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Click here for the full text of this decision FACTS: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 Dallas. 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 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. 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 1997 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. The medical center appealed. The court of appeals affirmed, holding as it had previously that the lack of notice required by 101.101(a) does not deprive a court of jurisdiction over a claim. 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. HOLDING:The court modifies the judgment of the court of appeals to affirm only that portion of the trial court’s order refusing to dismiss the case because of inadequate allegations of use of property. The judgment is affirmed as modified. Because Stephen’s live birth was an incident giving rise to his claim, and one essential to the existence of the claim, the court holds that the six-month period for giving notice began when Stephen was born. Actual notice that an injury has occurred is not enough to satisfy 101.101(c), Texas Dep’t of Crim. Justice v. Simons, ___ S.W.3d ___, ___ (Tex. 2004); a governmental unit must also have a subjective awareness that its fault produced or contributed to the claimed injury. There is no evidence that before suit was filed the Medical Center was ever subjectively aware that it was at fault for Stephen’s deformity, as Loutzenhiser eventually alleged. The failure to give notice of a claim as required by 101.101 does not deprive a court of subject matter jurisdiction over an action on the claim. The court notes that in other jurisdictions when notice or limitations provisions pertaining to suits against the government are considered jurisdictional, the statutory language is much clearer than 101.101. The medical center argues that it did not waive its contention that the lack of notice required by 101.101(a) barred Loutzenhiser’s claim by raising it seven weeks before trial. The court agrees. The medical center raised the issue by motion for summary judgment much earlier in the litigation, and it was entitled to seek reconsideration based on subsequent authority. Even if its motive was purely to exercise its newly-created right to take an interlocutory appeal from an adverse ruling on the issues raised by its plea to the jurisdiction, thereby delaying the trial, there was nothing to prevent it from doing so. The trial court’s order contained three rulings: it refused to dismiss the action based on the medical center’s arguments of no notice and no alleged use of property, and alternatively struck the plea as untimely. The court of appeals simply “affirm[ed] the trial court’s judgment.” It should have affirmed only that portion of the order refusing to dismiss the case based on the medical center’s argument of no alleged use of property. It did not reach, and therefore could not affirm, the trial court’s alternative ruling striking the plea. And having correctly concluded that the medical center’s notice argument was not jurisdictional, the court of appeals did not have interlocutory appellate jurisdiction to affirm that portion of the trial court’s order. OPINION:Hecht, J.; Phillips, Owen, Jefferson, Wainwright and Brister, JJ. O’Neill, J., filed a concurring opinion, joined by Schneider and Smith, JJ.

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