly if performed early in a pregnancy. The first attempt, on January 21, 1992, did not collect the proper tissue, but a second procedure performed a week later did. Stephen was born on August 15, and seventeen days later, his father notified the Medical Center of Stephen's birth defect. In December 1994, Loutzenhiser and two other mothers, individually and on behalf of their respective children, sued the Medical Center alleging that its CVS testing caused birth defects.

In August 1996, one year and eight months after suit was filed, the Medical Center moved for summary judgment in part on the ground that its immunity from suit had not been waived under the Tort Claims Act because the plaintiffs had failed to give the six-month notice required by section 101.101(a), and therefore the court lacked jurisdiction over the case. Several months later, the trial court granted the motion as to all of the plaintiffs except Stephen.⁶ At the time, the Medical Center could not appeal a refusal to dismiss a suit for want of jurisdiction based on sovereign immunity,⁷ but two individual defendants could and did take an interlocutory appeal from the denial of their motion for summary judgment based on immunity.⁸ That appeal ended in April 2001.⁹ In

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July, the trial court set a trial date in February 2002.

In December 2001, seven weeks before trial and seven years after suit was filed, the Medical Center filed a plea to the jurisdiction, asserting as it had in its earlier motion for summary judgment that the court lacked jurisdiction because Loutzenhiser had not given notice as required by section 101.101(a). The Medical Center also asserted that Loutzenhiser had not pleaded a claim involving the use of tangible personal property within the Tort Claims Act's waiver of immunity.¹⁰ The Medical Center cited new authority but also candidly acknowledged that it had filed the plea so that it could take an interlocutory appeal from an adverse ruling — a right created in 1997¹¹ that it did not have when its motion for summary judgment was denied — further delaying trial of the case. The trial court treated the notice argument as a motion to reconsider its denial of the motion for summary judgment, which it denied, and treated the no-use-of-property argument as a special exception, which it sustained. Alternatively, the court held that the Medical Center had waived both arguments by waiting until the eve of trial to raise them and ordered that the plea be struck.

As promised, the Medical Center appealed.¹² The court of appeals affirmed, holding as it had previously that the lack of notice required by section 101.101(a) does not deprive a court of jurisdiction over a claim.¹³ The court of appeals also held that the trial court had properly treated its no-use-of-property argument as a special exception and did not address the Medical Center's contention that it had not waived its notice argument by delay.¹⁴

The Medical Center filed a petition for review limited to the notice and waiver issues, which we granted.¹⁵ We have jurisdiction over this interlocutory appeal¹⁶ because the courts of appeals are in conflict over whether a court has jurisdiction over a claim, notice of which has not been given as required by section 101.101(a).¹⁷

140 S.W.3d 356

II

We first consider whether Loutzenhiser gave notice as required by section 101.101(a).

The Medical Center argues that Loutzenhiser was required to notify it of Stephen's claim that he had been injured by the CVS within six months of the date the procedure was performed, while Stephen was still in utero. Loutzenhiser argues that to require notice on behalf of a fetus would violate constitutional guarantees of due process, equal protection, and open courts. Loutzenhiser, according to her brief, "takes no position with respect to the rights of minors in general regarding the notice provisions of the [Tort Claims] Act," and thus we limit our consideration to the effect of the notice requirement on the rights of the person injured in utero. We need not reach Loutzenhiser's constitutional arguments because we disagree with the Medical Center's reading of the statute.

Section 101.101(a) requires "notice of a claim ... not later than six months after the day that the incident giving rise to the claim occurred."¹⁸ As we have stated, "the longstanding common law rule [is] that the rights of a fetus [are] contingent on live birth."¹⁹ Under this rule, Stephen legally had no claim against the Medical Center before he was born, even if his injury had been manifest when the CVS was performed (it was not). The Medical Center argues that "the incident giving rise to the claim" was the CVS, but the CVS was only an incident — one of two — giving rise to the claim. The other such incident, and one equally necessary to the existence of the claim, was Stephen's live birth. If the notice period ran from the CVS, the statute required notice of a nonexistent claim. "Courts should not read a statute to create such an absurd result."²⁰ We decline to do so here when

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there is a reasonable alternative construction of the statutory language. Because Stephen's live birth was an incident giving rise to his claim, and one essential to the existence of the claim, we hold that the six-month period for giving notice began when Stephen was born.

The Medical Center argues that this construction of section 101.101 is inconsistent with our decision in Brown v. Shwarts, where we held that limitations on a claim for negligent prenatal treatment began to run when the treatment was completed.²¹ But the controlling statute in Brown was materially different. There, the statute of limitations prescribed that a claim for negligent medical or health care treatment be brought within two years of the date the treatment was completed "[n]otwithstanding any other law".²² The statute did not require the claim to be in existence when limitations began to run, something that we acknowledged could yield harsh results in certain circumstances.²³ But the two-year limitations period, even though it began running when prenatal care was rendered, could not operate to bar the child's claim before it came into existence because the limitations period was much longer than the gestation period.

The Medical Center argues that even if the notice period did not begin to run until Stephen was born, it did not receive notice of his claim until more than two years later when Loutzenhiser filed suit. Loutzenhiser argues that Stephen's father's telephone call to the Medical Center provided the required notice, but it clearly did not. The only evidence of the substance of that call was Stephen's father's testimony as follows:

I called after he was born to inform them that he had — the situation with his hand — he had no fingers, thinking that they would want to be made aware of that. The reason that I thought they may want to be made aware of that is because I thought it would be relevant to them, and that I had read in June or July a Newsweek article that said that CVS possibly causes limb reduction — is, I believe, the term that it used. And since it happened to my son, I thought that they would want to know about it.... [A]nd at that time I was told that it didn't have anything to do with the test, and they didn't act...