SUE WALKER, Justice.
A jury returned a verdict for Appellant Curtis Chesser, individually, and through his spouse and power of attorney, Ava Chesser, in his health care liability suit against Appellees LifeCare Management Services, L.L.C. (LMS) and LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospital of Fort Worth (Hospital). After applying the statutory caps to the noneconomic damages awarded by the jury, the trial court signed a judgment on the jury's verdict. Chesser perfected an appeal, raising one issue: the trial court erred by submitting the negligence of three settling doctors to the jury because no evidence of their negligence exists. Appellees perfected a cross appeal, raising eight issues: two charge error issues, two sufficiency of the evidence issues, and four issues alleging computation errors in the judgment.
Fort Worth Police Officer Curtis Chesser suffered a mild stroke that affected his ability to swallow. He was without pain and was without cognitive impairment. After spending a few days in Huguley Hospital and Granbury Hospital, he was transferred to Hospital for rehabilitation and therapy. Hospital is a long-term acute care hospital; it does not have an operating room, recovery room, or anesthesia services. At Hospital, Chesser was treated by physicians Dr. Ade Adedokun, Dr. Edward Ferree, and Dr. Burke DeLange. A few days after Chesser's admission to Hospital, in an examination room at Hospital, Dr. DeLange; Carol Smith, R.N.; and Cindy Barnett, R.N. surgically inserted a percutaneous endoscopic gastrostomy (PEG) tube through Chesser's abdominal wall into his stomach. An hour after insertion of the PEG tube, at 10:20 a.m., Chesser's medical chart indicated that he reported pain in his abdomen of 10 on a scale of 1-10.
The bolster or bumper placed around the PEG tube to keep it from moving was too tight, resulting in severe pain to Chesser and prolonged ischemia of the gastric tissue under the tube, which led to necrosis with erosion of the PEG tube through the stomach wall as well as erosion of and hemorrhage of the superior epigastric artery. As Chesser's condition deteriorated over the next four days, his complaints, signs, symptoms, and their cause were not assessed or investigated by Hospital nurses or reported to the doctors. Realizing that something was seriously wrong, Chesser requested a transfer to a full-service hospital. After Chesser's wife observed Chesser excrete a large amount of bright red blood through his rectum, and after Chesser's blood pressure became dangerously low, Chesser was transferred to Harris Hospital. Chesser had spent eight days at Hospital.
At Harris Hospital, an endoscopy was performed. The gastroenterologist performing the procedure discovered a large ulcer on Chesser's stomach lining, significant amounts of blood in Chesser's stomach, and active bleeding from the epigastric artery. During the endoscopy, Chesser "coded" and was resuscitated; Chesser had suffered a cardiopulmonary arrest, cardiac injury, and cerebral injury and had sustained permanent cognitive deficits. Chesser remained in Harris Hospital for several months; he then received outpatient brain injury transitional services through May 2005 and continues to require a variety of health care treatments and services.
We utilize the following standards of review in our analysis of the various issues presented and in our analysis of the effect that the sustaining of various issues has upon the trial court's judgment.
We may sustain a legal sufficiency challenge only when (1) the record discloses
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh'g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
A trial court has wide discretion in submitting instructions and jury questions. Howell Crude Oil Co. v. Donna Ref. Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.-Houston [14th Dist.] 1996, writ denied). A trial court must submit only "such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex.R. Civ. P. 277. A proper jury instruction is one that assists the jury and is legally correct. Town of Flower Mound v. Teague, 111 S.W.3d 742, 759 (Tex.App.-Fort Worth 2003, pet. denied). We review the trial court's legally correct definitions, instructions, and questions for an abuse of discretion. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2003); Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.1999).
When an appellant challenges the legal sufficiency of the evidence to support the submission of a question to the jury, we review de novo the sufficiency of the evidence applying the legal sufficiency standard of review. See, e.g., T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992) (recognizing that objection to submission of question as based on no-evidence preserves no-evidence challenge for appeal); Cont'l Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex.1964).
Issues of statutory construction present questions of law that we review de novo applying well-established rules of construction. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2157, 173 L.Ed.2d 1156 (2009). Our primary objective in statutory construction is to give effect to the legislature's intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). To achieve this, "we look first and foremost to the words of the statute." Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83,
Further, we must read the statute as a whole and not just isolated portions. Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004); Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 253 (Tex.App.-Dallas 2005, no pet.) ("We determine legislative intent from the entire act and not just its isolated portions."). It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. Gray v. Nash, 259 S.W.3d 286, 291 (Tex. App.-Fort Worth 2008, pet. denied). Likewise, every word excluded from a statute must also be presumed to have been excluded for a purpose. Id. We are required to reconcile and harmonize apparently conflicting statutory provisions, if it is reasonably possible, so that every enactment may be given effect. Barfield v. City of La Porte, 849 S.W.2d 842, 845 (Tex.App.-Texarkana 1993), aff'd, 898 S.W.2d 288 (Tex. 1995). We also consider the objective the law seeks to obtain and the consequences of a particular construction. Tex. Gov't Code Ann. § 311.023(1), (5) (West 2005). In enacting a statute, it is presumed that a just and reasonable result is intended. Id. § 311.021(3) (West 2005).
When a general statutory provision conflicts with a special statutory provision, both provisions shall be construed, if possible, to give effect to both; but, if the conflict is irreconcilable, the special provision prevails absent certain exceptions. Id. § 311.026 (West 2005). Also when applying rules of statutory construction, the more recent enactment prevails. Id. § 311.025(a) (West 2005); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex.2000); Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000).
To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); see also Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its decision on conflicting evidence and some evidence of substantive and probative character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).
In his sole issue, Chesser contends that no evidence exists supporting the submission of the negligence of the settling defendants—Dr. Adedokun, Dr. Ferree, and Dr. DeLange—to the jury in question 2 of the court's charge and, correspondingly,
In their second and fourth issues, respectively, Appellees argue that legally and factually insufficient evidence exists to support the jury's finding in question 1 that Hospital was negligent and in question 6 that LMS and Hospital were engaged in a joint enterprise.
In addressing Chesser's challenge to the legal sufficiency of the evidence to support submission to the jury of the settling defendants' negligence in question 2 and of the settling defendants' percentage of responsibility in question 3,
Tex. Civ. Prac. & Rem.Code Ann. § 33.003 (West 2008) (emphasis added). Thus, if legally sufficient evidence does not exist of the negligence of a settling physician, his percentage of responsibility should not be submitted. See id. § 33.003(b) (expressly prohibiting submission to jury of any person's percentage of responsibility absent legally sufficient evidence); Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 154 (Tex.App.-Austin 1998, no pet.) (interpreting predecessor statute and holding that trial court properly refused to submit settling defendant's negligence to jury); see also Tex.R. Civ. P. 278 (authorizing trial court to submit to jury only questions raised by pleadings and evidence); Kroger Co. v. Betancourt, 996 S.W.2d 353, 358 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (holding submission of question on comparative responsibility of settling defendant is required only
In order to submit to the jury a defendant's negligence in a health care liability claim, there must be legally sufficient evidence of a duty to act according to the applicable standard of care, of a breach of the standard of care, and of a causal connection between the breach and the injury. Morrell v. Finke, 184 S.W.3d 257, 271 (Tex.App.-Fort Worth 2005, pet. ref'd). Expert testimony is required to establish the governing standard of care and whether that standard has been breached. Rehab. Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex.2002). Likewise, expert testimony based on reasonable medical probability is required to establish proximate cause. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.2010); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995).
We have thoroughly reviewed the record and have looked specifically at every record reference cited in Appellees' brief as containing expert testimony or evidence of the settling defendants' negligence; Chesser is correct. No expert testimony exists in the record before us of a standard of care applicable to these three doctors, no evidence exists of any breach of any standard of care, and no evidence exists that any breach of any standard of care by these three doctors was a proximate cause of Chesser's damages. Although Chesser called each of the settling defendants to testify at trial, no testimony was elicited from them concerning their respective standards of care, their breach of any standard of care, or proximate cause. The only expert testimony in the record concerning the standards of care applicable to the settling defendants, any breach of those standards of care, or any proximate cause is, as pointed out by Chesser, wholly conclusory
For example, Dr. Stephen Koch, one of Chesser's experts whose testimony Appellees point to as providing evidence of the settling defendants' standard of care, breach, and causation, simply testified:
Case law uniformly holds that such conclusory testimony constitutes "no evidence." See, e.g., Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex. 2010) (holding evidence legally insufficient to support causation because "Dr. Beyler may be qualified in fire research, but his testimony in this case lacks objective, evidence-based support for its conclusions"); City of San Antonio v. Pollock, 284 S.W.3d 809, 820 (Tex.2009) (holding evidence legally insufficient to support causation because "Patel's opinions were conclusory and provided no evidence"); Coastal Transp. Co., 136 S.W.3d at 232; Havner, 953 S.W.2d at 711-12. Expert testimony utilizing the "magic words" of "negligence" and "proximate cause" constitutes no evidence if the testimony is simply the expert's bare opinion; it is the substance of the testimony that must be considered. Havner, 953 S.W.2d at 711-12; see also McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex.2003) ("A conclusory statement of an expert witness is insufficient to create a question of fact."). Here, there is no substantive testimony regarding the standard of care, breach, and causation concerning the alleged medical negligence of Drs. Adedokun, Ferree, and DeLange in their care and treatment of Chesser. At most, the record contains only a bare recitation of an expert's prior opinion using the magic words of negligence and proximate cause. Because the only evidence concerning the alleged medical negligence of Drs. Adedokun, Ferree, and DeLange is conclusory expert testimony, no evidence exists supporting submission of the negligence of these doctors to the jury.
We next address what effect sustaining Chesser's sole issue has on the judgment.
The issue of the amount of the settlement credit to be applied to the judgment is controlled by section 33.012 of the civil practice and remedies code, titled, "Amount of Recovery." See id. § 33.012. It provides in pertinent part:
Id.
Because no evidence exists supporting submission of the settling defendants' negligence to the jury, their percentage of responsibility should not have been submitted and no percentage of responsibility should have been allocated by the jury to the settling defendants; indeed, how could the jury assess a percentage of responsibility to the settling defendants in the absence of legally sufficient evidence of their negligence? And because, based on the evidence, no percentage of responsibility should have been allocated to the settling defendants, Appellees cannot be entitled to a percentage-of-responsibility settlement credit. See id. §§ 33.003(b),.012(c)(2).
But, section 33.012(b) provides that when a claimant has settled with a person, the court shall reduce the claimant's damages by the dollar amount of all settlements. Id. § 33.012(b). And section 33.012(d) provides that even if a defendant in a health care liability claim forgets to, or simply fails to, make any election concerning a settlement credit, then nonetheless the dollar-for-dollar settlement credit applies. See id. § 33.012(d). So, in this case, under either subsection (b) or subsection (d), Appellees are entitled to a dollar-for-dollar settlement credit equal to $183,000—the damages paid in settlement by the settling defendants.
In the judgment, after application of the relevant damage cap provisions to the damages found by the jury, the trial court further reduced the damages by the percentage
In their fourth issue, Appellees assert that legally and factually insufficient evidence exists to support the jury's finding in question 6 that a joint enterprise existed between LMS and Hospital. Specifically, Appellees challenge the sufficiency of the evidence to support the second two elements of joint enterprise: (3) a community of pecuniary interest in the common purpose of the enterprise among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
The Texas Supreme Court has addressed legal sufficiency challenges to the third element, the community-of-pecuniary-inter est-in-the-common-purpose-of-the-enterprise element, of a jury's joint enterprise finding in several cases. See St. Joseph Hosp., 94 S.W.3d at 531-33 (holding evidence legally insufficient); Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 613-14 (Tex.2000) (holding evidence legally sufficient); Blount v. Bordens, Inc., 910 S.W.2d 931, 932 (Tex.1995) (holding evidence legally insufficient); Shoemaker v. Estate of Clyde Whistler, 513 S.W.2d 10, 15-17 (Tex.1974) (holding evidence legally insufficient). A review of these cases makes it clear that to satisfy this element of a joint enterprise, evidence must exist of a monetary interest in the enterprise common to each member of the enterprise; the monetary interest of each member of the group in the enterprise must be "shared without special or distinguishing characteristics." St. Joseph Hosp., 94 S.W.3d at 531; see also Able, 35 S.W.3d at 614 (holding legally sufficient evidence of this element existed when written agreement between members of enterprise specifically mentioned investment of substantial sums for mass transit purposes); Shoemaker, 513 S.W.2d at 17 (holding that two joint owners of an aircraft had "no pecuniary interest in the common purpose of the search" that was occurring when the plane crashed and Shoemaker's son was killed).
We have carefully reviewed the record as well as nine boxes of original exhibits filed with this court. The record before us "discloses a complete absence of evidence of a vital fact," that being a community of pecuniary interest in the common purpose of the enterprise that existed between Appellees. See Uniroyal Goodrich Tire Co., 977 S.W.2d at 334 (requiring appellate court to sustain legal sufficiency challenge when record discloses a complete absence of evidence of a vital fact). The evidence establishes that Hospital is managed by LMS and that LMS manages two other
Chesser points to no evidence, however, and we have located none in the record, showing how the monies generated by Hospital were allocated or shared between Hospital and LMS. See St. Joseph Hosp., 94 S.W.3d at 531; David L. Smith & Assocs., L.L.P. v. Stealth Detection, Inc., 327 S.W.3d 873, 878-79 (Tex.App.-Dallas 2010, no pet.) (holding legally insufficient evidence of joint enterprise between companies existed despite evidence of shared officers, directors, employees, business address, logo, and assets when no evidence existed of how or whether monetary benefits were shared between the two entities). Similarly, the record contains no evidence of how the monies generated by LMS were allocated or shared between Hospital and LMS. See St. Joseph Hosp., 94 S.W.3d at 531; David L. Smith & Assocs., L.L.P., 327 S.W.3d at 878-79. The mere existence of monetary benefits to both Hospital and LMS by virtue of their relationship is insufficient to establish the third element of a joint enterprise; there must be evidence that the monetary benefits were shared among the members of the enterprise without special or distinguishing characteristics. See St. Joseph Hosp., 94 S.W.3d at 531; David L. Smith & Assocs., L.L.P.,
Chesser argues that Hospital and LMS (along with the other two hospitals managed by LMS) utilized shared billing, shared managed care contracting, and shared financial, legal, administrative, and human resources departments to make better use of resources for economic gain. Fox testified that there was a centralized human resource function at the corporate office but that each hospital had its own human resource representative. The pooling of resources between members of a joint enterprise to further the economic gain of the enterprise is a factor the supreme court has looked at in determining whether evidence of a community of pecuniary interest in the common purpose of the enterprise among the members exists. See Able, 35 S.W.3d at 613-14. In Able, the documents executed between the parties "clearly contemplate[d] an economic gain that could [have been] realized by undertaking the activities in the [pooling] manner." Id. Here, although some centralized functions were undertaken by LMS on behalf of Hospital, no evidence exists that any financial gain from this pooling was shared between Appellees without special or distinguishing characteristics. Unlike in Able, the record here simply does not indicate what the monetary consequence of the "pooling" of resources pointed to by Chesser is for either Hospital or LMS.
Considering all of the evidence in the light most favorable to the third element of the jury's joint enterprise finding, we hold that no evidence exists of a community of pecuniary interest in the common purpose of the enterprise between Hospital and LMS.
We next address what effect sustaining Appellees' fourth issue has on the judgment. The purpose of the theory of joint enterprise is to make each party to the enterprise the agent of the other and thereby to hold each responsible for the negligent act of the other. See, e.g., Able, 35 S.W.3d at 616 (recognizing that "each party in a joint enterprise is responsible for the negligent act of the other"); Shoemaker, 513 S.W.2d at 16 (explaining that "the negligence of pilot Carroll is to be imputed to joint owner Whistler, thus establishing the vicarious liability of Whistler"). Here, in the percentage of liability question, the jury apportioned 60% responsibility
Chesser alleged negligence against LMS, claiming that, as the manager of Hospital, LMS was directly responsible for managing, controlling, directing, operating, supervising, and evaluating the care, services, competence, and quality of care and services provided at Hospital. Chesser alleged that LMS created policies, procedures, bylaws, rules, and regulations that governed Hospital and that LMS was responsible for ensuring that the policies and procedures it implemented were in fact instituted and evaluated and that Hospital complied with them. In Appellees' second issue, LMS argues that legally, or alternatively factually, insufficient evidence exists to support the jury's finding of negligence against it in question 1.
In the absence of an objection to a definition, when reviewing the legal and factual sufficiency of the evidence, we measure the evidence against the charge given, applying the definitions given. See St. Joseph Hosp., 94 S.W.3d at 530. The court's charge defined "negligence," when used with respect to the conduct of LMS, to mean
The court's charge defined "proximate cause" when used with respect to the conduct of LMS to mean
A hospital or a corporate health care provider may be liable for injuries arising from the negligent performance of a duty that the hospital or corporate health care provider owes directly to a patient. See Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 409 (Tex.App.-Fort Worth 2003, no pet.); Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.-Fort Worth 1997, pet. denied). One such duty is the duty to use reasonable care in formulating the policies and procedures that govern the hospital's medical staff and nonphysician personnel. Denton Reg'l Med. Ctr., 947 S.W.2d at 950. In cases involving alleged administrative negligence arising out of or relating to the provision of medical services, the trier of fact must be guided by medical expert testimony. Mills v. Angel, 995 S.W.2d 262, 268 (Tex.App.-Texarkana 1999, no pet.); Denton Reg. Med. Ctr., 947 S.W.2d at 950-51; see Romero v. Baptist/St. Anthony's Hosp. Corp., No. 07-00-00341-CV, 2001 WL 946497, at *2 (Tex.App.-Amarillo Aug. 16, 2001, no pet.) (not designated for publication).
Plaintiffs in medical negligence cases are required to prove by a preponderance of the evidence that the allegedly negligent act or omission was a proximate cause of the harm alleged. See Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993). The ultimate standard of proof on the causation issue "is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred." Park Place Hosp., 909 S.W.2d at 511. The precise words of
Here, although Dr. DeLange was in the procedure room on November 16 during the insertion of Chesser's PEG tube and was in charge of the procedure, Carol Smith, R.N. testified that during the PEG procedure, she made the incision, she helped thread the wire and the tube into Chesser's stomach, and she tightened the bolster. She said Chesser's was the first PEG procedure that she actually performed. Nurse Smith testified that Cindy Barnett, R.N. provided sedation to Chesser during the procedure.
According to Chesser's expert Dr. Koch, after insertion of the PEG tube, Chesser's condition steadily declined. He experienced extreme pain for days and became confused as his mental state deteriorated. On the afternoon of November 20, Mrs. Chesser reported that Chesser had coughed and that bright red blood had squirted out of his PEG tube. At 6:30 that evening, Mrs. Chesser walked Chesser to the restroom and saw him excrete bright red blood from his rectum, filling the toilet. Throughout November 20, Chesser's blood pressure declined and continued to decline despite the administration of 750cc's of fluid. Finally, the head of Chesser's bed was lowered in a maneuver called a Tendelenburg to preserve the flow of blood to Chesser's brain, and an ambulance was called. Chesser was admitted to Harris Hospital, and the next morning an endoscopy was performed.
During the endoscopy, Chesser suffered a heart attack and ultimately, although he was successfully revived, sustained serious physical and neurological injuries. He was placed on a ventilator for an extended period of time and remained hospitalized at Harris Hospital for several months. He developed a series of infections over the ensuing weeks to months related to the surgical incision site where the PEG had been resected. He developed bloodstream infections, lung infections, and pneumonia; a trachestomy was required.
Dr. Koch explained that the postoperative report of the endoscopy performed at Harris Hospital and the pathology report from that procedure document that at the PEG tube site, underneath the PEG bumper (also called a bolster),
Dr. Koch testified that necrosis does not just appear "out of the blue" but is preceded by ischemia; Dr. Koch testified that the ischemia that Chesser suffered at the PEG tube site was caused by the PEG tube bolster or bumper being too tight, "starting to cut off the blood flow to the part of the stomach right below where it was put—pinching it."
Likewise, Nurse Moore, the Director of Nursing at Hospital when Chesser was a patient there, testified that she worked under policies and procedures that were promulgated by LMS. Nurse Moore testified that there were no polices or procedures governing nurses in the procedure room or governing post-PEG tube insertion patients.
Thus, the record establishes by written documentary evidence as well as by expert testimony that LMS had a duty to manage, control, direct, supervise, and evaluate the care, services, competence, and quality of care and services provided at Hospital; a duty to create policies, procedures, bylaws, rules, and regulations that govern Hospital; and a duty to ensure that the policies and procedures it implemented were in fact instituted and evaluated and that compliance was enforced by Hospital.
Concerning the specific breach of these duties in this case, Higgenbotham testified that LMS was negligent because—despite the fact that under the governing board bylaws, Hospital was only a "for profit, long-term acute care specialty hospital" that possessed no operating room or anesthesia services—Hospital permitted nurses to consciously sedate patients like Chesser and permitted nurses to surgically insert PEG tubes into patients' stomachs, including Chesser's stomach.
Dr. Koch testified that virtually all of Chesser's injuries, including his hemorrhaging, the code, and the consequences of those events, including Chesser's cognitive impairment,
One of the policies that was implemented by LMS at Hospital required the nurses to prepare a care plan for each patient. Nurse Moore agreed that every patient must have a care plan. The care plan is meant to be an interdisciplinary communication tool enabling any and all medical personnel to look at the care plan at any given point and "see what is going on with this patient." Higgenbotham testified that nursing implementation of a care plan for every patient is not optional; instead, it is statutorily required of all registered nurses in Texas. The care plan is a "tool for communication because it is constantly updated." Higgenbotham explained that if a care plan is not utilized, "you're only doing things like treating the symptoms, we don't have a goal for the patient, and nobody understands what the problem is."
Higgenbotham testified, and Nurses Smith and Moore conceded, that the nurses at Hospital failed to institute a care plan for Chesser. Nurse Smith agreed that care plans are an essential tool for communication between the team of doctors, nurses, and other health care professionals caring for a patient. Nurse Smith also conceded that her job description mandated that she create a care plan for all patients for collection of relevant data and to ensure that a care plan exists; she conceded that she did not do so for Chesser. Higgenbotham opined that LMS was negligent in failing to ensure that care plans were utilized at Hospital and were specifically utilized for Chesser.
Higgenbotham and Dr. Koch testified that had a care plan been utilized for Chesser, the severe pain he was suffering would have been documented and would
Higgenbotham testified repeatedly that although LMS was responsible for formulating the policies and procedures for Hospital, LMS wholly failed to institute any mechanism to ensure that the policies and procedures it implemented were actually followed at and utilized by Hospital. Finally, Higgenbotham explained, "And again, in LMS's policies and procedures, they mimic what's in the Nurse Practice Act and the rules and regulations and what's in the Federal regulations. But then when you go and examine the records, they're not doing it."
LMS's controverting evidence concerning its negligence and proximate cause included the following: Nurse Smith's testimony that a care plan was not necessary in order for a doctor or a nurse to give appropriate care; Nurse Smith's testimony that she was qualified and had taken a test establishing her competency to assist in the performance of PEG procedures prior to Chesser's procedure; Nurse Moore's testimony that nurses follow orders given by doctors and that the nurses did that in caring for Chesser; expert Dorothy Ellford, R.N.'s testimony that LMS was not negligent; and Nurse Moore's testimony that Chesser's records adequately showed that the nurses addressed all problems he experienced as they arose.
Crediting the evidence favorable to the jury's finding that LMS's negligence proximately caused Chesser's injuries, disregarding evidence contrary to the finding because a reasonable factfinder assessing the credibility of the witnesses could, and applying the definitions provided in the court's charge, the evidence is legally sufficient to establish that LMS's negligence was a proximate cause of Chesser's injuries. See City of Keller, 168 S.W.3d at 827. That is, the evidence is legally sufficient to support the jury's finding that LMS failed to use ordinary care by failing
Dr. Koch testified that all of Chesser's injuries were attributable to the too-tight bolster around his PEG tube and that all of Chesser's injuries could have been avoided if only the bolster had been loosened on November 16, 17, or 18. Higgenbotham and Dr. Koch testified, and Nurse Smith conceded, that despite policies requiring a care plan for every patient and despite Nurse Smith's job description requiring a care plan for every patient, no nursing care plan existed for Chesser after the PEG tube was inserted. Higgenbotham and Dr. Koch testified that a care plan for Chesser would have documented and alerted doctors to his severe pain. Dr. Koch explained that the doctors took appropriate action on Chesser's behalf based on what was discernable from his medical records and in the absence of a care plan. This evidence is sufficient to enable reasonable and fair-minded people to reach the conclusion that it was more likely than not that LMS's failure to generate policies and procedures governing care of patients post-PEG tube insertion, failure to draft or implement a job description for nurses working in the procedure room and performing or assisting in PEG tube procedures, and failure to check or monitor that Hospital in fact used or implemented any of the policies and procedures generated by LMS, including the policies requiring a nursing care plan for every patient, caused the tightness of Chesser's PEG bolster to go unexamined and unaddressed, leading in a continuous sequence to all of his injuries.
Likewise, viewing all of the evidence, the evidence supporting the jury's finding in question 1 that LMS's negligence was a proximate cause of Chesser's injuries is not so weak, nor is the evidence to the contrary so overwhelming, that the jury's answer should be set aside and a new trial ordered. See Garza, 395 S.W.2d at 823. Indeed, Appellees do not point to specific evidence as constituting overwhelming contrary evidence concerning proximate cause. Instead, without a factual sufficiency analysis, in one sentence Appellees assert alternatively that not only does less than a scintilla of evidence support the jury's finding that LMS was negligent, but also that the evidence and inferences supporting the finding are so weak or that some unidentified evidence to the contrary is so overwhelming that this court should reverse and remand for a new trial. We have carefully reviewed the entire record in detail, and we hold that the evidence supporting the jury's answer to question 1 finding LMS negligent is not so weak nor the contrary evidence so overwhelming that a new trial is required.
We overrule Appellees' second issue.
In their first and third issues, respectively, Appellees argue that the trial court erred by refusing to submit a charge instruction on unavoidable accident and by submitting an erroneous definition of joint enterprise.
In their first issue, Appellees argue that the trial court abused its discretion by refusing to submit an unavoidable accident instruction. Appellees contend that "the complications Mr. Chesser suffered (including infection, hemorrhage, migration or dislodgement of the tube, erosion and injury to organs) are recognized complications of the PEG tube procedure and are complications that may occur without anyone's negligence." [Internal record citations omitted.] Appellees also contend that Chesser's pre-existing conditions—diabetic neuropathy and cerebrovascular disease—could have been a cause of his injuries, entitling Appellees to an unavoidable accident instruction.
An unavoidable accident "is an event not proximately caused by the negligence of any party to it." Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.1995) (quoting Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952)); Young v. Thota, 271 S.W.3d 822, 836-37 (Tex.App.-Fort Worth 2008, pet. denied). The purpose of an unavoidable-accident instruction is to
Dillard, 157 S.W.3d at 432 (citing Reinhart, 906 S.W.2d at 472). An unavoidable accident instruction thus submits a defendant's inferential rebuttal defense—a defense that operates to rebut an essential element of the plaintiff's case by proof of other facts. Id. The instruction is most often used to inquire about the causal effect of some physical condition or circumstance
Here, although the trial court did not submit an unavoidable accident instruction, a "bad result" instruction was submitted. See Tex. Civ. Prac. & Rem. Code Ann. § 74.303(e)(2) (West 2011) (requiring this instruction in all health care liability claims filed after September 1, 2003 and tried to a jury); see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises, Products PJC 50.7 (2006). The bad result instruction informed the jury that "[a] finding of negligence may not be based solely on evidence of a bad result to Curtis Paul Chesser, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence. You are the sole judges of the weight, if any, to be given to this kind of evidence." Tex. Civ. Prac. & Rem.Code Ann. § 74.303(e)(2). The bad result instruction, by telling the jury that it could not base a finding of negligence solely on evidence of a bad result, adequately submitted Appellees' theories that the complications Chesser suffered (including infection, hemorrhage, migration or dislodgement of the tube, and erosion and injury to organs) are recognized complications of the PEG tube procedure and are complications that may occur without anyone's negligence and that Chesser's injuries could have been caused by his pre-existing conditions. Accord Dillard, 157 S.W.3d at 432 (explaining that instead of examining whether evidence existed to support submission of multiple instructions, "we think it more appropriate to examine the adequacy of the charge that was given"). That is, the bad result instruction sufficiently informed the jury that it could believe that Chesser simply had a bad result with the PEG tube or that the bad result could have been caused by his pre-existing conditions and instructed the jury that a bad result alone would not support a negligence finding against Appellees. See id. at 430 (explaining that unavoidable accident instruction sufficiently informed jury of and submitted defendant's sole proximate cause inferential rebuttal defense that fatal auto accident was not caused by defendant's negligence but by presence of cattle on the roadway); Williams v. Viswanathan, 64 S.W.3d 624, 628-29 (Tex.App.-Amarillo 2001, no pet.) (holding that evidence existed to support bad result instruction when doctor admitted that patient's care worsened under his care but denied that he was negligent). Looking to the adequacy of the charge given, because the bad result instruction sufficiently informed the jury that it could not find Appellees negligent solely based on a bad result suffered by Chesser from the PEG tube or from his pre-existing conditions, the trial court did not abuse its discretion by refusing to also submit an unavoidable accident instruction. See Dillard, 157 S.W.3d at 434 (explaining that redundancy created by submission of multiple inferential rebuttal instructions is contrary to the spirit of broad-form submission); V.L.K., 24 S.W.3d at 341 (recognizing that trial court possesses considerable
We overrule Appellees' first issue.
In their third issue, Appellees argue that the trial court erred by submitting, over Appellees' objection and timely tender of a requested definition, a legally incorrect definition of joint enterprise in connection with question 6 in the court's charge. The court's charge contained the following definition of joint enterprise:
Appellees requested, tendered, and objected to the trial court's refusal to submit the following definition of joint enterprise:
Appellees complain on appeal that the exclusion of the language italicized above—"to be carried out by the group"—from the definition of joint enterprise constituted error and harmed Appellees.
Because, as set forth above, we have sustained Appellees' fourth issue challenging the legal sufficiency of the evidence to support the third element of a joint enterprise—the community-of-pecuniary-interest-in-the-common-purpose-of-the-enterprise element—we need not address whether the failure to include the "to be carried out by the group" language in the second element of the joint enterprise definition submitted to the jury constituted error. The definition requested and the definition submitted are identical with respect to the third element of a joint enterprise, and therefore, under either definition, the evidence is legally insufficient to support the jury's affirmative finding as to this third element. Accordingly, we need not and do not address Appellees' third issue. See Tex.R.App. P. 47.1 (requiring appellate court to address only issues necessary to final disposition of the appeal).
In their fifth issue, Appellees allege in four subparts that four specific errors exist in the trial court's judgment: three subparts assert erroneous application of statutory provisions, and one subpart asserts an abuse of discretion by the trial court. We address these contentions individually below applying the rules of statutory construction and the abuse of discretion standard of review, as dictated by the error alleged.
In their fifth issue, subpart A, Appellees argue that they are entitled to limit their combined civil liability for noneconomic damages to $250,000 pursuant to civil practice and remedies code section 74.301(b). See Tex. Civ. Prac. & Rem.Code Ann. § 74.301(b) (West 2011). Section 74.301 provides, in its entirety:
Id. § 74.301. Under chapter 74 of the civil practice and remedies code, the definition of a "health care institution" specifically includes a "hospital." Id. § 74.001(a)(11)(G) (West 2011). And a health care institution is specifically included within the definition of a "health care provider." Id. § 74.001(a)(12)(A)(vii). Finally, a manager of a health care provider is also defined as a health care provider. Id. § 74.001(a)(12)(B)(i).
Utilizing these definitions prescribed by the legislature in section 74.001, because Hospital is a hospital, it is a health care institution. See id. § 74.001(a)(11)(G). As a healthcare institution, Hospital is also a health care provider. Id. § 74.001(a)(12)(A)(vii). And LMS, as the manager of health care provider Hospital is itself a health care provider. Id. § 74.001(a)(12)(B)(i). The judgment in this case was entered against Hospital and LMS. Thus, the judgment here was entered against a health care institution (Hospital) and against a health care provider (LMS).
Given these prescribed definitions and their application to Appellees, and inserting those applications into the plain language of section 74.301's limitation on noneconomic damages provisions, it is clear that both subsection (a) and subsection (b) apply to this judgment, triggering the two separate damage caps set forth individually in subsection (a) and subsection (b), and that subsection (c) does not apply to this judgment. Subsection (a) applies when a final judgment is rendered against a health care provider other than a health care
Having determined that section 74.301, subsections (a) and (b) are both applicable to the present judgment, we next examine the limitation on noneconomic damages contained in each subsection. Subsection (a) limits the noneconomic damages liability of a health care provider, other than a health care institution, "inclusive of all persons and entities for which vicarious liability theories may apply," to $250,000 for each claimant regardless of the number of defendant health care providers, other than a health care institution, against whom the claim is asserted or the number of separate causes of action on which the claim is based. Id. § 74.301(a). Thus, here, subsection (a) limits the noneconomic damages liability of health-care-provider LMS (but does not apply to health-care-institution Hospital) to $250,000. See id. Subsection (b) limits the noneconomic damages liability of a health care institution that is the only health care institution against whom final judgment is rendered to an amount not to exceed $250,000 for each claimant inclusive of all persons and entities for which vicarious liability theories may apply. Id. § 74.301(b). Thus, here, subsection (b) limits the noneconomic damages liability of health-care-institution Hospital (as the single health care institution against whom judgment was rendered) to $250,000. See id. Both subsections (a) and (b) apply to the judgment at issue here, limiting separately the noneconomic damages civil liability of both LMS and Hospital to $250,000 each.
Appellees nonetheless contend that because—in addition to the direct liability theories of recovery that Chesser pleaded against LMS—Chesser pleaded that LMS was vicariously liable for Hospital's negligence and that a joint enterprise existed between LMS and Hospital, the vicarious liability limitation of subsection (a) applies. That is, Appellees contend that because Chesser pleaded that LMS was vicariously liable for Hospital's negligence and pleaded that a joint enterprise existed between Appellees, and because subsection (a) provides that health-care-provider LMS's limit of liability for noneconomic damages is "inclusive of all persons and entities for which vicarious liability theories may apply," including Hospital's here, only subsection (a) applies to the judgment here. We could hypothesize about various fact patterns and scenarios under which Appellees' argument might have some traction. This situation, however, is not one of them.
First, here, as set forth above, the evidence is legally insufficient to support the jury's joint enterprise finding. Subsection (a)'s vicarious liability language therefore cannot apply to Hospital based on a joint enterprise theory of vicarious liability. Second, also as set forth above, the instructions and definitions given to the jury in connection with the negligence question, question 2, submitted to the jury only the issue of LMS's and Hospital's direct liability.
We overrule subpart A of Appellees' fifth issue.
In subpart C of their fifth issue, Appellees contend that the trial court erred by awarding prejudgment interest on past noneconomic damages. Appellees do not challenge any aspect of the computation of prejudgment interest; their sole argument is that because the noneconomic damages awarded by the jury exceeded the statutory noneconomic damages limit of $250,000 set forth in section 74.301, prejudgment interest is not available. That is, Appellees contend that section 74.301's $250,000 limit on their civil liability for noneconomic damages is inclusive of prejudgment interest on past noneconomic damages.
As authority for their position, Appellees cite section 74.002 of the civil practice and remedies code and Molinet v. Kimbrell, 356 S.W.3d 407 (Tex.2011). Section 74.002 states that, and Molinet stands for the proposition that, in the event of a conflict between a provision of chapter 74 of the civil practice and remedies code and any other statute, rule of procedure, or rule of evidence, chapter 74 trumps. See Tex. Civ. Prac. & Rem.Code Ann. § 74.002(a) ("In the event of a conflict between this chapter and another law, including a rule of procedure or evidence, or court rule, this chapter controls to the extent of the conflict."); Molinet, 356 S.W.3d at 412-14 (holding that the limitations provisions of section 74.251(a) and section 33.004(e) conflict and that section 74.251(a) prevails). Appellees claim that section 74.301's $250,000 limitations on civil liability for noneconomic damages conflicts with finance code sections 304.102 and 304.1045 authorizing prejudgment interest on past damages in a personal injury action.
Section 74.301 limits civil liability for noneconomic damages. See Tex. Civ. Prac. & Rem.Code Ann. § 74.301. "Noneconomic
Id. § 41.001(12) (West 2008). Section 41.001 also defines economic damages as "compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages." Id. § 41.001(4).
Prejudgment interest is a form of damages recognized in Texas law to compensate a claimant for economic or pecuniary loss: for lost use of money. Columbia Hosp. Corp. of Houston v. Moore, 92 S.W.3d 470, 472 (Tex.2002); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985), abrogated on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 533 (Tex.1998); Shook v. Walden, 304 S.W.3d 910, 927 (Tex.App.-Austin 2010, no pet.) (explaining that the award of prejudgment interest as damages derived from the concept that a judgment debtor wrongfully deprives the judgment creditor of the amount of damages ultimately awarded in the judgment between the time the damages accrue and the date of judgment). Thus, prejudgment interest does not and cannot fall within section 41.001's definition of noneconomic damages; instead, prejudgment interest falls within section 41.001's definition of economic damages because it is a form of damages recognized in Texas law and intended to compensate for economic or pecuniary loss suffered by a claimant for loss of use of money. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001(4). Because, as economic damages, prejudgment interest is specifically excluded from section 41.001's definition of noneconomic damages, it likewise does not fall within chapter 74's definition of noneconomic damages. See §§ 41.001(4), .001(12), 74.001(a)(20).
Giving chapter 74 supremacy over the finance code, looking first and foremost to the words of section 74.301 and utilizing the definitions prescribed by the legislature in section 74.001, prejudgment interest does not fall within the statutory definition of noneconomic damages—which are the only damages limited by section 74.301. See Tex. Gov't Code Ann. § 311.011(b) (requiring us in statutory construction to apply definitions provided by the legislature); Lexington Ins. Co., 209 S.W.3d at 85 (instructing that to give effect to legislature's intent "we look first and foremost to the words of the statute"). Because prejudgment interest is pecuniary in nature, because it does not fall within the definition of noneconomic damages provided by the legislature in chapter 74, and because section 74.301's plain language limits only civil liability for noneconomic damages, we hold that prejudgment interest is not included in section 74.301's limit on civil liability for noneconomic damages and that section 74.301 in no way conflicts with finance code sections 304.102 or 304.1045. And because Appellees make no complaint concerning the amount or computation of prejudgment interest, we overrule subpart C of Appellees' fifth issue.
In subpart B of their fifth issue, Appellees alternatively contend that, to the extent
We next address whether Hospital (as a 60% responsible, jointly and severally liable defendant under section 33.013(b)(1)) can be liable (by virtue of joint and several liability) for the $250,000 noneconomic damages awarded pursuant to section 74.301(a) against LMS in the judgment. We hold that it cannot. The plain language of section 74.301(a) and (b) is to limit the civil liability of the entities described in those subsections to $250,000 for noneconomic damages. See Tex. Civ. Prac. & Rem.Code Ann. § 74.301(a), (b). Although we found Appellees' reliance on section 74.002 of the civil practice and remedies code and Molinet v. Kimbrell inapplicable to our statutory analysis concerning the statutory language and definitions concerning prejudgment interest, these authorities do apply here to our analysis of whether the imposition of joint and several liability on Hospital for the $250,000 noneconomic damages awarded against LMS is prohibited by section 74.301(b).
As we previously mentioned, section 74.002 states that, and Molinet stands for the proposition that, in the event of a conflict between a provision of chapter 74 of the civil practice and remedies code and any other statute, rule of procedure, or rule of evidence, chapter 74 trumps. See id. § 74.002(a); Molinet, 356 S.W.3d at 412-14. Here, Texas Civil Practice and Remedies Code section 33.013(b)(1)'s imposition of joint and several liability on all defendants found to be greater than 50% responsible for capped noneconomic damages attributable to another defendant conflicts with section 74.301's limitation of civil liability for noneconomic damages owed by a health care institution like Hospital. Section 33.013(b)(1) provides that each liable defendant is, in addition to being responsible for the percentage of damages in accordance with the percentage of responsibility assessed against that defendant by the jury, also "jointly and severally liable for the damages recoverable by the claimant" if "the percentage of responsibility attributed to the defendant
In subpart D of their fifth issue, Appellees argue that the trial court abused its discretion by ordering a specific annuity to fund periodic payments for Chesser's future medical expenses. Prior to trial, Appellees filed a "Conditional Request for Periodic Payments of Future Damages of LifeCare Defendants." Appellees requested that in the event either or both of them were found liable for future damages, including future loss of earnings, that the trial court order such damages be paid in whole or in part by periodic payments rather than by a lump sum payment. See Tex. Civ. Prac. & Rem.Code Ann. § 74.503(b) (West 2011) (providing that on motion of defendant or claimant the trial court may order future damages other than medical, health care, or custodial services to be paid in whole or in part in periodic payments).
Appellees did not limit their request that future damages be funded by periodic payments to funding utilizing a particular entity. Instead, after the jury returned its verdict, Chesser and Appellees began investigating annuity options for periodic payment of future damages. At a hearing before the court, Chesser proposed various options funded through American General Life Insurance Company. Appellees likewise proposed various periodic payment options funded through American General
Section 74.505(b) of the civil practice and remedies code provides:
Id. § 74.505(b) (West 2011); see also id. § 74.503(d) (setting forth other information that must be included in the judgment when periodic payments of future damages are ordered).
On appeal, Appellees claim that the entirety of section 74.505, titled "Financial Responsibility," is inapplicable to the judgment here; they claim that section 74.505 applies only when a defendant requesting periodic payments of future damages is not adequately insured. Consequently, Appellees argue on appeal that the trial court abused its discretion by including the information required by section 74.505(b) in the judgment. But in the trial court, Appellees argued that section 74.505(c), requiring that "on termination of periodic payment of future damages, the court shall order the return of the security, or as much as remains, to the defendant" was applicable to the judgment here; Appellees requested that language to this effect be included in the judgment, and the judgment includes the requested language.
In any event, the trial court did not abuse its discretion by including language in the judgment that required Appellees to
See Low, 221 S.W.3d at 614 (explaining that a trial court abuses its discretion if it acts arbitrarily and unreasonably without reference to guiding principles). The trial court was authorized by section 74.505(b) and section 74.503(c) and (d) to include such language in the judgment. We hold that the trial court did not abuse its discretion by including the above quoted language in the judgment. Moreover, we hold that Appellees waived any complaint about the application of section 74.505 to the judgment because they requested the application of section 74.505(c) to the judgment in the trial court.
We overrule subpart D of Appellees' fifth issue.
Having sustained Chesser's sole issue, we reverse that portion of the trial court's judgment applying a 10% percentage-of-responsibility settlement credit of $377,383.50. We modify the trial court's judgment by changing the settlement credit amount from a 10% percentage-of-responsibility settlement credit of $377,383.50 to a dollar-for-dollar settlement credit of $183,000. We render judgment accordingly.
Having sustained Subpart B of the fifth issue of Appellees LifeCare Management Services, L.L.C. (LMS) and LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospital of Fort Worth (Hospital), we reverse that portion of the trial court's judgment subjecting both Hospital and LMS to civil liability for the two capped $250,000 noneconomic damage awards. We modify the judgment by imposing several liability on Hospital and LMS for the capped $250,000 noneconomic damages award attributable to each.
Having sustained Hospital and LMS's sixth issue, we reverse the portion of the trial court's judgment imposing joint and several liability upon LMS for the entire judgment. We modify the trial court's judgment so that in addition to being severally liable for $250,000 in noneconomic damages plus prejudgment and postjudgment interest on that amount, LifeCare Management Services is severally liable for only 30% of the judgment (excluding Hospital's $250,000 noneconomic damage civil liability). We render judgment against LMS accordingly.
Having addressed all of the issues necessary to the disposition of this appeal that were raised in Chesser's appeal and in Hospital and LMS's cross appeal, and having, pursuant to Texas Rule of Appellate Procedure 43.2(a),(b) and (c), reversed the trial court's judgment in part, rendered the trial court's judgment in part, and modified the trial court's judgment in part, we affirm the remainder of the trial court's judgment as modified.
136 S.W.3d at 232.
Did the negligence, if any, of those named below, proximately cause the injuries in question?
Answer "Yes" or "No" for each of the following:
In answering Question No. 1, do not consider or otherwise attribute any act or omission of any physician to LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospitals of Fort Worth or LifeCare Management Services, L.L.C.
The jury answered "yes" as to both entities.
Appellees do not brief a sufficiency challenge to any other element of negligence—only proximate cause. See Appellees' brief of cross-appellants, p. 14. Appellees state in their brief,
