PATRICK A. PIRTLE, Justice.
Appellant, THI of Texas at Lubbock I, LLC, (THI), d/b/a Southwest Regional Specialty Hospital (Southwest Hospital) appeals from a judgment entered following a jury trial in a medical malpractice action seeking wrongful death and survival damages in favor of Appellees, Max Perea, Mario Perea, Tony Perea, and George Perea (collectively Perea), and the estate of their deceased father, Jacob Perea (Jacob). In support, THI asserts: (1) the trial court erred by denying THI's proposed jury instruction on negligence; (2) the trial court erred by permitting Appellees to amend their petition during trial to assert an action for negligent credentialing/hiring; (3) the trial court erred by granting judgment on Appellees' negligence theories; (4) Appellees' evidence of gross negligence was legally and (5) factually insufficient; (6) the trial court erroneously excluded THI's testimony regarding an in-house investigation into the circumstances of Jacob's death; and (7) the trial court failed to apply certain statutory liability caps to the damage awarded in Appellees' favor.
In December 2005, Appellees filed a medical malpractice action against THI, Pharmasource Healthcare, Inc. and Omnicare Inc., d/b/a Pharmasource Healthcare, Inc. (collectively Pharmasource), seeking wrongful death and survival damages.
During their case-in-chief, Appellees elicited testimony from Leonard Espinoza, a former charge nurse at Southwest Hospital who allegedly wrote an unauthorized order prescribing Ativan for Jacob, that he
In 2004, Jacob was a seventy-eight year old widower with four sons—Tony, George, Max, and Mario. He had a history of heart disease complicated by respiratory issues and diabetes. Nevertheless, until he experienced a fall in November 2004, Jacob spent his time maintaining seventeen acres of land owned by his sons. During the summer, he arose at 5:00 a.m. to mow and shred the land, quit at 10:00 a.m. due to the heat and then resumed at 6:00 p.m. He cleaned his own home and did not regularly use a walker or cane. He performed these tasks despite intervening gall bladder and heart surgeries.
In April 2004, Jacob was admitted to Covenant Medical Center in Lubbock, Texas, to have his gallbladder removed. While at Covenant, Jacob experienced confusion and was sedated with morphine and Ativan. Two days later, his cardiologist noted Jacob's "confusion [was] worse" and that "he may be over-sedated." Later, the same day, his cardiologist noted Jacob "was still confused, too sedated," and suspended the use of Ativan. The following day Jacob's neurologist noted Jacob was sitting in a chair, quite alert and attentive but still confused. His neurologist also noted that "holding . . . other potentially sedating meds is also working." Two days after the medication change, Jacob was discharged.
In May, Jacob was again seen at Covenant complaining of abdominal pain. On admission, his physical exam showed he was awake, alert, and able to answer questions reasonably well. His final diagnosis prior to discharge was acute renal failure. The discharge also stated Jacob was "not in clinic for congestive heart failure, medications adjusted, no episode of chest pain or shortness of breath, had baseline chronic renal insufficiency."
In June, Jacob returned to Covenant complaining of confusion and chest pain. During a consultation, his doctor noted Jacob had received Ativan the night before for agitation and appeared alert. His doctor opined that Jacob "likely has baseline dementia [with] secondary decompensation due to medical problems, change in environment, etc." His doctor subsequently issued an order to avoid Ativan. Jacob was later discharged home with continuation of home medications. His discharge summary indicated "[n]o acute interaction planned ... cardiac status-wise."
In July, Jacob underwent a successful coronary bypass surgery. Within weeks after the surgery, Jacob was driving and attending to his normal schedule. His doctors told Mario that morphine, prescribed for Jacob in the hospital, was causing him to be disoriented at home and Ativan was a major problem for Jacob. His discharge summary indicated there
In September, Jacob was admitted to Covenant suffering from shortness of breath. His doctor recommended Jacob continue his current heart medications while considering dialysis for chronic renal failure. Jacob was discharged three days later. His discharge summary stated "nothing acute, medications, home with family." In October, Jacob was admitted with complaints of shortness of breath. He was treated and "discharged in good condition."
In early November, Jacob was admitted to Covenant complaining of abdominal pain. He had missed his regularly scheduled dialysis and was feeling poorly with fluid overload. After a consultation, his doctor diagnosed Jacob as suffering from "congestive heart failure secondary to fluid overload." He recommended Jacob be discharged after dialysis and continue his current heart medications.
In late November, Jacob returned to Covenant complaining of a fall. His vital signs were stable. A CT scan showed a slight cervical spine fracture and he was placed in a collar. On examination, his doctor noted he was a "well-developed and well-nourished male who [was] sedated but arousable and follow[ed] commands." His doctor recommended Jacob undergo an MRI but recommended the test be delayed until the next day because Jacob was "too sedated [and] his myonclonus is too jerky for his MRI; at this time." His overall treatment plan was to admit Jacob, perform dialysis, resume his medication, and closely monitor.
During a discussion on December 1, Jacob's family informed Covenant's medical staff that Jacob became confused on Ativan. The staff then listed Ativan as an allergy for Jacob and notified the pharmacy. On December 2, Dr. C.J. Wheeler wrote an order indicating Jacob was sensitive to "Ativan/Benzodiazepines." For the MRI, he ordered that Jacob be sedated with Demerol and Versed
Prior to the MRI, Jacob was given Versed to sedate him while the MRI was being performed. Four hours later, Jacob went into cardiac arrest. He was intubated and placed on a breathing machine or ventilator. Naidu Chekuru, MD, performed a consultation and noted that "[a]n MRI was planned; as [Jacob] was too restless I believe they gave him Ativan which led to cardiopulmonary arrest" and "[h]e was required to be intubated and ventilator support." A Covenant charge nurse's report showed Jacob was allergic to morphine and Ativan. The allergies were also listed in his Restraint Assessment, Physician Order and Documentation Protocol: "Allergies: Morphine/Ativan."
On December 12, Jacob was discharged from Covenant and transferred to Southwest Hospital, a skilled nursing facility, under the care of Kenneth Michael Rice, M.D. The narrative summary indicated Jacob, on admission, was "neurologically intact, stable cardiac evaluation." Recommendations included a neck brace to immobilize Jacob's neck and continuation of antibiotics. The discharge summary noted that Jacob was "released in stable condition" and he was "ALLERGIC TO LORAZEPAM
That evening, Dr. Rice received a call from Mario who was requesting to take his father home. Dr. Rice spoke to Mario and explained that his father had suffered a serious fracture and might be paralyzed if not properly taken care of. Mario relented but informed Dr. Rice that his father had allergies or side effects to morphine and Ativan. Dr. Rice assured Mario that Southwest Hospital had procedures to "guard against such a thing happening."
On December 16, Dr. Rice noted in Jacob's "History and Physical: Allergies:
A physical examination showed "cardiovascular, regular rate and rhythm, chest—bilateral breath sounds are diminished throughout." The NDR for the shift ending at 7:00 a.m. on December 17 indicated the nurse had received the prior report and assumed care. Jacob received Zyprexia which he tolerated well and was resting. The Report also listed morphine, Ativan, and Demerol as allergies for Jacob. A second NDR for the 7:00 p.m. shift also listed Jacob's allergies as Ativan and Demerol.
On December 18, Kimberly Graham, Dr. Rice's Nurse Practitioner,
Nurse Frances Rosales was assigned to Jacob from 7:00 a.m. to 7:00 p.m. on December 18. She testified that to familiarize herself with Jacob, she reviewed his MAR and physician's orders for her shift—neither of which alerted her to Jacob's allergies.
Espinoza testified that, as charge nurse, he managed the staff of floor nurses and any communications to a physician came through him. Espinoza testified he "believe[d]" he contacted Kimberly Graham by telephone and she gave him the order for Ativan.
Nurse Rosales reported Jacob's condition to Nurse Rick Joiner who was assigned to care for Jacob for the 7:00 p.m. to 7:00 a.m. shift. Nurse Joiner looked at Nurse Rosales's NDR, Jacob's MAR, and his CARDEX
Fifteen minutes later, at 7:15 a.m., Joiner's replacement discovered Jacob had no vital signs and was unresponsive. CPR was started at 7:18 a.m., Jacob was intubated at 7:27 a.m., EMS obtained a good pulse and Jacob was transported to Covenant where he was admitted for respiratory failure. Southwest Hospital's discharge summary did not list Ativan as a medication received by Jacob.
The admission report of consulting physician Srinivas Kadiyala noted Jacob was found at Southwest Hospital "unresponsive and in cardiorespiratory arrest." She also stated:
There was little, or no, change in Jacob's condition during the following week and, after a long discussion, Jacob's family decided to place him as do-not-resuscitate. Jacob expired shortly after he was removed from the ventilator.
Expert testimony at trial centered around whether Jacob's death was caused by the administration of the two doses of Ativan by Southwest Hospital's nurses on December 18 and 19.
Joe Haines, M.D., testified that, in his opinion, Southwest Hospital's nurses were negligent in Jacob's care and treatment. He testified Southwest Hospital's nurses administered the Ativan despite extensive documentation of his allergy.
He also testified their negligence caused Jacob's death. Based on his experience, he testified common side effects from Ativan range from sedation and respiratory depression (not taking enough breaths or not breathing deeply enough) to agitation and confusion.
Dr. Haines opined that, after Jacob received the second two milligram dose of Ativan at 1:30 a.m. on the morning of December 19, he was overdosed and over-sedated causing his breathing to become increasingly more shallow until there was insufficient oxygen to support the functions of the heart or brain causing his heart to go into arrhythmia until Jacob suffered a cardiac arrest and finally quit breathing altogether due to respiratory depression. Dr. Haines testified that prior to the multiple doses of Ativan, the medical records did not show Jacob was experiencing irregular heart rhythms that were dangerous or any symptoms indicating a heart attack, i.e., chest pains, nausea, shortness of breath.
He also testified that, although Jacob did not undergo a medical test to determine whether he had an actual "allergy" to Ativan, there was sufficient evidence in his medical records to show he reacted badly to the drug, i.e., Jacob quit breathing four hours after receiving Versed (a faster acting drug of the same class as Ativan-Benzodiazepine) prior to the MRI at Covenant. Dr. Haines testified that the documentary evidence showed his physicians had seen enough evidence and been sufficiently warned by Jacob's family to show "the doctor's [were] obviously concerned, and they are concerned enough to enter it on the chart, so that everybody that looks at the chart that day will see that. . . . So it's basically putting everybody on alert. Don't use this drug on this patient." Although he recognized that Jacob's reaction to Ativan might be characterized in his medical records as an "allergy," "sensitivity," "adverse reaction" or "paradoxical reaction," he testified "[w]hat is important is that they didn't want him to have [Ativan], because it was bad for him to have [Ativan], and they should have known that and not given it to him."
Dr. Haines opined that the administration of the two doses of Ativan to Jacob by Southwest Hospital's nurses involved an extreme degree of risk considering the probability and magnitude of potential harm to Jacob. Further, Dr. Haines opined that Espinoza had actual awareness of the risk involved but proceeded with conscious indifference to the rights, safety, and welfare of Jacob. In sum, Dr. Haines opined that Southwest Hospital and its nurses were grossly negligent.
Stacey Hail, M.D., opined that the two doses of Ativan did not proximately cause Jacob's death. Rather, she testified he died of a heart attack. She testified Jacob's medical records indicated he had a long history of coronary artery disease that resulted in scar tissue on his heart from past heart attacks. The scar tissue was irritable and had a tendency to cause arrhythmias, i.e., an accelerated heart rate. In her opinion, an arrhythmia caused Jacob's heart attack and he died from a fatal ventricular tachyarrhythmia.
In support, she relied on approximately fifteen pages of telemetry strips obtained from heart monitors attached to Jacob on December 1, 3, 5, 6, 10, 14, and 15 while he was at Covenant.
She further testified Ativan did not cause Jacob's death because he did not have an allergy to the drug and Ativan does not affect the cardiac muscle. She testified Ativan works on the same brain receptor that alcohol does and the drug makes you sleep—the higher the dose the longer you sleep.
She testified Ativan does not cause respiratory depression based upon her experience with suicidal patients she had seen in the emergency room. She opined that "two milligrams of Ativan is, by no means, an overdose," based on her experience in the emergency room where she has prescribed "a dose of eight milligrams at one time."
Dr. Rice opined that Jacob died from his underlying medical conditions. After his first visit with Jacob, he noted his multiple medical problems
Dr. Rice testified Jacob's death was not consistent with an overdose of Ativan because: (1) there is no scientific evidence that Ativan causes respiratory depression or distress; (2) heart attacks or sudden cardiac death usually occur within a very short period of time; and (3) he would have expected to see an adverse reaction from the Ativan within several minutes or hours.
On cross-examination, however, Dr. Rice agreed that respiratory failure is a side effect of Ativan reported by its manufacturer and decreased oxygen from decreased respirations can cause brain injury. Although he testified there was no scientific proof Ativan causes respiratory
He testified that he did not want Jacob to take Ativan because: (1) it is well known in literature that Ativan, in geriatric patients or in a severely ill patient, can cause a paradoxical result; (2) becoming more agitated was the type of reaction to Ativan described by Jacob's son; (3) he did not want Jacob to become significantly agitated because he had a bad heart, underlying disorders, and a C2 fracture; and (4) he did not want Jacob to raise his heart rate, nor put him on any type of stimulus that might cause him to have a heart attack or complicate his actions.
In Appellees' case-in-chief, Dr. Haines was asked whether a director of nurses or administrator of a facility should have some involvement in ensuring the employment of competent nurses. Dr. Haines responded that a person in that position should research the references of people that they hire, i.e., they should determine the nature and extent of their training and their past employment record. They should also learn whether there were problems at previous hospitals, and they should investigate any previous firings or allegations of inappropriate conduct.
Espinoza testified that, in September 1997, he agreed to a stipulated order from the State Board of Nursing in Colorado placing him on probation for administering Ativan to a patient without a physician's order and failing to document the drug's administration while working at a care center in Colorado Springs, Colorado. The conditions of his year-long probation were: (1) service while employed as a nurse for at least an average of thirty-two hours a week under adequate supervision by a licensed nurse with an unrestricted license; (2) board notification of the commencement or termination of such nursing employment; (3) submission of a written plan of nursing supervision for the Board's review and approval within six months of obtaining nursing employment; (4) completion of Board-approved education courses (twelve to fifteen hours of legal/ethical course(s); one credit pharmacology course); (5) provision of a copy of the stipulated order to the immediate nursing supervisor at his place of employment; (6) submission of a written report to the Board acknowledging, among other things, that the stipulated order was read and that the role of nursing supervisor was understood by that supervisor; and (7) in the event of relocation to another state, Espinoza would notify the Board of his change of address and give consent to the Board that it may notify the Board of Nursing of the state to which Espinoza relocated of the existence of the terms of and Espinoza's compliance with the stipulated order.
Espinoza testified that, after the complaint in Colorado was filed, he relocated to Texas and immediately started to practice as a nurse without disclosing the complaint or the Colorado Board proceedings. When the stipulated order was entered, he did not disclose that fact to his employer, Methodist Hospital in Lubbock, Texas, and he did not comply with any of the obligations required by that order.
From June 1996 to April 1997, Espinoza worked at Methodist Hospital. From May 1997 to September 2001, he worked at Highland Medical Center under the supervision of Connie Long. During the hiring process, although he did disclose his previous employment in Colorado, the Colorado Board disciplinary proceedings never came
Espinoza testified that in 2002 Long recruited him to work at Southwest Hospital. He testified that, at the time, even though she was aware of his stipulated order with the Colorado Board of Nursing, she did not have a problem putting him on the floor and permitting him to dispense medications to patients.
Espinoza further testified that in early 2005 he informed Long that he had a drug addiction.
During trial, Dr. Rice was asked whether a nurse whose license was suspended in 1997 for giving a medication to a patient without having obtained a doctor's order was unfit for employment as a nurse in 2004, and he responded "no." He further testified that it was okay to hire such a nurse if he or she had done everything they were supposed to do as required by the board of nurse examiners to rectify the mistake. He opined that nurses that go through rehabilitation deserve a second chance because they have complied with the board's orders related to probation or suspension. If not, he testified, they would not have a license and could not work. He further testified that a nurse "out there writing orders without permission puts a patient in an extreme risk, if put in extreme risk, could suffer injury to the patient's life."
Following the presentation of all the evidence, the trial court issued its jury charge stating, in pertinent part, as follows:
THI sought to replace Question 1 with the following language: "[d]id the negligence, if any, of the ones named below proximately cause the death of Jacob Perea?" (Emphasis added). Appellant also made the following objection, in pertinent part to the charge:
[Emphasis added].
Thereafter, the jury found THI and Pharmasource proximately caused the injury in question
In its judgment, the trial court apportioned Appellees recovery as follows:
Mario Perea, as representative of Jacob's
estate $ 307,760.22
Mario Perea, individually $ 347,283.82
Max Perea $ 347,283.82
Tony Perea $ 347,283.82
George Perea $ 347,283.82
____________
Total Judgment—Southwest Regional
Specialty Hospital $1,696,895.50
Thereafter, THI filed a motion for judgment notwithstanding the verdict, remittitur, and to modify, correct, or reform the judgment. The trial court denied THI's motion and its motion for reconsideration. This appeal followed.
THI asserts: (1) the trial court abused its discretion by using a broad-form jury instruction on negligence and proximate cause when Appellees sought survival and wrongful death damages; (2) the trial court abused its discretion by granting Appellees a trial amendment to assert an action for negligent credentialing/hiring because the amendment was prejudicial to the presentation of THI's defense; (3) Appellees' evidence was legally and factually insufficient to support a judgment on their claims of negligent credentialing/hiring and factually insufficient to support Appellees' claim of negligence, i.e., that THI's conduct proximately caused Jacob's death or the nurses at Southwest Hospital were negligent in the performance of their duties; (4) Appellees' evidence that THI was grossly negligent is legally and (5) factually insufficient; (6) the trial court abused its discretion by excluding evidence of the fact that THI had conducted an investigation related to Jacob's death; and (7) the trial court abused its discretion as a matter of law by failing to apply statutory damage caps in sections 41.008(b) and 74.301(b) of the Texas Civil Practice and Remedies Code.
We review a trial court's decision to submit or refuse a particular jury instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006). See In the Interest of V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). Although a trial court has great latitude and considerable discretion to determine necessary and proper jury instructions; see Tex.R. Civ. P. 277; H.E. Butt Grocery Company v. Bilotto, 985 S.W.2d 22, 23 (Tex.1998), the trial court abuses its discretion if "the court acts arbitrarily, unreasonably or without reference to guiding principles of law." McWilliams v. Masterson, 112 S.W.3d 314, 317 (Tex.App.-Amarillo 2003, pet. denied).
When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Shupe, 192 S.W.3d at 579 (citing Tex. Workers Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000)). Further, omission of an instruction is harmful, or reversible error, only if the omission probably caused the rendition of an improper
The Texas Survival Statute permits a decedent's heirs, legal representatives, and estates to bring actions for personal injuries the decedent suffered before his death; see Tex. Civ. Prac. & Rem.Code Ann. § 71.021 (Vernon 2008), while the Texas Wrongful Death Act confers a cause of action upon the surviving spouse, children, and parents of a decedent for their damages resulting from the decedent's death. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002, 71.004 (Vernon 2008).
To establish a cause of action under either statute, the claimant must establish a death and the occurrence of a wrongful act. Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.). If negligence is alleged as the wrongful act, the claimant must show that the defendant's negligent act or omission was a substantial factor in bringing about the decedent's death, and without it, the decedent's death would not have occurred. See Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008) (citing IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)).
The difference between the two statutes is the nature of the damages that may be recovered and who may collect them. The purpose of the Texas Survival Statute is "to continue a decedent's cause of action beyond death to redress decedent's estate for decedent's injuries that occurred before he died." Borth v. Charley's Concrete Co., 139 S.W.3d 391, 395 (Tex.App.-Fort Worth 2004, pet. denied). See Tex. Civ. Prac. & Rem.Code Ann. § 71.021 (Vernon 2008). On the other hand, the purpose of the Wrongful Death Act is to permit a surviving husband, wife, child, and parents of the decedent to bring a cause of action to redress their injuries resulting from the decedent's death. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002, 71.004, 71.010 (Vernon 2008).
Here, the gist of Appellees' action is that Southwest Hospital's nurses wrongfully administered two doses of Ativan to Jacob proximately causing his death. Jacob's estate sought to recover Jacob's damages for injuries he suffered prior to his death
To determine whether Southwest Hospital was negligent, the trial court chose to charge the jury with the Texas Pattern Jury Charge or Broad Form Charge for Joint Submission of Negligence and Proximate Cause. See STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES-GENERAL NEGLIGENCE; INTENTIONAL PERSONAL TORTS, PJC 4.1 (2008). Although the Texas Pattern Jury Charges are not "law," they are heavily relied upon by bench and bar and based on what the State Bar Committee perceives the present law to be. H.E. Butt Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex.App.-San Antonio 1996), aff'd, 985 S.W.2d 22 (Tex. 1998). See Borden, Inc. v. Price, 939 S.W.2d 247, 254 (Tex.App.-Amarillo 1997, writ denied).
The trial court's charge instructed the jury that, absent a proper legal definition for a term, the jury should attribute the "meaning commonly understood" to the words in the charge. Given the facts of this case and the similarity in the meanings of the terms "injury" and "death," as a precipitant to damages, we cannot say that, as a matter of law, a reasonable juror would have been misguided by the trial court's instruction. This is particularly so when the vast majority of the evidence at trial, both testimonial and documentary, was related to Jacob's manner of death and whether the Ativan dosage caused his death. In fact, during the trial court's hearing on the jury instructions, THI's counsel affirmatively stated that "[t]he only evidence of injury is death."
Further, while a Comment to PJC 4.1 addressing use of the terms "occurrence" or "injury" suggests that "[i]n a case involving death, the word `death' may be used instead of `injury'"; (emphasis added), this Comment addresses circumstances where there may be evidence of a plaintiff's negligence that is "injury-causing" or "injury-enhancing" but not "occurrence-causing." This Comment is inapplicable insofar as THI points to no evidence of record establishing that any negligence by Jacob, or by any other third party, may have either caused or enhanced his injury or death. Furthermore, THI did not request an issue attributing any negligence to Jacob.
Neither did the trial court abuse its discretion by failing to issue two instructions, i.e., one using the word "injury" and one using the word "death." While trial courts should obtain fact findings on all theories pleaded and supported by the evidence, a trial court is not required to, and should not, confuse the jury by submitting differently worded questions that call for the same factual finding. See Star Enterprise v. Marze, 61 S.W.3d 449, 459 (Tex.App.-San Antonio 2001, pet. denied). Questions are duplicitous if they embrace the same fact question, whether identical in language or merely similar in form. Miller v. Wal-Mart Stores, 918 S.W.2d 658, 664 (Tex.App.-Amarillo 1996, writ denied) (citing Holmes v. J.C. Penney Company,
Finally, even if use of the term "injury" rather than "death" were error, the answers sought by Southwest Hospital can be found in Questions 3(c) and 4 through 7. While Question 1 sought to establish whether THI's conduct negligently caused Jacob's injury, Questions 3(c), and 4 through 7, sought to establish damages resulting from his death.
During their case-in-chief, Appellees confronted Espinoza with the Colorado Board of Nursing's stipulated order and examined him without objection.
Under Rule 66 of the Texas Rules of Civil Procedure, a trial court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and thus is prejudicial on its face and the opposing party objects to the amendment. Hart v. Moore, 952 S.W.2d 90, 95 (Tex. App.-Amarillo 1997, writ denied) (citing Greenhalgh v. Service Lloyds Insurance Co., 787 S.W.2d 938, 939 (Tex.1990)). See The State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.) (per curiam) (decision to permit or deny trial amendment rests in sound discretion of trial judge if amendment asserts new cause of action or defense and thus prejudicial on its face), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994).
Appellees' trial amendment was made during their case-in-chief. THI had yet to put on its defense. THI did not object to the amendment because of surprise or prejudice, nor did it seek a continuance. Rather, THI asserted that the proposed action was legally deficient and/or the underlying evidence in support of the action was irrelevant. Having failed to object to the amendment based upon surprise or prejudice, THI may not now assert these grounds on appeal.
To preserve error on appeal, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity and complies with the rules of evidence and procedure. See Tex. R.App. P. 33.1(a). Because THI presents this argument for the first time on appeal, it is waived. Id. See Marine Transp. Corp. v. Methodist Hosp., 221 S.W.3d 138, 147 n. 3 (Tex.App.-Houston [1st Dist.] 2006, no pet.). THI's second issue is overruled.
THI asserts Appellees' evidence at trial in support of their negligent credentialing/hiring claim is both legally and factually insufficient, i.e., Appellee failed to establish Southwest Hospital's conduct breached any standard of care in hiring Espinoza or that any negligence in hiring Espinoza caused Jacob's death. THI also asserts Appellees' evidence at trial in support of their negligence claim against Southwest Hospital is factually insufficient, i.e., Appellees' expert evidence that Southwest Hospital's negligence caused Jacob's death, when compared to THI's expert evidence, is so weak that it is clearly wrong and manifestly unjust.
In conducting a legal sufficiency review,
In reviewing a factual sufficiency challenge, we consider all the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). If, as here, the appellant is challenging the factual sufficiency of the evidence to support a finding on an issue on which the other party had the burden of proof, we must overrule the complaint unless, considering all the evidence, the finding is clearly wrong and manifestly unjust. See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.-Tyler 2004, no pet.) (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)). Inferences may support a judgment only if they are reasonable in light of all the evidence; id., and, again, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). In addition, the mere fact that we might have reached a different conclusion on the facts does not authorize us to substitute our judgment for that of the jury. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). See Richmond Condominiums v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 658 (Tex.App.-Fort Worth 2008, no pet.).
Here, although Appellees' claim is that Southwest Hospital was negligent in credentialing or hiring Espinoza, the thrust of the claim is that the health care facility failed to protect its patient—a claim that "necessarily implicate[s] the acceptable standards of safety pursuant to the definition of health care liability claim."
An employer is liable for negligent hiring, supervision, or retention when proof is presented that the employer hired an incompetent or unfit employee whom it knew or, by the exercise of reasonable care, should have known was incompetent or unfit, thereby creating an unreasonable risk of harm to others. See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.App.-Fort Worth 2008, no pet.). Because Appellees' claim of negligent credentialing and hiring is cognizable under chapter 74 of the Texas Civil Practice and Remedies Code; Garland Community Hosp. v. Rose, 156 S.W.3d 541, 544, 545-46 (Tex.2003), expert testimony is necessary to establish the elements of the claim. Holguin, 256 S.W.3d at 356.
THI asserts Appellees failed to produce more than a scintilla of probative evidence that THI breached its standard of care by hiring Espinoza and, if so, any breach by THI proximately caused Jacob's injuries.
Dr. Haines also testified that, if a nurse went "rogue" and administered prescription
Espinoza testified that, prior to being employed at Southwest Hospital, he had been disciplined by the Colorado Board of Nursing for administering Ativan to a patient without a physician's prior approval. The Colorado Board of Nursing placed Espinoza on probation with specific tasks to be completed prior to reinstatement of his nursing license. He testified he relocated to Texas,
Espinoza further testified that in 1997 he was hired at Highland Medical Center where his supervising nurse was Connie Long. He testified that he spoke to Long about his probation in Colorado and she hired him despite knowing that he had his license suspended in Colorado for administering Ativan without a doctor's approval.
Although Espinoza testified he wrote the order to administer Ativan to Jacob after receiving approval from Nurse Graham by telephone, the jury could reasonably infer from Dr. Rice's and Nurse Graham's testimony that Espinoza wrote the order himself without prior approval. Nurse Graham testified that she did not receive any calls from Espinoza that day and had no doubt that she did not approve the order to administer Ativan to Jacob.
Although the testimony regarding who approved the administration of Ativan to Jacob was conflicting, the jury's verdict indicates they credited and gave weight to Nurse Graham's testimony. See Wilson, 168 S.W.3d at 819 ("Jurors are the sole judges of the credibility of witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another" and "[r]eviewing courts cannot impose their own opinions to the contrary."). See also Texas Drydock, Inc. v. Davis, 4 S.W.3d 919, 924 (Tex.App.-Beaumont 1999, no pet.). Moreover,
Given this evidence, we conclude there was more than a scintilla of evidence establishing that THI breached its duty to hire nurses that were competent or fit for employment. The jury could reasonably infer from the evidence that THI, through Long, hired Espinoza knowing he was on probation due to disciplinary proceedings in another state, for conduct that reasonably endangered the health and safety of patients entrusted to his care. The evidence also reflects Long did so without taking any precautions to assure that Espinoza would not commit the same violations again. Further, Espinoza was permitted to medicate patients and then ultimately was placed in a managing position with responsibilities that included supervising authority over nurses, advising physicians or their assistants on medications, writing telephone orders for the administration of drugs to patients, and instructing nurses on which drugs to administer.
THI points to Dr. Rice's answer to a hypothetical question as evidence that Southwest Hospital was not negligent in hiring Espinoza. Dr. Rice testified he would not consider a previously disciplined nurse unfit if that nurse had complied with the rehabilitative conditions established by the board of nursing and had worked for six years at two different hospitals without further incident. Notwithstanding this statement, the jury was free to conclude that Espinoza never complied with the rehabilitative conditions of the Colorado order.
THI also asserts that the passage of six years time between the act that caused the Colorado Board of Nursing to place Espinoza on probation and Jacob's injury rendered the Colorado Board of Nursing Order irrelevant. This assertion overlooks the principle that, "[w]hen a plaintiff's credentialing [or hiring] complaint centers on the quality of the [patient's] treatment . . . the hospital's acts or omissions in credentialing [or hiring] are inextricably intertwined with the patient's medical treatment and the hospital's provision of health care." Rose, 156 S.W.3d at 546. The Rose court stated, in pertinent part, as follows:
156 S.W.3d at 545. (Emphasis added). Accordingly, we cannot say that the passage of time or Espinoza's prior employment, as a matter of law, absolves THI of any breach of its duty to hire and retain competent nurses.
Regarding causation, here, Espinoza's conduct, as it pertains to Jacob, is identical to the wrongful conduct he committed in Colorado, i.e., administering Ativan without required approvals. The evidence supports the conclusion that, although Long was aware of Espinoza's stipulated probation order, she never reported
The jury's findings that THI was negligent in hiring Espinoza and that negligence caused Jacob's injury are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, we cannot say that the evidence was either legally or factually insufficient to support the jury's verdict under Appellees' negligent credentialing/hiring theory of recovery.
THI next contends the evidence is factually insufficient to support the jury's finding that THI's negligence, through its employees, in administering two doses of Ativan to Jacob proximately caused his death.
While proximate cause in a medical malpractice case must be based upon reasonable medical probability; Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995), "[t]he quantum of proof required is simply `that it is more likely than not that the ultimate harm or condition resulted from such negligence." Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397, 400 (Tex.1993). A plaintiff is not required to exclude every other reasonable hypothesis; Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.App.-Fort Worth 2003, pet. denied), and more than one proximate cause may exist. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001) (question is whether the wrongful act "was `a' proximate cause, not `the' proximate cause" of decedent's death).
To satisfy the causal element of proximate cause, the wrongful act need only be a substantial factor
Any objection to the qualifications or methodology of Appellees' expert witness, Dr. Haines, was waived at trial because THI made no objection to his testimony. To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the
Dr. Haines practiced family medicine for twenty-three years. His practice is comprised of approximately thirty percent of patients over sixty-five years of age. He has cared for patients taking benzodiazepines, the same class of drug as Ativan. He testified that common side effects from Ativan range from sedation and respiratory depression to agitation and confusion. He also testified Ativan's manufacturer listed respiratory depression as the top adverse reaction to the drug
Although Jacob did not undergo a specific medical test to determine whether he had an allergy to Ativan, Dr. Haines testified Jacob's medical records indicated that he "reacted badly" to Ativan prior to being admitted to Southwest Hospital, i.e., quit breathing after receiving Versed, another benzodiazepine, in preparation for a recent MRI at Covenant and experienced agitation/confusion when medicated by Ativan as illustrated by his physicians' orders labeling Ativan as an allergy for Jacob.
Dr. Haines opined that, after Jacob received the second dose of Ativan in the early morning hours of December 19, he was overdosed. His breathing became increasingly more shallow until there was insufficient oxygen to support the functions of his heart or brain causing his heart to go into arrhythmia until he suffered a cardiac arrest and finally quit breathing altogether due to respiratory depression.
Dr. Hail disagreed. She testified that Jacob died of a heart attack based upon a blood test taken nearly an hour after Jacob was found unresponsive and was transferred to Covenant. She also based her opinion on telemetry strips recorded at Covenant on December 12 (before Jacob was transferred to Southwest Hospital) and on December 19 (after Jacob was returned from Southwest Hospital.) She opined that, based upon her experience in the emergency room, Ativan does not cause respiratory depression and two milligrams of Ativan was not an overdose.
Contrary to Dr. Hail's opinion, however, hospital documentation showed Jacob's heart condition was stable prior to receiving the two doses of Ativan. When Jacob was transferred from Covenant to Southwest Hospital on December 12, his discharge summary noted that he was "released in stable condition, neurologically intact [with] a stable cardiac evaluation." No medical devices were utilized to monitor Jacob's cardiac condition while he was at Southwest Hospital.
Prior to receiving Ativan on December 18, Jacob's Progress Note indicated he was negative for shortness of breath, negative for chest pain, and negative for nausea or vomiting. Although the December 18 Progress Note indicated he was experiencing atrial fibrillation, the Progress Note stated he was "on Coumadin as well as Lorenex, continue these and recheck 12/20/04." (Emphasis added). Further, only hours before receiving either dose of Ativan on December 18 and 19, Nurse Graham checked Jacob's breathing status and vital signs. She noted his oxygen
Approximately six hours after receiving what Dr. Haines termed an overdose of Ativan, Jacob was discovered with no vital signs and unresponsive. On subsequent examination by Dr. Wheeler at Covenant, he noted Jacob was "currently obtunded, probably secondary to [an] Ativan injection." Dr. Wheeler noted that "allergies noted on [Southwest Hospital's] history show morphine and Ativan," and that Jacob had "recently been given Ativan 2 mg IV push q. 4 hours p.r.n., he has received two doses of this over the last 24 hour period." Based upon Jacob's medical records in addition to his experience, Dr. Haines opined that, prior to receiving Ativan, Jacob's medical records did not show he was experiencing irregular heart rhythms that were dangerous or symptoms associated with a heart attack such as chest pains, nausea, or shortness of breath prior to his coding.
Dr. Hail also testified that, if Jacob was having an allergic reaction to Ativan, the manifestation of his symptoms would have occurred within minutes of taking the Ativan rather than hours later. Dr. Haines, on the other hand, testified that Jacob did not go into anaphylactic shock after receiving the Ativan which, in his opinion, could occur within an hour or two of taking the Ativan, but instead suffered from an adverse reaction or side effect due to his sensitivity to Ativan. He testified the effect of the multiple doses of Ativan on Jacob was cumulative, i.e., his respiratory distress or adverse reaction slowly increased as the medication was digested and absorbed into the bloodstream until he was unable to breathe.
Dr. Haines testified that Jacob arrested four hours after the MRI at Covenant on December 3 when, prior to the MRI, he had received Versed, a member of the benzodiazepine family of drugs and faster acting than Ativan. In his opinion, Jacob suffered a similar adverse reaction at Southwest Hospital where he was given multiple two milligram doses of Ativan, one at 4:00 p.m. on December 18 and another at 1:30 a.m. on December 19, and arrested approximately five hours and forty-five minutes after the second dose of Ativan at 7:15 a.m.
Dr. Rice opined that Jacob died of his underlying medical conditions. He pointed to the same blood test and telemetry readings relied on by Dr. Hail. Although he testified there was no scientific evidence that Ativan causes respiratory depression, he conceded that respiratory failure is a side effect of Ativan reported by its manufacturer. He also testified that complications from taking a drug of the benzodiazepine class, which includes Ativan, includes obtundation, as noted by Dr. Wheeler on Jacob's admission on December 19, i.e., "a level of consciousness before a coma."
Dr. Rice testified that he did not want Jacob to receive Ativan because (1) it was well known in literature that Ativan in geriatric patients or severely ill patients doesn't calm them down like it's supposed to but may make the patient wilder and more agitated; (2) Jacob's son had communicated that Jacob had these reactions to the drug; and (3) he didn't want to raise Jacob's heart rate because he was concerned that the stimulus might cause Jacob to suffer a heart attack. For all these reasons, Dr. Rice simply "didn't want [Jacob] to have it." This testimony supports Dr. Haines's conclusion that the two doses of Ativan caused Jacob to arrest.
The jury has broad latitude to infer proximate cause from the evidence and the circumstances surrounding the injury-producing act especially when it is not possible to produce direct proof of proximate
Here, aided by expert testimony, the jury was free to determine that the administration of Ativan caused Jacob to arrest because he was stable and experiencing no symptoms of a heart attack prior to being injected with the two doses of Ativan, yet arrested only hours after having been given the drug. In addition, that Jacob's vital signs were not being electronically monitored at Southwest Hospital as they had been previously at Covenant, his vital signs were not being taken during nurse shift visitations, and his December 18 progress note indicated it was not necessary to check his heart medications until December 20 prior to receiving the Ativan, were also some evidence from which the jury could reasonably infer that Jacob's heart condition was not critical.
Similarly, scientific principles provided by Dr. Haines establish a traceable chain of causation from the condition—Jacob's arrest—back to the event—the administration of multiple doses of Ativan. Having considered all the evidence, we cannot say that the jury's finding that THI's negligence caused Jacob's injuries or death was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, THI's third issue is overruled.
Appellees argued to the jury that THI was grossly negligent in causing harm to Jacob through the administration of Ativan by either Nurse Jahomo or Espinoza and THI ratified or approved the act. Appellees further argued that THI was grossly negligent, or reckless, for employing Espinoza because he was unfit.
THI asserts there was no clear and convincing evidence that: (1) Espinoza or Jahomo were aware of the risk involved in administering Ativan to Jacob and chose to proceed in conscious indifference to his safety; (2) THI ratified Espinoza's or Jahomo's conduct, Espinoza was unfit to care for Jacob or THI was reckless in hiring him; or (3) Espinoza's employment proximately caused Jacob's death.
To recover exemplary damages, a plaintiff must prove by clear and convincing evidence
Thus, two elements comprise gross negligence. First, viewed objectively from the actor's standpoint, the act or omission complained of must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others. Harrison, 70 S.W.3d at 784-86; Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995).
In reviewing the legal sufficiency of the evidence under a clear and convincing standard, we look at all the evidence, in the light most favorable to the judgment, to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Garza, 164 S.W.3d at 622 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002)). We presume that the trier of fact resolved disputed facts in favor of its findings if a reasonable trier of fact could do so, and disregarded any evidence a reasonable fact finder could have disbelieved or found to have been incredible. Id. at 627; In the Interest of J.L., 163 S.W.3d 79, 85 (Tex. 2005). Further, "whenever the standard of proof at trial is elevated, [as here], the standard of appellate review must likewise be elevated." Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).
Focusing on the second, or subjective, component,
As discussed previously, the jury could reasonably infer from the evidence that Espinoza wrote the Ativan order for Jacob without the approval of either Dr. Rice or Nurse Graham. Viewed from the standpoints of Dr. Haines, Dr. Rice, Nurse Jahomo, and Espinoza, the administration of Ativan to a patient such as Jacob without a physician's approval could cause the patient's death. Dr. Rice testified that a nurse "out there writing orders without permission puts a patient in an extreme risk, [and] if put in an extreme risk, could suffer injury to a patient's life."
In fact, Espinoza agreed that it would be extremely dangerous to administer Ativan to a patient without a doctor's order and, after having been disciplined for an identical incident in Colorado, realized that he would put a patient in extreme risk of death if he were to do so again. Here, the jury could reasonably infer from the evidence that Espinoza prescribed Ativan for Jacob without a physician's orders and Espinoza agreed that, "if he wrote the order [for Ativan], he would be consciously disregarding [Jacob's] health, safety and welfare."
The evidence need not show, as THI contends, that Espinoza had specific knowledge of Jacob's allergy or sensitivity to Ativan. See Harrison, 70 S.W.3d at 786. Rather, the evidence need only be such that reasonable inferences of a conscious decision could be made. Id. Here, the jury's verdict is supported by evidence that Espinoza consciously countermanded Dr. Rice's order to treat Jacob with Zyprexia by prescribing Ativan knowing his decision could cost Jacob his life after having checked and knowing Jacob was allergic to the drug or not checking and not knowing, i.e., consciously indifferent to whether Jacob was allergic or not.
We find the evidence in this case is legally sufficient to support a finding that Espinoza had actual awareness of an extreme risk involved in prescribing Ativan for Jacob without physician permission, proceeded to act with conscious indifference to that risk, and was, therefore, grossly negligent.
A corporation may be liable in punitive damages for gross negligence only if the corporation itself commits gross negligence. Ellender, 968 S.W.2d at 921. Further, a corporation is grossly negligent if it authorizes or ratifies an agent's gross negligence, or if it is directly negligent in
In determining whether acts are directly attributable to the corporate employer, we do not restrict our review to individual elements or facts but instead consider all the surrounding facts and circumstances to determine whether the corporation itself is grossly negligent. Ellender, 968 S.W.2d at 922. These facts and circumstances include reasonable inferences the fact finder can draw from what the corporation did or failed to do and the facts existing at relevant times that contributed to a plaintiff's alleged damages. Id. at 924.
From the evidence, the fact finder could reasonably infer that Espinoza was unfit at the time he was recruited by Long, Southwest Hospital's Director of Nursing, in 2002.
Further, Espinoza testified that in early 2005 (after Jacob's death) he informed Long that he was a drug addict and she continued to permit him to work at Southwest Hospital. Thereafter, Espinoza's addiction was permitted to progress until he was reported impaired—sleepy, sleep-walking, running into walls, falling asleep at patients' bedsides. Espinoza was misappropriating morphine and Demerol from Southwest Hospital's computerized medicine dispensing system and taking the medications himself without proper authorization while falsifying the information in the system to make it appear as if patients were taking the medication. Finally, on November 19, 2005, he inserted an external jugular venous catheter in a patient without proper authorization, performing a medical procedure outside the parameters of a nursing license. In late December 2005, Espinoza was finally discharged by Long and Southwest Hospital administrator Graves.
From this evidence, the jury could reasonably infer that Long consciously disregarded the danger she was exposing patients to by permitting a "rogue" nurse, ostensibly unrepentant up to the time of
Looking at the evidence in a light most favorable to the judgment, we cannot say that a reasonable trier of fact could not have formed a firm belief or conviction that THI, through Long, was directly negligent in hiring an unfit agent and/or authorized or ratified Espinoza's gross negligence. Accordingly, we find that the evidence was legally sufficient to support the jury's finding of gross negligence.
When the burden of proof is clear and convincing evidence, the distinction between legal and factual sufficiency is very fine. In such a factual sufficiency review we must consider all the evidence the fact finder could reasonably have found to be clear and convincing, and then determine whether any fact finder could reasonably have formed a firm belief or conviction of the truth of the allegations. See In re J.F.C., 96 S.W.3d at 266; In the Interest of C.H., 89 S.W.3d 17, 25, 27-29 (Tex.2002). The difference in applying an elevated test under the clear and convincing standard is that "a higher quality of evidence is necessary to tip the scales." Garza, 164 S.W.3d at 625.
We consider whether the disputed evidence is such that a reasonable fact finder could have resolved it in favor of its finding. See In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, disputed evidence that a reasonable fact finder could not have resolved in favor of the finding is so significant as to prevent a fact finder reasonably from forming a firm belief or conviction of the truth of the finding, then the evidence is factually insufficient. See id.; In re S.M.L.D., 150 S.W.3d 754, 757 (Tex.App.-Amarillo 2004, no pet.).
In a single paragraph, without any citation to specific evidence in the record or its brief, THI asserts in a conclusory fashion that the evidence is factually insufficient to support the jury's findings either that: (1) Espinoza understood the extreme risks involved in administering a medication to a patient without prior approval by a physician but did not care when he prescribed Ativan for Jacob; (2) THI ratified Espinoza's conduct; (3) Espinoza was an unfit employee; or (4) THI was reckless for hiring Espinoza.
Rather than find THI waived these issues,
During discovery, THI asserted various statutory privileges to avoid disclosing any information or documents regarding any in-house investigation undertaken by Southwest Hospital into the circumstances surrounding Jacob's death.
To rebut the potential, yet improper, inference that the absence of an in-house investigation was some sort of corporate ratification of Espinoza's conduct, THI sought to offer the testimony of Dr. Rice concerning the matter. When Appellees objected to Dr. Rice testifying that an in-house investigation had been undertaken by Southwest Hospital, on the basis that THI had asserted its investigative privilege as to that subject during discovery, the trial court warned THI that its line of questioning would require full and complete disclosure of the investigation and its results. After consulting with her client, THI's counsel made the following statement:
Because THI chose to close the door on its own inquiry rather than open the door further with respect to the in-house investigation, the trial court never excluded the testimony of Dr. Rice. Accordingly, the trial court did not abuse its discretion by excluding any evidence. THI's issue six is overruled.
By its seventh and final issue, THI contends the trial court's judgment should be modified to reflect application of the various statutory provisions, found within
While the briefs filed by both THI and Appellees seem to indicate that the trial court did apply the § 74.303 limitation of damages provision in arriving at the dollar amount of the judgment entered, without a detailed explanation of the trial court's calculations, the mathematic and legal damage limiting principles applied by the trial court in the entry of its judgment are lost on this Court. Because this Court ultimately remands this case to the trial court for the entry of a judgment in accordance with this opinion, we deem it judicially appropriate to address the application of § 74.303 to the judgment to be entered in this cause.
Section 74.303 provides that:
THI contends Appellees should be considered a single claimant for purposes of their health care liability claim. See Tex. Civ. Prac. & Rem.Code § 74.001(a)(2). We find no case law that interprets the applicability of § 74.001(a)(2) in the context of the limitation of damages in a wrongful death and survival action on a health care liability claim where multiple persons are claiming to have sustained damages as the result of the bodily injury or death of a single person. Section 74.001(a)(2) provides that:
A plain reading of this statute clearly supports THI's contention. Therefore, for purposes of § 74.303, the estate of Jacob Perea, and his four sons, Mario, Max, Tony, and George, i.e., Appellees herein, are a single claimant, entitled to recover for all damages, including exemplary damages, but not including expenses of necessary medical, hospital, and custodial care, an amount not to exceed $500,000, as adjusted in accordance with the provisions of § 74.303(b). Based on the applicable consumer price index (CPI), on June 9, 2008, the § 74.303 cap was $1,737,272.00.
THI contends the trial court erred in failing to properly apply the statutory limitation of noneconomic damages found in § 74.301(b). Section 74.301(b) provides:
Appellees contend the rules of statutory construction dictate that § 74.301(b) does not apply in this case based upon the general principle that specific statutory provisions should govern over general provisions. Specifically, Appellees contend that the more specific provisions of § 74.303 (which is specifically applicable to a wrongful death or survival action) apply to the exclusion of more general provisions of § 74.301(b) (which is generally applicable to health care liability claims). See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex.2000) (determining that the judgment cap provisions of section 11.02 of article 4590i prevail over the general prejudgment interest provisions of article 5069-1.05);
When we construe a statute, our primary goal is to ascertain and give effect to the Legislatures intent in enacting it. Tex. Govt Code Ann. 312.005 (Vernon 2005); In re Canales, 52 S.W.3d 698 (Tex. 2001). An appellate court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous, City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex.2006) (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex.2003)), and where general and special provisions are both applicable, those "provisions shall be construed, if possible, so that effect is given to both." Tex. Gov't Code Ann. § 311.026(a) (Vernon 2005).
Because a health care liability claim includes a cause of action against a health care provider (including a health care institution) for conduct which proximately results in the death of a claimant, arguably both statutory provisions can be applicable to the facts of this case. The question is, is it possible to give effect to both provisions?
We find no cases which directly decide this issue. However, because the two statutory provisions do not conflict on their face, in order to give full effect to the intent of the Legislature, we see no reason why one cap should apply to the exclusion of the other cap. Neither the express wording of the applicable statutes, nor their legislative history indicates that the Legislature intended anything other than to apply both caps. Therefore, we conclude that both caps can be applied, and should be applied. Because Appellees constitute a single claimant, unless otherwise inappropriate, the trial court should have limited THI's civil liability for noneconomic damages to $250,000.
Appellees also contend that THI waived the protections of § 74.301(b) by failing to affirmatively plead their application to the facts of this case. THI has responded to this argument by contending that: (1) statutory damage caps are not affirmative defenses, and/or (2) the trial court erred by not granting its motion to amend its pleadings. Although the Texas Supreme Court has not directly decided whether a statutory damage caps is an affirmative defense, it has recently held that the statutory damage caps contained in § 41.008(b) "requires a reduction of punitive damages as a matter of law." In re Columbia Medical Center of Las Colinas, 306 S.W.3d 246, 248 (Tex.2010). But see Wackenhut Corr. Corp. v. de la Rosa, 305 S.W.3d 594 (Tex.App.-Corpus Christi 2009, no pet.) (holding that the cap is an affirmative defense which must be specifically pleaded by the defendant for it to apply). Although in In re Columbia Medical Center the Supreme Court equivocates somewhat by adding the phrase "when the parties raise the issue," 306 S.W.3d at 248, we find that the parties here have sufficiently raised the issue before both the trial court and this Court. Therefore, we find that § 74.301(b) requires reduction of noneconomic damages as a matter of law and, as such, it is not an affirmative defense. Accordingly, we find the trial court erred in not applying the provisions of § 74.301(b) to limit THI's civil liability for noneconomic damages to $250,000.
THI also contends the trial court erred by failing to apply the § 41.008(b) limitation provisions to the jury's exemplary damages award. Again, Appellees counter by contending the limitation is an affirmative defense which THI waived by failing to plead and THI has responded by contending that: (1) statutory damage caps are not affirmative defenses, and/or (2) the trial court erred by not granting its motion to amend its pleadings.
Section 41.008(b) provides:
Based upon the same analysis we applied to § 74.301(b), we find the exemplary damages cap provided by § 41.008(b) is not an affirmative defense, but must instead be applied as a matter of law. The question then becomes, do the specific provisions of § 74.303 control over the general provisions of § 41.008(b), or should a trial court seek to apply both limitations?
Again, we find no case law answering this question, and again we observe that, on their face, the two provisions do not seem to conflict. One caps exemplary damages in all suits, while the other caps all damages in wrongful death and survival actions. Because the two statutes are not irreconcilable, the statutes can be harmonized by applying the exemplary damages cap first, and then applying the overall cap second. Therefore, once again, in order to give full effect to the intent of the Legislature, we believe both provisions should be applied.
Having determined that § 41.008(b) does apply, because the limit of exemplary damages is, in part, determined by the amount of noneconomic damages, a court must further determine whether to apply the noneconomic damages limitations of § 74.301(b) to the determination of the exemplary damages cap provided by § 41.008(b). Again, we have found no cases directly determining this issue and, once again, we find that, on their face, the two statutory provisions do not conflict. Accordingly, as before, we believe both provisions should be given effect.
Because we have found that § 41.008(b) should have been applied, we find that the trial court erred in not applying that limiting provision. Furthermore, in the application of that cap, we find the trial court should apply the noneconomic damages limitation provisions of § 74.301(b) in determining the cap under § 41.008(b). Accordingly, Appellees' recovery of exemplary damages should have been limited to $285,053.94.
Here, the jury awarded Jacob's estate economic damages of $17,526.97 and noneconomic damages of $40,000.00. The jury also awarded Mario, Max, Tony, and George noneconomic damages of $100,000.00 each, for a combined total of $400,000.00. The jury further awarded Appellees exemplary damages of
The trial court entered judgment in favor of Appellees and against THI in the sum of $1,696,895.50, plus costs of court. To the extent the trial court failed to properly apply the overall damages cap under § 74.303, the noneconomic damages cap under § 74.301(b), and/or the exemplary damages cap under § 41.008(b), the trial court erred. THI's seventh issue is sustained.
Because the jury apportioned the negligence causing the "injury in question" 90% to THI and 10% to Pharmasource Healthcare, and because Pharmasource Healthcare entered a "settlement agreement" for the sum of $63,343.44, plus costs of court, and because Pharmasource Healthcare has not appealed the judgment of the trial court, and because we do not know which election THI would make under § 33.012(c) of the Texas Civil Practices and Remedies Code, we are unable to determine the judgment that should be entered in this cause. Accordingly, we remand this cause to the trial court for the rendition of a judgment applying all applicable damages caps, the determination of applicable credits, and the apportionment of the recovery among Appellees. Tex. R.App. P. 43.3.
The trial court's judgment is reversed and the cause is remanded to the trial court for entry of a judgment in accordance with this opinion.
CAMPBELL, J., concurring and dissenting.
JAMES T. CAMPBELL, Justice, concurring and dissenting.
I agree with the Court's discussion of appellant THI of Texas at Lubbock I, LLC's issues challenging denial of its proposed jury instruction on negligence (issue one); the trial court's allowing the Pereas to amend their petition during trial (issue two); exclusion of THI's proffered testimony (issue six) and the trial court's failure to apply liability caps on damages set out in sections 41.008(b) and 74.301(b) of the Civil Practice and Remedies Code (issue seven). With regard to its issues challenging the sufficiency of the evidence supporting the jury's findings of negligence and gross negligence (issues three, four and five), I agree with the Court that legally and factually sufficient evidence supports the jury's negligence finding with regard to the negligence of THI's nurses. I disagree, however, that any evidence supports the Pereas' "negligent credentialing/hiring" theory of THI's negligence.
As the Court holds, expert testimony was required to establish that THI failed to act as a reasonably prudent hospital would act in the same or similar circumstances with regard to its decision to hire Leonard Espinoza. The Court relies primarily
But neither Dr. Haines nor any other expert testified that THI did not take those actions when it hired Espinoza. No one said that THI's nursing director Connie Long or any other THI administrator hired Espinoza without review of his employment record or a determination whether he had "problems or troubles" during a prior employment. The record contains no expert testimony of THI's breach of the standard of care Dr. Haines described. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46(Tex.2004) (negligent credentialing). The Court seems to assume that no reasonably prudent hospital would have hired Espinoza as a registered nurse knowing of his discipline by the Colorado authorities under his licensure in that state as a licensed vocational nurse, but no expert said as much. Nor did any expert testify that THI's breach of a duty to act as a reasonably prudent hospital when it hired Espinoza proximately caused the injury to Mr. Perea. See, e.g., Denton Regional Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex.App.-Fort Worth 1997, no pet.). To the degree the Court concludes otherwise, I respectfully dissent.
For the same reason, I must dissent from the Court's conclusion sufficient evidence supported the jury's finding THI was "reckless in employing" Espinoza, and thus was grossly negligent.
Despite my disagreement with my colleagues on the "negligent credentialing/hiring" issue, I concur with Court's judgment affirming the award of punitive damages against THI, because I agree that such an award is supported by evidence THI's acknowledged vice-principal, director of nursing Connie Long, ratified or approved Espinoza's negligent act. See Shamrock Communs., Inc. v. Wilie, No. 03-99-00852-CV, 2000 WL 1825501, *5, 2000 Tex.App. LEXIS 8284, *14 (Tex.App.-Austin 2000, pet. denied.) (mem. op.) (not designated for publication), citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 653 (5th Cir.1994) (case law provides that ratification may occur when the employer confirms, adopts, or fails to repudiate the acts of its employee). The record includes Espinoza's assertion he was never disciplined for authorizing the administration of Ativan to Mr. Perea and Long's admission that Espinoza remained employed for the year following this incident. Such testimony is evidence of Long's failure to repudiate Espinoza's negligent act of authorizing administration of Ativan.
Accordingly, I dissent from the Court's discussion of the plaintiffs' "negligent credentialing/hiring" theory but concur in the judgment.
STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—GENERAL NEGLIGENCE; INTENTIONAL PERSONAL TORTS, PJC 2.4 (2008).
Tex. Civ. Prac. & Rem.Code Ann. § 74.001(13) (Vernon 2005).
