Tracy Christopher, Justice.
Alfredo M. Pagayon ("Alfredo") died several weeks after an altercation between himself, his son Alfredo G. Pagayon ("J.R."), and an ExxonMobil Corporation employee at an ExxonMobil service station/convenience store. ExxonMobil challenges the judgment rendered on the jury's verdict in favor of Alfredo's wife, children, and estate (collectively, "the Pagayons") on their claims arising from Alfredo's death. ExxonMobil asserts that the judgment should be reversed because (1) it had no duty to control its employee under the facts of this case, (2) the evidence is legally and factually insufficient to support a finding that its negligent supervision caused Alfredo's death, (3) issues of causation and comparative fault were not fairly tried because the trial court refused to allow ExxonMobil to present certain evidence and defenses, (4) the evidence is insufficient to support the medical-expenses damages awarded, and (5) a remittitur of Alfredo's widow's non-pecuniary damages should be suggested because her pain and mental anguish were due almost entirely to events that occurred during Alfredo's hospitalization and not to the fight at the convenience store. We conclude that ExxonMobil is not entitled to rendition of a take-nothing judgment on any of the asserted grounds, that is, we conclude that ExxonMobil had a duty to control the employee who injured Alfredo, and there is legally sufficient evidence that its breach of that duty caused Alfredo's death. However, we agree with ExxonMobil that the trial court erred in striking its designation of an emergency-room physician as a responsible third party. We further conclude that the error probably caused the rendition of an improper judgment; thus, without reaching ExxonMobil's remaining issues, we reverse the judgment and remand the case for a new trial.
J.R. Pagayon and Carlos Cabulang were both employed by ExxonMobil as sales associates at a convenience store in the Houston area. Cabulang, J.R., and J.R.'s father Alfredo had known each other prior to the employment. J.R. had conflicts with Cabulang at work and reported those problems not only to his ExxonMobil manager, but also to Alfredo. On July 31, 2011, Alfredo telephoned Cabulang and the two had heated words about the conflict between J.R. and Cabulang.
The next day, Cabulang and J.R. worked together. During that time, Cabulang repeatedly cursed J.R. and said things to him that J.R. described as threats against himself and Alfredo. A co-worker told store manager Roce Asfaw of Cabulang's threats against J.R., but Asfaw simply told the co-worker to tell J.R. to stay away from Cabulang. J.R. did so, but when Alfredo came into the ExxonMobil store to pick up J.R. from work that afternoon, Cabulang left his sales register and started a fight with Alfredo. Cabulang struck Alfredo several times in the head and back, and Alfredo was transported to a hospital for treatment of his injuries. He was treated in the emergency room by Dr. Hung Hoang Dang until after midnight, then admitted to the hospital. Shortly thereafter, Alfredo was transferred to the intensive-care unit for treatment of his respiratory distress, and Dr. Jaime Clavijo intubated him. An attempt to wean Alfredo from the respirator failed, and he was transferred to a long-term intensive-care facility. On August 24, 2011, Alfredo died. The stated cause of death was cardiac arrhythmia, renal failure, and respiratory
The Pagayons sued ExxonMobil, seeking to hold it directly or vicariously liable for Alfredo's injury and death. The Pagayons attributed Alfredo's death solely to the events at the store. ExxonMobil maintained that it was not liable for any harm that Alfredo sustained in the fight, and in any event, his death was caused by negligent medical care. ExxonMobil sought to designate Dr. Dang as a responsible third party, but the Pagayons successfully moved to strike the designation. They also successfully moved to exclude the testimony of ExxonMobil's medical expert, Dr. Jose Gregorio Casar.
The jury failed to find that Cabulang's actions were within the course and scope of his employment; thus, ExxonMobil was not held vicariously liable for its employee's actions. The jury did find, however, that ExxonMobil was directly liable for its negligent supervision of Cabulang, and that this negligence, together with the negligence of both J.R. and Alfredo, proximately caused Alfredo's death. The jury was then asked to apportion liability for the fight among ExxonMobil, J.R., and Alfredo. It attributed seventy-five percent of the responsibility for causing the fight to ExxonMobil, fifteen percent to J.R., and ten percent to Alfredo. Finally, the jury assessed damages of over $1.8 million for the Pagayons' claims. In accordance with the proportionate-responsibility statute, the trial court signed a judgment awarding the Pagayons seventy-five percent of the damages assessed by the jury. The trial court denied ExxonMobil's motion for new trial, and ExxonMobil appealed.
In ExxonMobil's first two issues, it argues that it is entitled to rendition of a take-nothing judgment on the Pagayons' two theories of liability: vicarious liability as Cabulang's employer (also called "imputed" liability), and direct liability for negligent supervision. The distinction between these two theories is crucial to our analysis, because although the jury failed to find ExxonMobil vicariously liable, many of ExxonMobil's appellate arguments pertain only to that theory of liability rather than to the negligent-supervision theory of liability on which the judgment is based.
To impute liability to an employer for its employee's tort, the employee's act usually must fall within the course and scope of the employee's general authority and must have been performed in furtherance of the employer's business. See Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex.App.-Fort Worth 2002, no pet.). Intentional torts are not ordinarily within the scope of a worker's employment. Cowboys Concert Hall-Arlington, Inc. v. Jones, No. 02-12-00518-CV, 2014 WL 1713472, at *9 (Tex.App.-Fort Worth May 1, 2014, pet. denied) (per curiam, mem. op.). And as ExxonMobil points out, an employer ordinarily is not vicariously liable for the employee's intentional torts that are motivated by personal animosity. See Wrenn, 73 S.W.3d at 494 (citing Tex. & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 197, 247 S.W.2d 236, 239 (1952)).
Unlike a claim of vicarious liability, a claim of negligent supervision does not depend on a finding that the employee committed the tort while acting in the course and scope of his employment. See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78,
To illustrate this, we need only look to the test for determining whether the "duty" element of a negligent-supervision claim is satisfied. Where, as here, a claimant seeks to hold an employer liable under a negligent-supervision theory for an employee's actions that were outside the scope of his employment, the Texas Supreme Court has adopted the following test to determine whether the employer had a duty to use reasonable care to control the employee so as to prevent him from harming others:
RESTATEMENT (SECOND) OF TORTS § 317 (1965) (emphasis added), adopted in Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716, 720 (Tex.1971), superseded by statute on other grounds as stated in Helena Labs. Corp. v. Snyder, 886 S.W.2d 767, 768 (Tex.1994) (per curiam); see also Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983) (including this section among other Restatement provisions in which, as a matter of law, a relationship imposes certain duties upon the parties); accord, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404-05 (Tex.2009). Thus, under a negligent-supervision theory, an employer that breaches this duty can be held directly liable for harm that is proximately caused by its employee's intentional conduct that is outside the scope of his employment.
Because the jury failed to find ExxonMobil liable on a theory of vicarious liability, we do not address ExxonMobil's arguments and authorities that pertain to that theory of liability rather than to the Pagayons' negligent-supervision claim. Specifically, we do not address ExxonMobil's arguments that liability cannot be imputed to it because the altercation was (a) based on intentional conduct or personal animosity, (b) unauthorized, (c) not in the course and scope of Cabulang's employment, or (d) not in the furtherance of ExxonMobil's business. We instead analyze only ExxonMobil's arguments that could require reversal of the judgment on the Pagayons' negligent-supervision claim.
To prevail on a claim of negligent supervision, the Pagayons were required to prove that (a) ExxonMobil owed Alfredo a duty to supervise its employees, (b) ExxonMobil breached that duty, and (c) the breach proximately caused Alfredo's injuries. See Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex.App.-Houston [14th Dist.] 2005, no pet.). In ExxonMobil's first issue, it argues that, as a matter of law, it had no duty to control Cabulang, and in its second issue, it contends that the evidence is legally insufficient to support
To analyze the legal sufficiency of the evidence, we review the record in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable fact-finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Evidence is legally sufficient if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). We will conclude that the evidence is legally insufficient to support the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
In its first issue, ExxonMobil contends that there is no evidence to support the imposition of a duty. Whether a duty exists is generally a legal question for the court. See Nabors Drilling, 288 S.W.3d at 404; Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002); Otis Eng'g Corp., 668 S.W.2d at 312. As previously discussed, the duty for an employer to use reasonable care to prevent its employee from harming others can arise if (1) the employee is on the employer's premises, (2) the employer knows it has the ability to control the employee, and (3) the employer "knows or should know of the necessity and opportunity for exercising such control." RESTATEMENT (SECOND) OF TORTS § 317. According to the uncontroverted evidence, Cabulang was on ExxonMobil's premises when he threatened physical violence and when he fought Alfredo, and store manager Roce Asfaw knew that she was authorized to exercise control over him, to reprimand him, send him home, or terminate his employment. Thus, the question of whether ExxonMobil had a duty to use reasonable care to prevent Cabulang from intentionally harming others turns on whether there is legally sufficient evidence that ExxonMobil knew or should have known "of the necessity and opportunity for exercising such control" over Cabulang. See id.
ExxonMobil asserts there is no evidence that it should have known of Cabulang's violent tendencies, thereby implying that it should not have known of the need and opportunity to exercise control over him. But the evidence on this issue is uncontroverted; indeed, it consists largely of admissions by Asfaw.
First, Asfaw's testimony established that ExxonMobil knew or should have known of the need to control Cabulang. Asfaw acknowledged that if she, as the store manager, were alerted to a threat of violence, then she should do something about it, and that failing to do so could pose a threat to others. It is undisputed that before the fight occurred, Asfaw was alerted to a threat of violence. Asfaw admits that she left the store before Cabulang arrived to work at around 3:30 p.m. to work a shift that overlapped with J.R.'s, and while she was away, Cabulang's co-worker Jovita Leslie telephoned her and said that Cabulang was threatening "to beat J.R. up" and asking him to go outside to fight. Asfaw agreed that such statements are threatening.
Second, Asfaw's testimony established that she had the opportunity to exercise control over Cabulang. She acknowledged that J.R. continued working until around 4:30 p.m., and she admitted that she received the phone call about Cabulang's threats "long before" that time. Asfaw agreed that although she was not physically present at the store when she was told of Cabulang's threats, she still could have sent him home. Indeed, she conceded that, regardless of whether she believed the report of Cabulang's threats, the fight could have been avoided if she had just spoken to him.
This evidence distinguishes the facts of this case from those of the cases ExxonMobil cites in support of its argument that, as a matter of law, it had no duty to exercise reasonable care to prevent Cabulang from intentionally harming others. Here, the employee's manager had advance warning of his current violent tendencies, expressed through his verbal threats of physical violence while working on the employer's premises. There was no such evidence in the cases on which ExxonMobil relies. See, e.g., Garrett v. Great W. Distrib. Co. of Amarillo, 129 S.W.3d 797, 804 (Tex.App.-Amarillo 2004, pet. denied) (holding that employer has no duty to prevent employee from fighting unless it reasonably should have known of that particular employee's propensity for violence; thus, beer-distribution company's executive secretary's knowledge that "fights could occur in a bar" or that two other employees had been involved in such a fight did not make it foreseeable that different employees would do so on a different occasion); Dailey v. Albertson's, Inc., 83 S.W.3d 222, 229 (Tex.App.-El Paso 2002, no pet.) (explaining that a grocery store should not have foreseen its employee's physical assault of a customer where the assault was preceded only by the employee making loud comments about the customer's hair and following the customer from one check-out line to another); Peek v. Equip. Servs., Inc., 906 S.W.2d 529, 532 (Tex.App.-San Antonio 1995, no writ) (holding that an employee's shooting of a customer was unforeseeable because although the employee was "nervous and sweating" on the day of the shooting, he had made no threats and acted "without warning"). In contrast to the holdings of these cases, we conclude that the evidence here establishes, as a matter of law, that ExxonMobil had a duty to exercise reasonable care to control Cabulang so as to prevent him from harming others.
Although not listed as a distinct issue, ExxonMobil also makes an argument that appears to be directed to the element of breach of duty. ExxonMobil states that although it had no duty, Asfaw nevertheless "did take precautions" by relaying instructions to J.R. to stay away from Cabulang. ExxonMobil implies that this was all that was required. But the duty at issue here was the duty to exercise reasonable care "to control the servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them." RESTATEMENT (SECOND) OF TORTS § 317 (emphasis added). The only person who expressed an intention to harm "others" or who is claimed to have posed an unreasonable risk of bodily harm to "others" was Cabulang; thus, ExxonMobil's duty was to exercise reasonable care to control Cabulang. Moreover, the duty was owed not just to J.R., but to "others" who were similarly situated — including Alfredo.
In its second issue, ExxonMobil asks us to reverse and render a take-nothing judgment because the evidence is legally insufficient to support the jury's finding that ExxonMobil's negligent supervision proximately caused Alfredo's death. Proximate cause consists of the elements of cause-in-fact and foreseeability. See Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex.1995). Cause-in-fact is shown by establishing that the negligent act or omission was a substantial factor in bringing about the injury; without the act or omission, harm would not have occurred. See Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 221-23 (Tex.2010); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act or omission created for others. See D. Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). Thus, "before liability will be imposed, there must be sufficient evidence indicating that the defendant knew or should have known that harm would eventually befall a victim." Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex. 1990).
As the jury here was instructed, there can be more than one proximate cause of an event. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). ExxonMobil does not contend otherwise. It instead implies that, as a matter of law, other events proximately caused the fight, and that the existence of these other causes negates the jury's finding that ExxonMobil's negligence was "a proximate cause" of the fight or of Alfredo's death. Specifically, ExxonMobil urges that its negligence cannot be a proximate cause of either event because, as a matter of law, (1) intentional conduct caused the
These arguments are variations of ExxonMobil's assertion that it cannot be liable under a negligent-supervision theory if its employee acted intentionally and from personal animus. As previously explained, however, this is incorrect as a matter of law. The question of whether Cabulang's behavior was an intentional tort motivated by personal animus is relevant to the determination of whether he acted in the course and scope of his employment or in the furtherance of ExxonMobil's business. Those are elements necessary to establish vicarious liability, but not to establish ExxonMobil's direct liability under a negligent-supervision theory. As previously discussed, it is precisely because Asfaw was told that Cabulang made threats of violence while he was on the premises working that ExxonMobil had a duty to exercise reasonable care "to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them." RESTATEMENT (SECOND) OF TORTS § 317 (emphasis added). Thus, even if Cabulang's conduct were intentional and motivated by personal animus, these would not be grounds on which to reverse the judgment on the Pagayons' negligent-supervision claim. Cf. CoTemp, Inc. v. Hous. W. Corp., 222 S.W.3d 487, 492 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (plurality op.) ("Under the tort of negligent hiring, supervision, or retention, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act." (emphasis added)).
ExxonMobil also contends that its conduct was "too attenuated" from the fight to have proximately caused it, because the store was "just the location for an inevitable wrestling match," which occurred there "only because events and people coincided by chance inside the store." But the only evidence on these subjects is at odds with ExxonMobil's assertions. First, there is no evidence that the altercation was inevitable. Asfaw instead testified that if she had sent Cabulang home or simply spoken to him, then the altercation would not have occurred. Cabulang additionally testified that if he had just let J.R. and Alfredo walk out of the store, then there would have been no fight. Second, it was not a coincidence that the participants in the altercation were all inside the store; it instead was foreseeable to ExxonMobil, because it scheduled Cabulang and J.R. to work overlapping shifts, and it did not send Cabulang home after being informed that Cabulang was threatening J.R. It was foreseeable to ExxonMobil that a person "similarly situated" to J.R. — his father — would come to the store that afternoon, because Asfaw knew that Alfredo provided J.R.'s transportation. And it was foreseeable that J.R. and Alfredo would be in the store with Cabulang because Asfaw knew both that J.R. customarily waited inside the store for his father — a practice that
In sum, the store was the location where ExxonMobil's duty to supervise its employees arose, and the evidence supports the jury's finding that ExxonMobil's negligence in supervising Cabulang was a proximate cause of the altercation, as described in more detail above. We thus reject ExxonMobil's argument that the store was "merely the location" of the fight and that its conduct was too attenuated to have been a proximate cause of Alfredo's death. We overrule this issue.
In its third issue, ExxonMobil argues that the trial court erred by striking its designation of emergency-room physician Dr. Dang as a responsible third party.
The parties principally join issue on the legal question of whether, to survive a motion to strike the designation of an emergency-room physician as a responsible third party, the designating defendant is required to produce evidence of simple negligence, or instead must produce evidence of "wilful and wanton" negligence. Under Chapter 74 of the Texas Civil Practice and Remedies Code governing health-care-liability claims, "the claimant bringing the suit" for damages arising from allegedly deficient emergency medical care cannot establish liability absent proof that the physician or health-care provider deviated from the standard of care "with wilful and wanton negligence." See TEX. CIV. PRAC. & REM. CODE § 74.153 (West 2011). The parties dispute whether this is the correct standard to apply when measuring the sufficiency of ExxonMobil's response to a motion to strike its designation of an emergency-room physician as a responsible third party.
The Pagayons argue that the following provision from Chapter 74 applies:
Id.(emphasis added). Citing this provision, the Pagayons moved to strike ExxonMobil's designation of Dr. Dang as a responsible third party solely on the ground that there was no evidence that Dr. Dang deviated from the standard of care "with wilful and wanton negligence."
ExxonMobil responded that the provisions of Chapter 74 should not affect the application of responsible-third-party practice because Chapter 74 is designed to apply to health-care-liability claims in which damages are sought directly from the physician or health-care provider. See id. § 74.001(2), (13) (West Supp. 2014) (defining "claimant" as "a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim," and defining a "health care liability claim" as "a cause of action against a health care provider or physician for ... claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury or death of a claimant"). In contrast, the proportionate-responsibility statute concerns "responsibility," not "liability," so that a person can be wholly or partially "responsible" for the harm at issue without being "liable" for the damages assessed as compensation for that harm. Compare id. § 33.011(3) (West 2015) ("`Liable defendant' means a defendant against whom a judgment can be entered for at least a portion of the damages awarded to the claimant." (emphasis added)) with id. § 33.011(6) ("`Responsible third party' means any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought ...." (emphasis added)). To determine that a person is "responsible," the factfinder need find only that the person "caus[ed] or contribut[ed] to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these." Id. § 33.003 (emphasis added).
We agree with ExxonMobil that section 74.153 does not apply to the designation of Dr. Dang as a responsible third party. Since Hood v. Phillips, the Texas Supreme Court's seminal case defining a physician's standard of care, a single standard of care has applied to physicians: the question to be answered is whether the physician undertook "a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances." 554 S.W.2d 160, 165 (Tex.1977). In answering that question, "[t]he circumstances to be considered include, but are not limited to, the expertise of and means available to the physician-defendant,
Section 74.153 of the Civil Practice & Remedies Code does not purport to change this standard of care; it instead provides the standard of proof that is required to establish liability for harm to a patient arising from the provision of emergency medical care, because with limited exceptions, one "who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent." See TEX.CIV. PRAC. & REM. CODE ANN. § 74.151(a) (West Supp. 2014); see also Benish v. Grottie, 281 S.W.3d 184, 191 (Tex.App.-Fort Worth 2009, pet. denied) ("Section 74.153's statutorily created standard of proof and the applicable medical standards of care are not the same thing."); Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 556 (Tex.App.-Dallas 2009, no pet.) (same); Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 464 (Tex.App.-Amarillo 2006, pet. denied) (same). Thus, when a claimant seeks to recover damages for harm caused by allegedly deficient emergency medical care, the legislature has heightened the standard of proof required to establish the health-care provider's liability. See Bosch, 223 S.W.3d at 464 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.153). Stated differently, Chapter 74 does not change the "acceptable standard of medical care"; it simply allows one providing emergency medical care to deviate from that standard by a wider margin before becoming liable in damages for its breach. But as discussed further below, even if an emergency-room physician has not deviated from the standard of care sufficiently to make him "liable" for damages, he nevertheless may have deviated from it sufficiently to make him "responsible."
In contrast to section 74.153, the proportionate-responsibility statute does not address the standard of proof for a claimant to hold a defendant liable for damages. It instead provides a means for comparing the extent of fault, providing the means for a defendant to reduce both its own liability and the claimant's recovery. See TEX. CIV. PRAC & REM. CODE ANN. § 33.012 (West 2015) (reducing the amount of a claimant's recovery); id. § 33.013 (reducing the amount of a liable defendant's liability). Because the statute evidences the legislature's intent that the factfinder determine the "percentage of responsibility," its plain language requires the factfinder to compare the conduct of those who allegedly violated a legal standard — even if the plaintiff could not hold all of them liable for the resulting harm. See In re Transit Mix Concrete & Materials Co., No. 12-13-00364-CV, 2014 WL 1922724, at *2-3 (Tex.App.-Tyler 2014, orig. proceeding) (mem.op.) (agreeing that a motion to strike the designation of a responsible third party may be defeated without evidence of an "actionable act or omission" to "establish liability"; the designating party need only produce more than a scintilla of evidence that the third party is "responsible" for the claimant's injury or damage, as that term is used in the proportionate-responsibility statute (internal quotation marks omitted)). We may not ignore such specific statutory language even where its application may render a plaintiff less than whole. See, e.g., Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868-69 (Tex.2009) (noting that the proportionate-liability statute is "apparently unconcerned with the substantive defenses of responsible third parties" that place them beyond the reach of the plaintiff).
Under the proportionate-responsibility statute, a motion to strike the designation of a responsible third party is warranted only if "there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage." See id. § 33.004(l). When measured by the correct standard, Exxon-Mobil produced sufficient evidence to defeat the Pagayons' motion to strike.
In its response, ExxonMobil asserted that in the opinion of its expert Dr. Casar, Dr. Dang breached the standard of care in three interconnected ways.
First, Dr. Casar contends that Dr. Dang misread a chest x-ray that was taken shortly after Alfredo arrived in the emergency room. Alfredo was born without a left lung, but according to Dr. Casar, Dr. Dang misinterpreted the chest x-ray showing this defect and instead diagnosed Alfredo with a hemothorax on that side, meaning that Dr. Dang believed that blood was collecting in the space between Alfredo's chest wall and his left lung. Dr. Casar stated in his report that the x-ray revealed three signs that could be "clearly viewed on the chest x-ray" and that were "inconsistent with the diagnosis of hemothorax." Dr. Casar additionally stated that if Alfredo had been bleeding into his chest cavity, his blood pressure would have dropped, but instead, his blood pressure was elevated.
Second, Dr. Dang failed to order a CT scan of Alfredo's chest before attempting to insert a chest tube to drain the hemothorax that he believed existed. Regarding the failure to timely secure a CT scan of Alfredo's chest, Dr. Casar stated in his report only that "any prudent physician would have ordered a CT scan in order to acquire more information in regards to the chest x-ray," and that when the scan was actually performed, it revealed that Alfredo was born without a left lung and had a large hematoma from the unsuccessful attempt to place a chest tube.
Third, Dr. Casar opined that Dr. Dang breached the standard of care by attempting to insert a chest tube to drain the hemothorax. Dr. Casar stated that after the failed attempts to insert a chest tube, Alfredo was given ten milligrams of morphine for his resulting complaints of pain. Dr. Casar explained that a patient who is missing a lung and has pulmonary hypertension is "extremely sensitive to the depressing effects of narcotics and it comes as no surprise that the patient developed progressive respiratory failure that required intubation and mechanical ventilation." According to Dr. Casar, "This was a direct result of giving the patient narcotics to control the chest wall pain caused by
This evidence is sufficient to raise a question of fact as to whether Dr. Dang is responsible for at least a portion of the Pagayons' "alleged injury or damage," which is all that the statute requires. See id.
Although our dissenting colleague would conclude that the trial court did not err in granting the motion to strike because Dr. Casar was not familiar with the standard of care for an emergency-room physician, that is a conclusion concerning Dr. Casar's qualifications. See Roberts v. Williamson, 111 S.W.3d 113, 121-22 (Tex.2003). But on appeal, no one has challenged Dr. Casar's qualifications to offer an expert opinion on the applicable standard of care — nor, so far as we can tell, did anyone do so in the trial court. Thus, any objection to his qualifications to render an expert opinion on the subject has been neither preserved nor presented. See Croft v. State, 148 S.W.3d 533, 544 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
Moreover, the dissent applies the wrong test. Whether Dr. Casar is qualified to testify on the causes and effects of a person's injuries would be measured by Texas Rule of Evidence 702. See Roberts, 111 S.W.3d at 121-22. The question to be answered is whether the party offering the expert's testimony has established that the witness "has `knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (quoting TEX. R. EVID. 702). A physician from one school of practice may testify about the negligence of a physician of a different school of practice "so long as the `subject of inquiry is common to and equally recognized and developed' in both fields." Id. at 152 (quoting Hart v. Van Zandt, 399 S.W.2d 791, 797 (Tex.1965)). Thus, in determining whether a doctor is qualified to testify on the specific issue before it, the trial court "should not focus on the specialty of the medical expert." Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 750 (Tex.App.-El Paso 2011, no pet.) (citing Roberts, 111 S.W.3d at 122). And here, Dr. Casar testified repeatedly — and without contradiction — that the standard of care for reading a chest x-ray is the same regardless of the physician's school of practice.
In sum, we conclude the evidence is sufficient to raise a question of fact as to whether Dr. Dang caused or contributed to causing "in any way the harm for which recovery of damages is sought, whether by negligent act or omission ..., by other conduct or activity that violates an applicable legal standard, or by any combination of these." See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). We accordingly sustain this issue.
Although we conclude that the trial court erred in striking ExxonMobil's designation of Dr. Dang as a responsible third party, the error is not reversible unless it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. See TEX. R. APP. P. 44.1 (a). By striking the designation of Dr. Dang as a responsible third party, the trial court removed Dr. Dang from the list of persons whose percentage of responsibility could be submitted to the jury. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a).
Here, the extent to which Dr. Dang was responsible for "causing or contributing to cause in any way the harm for which recovery of damages is sought"
But as Dr. Casar would have testified, something else happened in the emergency room. When Alfredo's vital signs were checked upon his arrival, it was discovered that he had no breath sounds from the lower left side of his chest, and he had an oxygen saturation of just 75%.
It is undisputed, however, that this diagnosis was wrong. Alfredo did not have a hemothorax; he was born without a left lung. Dr. Casar would have testified that Dr. Dang breached the standard of care by misreading the x-ray in that he failed to note the signs that Alfredo did not have a hemothorax and had only one lung. Even Dr. Clavijo, the Pagayons' testifying medical expert, wrote in his own consultation notes, "Chest x-ray showed absence of left lung."
According to Dr. Casar, Alfredo's medical complications and eventual death arose from Dr. Dang's misreading of the chest x-ray and his resultant efforts to treat a condition that Alfredo did not have (a hemothorax), while failing to take into consideration the condition that Alfredo did have (a missing lung).
Dr. Dang stated in his notes that Alfredo was given morphine for the attempted insertion of a chest tube to drain the excess fluid that Dr. Dang believed was collecting in Alfredo's chest. Alfredo was given the first dose of four milligrams of morphine at 6:42 p.m., four minutes before Dr. Dang's first attempt to insert a chest tube. He attempted to insert a chest tube at 6:46 p.m. and again at around 6:52 p.m. After these attempts, Alfredo's primary complaint of pain no longer concerned his face or back, and he instead complained of pain at the site where Dr. Dang had attempted to insert the chest tube. Dr. Dang responded with more morphine. Sixteen minutes after Dr. Dang's second attempt to insert a chest tube, Alfredo was given four more milligrams of morphine, and twenty minutes after that, Alfredo was given a further six milligrams of morphine. Thus, in connection with his attempt to insert a chest tube, Dr. Dang caused Alfredo to be given a total of fourteen milligrams of morphine in the space of forty-six minutes. Dr. Casar would have testified that when a dose of about eight milligrams is given to someone with only one lung, it can be expected that the patient will stop breathing. He stated that although Alfredo was given a medication to reverse the effects of morphine and "for a little bit he
Alfredo was admitted "to the floor" of the hospital, but shortly after his arrival, he suffered acute respiratory failure and was transferred to the intensive-care unit where Dr. Clavijo intubated him at 8:20 a.m. Dr. Clavijo testified that Alfredo was intubated because he was hypoventilating, meaning that his body could not get rid of carbon dioxide. Dr. Clavijo testified that hypoventilating "causes somnolence and lethargy and, subsequently, complete respiratory failure," but he identified no injuries that Alfredo received in the fight that could have caused hypoventilation. He further testified that Alfredo was never able to be weaned off of intubation, and that continuing intubation was a problem because this leaves tubes in the patient's body that can cause infection and further complications — including, in Alfredo's case, "a sepsis-type of infection." According to Dr. Clavijo, Alfredo's respiratory failure also caused his other systems to shut down. Dr. Casar, Dr. Clavijo, and Alfredo's death certificate all identify respiratory failure as one of the causes of Alfredo's death.
Finally, Dr. Clavijo agreed that "the trauma ... that occurred on August 1, at Exxon, it kind of set off a chain of events that caused this respiratory failure that then caused [Alfredo's] renal failure and that eventually resulted in his death." (emphasis added). The "trauma" sustained "at Exxon" was not identified, and the jury did not hear the evidence that the events in this chain included Dr. Dang's alleged negligence in misreading Alfredo's chest x-ray, failing to observe that Alfredo had only one lung, attempting to insert a chest tube, and administering morphine in doses high enough to cause respiratory failure. Jurors also did not hear Dr. Casar's testimony that the injuries Alfredo received in the fight did not cause his death, and that Alfredo's death instead was caused by Dr. Dang's negligence. And because the question of Dr. Dang's responsibility was removed from the case by the trial court's striking of the designation, the jury was unable to consider this hotly contested issue.
The Pagayons contend that even if Dr. Dang made errors that increased the harm to Alfredo or led to his death, Exxon would still bear the liability for the doctor's negligence under the "original tortfeasor rule." See, e.g., Cannon v. Pearson, 383 S.W.2d 565, 567 (Tex.1964) ("It has long been an accepted and established in this State that one who wrongfully injures another is liable in damages for the consequences of negligent treatment by a doctor or surgeon selected by the injured person in good faith and with ordinary care."); Galvan v. Fedder, 678 S.W.2d 596, 598 (Tex. App.-Houston [14th Dist.] 1984, no writ) (same). But as the Texas Supreme Court
We sustain this portion of ExxonMobil's third issue. Because we conclude that this error requires us to reverse the judgment and remand the case for a new trial, we do not reach ExxonMobil's remaining issues.
Although the evidence is legally sufficient to support the jury's liability finding against ExxonMobil under a negligent-supervision theory, we conclude that the trial court erred in striking the designation of Dr. Dang as a responsible third party, and that this error harmed ExxonMobil. Thus, without reaching ExxonMobil's remaining issues, we reverse the judgment and remand the case for a new trial consistent with this opinion.
(McCally, J., dissenting).
Sharon McCally, Justice, dissenting.
I agree with the Majority's determination that for purposes of its response to the Pagayons' motion to strike, ExxonMobil was not required to raise a fact issue regarding whether Dr. Dang, with willful and wanton negligence, violated the standard of care. I disagree, however, with the Majority's conclusion that ExxonMobil raised a fact issue concerning Dr. Dang's alleged negligence in providing emergency care to Alfredo. Because I would instead conclude that the trial court did not err in striking Dr. Dang's designation, I respectfully dissent.
Though the trial court did not articulate its basis for striking the designation of Dr. Dang in its order, there are two independent reasons that the decision is not error. The trial court would not have erred in concluding that the medical opinion ExxonMobil offered to raise a fact issue on Dr. Dang's alleged departure from the standard of care was not probative opinion testimony in that (1) the "expert" disclaimed knowledge of the applicable standard of care and (2) the physician's "expert opinion" was based upon assumed facts that varied from the actual, underlying facts.
Problematic to the above evidence is Dr. Casar's testimony that he is not familiar with the standard protocol for emergency room physicians when they believe they are confronted with a hemothorax and his assumption about the timely availability of diagnostic tools in the emergency room. First, Dr. Casar's field of expertise is critical care medicine, which he concedes has a different standard of care than emergency room medicine. Standing alone, the fact that Dr. Casar's expertise is in a different area is not fatal if Dr. Casar demonstrates knowledge of the area at issue. See Tex. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."); cf. Blan v. Ali, 7 S.W.3d 741, 745-46 (Tex.App.-Houston [14th Dist.] 1999, no pet.). But Dr. Casar repeatedly testified that he does not know the standard of care for an emergency room physician. Although Dr. Casar testified that, in his opinion, the standard of care for reading an x-ray is the same despite the diagnostic setting, he also stated that he was not familiar with the standard of care for an emergency room physician. When Dr. Casar admitted that he does not know the standard for an emergency room physician, he caused his own opinion that the standards are the same to be completely without foundation. In other words, if he does not know what the emergency standard is, he cannot know that the emergency standard is the same as the non-emergency standard.
Where the treatment criticized is provided as part of emergency care, the expert should demonstrate familiarity with that standard of care, not simply guess that the setting for care does not matter.
In short, Dr. Casar admitted he has neither the expertise nor the knowledge of reading x-rays or making critical decisions in an emergency room setting. Thus, I would conclude that the trial court did not err in determining that Dr. Casar lacked the requisite knowledge, skill, experience, training, or education to opine on the emergency care provided to Alfredo. See Tex.R. Evid. 702; cf. Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth 2004, pet. denied) ("A medical expert who is not of the same school of medicine, however, is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the [allegedly negligent physician]." (emphasis added)).
The majority urges that, notwithstanding Dr. Casar's admission that he is not familiar with the applicable standard, we may not affirm on this basis because the Pagayon's did not object to Dr. Casar's qualifications. I disagree factually and legally. Counsel for the Pagayons consistently and persistently pointed out Dr. Casar's lack of qualification before the trial court:
Thus, in my view, the Pagayons placed Dr. Casar's qualification at issue. Here, we are not faced with an alleged error on the admissibility of Dr. Casar's opinion. The trial court did not exclude the evidence. Instead, as the Texas Supreme Court has recently pointed out, the question is whether the expert's opinion is any evidence at all. Cf. Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-33 (Tex.2014) ("[I]f no basis for the opinion is offered, or the basis offered provides no support, the [expert] opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection." (internal quotation and citation omitted)).
Further, the nature of the opinion Dr. Casar proffers is, in the words of our opinion in Blan v. Ali, "peculiar to the field" of emergency medicine about which he knows nothing. 7 S.W.3d 741, 746 (Tex. App.-Houston [14th Dist.] 1999, no pet.). As noted above, Alfredo was admitted to the emergency room at 5:58 p.m. Dr. Dang testified that he "was very concerned about [Alfredo]'s medical condition and believed that if [he] did not take immediate medical action, [Alfredo]'s health could have been placed in serious jeopardy." Dr. Dang performed a physical examination and obtained a chest x-ray at approximately 6:08 p.m., which, as noted above, revealed complete opacification of the left hemithorax. Dr. Dang's interpretation of the chest x-ray was confirmed by Dr. DeSantos. Further, as Dr. Dang testified,
(emphasis added). Thus, according to Dr. Dang — and acknowledged by Dr. Casar — Dr. Dang was providing emergency medical care when he attempted the chest tube insertion. Dr. Casar's admission that he does not know the standard of care for emergency room physicians is "determinative." See id.
Second, Dr. Casar repeatedly displayed his unfamiliarity with the facts of Alfredo's care in his deposition testimony. Cf. Houston Unlimited, Inc. Metal Processing, 443 S.W.3d at 822 ("If an expert's opinion is unreliable because it is `based on assumed facts that vary from the actual facts,' the opinion `is not probative evidence.'" (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995)). If the factual assertions or assumptions underlying an expert's opinion are contrary to the facts, opinion testimony founded on those assumptions is not competent evidence. Cf. id. at 833. Here, Dr. Casar's opinion was based on assumptions contrary to proven facts in several respects.
In summary, Dr. Casar did not indicate that he was familiar with the facts of Alfredo's care. Instead, the record before the trial court indicates that he based his conclusions on either improper recollections of the facts or assumptions. See id.; cf. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.2010) (holding that the basis for an expert's opinion must be linked to the facts).
I would conclude, after considering Dr. Casar's testimony as a whole, that Dr. Casar's opinions do not raise a fact question regarding whether Dr. Dang failed to act as a reasonably prudent physician under the same or similar circumstances. Although Exxon Mobil offered Dr. Casar's opinion on emergency room treatment in an emergency situation, Dr. Casar did not undertake to analyze Dr. Dang's conduct in the context of the circumstances of emergency care. As such, Dr. Casar's statements that he does not know the emergency room standard of care is determinative. Cf. Ehrlich, 144 S.W.3d at 625; Blan, 7 S.W.3d at 746 (noting that expert's admission that he was unfamiliar with the emergency room and cardiology standards of care would be "persuasive, if not determinative if [he] were purporting to offer expert medical opinions in matters peculiar to the fields of cardiology or emergency medicine"). Dr. Casar's testimony completely misses the mark regarding whether Dr. Dang's care of Alfredo fell below the standard of care for a reasonably prudent physician in an emergency room setting. Indeed, Dr. Casar's testimony demonstrated he was unfamiliar with the actual facts surrounding Alfredo's medical care. Cf. Houston Unlimited, Inc. Metal Processing, 443 S.W.3d at 832-33; Jelinek, 328 S.W.3d at 539. Thus, I would conclude that Dr. Casar's opinion is no evidence of Dr. Dang's responsibility for Alfredo's death.
In sum, I agree with the Majority that ExxonMobil did not need to bring forth evidence that Dr. Dang willfully and wantonly departed from the standard of care. But ExxonMobil nonetheless needed to bring forth some probative evidence that Dr. Dang departed from the applicable standard of care. Because ExxonMobil failed to do so, I would conclude that the trial court did not err in striking the designation of Dr. Dang. Because the Majority concludes otherwise, I respectfully dissent.
(emphasis added).
