File: 030279F - From documents
transmitted: 04/13/2004
REVERSE and
RENDER in part, AFFIRM in part and Opinion Filed April 13,
2004
In The
Court of Appeals
Fifth
District of Texas at Dallas
............................
No. 05-03-00279-CV
............................
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS
COLINAS
MEDICAL CENTER,
Appellant
V.
ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE
OF
ROBERT HOGUE, JR., DECEASED,
CHRISTOPHER HOGUE AND ROBERT HOGUE, III,
Appellees
.............................................................
On Appeal from the 193rd Judicial District
Court
Dallas County,
Texas
Trial Court Cause No.
DV-99-01417-L
.............................................................
OPINION
Before Justices
James, Bridges and Richter
Opinion By
Justice Richter
Appellant brings four
issues on appeal asking this Court to determine whether this case constitutes a health care liability claim falling within the
strictures of the Medical Liability and Insurance
Improvement Act See
Footnote 1
(“MLIIA”) and thus subject to the statutory damages cap; whether the trial court
erroneously failed to properly submit a contributory negligence issue to the
jury; whether there was factually sufficient evidence to support the jury's
award of damages for pecuniary loss, loss of companionship and society, mental
anguish, and future loss of inheritance; whether there was legally or factually
sufficient clear and convincing evidence to show harm was caused by gross
neglect thereby supporting the exemplary damages award; and whether the newly
amended pre- judgment and post-judgment interest rate should be applied in this
case. We reverse and render in part, and affirm the judgment in all other
respects.
Factual Background
In March 1998, Robert
Hogue, Jr., began to feel dizzy and had an upset stomach. He went with Athena, his wife, to his family doctor and was
diagnosed with possible pneumonia. He was scheduled for a return visit to the
doctor after the weekend, but Athena called the on-call doctor for his family
practitioner on Sunday evening because his phlegm was tinged pink. The Hogues
arrived early for the doctors appointment the next day, and the doctor
immediately had Robert taken to the hospital by ambulance for a chest x-ray due
to suspected fluid in Robert's lungs.
Robert informed the ER
doctor at defendant hospital he did not have a cardiac condition, despite the fact he had been diagnosed previously with a heart
murmur. By 9:10 a.m., the ER doctor called a pulmonologist to handle Hogue's
care. The pulmonologist was not on-call at defendant hospital, and the hospital
did not have an on-call list by specialty. Hogue was sent to the intensive care
unit. Because the pulmonologist was not on-call and was seeing other patients at
another area hospital, he did not arrive at defendant hospital until over four
hours had passed.
Soon after the
pulmonologist arrived, he performed a surgical procedure to measure pressure in the blood vessels. Thereafter, he
requested that Robert be given an echocardiogram “now.” The pulmonologist then
left the hospital to care for his other patients.
The hospital had a
contract service provider to handle its echocardiogram needs. The contract did not provide for emergency echocardiograms on an
emergency basis. There was no guaranteed response time to a request for
emergency or “stat” echocardiograms. Accordingly, the contract service provider
arrived over two and a half hours later, between 6:00 and 6:15 p.m.. Within
minutes, he determined Robert had recently experienced a severe leakage of his
heart mitral valve. A cardiologist was called, and he determined Robert required
immediate open heart surgery. As defendant hospital did not offer open heart
surgery procedures, Robert was transferred to another hospital, where he arrived
at 8:46 p.m.. Within 15 minutes of arrival, he “coded,” and after an hour of
resuscitation attempts, was pronounced dead.
Healthcare Liability
Claim
In their first issue,
appellants claim the trial court erred when it determined that the MLIIA did not apply to appellees' claims because its suit
was based not only upon errors and omissions of medical staff, but also upon
asserted administrative negligence of the hospital occurring some months before decedent's
admission See
Footnote 2 .
The hospital in this case opened for business approximately six months before
decedent's admission. Appellees, in post-judgment motions and relying on our
decision in Rose v. Garland Cmty. Hosp., 87 S.W.3d 188 (Tex. App.-Dallas
2002, pet. granted), claimed the hospital was negligent when it did not arrange
for echocardiogram services on an emergency basis, failed to establish an
effective, documented system for providing on-call coverage of physicians by
specialty to its emergency room, and failed to communicate the capabilities and
limitations of the hospital to its staff and to the community at large. Relying
on Rose, the trial court agreed these claims were not within the purview
of the MLIIA as it then existed and accordingly uncapped the previously capped
damages. See, Tex. Rev. Civ. Stat. Ann. art. 4590i, §11.02(a) (Vernon
Supp. 2003). Despite the fact Rose was issued after this case was decided
by jury verdict, the operative pleading, the ninth amended petition, can be
fairly read to allege the sort of claim approved by this Court in
Rose.
Our review of questions
regarding the applicability of the MLIIA is de novo. Rose, 87 S.W.3d at 190. In Rose, we held a
claim for negligent credentialing/recredentialing was not a health care
liability claim and, therefore, was not governed by the MLIIA. Id. at
193. We note malicious credentialing is a distinct cause of action against a
hospital for acting with malice in credentialing a doctor or in peer review.
KPH Consol., Inc. v. Romero, 102 S.W.3d 135, 143 (Tex. App.-Houston [14th
Dist.] 2003, no pet.).
In holding negligent
credentialing/recredentialing was not subject to the MLIIA, we relied on the following factors unique to that cause of
action. A credentialing claim is not a cause of action for treatment or lack of
treatment. Rose, 87 S.W.3d at 191-92. After dispensing with that
threshold inquiry, we then looked to whether or not the hospital departed from
accepted standards of medical care, health care, or safety. Id. at 192.
We then observed a hospital cannot practice medicine. Id., see
Tex. Occ. Code Ann. § 151.002(a)(13) (Vernon 2004). Health care refers to
acts or omissions that occur during a patient's medical care, treatment, or
confinement. Rose, 87 S.W.3d at 192. In addition, acts related to safety
must have occurred during a patient's medical care, treatment, or confinement.
Id.
In contrast, appellees'
claims do not make it past the threshold inquiry. We look beyond the pleadings to the underlying nature of the claims.
Id. at 191. Here, the gist of appellees' claims are the hospital failed
to promptly provide decedent with an echocardiogram and transfer him to another
hospital equipped to handle his needs. These claims clearly complain of a lack
of treatment. The complained of omissions on the part of the hospital are an
inseparable part of the medical services provided to decedent. For a claim to
fall under the MLIIA, the acts or omission that form the factual basis of the
claims must be an inseparable part of the rendition of medical services.
Id.
We sustain the first
issue of appellant.
Contributory Negligence
Instruction
In its second issue,
appellant claims the trial court erred by failing to include a contributory negligence issue in the jury charge as part of
the liability question when some evidence was presented that decedent failed to
inform the emergency room personnel he had a cardiac condition. Appellant
further claims the trial court's later inclusion of a contributory negligence
issue in the exemplary damages portion of the trial did not render the error, if
any, harmless. In the alternative, appellant claims the jury's negative answer
to the contributory negligence question was not supported
by legally sufficient evidence See Footnote 3 .
Rule of civil
procedure 278 requires the trial court to submit instructions and definitions to the jury as are necessary to enable the jury
to render a verdict. See Tex. R. App. P. 278; Elbabor v. Smith,
845 S.W.2d 240, 243 (Tex. 1992); Rosell v. Central W. Motor Stages, Inc.,
89 S.W.3d 643, 653 (Tex. App.-Dallas 2002, pet. denied). We review the trial
court's submission of instructions and jury questions under an abuse of
discretion standard. Rosell, 89 S.W.3d at 653. The trial court has broad
discretion in submitting jury questions so long as the questions submitted
fairly place the disputed issues before the jury. Id. This broad
discretion is subject only to the limitation that controlling issues of fact
must be submitted to the jury. Id. Controlling issues may be submitted to
the jury by questions, instructions, definitions, or through a combination
thereof. Id. When submitting the jury charge, a trial court is afforded
more discretion when submitting instructions than when submitting questions.
Id. To determine whether
an alleged error in the jury charge is reversible, we must consider the
pleadings of the parties, the evidence presented at trial, and the charge in its
entirety to determine if the trial court abused its discretion. Id. A
reversal is warranted when the trial court denies a proper submission of a valid
theory of recovery raised by the pleadings or the evidence. Id. A
reversal is also warranted when the trial court denies a proper submission of a
valid defense theory that is raised by the pleadings or the evidence. We do not
reverse unless harm results. Id. For harm to result, the error must
probably cause the rendition of an improper judgment. Tex. R. App. P.
44.1(a)(1).
After reviewing the
entire charge, the pleadings, and the evidence produced at trial, we cannot conclude the way in which the trial court
submitted the contributory negligence issue was in error or harmful. The issue
was ultimately submitted, and the jury answered it in the negative. The fact the
issue was submitted after the liability issue is inapposite. Even were the
submission timing in error, it cannot be said the error probably caused the
rendition of an improper judgment. The trial court did not abuse its discretion.
We overrule appellant's second issue.
Factual and Legal
Sufficiency Issues Concerning Damages
In appellant's third and
fourth issues See
Footnote 4 ,
it claims the evidence to support the jury's
finding of gross neglect is factually and legally insufficient, the evidence to
support the jury's award of actual damages is factually insufficient, and the
award of exemplary damages is not supported by clear and convincing
evidence.
A. Standard of Review
for Factual and Legal Sufficiency when the Burden of Proof was by a Preponderance of the
Evidence
In the evaluation of
legal sufficiency, we determine whether the proffered evidence as a whole rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions. Mobil Oil Corp. v.
Ellender, 968 S.W.2d 917, 922 (Tex. 1998). If an appellant is attacking the
legal sufficiency of an adverse finding of an issue on which he did not have the
burden of proof, the appellant must demonstrate on appeal that there is no
evidence to support the adverse finding. E.g., W. Wendell Hall, Standards of
Review in Texas, 34 St. Mary's L.J. 1, 159 (2002). Challenges to the legal
sufficiency must be sustained if the record reflects one of the following: (1) a
complete absence of a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence to prove a vital fact is no more than a mere scintilla; or (4)
the evidence establishes conclusively the opposite of a vital fact. Id.;
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998).
If a party is attacking
the factual sufficiency of an adverse finding on an issue to which the other party had the burden of proof, the attacking
party must demonstrate that there is insufficient evidence to support the
adverse finding. W. Wendell Hall, Standards of Review in Texas, 34 St.
Mary's L.J. 1, 172 (2002). In the evaluation of factual sufficiency, this Court
must consider all of the evidence including that which supports the finding and
that which is contrary to the finding. Plas-Tex, Inc. v. U.S. Steel
Corp., 772 S.W.2d 442, 445 (Tex. 1989) (per curiam). This Court should set
aside the jury's verdict only if the evidence that supports the jury finding is
so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986) (per curiam).
B. Standard of Review
for Factual and Legal Sufficiency when the Burden of Proof was by Clear and Convincing
Evidence
The Texas Supreme Court
recently clarified the appellate standards of review to be applied to legal and factual sufficiency challenges in light of the
clear and convincing burden of proof. In re J.F.C., 96 S.W.3d 256,
264-268 (Tex. 2002)(discussing legal sufficiency review in termination of
parental rights appeal); In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)(discussing factual sufficiency review in termination of parental rights
appeal). Both legal and factual sufficiency reviews of a finding required to be
based on clear and convincing evidence must take into consideration whether the
evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the matter required to be established by clear and
convincing evidence. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d
at 25.
With respect to a legal
sufficiency point, we look at all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its
finding was true. J.F.C., 96 S.W.3d at 266. In determining a factual
sufficiency point, we must give due consideration to evidence the fact finder
could reasonably have found to be clear and convincing and then determine
whether, based on the entire record, a fact finder could reasonably form a firm
conviction or belief of the matter required to be proved by clear and convincing
evidence. C.H., 89 S.W.3d at 25. If, in light of the entire record, the
disputed evidence that a reasonable fact finder could not have credited in favor
of the finding is so significant that a fact finder could not have reasonably
formed a firm conviction or belief, then the evidence is factually insufficient.
J.F.C., 96 S.W.3d at 266; In re: J.R.K., 104 S.W.3d 341 (Tex.
App.-Dallas 2003, no pet.).
C. Gross Neglect
- Applicable Law
For gross negligence to
support an award of exemplary damages, it must be proven by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code
Ann. § 41.003(a)(3) (Vernon Supp. 2004). Hence, we apply the new standards for
factual and legal sufficiency review in cases where the burden of proof is clear
and convincing evidence. J.F.C., 96 S.W.3d at 265-66; C.H., 89
S.W.3d at 25.
Gross negligence includes
two elements: (1) viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree of risk,
considering the probability and magnitude of the potential harm to others, and
(2) the actor must have actual, subjective awareness of the risk involved, but
nevertheless proceed in conscious indifference to the rights, safety, or welfare
of others. Ellender, 968 S.W.2d at 921; Transp. Ins. Co. v Moriel,
879 S.W.2d 10, 23 (Tex. 1994). Evidence of simple negligence is not enough to
prove either the objective or subjective elements of gross negligence.
Ellender, 968 S.W.2d at 921; Universal Servs. Co. v. Ung, 904
S.W.2d 638, 641 (Tex. 1995); Moriel, 879 S.W.2d at 22-23. Under the first
element, “extreme risk” is not a remote possibility of injury or even a high
probability of minor harm, but rather the likelihood of serious injury to the
plaintiff. Ellender, 968 S.W.2d at 921; Ung, 904 S.W.2d at
641; Moriel, 879 S.W.2d at 22. Under the second element, actual awareness
means that the defendant knew about the peril, but its acts or omissions
demonstrated it did not care. See Wal-Mart Stores, Inc. v. Alexander, 868
S.W.2d 322, 326 (Tex. 1993). Circumstantial evidence is sufficient to prove
either element of gross negligence. See Moriel, 879 S.W.2d at 22-23;
Wal-Mart Stores, 868 S.W.2d at 327.
D. Gross Neglect
- Objective Element - Application of Law to
Facts
1. Echocardiogram “Stat”
capability:
Appellant asserts there
is legally insufficient evidence of an extreme risk to decedent arising from appellant's omissions. Appellant argues it does not
make financial sense for all hospitals to serve all patients, and if a hospital
does not have a volume of a particular type of service,
one alternative is to utilize the services of an outside
contractor. The appellant further argues there
are no clear standards concerning the timeliness of an echocardiogram emergency
or “stat” order, and a two hour response time was typical of its selected
contractor and consistent with his response time when a guaranteed response time
was applicable.
Appellees counter that
from the time appellant opened for business and contracted for outside echocardiogram services, there was a high
probability a life-threatening medical emergency requiring “stat” echocardiogram
services would occur. The appellant's Director of Outpatient Services testified
it was “obvious” and “elementary” a hospital emergency department is going to
need echocardiograms on a “stat” or emergency basis. He testified a quality
study by an echo technician is an important service in patient care because it
is a diagnostic tool a cardiologist uses to diagnose and anticipate treatment.
He further testified the timeliness of an echocardiogram is important and if he
were approached about the need for a “stat” echocardiogram while at the
appellant hospital, he would have advised to start the process to transfer the
patient to another hospital that could handle the patient's
needs..
These facts indicate that
from the hospital's point of view, there was a high probability of extreme risk. Despite this knowledge, appellant failed to
enter into a contract for echocardiogram services on a “stat”
basis.
2.
Lack of on-call list by specialty:
The appellant claims the lack of an on-call list by speciality is
inapposite because it is
the physician's decision on whether or not to involve an
additional physician. It also asserts an emergency room physician is not obligated to use an on-call list.
Appellant asserts that because the emergency room doctor called a specialist who
returned the call within 30 minutes and accepted the case, the on-call system
met the standard of care.
However, appellant's COO
Pat Sullivan testified the hospital was responsible to ensure there were sufficient staff on duty to care for patients, and
it would be a problem if a doctor did not know whom to call if a specialist were
needed. She would be critical of any hospital that did not have an effective
process for having on-call physicians listed by speciality. Further, federal
guidelines require an on-call list by specialist. Although a specialist was
contacted, due to his other commitments at other hospitals and the fact he was
not “on-call,” it took over four hours for him to reach the
hospital.
These facts indicate that
from the hospital's point of view, there was a high probability of extreme risk by not having a list of on-call physicians by
specialty. Appellant advertised itself in the community as having a full service
emergency room, open 24 hours a day, seven days a week. Despite this knowledge
of extreme risk and the advertisements concerning full service, appellant failed
to create an on-call list by specialty as required under federal
guidelines.
E. Gross Neglect
- Subjective Element - Application of Law to
Facts
Appellant claims it was
not subjectively aware of the risk of not providing echocardiogram services on a “stat” basis and of not having an on-call
list by specialty. The hospital claims it relied on the advice of the chief of
medicine that the need for “stat” echo services would be low. It also argues the
cardiologists and physicians were happy with the contract echocardiogram
services up until the time of decedent's death.
The hospital was open for
approximately six months before the death of decedent. The lack of any complaints from physicians is, therefore, not
persuasive. The Director of Outpatient Services testified the hospital had
actual knowledge that there would be a need for echocardiogram services
originating from the emergency room. He also testified the hospital knew that it
could arrange for echocardiogram on-call services on a “stat” basis for an
additional charge of $3 per hour. It knew that if it did not pay the fee, there
was no guarantee services would be available. In conscious indifference to the
safety and welfare of others, it chose not to pay the fee and guarantee a
response time. Furthermore, the hospital did not communicate to its physicians
and nurses that an echocardiogram could not be guaranteed on a “stat” basis.
Concerning the emergency on-call list by specialty, appellant advertised it had
a full service emergency room, yet it knew it did not have an on-call list of
specialists to handle specific types of cases as needed. From the foregoing
facts, the jury could have reasonably concluded the hospital had actual,
subjective awareness of the risk involved, but nevertheless proceeded in
conscious indifference to the rights, safety, or welfare of
others.
Because, under these
facts, a fact finder could reasonably form a firm belief or conviction that the hospital was grossly negligent, we
conclude there was legally and factually sufficient evidence to support the
jury's finding that appellant was grossly negligent.
F. Factual
Sufficiency - Actual Damages
Appellant has only
challenged the factual sufficiency of the evidence concerning this aspect of damages. We review actual damages under the
traditional factual sufficiency review standard because the burden of proof was
a preponderance of the evidence. See, e.g., Larson v. Cactus Util. Co.,
730 S.W.2d 640, 641-42 (Tex. 1987); S.W. Bell Tel. Co. v. Garza, 58
S.W.3d 214, 234 (Tex.App.-Corpus Christi 2001, pet. granted).
Appellant
claims three areas of actual damages are unsupported by factually sufficient evidence: (1) past and future pecuniary loss, (2)
past and future loss of companionship, society and mental anguish, and (3) loss
of inheritance. We shall detail the evidence supporting each finding, and
contrary to each finding, in turn.
Past and Future
Pecuniary Loss
In a wrongful
death case, pecuniary loss is defined as the care, maintenance, support, services, advice, counsel, and reasonable
contributions of a pecuniary value that the wrongful death beneficiary would, in
reasonable probability, have received from the decedent had he lived. Moore
v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1987). The evidence supporting the
award for past and future pecuniary loss included testimony by an economist as
to specific amounts for loss of wages, earning capacity and household services.
Appellees causation expert testified decedent would most likely have been able
to live and work until age seventy had he had an uneventful mitral valve repair
surgery.
The evidence contrary to
the award for past and future pecuniary loss is negligible. Appellant claims that when the awards in this case are
compared to other reported cases, the amounts appear excessive. However,
appellant does not point to a case where this factor is determinative, and we
cannot locate any. Appellant then attacks the testimony of the economist on the
grounds that he did not contact decedent's doctors or his employer to ascertain
whether or not decedent could have worked until age 70.
On these
facts, and on the lack of evidence to the contrary, we conclude the jury finding is not so weak as to be clearly wrong and
manifestly unjust.
Past and Future Loss
of Companionship, Society and Mental Anguish
Damages for
loss of companionship and society compensate for a loss of positive benefits that flowed to the family for the
decedent's having been part of the family. Moore, 722 S.W.2d at 687-88.
Companionship and society are defined as the positive benefits flowing from the
love, comfort, companionship and society the familial survivors would, in
reasonable probability, experience if the decedent lived. Id. at
688.
Mental anguish represents
an emotional response to the wrongful death itself. Id. at 687. It is defined as the emotional pain, torment, and
suffering the familial survivors would, in reasonable probability, experience
from the death of a family member. Id. at 688.
In awarding
damages for loss of companionship and society and for mental anguish, the jury may consider: (1) the relationship between
husband and wife, or a parent and child; (2) the living arrangements of the
parties; (3) any absence of the deceased from the beneficiary for extended
periods; (4) the harmony of family relations; and (5) common interests and
activities. Id.
The evidence supporting
the award for past and future loss of companionship, society and mental anguish includes unchallenged testimony that decedent
and his wife were married for 26 years, and when he died, “half of [her] died”;
decedent spent a lot of time with his wife and two sons; his sons were
everything to him, they had a great bond and were best friends; decedent coached
his sons in sports; overall, the relationship of decedent with his family was
strong and good. There was no evidence to the contrary. Again, we cannot say the
jury finding was so weak as to be clearly wrong and manifestly unjust.
Loss of
Inheritance
Loss of
inheritance damages are defined as the present value that the deceased,
in reasonable probability, would have added to
the estate and left at natural death to the statutory wrongful death
beneficiaries but for the wrongful act causing premature death. Id. at
687. For loss of inheritance damages to be awarded, there must be evidence that
plaintiffs would probably have been the beneficiaries of decedent's estate, and
evidence from which the amount of that estate can reasonably be calculated. C
& H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 323-24 (Tex.
1994).
The evidence supporting
the award for loss of inheritance includes life expectancy tables introduced into evidence which indicate decedent's wife
would live 6.9 years beyond that of decedent's natural life had he lived. There
was also evidence she had no health problems. Appellant does not challenge
whether or not decedent's sons would naturally outlive him.
In addition,
there was evidence introduced from which the amount of the estate could be reasonably calculated. An economic expert testified
that based upon prior history, it was expected that 85% of decedent's salary
would go towards supporting his family. The 15% savings rate was founded upon
the historical fact that decedent contributed 5% of his salary to a 401K plan
and an estimated savings rate of 10%. At the time of his death, decedent had
accumulated $65,000 in cash and money market funds, almost $51,000 in common
stock, and equity in his home of $85,000. At the time of his death, these assets
combined values were over $200,000.
See Footnote 5
Finally, the economic expert provided a detailed analysis wherein he arrived at
a dollar amount for the future expected estate of decedent. He relied on the
following factors: past and future lost earning capacity, past and future loss
of household services, prior earnings from employment records and tax returns,
likely raises and bonuses, past and future fringe benefits, 401K contributions
and employer matching contributions, decedent's personal consumption, life
expectancy tables, decedent's savings during his lifetime, and the fact his will
left his entire estate to his wife.
Appellant claims past history
does not accurately predict the future performance of decedent's investments,
expenses and health. However, to provide that level of evidentiary detail
appellant seeks would eviscerate lost inheritance damages. The Texas Supreme
Court observed that the argument that loss of inheritance damages are inherently
too speculative and should never be awarded “has not been disproved.”
Thompson, 903 S.W.2d at 323. There are certain vagaries inherent in
proving what someone would have inherited. Id. For example, how can one
prove with reasonable probability that ordinary family expenses would not
consume all of the decedent's income, or whether the ordinary circumstances of
life would not have exhausted any estate? Id. However, it is not for this
Court to revisit the wisdom of loss of inheritance damages. Accordingly, we
conclude that the evidentiary detail presented to the trier of fact was
sufficient to support this aspect of the damages equation, and the jury finding
was not so weak as to be clearly wrong and manifestly unjust.
G.
Exemplary Damages - Clear and Convincing Evidence
A claimant
must prove by clear and convincing evidence the elements of exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. §
41.003(b) (Vernon Supp. 2004). Accordingly, we apply the new standards for
factual and legal sufficiency review in cases where the burden of proof is clear
and convincing evidence. J.F.C., 96 S.W.3d at 265-66; C.H., 89
S.W.3d at 25.
Appellant claims that the
$21,000,000 exemplary damages awarded by the jury - reduced to $3,969,081 in the Amended Final Judgment pursuant to
the statutory cap - were not supported by clear and
convincing evidence See
Footnote 6 .
Punitive or exemplary damages must be reasonably proportional to actual damages,
but there is no set formula for the ratio between the amount of actual and
punitive damages. Alamo Nat'l bank v. Kraus 616 S.W.2d 908, 910 (Tex.
1981).
This Court is required to
address the evidence with specificity concerning liability for the amount of exemplary damages. Tex. Civ. Prac. & Rem.
Code Ann. § 41.013 (Vernon Supp. 2004). We must detail all of the relevant
evidence and explain why that evidence either supports or does not support the
exemplary damages. Ellis County State Bank v. Keever, 936 S.W.2d 683, 686
(Tex. App.--Dallas 1996, no writ). Because the award of exemplary damages was
based on gross negligence, the evidence delineated under that section above is
likewise appropriate to consider this issue.
The jury awarded
total actual damages of $9,196,155 (does not include stipulated funeral expenses of $13,386) and $21,000,000 in exemplary
damages. The trial court initially entered judgment on August 30, 2002, for
actual damages in the amount of $1,471,405.20 after application of the statutory
cap contained in Section 11.02 of the MLIIA. Tex. Rev. Civ. Stat. Ann. art.
4590i, §11.02(a) (Vernon Supp. 2003). The trial court also awarded $3,356,296 in
exemplary damages. On December 3, 2002, after deciding that the cap was not
applicable, the trial court entered an amended final judgment awarding
$9,209,541 in actual damages (includes $13,386 in stipulated funeral costs) and
$3,969,541 in exemplary damages.
As we have decided in
this opinion that the statutory cap is applicable to this case, the numbers applicable to the first judgment are the
proper measure of damages. We note that the exemplary damages awarded by the
trial court in the first judgment are roughly 36.5% of the actual damages
awarded by the jury, and roughly 2.28 times the actual damages awarded by the
trial court after application of the statutory cap. Thus, the exemplary damages
awarded in the judgment are reasonably proportioned to the actual damages.
Kraus 616 S.W.2d at 910; Keever, 936 S.W.2d at 685.
In considering the quantum of
exemplary damages to award, the trier of fact is directed to consider the
following evidence, if any, relating to:
(1)
the nature of the wrong;
(2) the character of
the conduct involved;
(3) the degree of
culpability of the wrongdoer;
(4) the
situation and sensibilities of the parties concerned;
(5) the extent to which such conduct offends a public sense
of justice and propriety; and
(6) the net
worth of the defendant.
Tex. Civ. Prac. &
Rem. Code Ann. § 41.011 (Vernon Supp. 2004); Kraus, 616 S.W.2d at
910; Keever, 936 S.W.2d at
686.
1) The Nature of the
Wrong
The nature of the wrong
in this case is the untimely death of decedent. See Keever, 936 S.W.2d at 686. The evidence at trial
showed that decedent was very close to all of his family and that his death was
devastating to all of them. Decedent had been married to his wife for over 25
years, and they had two sons in college. Decedent had always been very involved
in his sons' lives, and visited them at college often. One of the sons testified
that he spoke on the phone with his father several times a week, and that his
relationship with his father was changing from one of father to son, to one of
best friends.
2) Character of the
Conduct and Degree of Culpability
The character of the
conduct involved and the degree of culpability of the wrongdoer refer to evidence of the hospital's state of mind, the degree
of its conscious indifference, and any malice in its actions. Keever, 936
S.W.2d at 687. After resolving conflicts in the evidence, the jury determined
the hospital had committed gross negligence. There is evidence in the record
that tends to establish the hospital was aware that it needed prompt “stat”
echocardiogram services from time to time, but, nevertheless, the administration
did not consult with anyone concerning the adequacy of their emergency
echocardiogram contract or the implications of not having “stat” echocardiogram
capability. The hospital did not have an in-house echo-technician, and the
contract services it used did not provide for a guaranteed response time. A
hospital should communicate to its physicians and staff its capabilities and
limitations. The lack of “stat” echocardiogram testing was not communicated to
the treating physician in this case, or other physicians or staff. It is a basic
principle and a federal guideline that a hospital should have an on-call list by
speciality, but the hospital in this case did not. The foregoing shows the
hospital was subjectively aware of the need for “stat” echo services, it chose
not to pay for such services, it failed to so inform its staff and physicians,
and it did not have an on-call list by specialty to assist an ER physician in
getting appropriate assistance when required. These facts show the hospital was
consciously indifferent to the needs of any patient who might come to the
hospital with a cardiac condition, and it was consciously indifferent to the
needs of decedent.
3) Situation and
Sensibilities of the Parties
The situation and
sensibilities of the parties refers to such things as remorse, remedial measures and the ability to pay exemplary damages.
Keever, 936 S.W.2d at 688. Here the jury could have reasonably concluded
the hospital did not accept any blame or exhibit any remorse over the death of
decedent, but rather made up after-the-fact explanations for what
occurred.
There was testimony by
the hospital administration that the on-call system was effective and will not change, there is no harm in allowing a critically
ill patient to stay in the intensive care unit for one hour without seeing a
doctor, and that decedent in this case got real service real fast. Although two
corporate representatives were present in the gallery during the bifurcated
stage of the proceedings and were even introduced to the jury, neither took the
witness stand to express remorse or explain what remedial steps, if any, they
planned to take.
The contract
echocardiogram provider testified that he offered to provide the hospital with “stat” echocardiogram services with a
guaranteed response time for a nominal additional fee, but the administration
was never interested. The person in administration who made this determination
initially testified in a deposition he had not consulted with the medical staff
regarding the implications of the echocardiogram contract. At trial, his
testimony changed to assert that he had consulted medical staff. He explained
the change in testimony by claiming his memory had improved over time. That
individual was promoted following this incident with no investigation into his
conduct.
The hospital
administration also asserted the nurse manager was working on the ER floor at the time of the incident and was not with
accreditation surveyors. That assertion was contrary to that witness's
handwritten notes. When confronted with the evidence, that person testified she
did not know if it was her handwriting. Under cross-examination, she changed her
testimony to reflect that it could be her handwriting. She then changed her
testimony again to confirm it was indeed her handwriting.
The net worth
of the hospital was not entered into evidence. However, there was evidence from which the jury could infer a substantial
net worth. The hospital advertised that it was a full service hospital offering
the latest in high-tech equipment. The hospital planned to construct a new acute
care facility in Irving, Texas. The evidence further shows that substantial
money was spent marketing and advertising the new hospital.
4) Extent the Conduct Offends a Public Sense of Justice
and Propriety
Courts are reluctant to
substitute their own sense of justice and propriety for that of a jury drawn from a cross section of the community. Burleson
State Bank v. Plunkett, 27 S.W.3d 605, 620 (Tex. App.-Waco 2000, pet.
denied). The fact the jury awarded $21,000,000 in exemplary damages before
imposition of the statutory cap says much about how the conduct of appellant
offended the public sense of justice and propriety. From all of the evidence so
far delineated in this portion of the Court's opinion, the jury could have
rationally and justifiably been offended by what it perceived as arrogance,
indifference, and an attempt to cover up wrongdoing, and of the hospital's
decision to put profit over patients.
After considering all of
the evidence and the factors set forth above, we conclude the evidence supporting the exemplary damages award of
$3,356,296 is factually and legally sufficient, because under these facts, a
fact finder could reasonably form a firm belief or conviction that the elements
required to prove exemplary damages have been satisfied. We overrule appellant's
fourth issue.
Judgment Interest
Rate
In an issue raised in its
reply brief, appellant requests that we apply the amended version of the pre- and post-judgment interest statutes and
reduce the interest to a rate to five percent. Effective September 1, 2003, the
post-judgment interest rate changed from a minimum of ten percent to a minimum
of five percent. See Act of June 2, 2003, 78th Leg., R.S., ch. 676, §§ 1,
2003 Tex. Gen. Laws 2096, 2097 (codified at Tex. Fin. Code Ann. §§ 304.003(c)
(Vernon Supp. 2004)). Before September 1, 2003, the post-judgment interest rate
was the fifty-two-week treasury bill rate, but in no case less than ten percent
or more than twenty percent. Act of April 23, 1999, 76th Leg., R.S., ch. 62, §§
7.18(a), 1999 Tex. Gen. Laws 127, 232. On September 1, 2003, the post-judgment
interest rate became the prime rate, but in no case less than five percent or
more than fifteen percent. Tex. Fin. Code Ann. §§ 304.003(c) (Vernon Supp.
2004). The 2003 statute provides, ““The changes in law made by this Act apply in
a case in which a final judgment is signed or subject to appeal on or after the
effective date of this Act.”” Act of June 2, 2003, 78th Leg., R.S., ch. 676, §§
2(a), 2003 Tex. Gen. Laws 2096, 2097.
Appellant asserts the
2003 amendment applies in this case. Appellant concedes the judgment in this case was signed before September 1, 2003, but
appellant argues that because this case was pending on appeal in this Court on
September 1, 2003, it was ““subject to appeal on or after the effective date
of”” the 2003 amendments. Because pre-judgment interest in a wrongful death case
is awarded at the same rate as post-judgment interest, appellant asks that we
modify both the pre- judgment and the post-judgment interest rates by applying
the 2003 amendment. See Tex. Fin. Code Ann. §§ 304.103 (Vernon Supp.
2004).
The Fort Worth Court of
Appeals faced this argument in Columbia Medical Center v. Bush, 122 S.W.3d 835, 864-66 (Tex. App.-Fort Worth 2003,
pet. filed). There, the court of appeals examined the legislative history and
observed that the Senate Committee's bill analysis states section 2(a) of the
act ““Makes application of this Act prospective.”” Senate Comm. on
Jurisprudence, Bill Analysis, Tex. H.B. 2415, 78th Leg., R.S. (2003);
Columbia Med. Ctr., 122 S.W.3d at 866. The court of appeals interpreted
section 2(a) of the amendment as providing that the amendment applied to (1)
judgments signed on or after September 1, 2003, and (2) judgments signed before
September 1, 2003 but which did not become subject to appeal until on or after
September 1, 2003, such as a default judgment in a multi-defendant case where
the default judgment, although signed before September 1, 2003, was not
appealable until the plaintiff's claims against the remaining defendants were
disposed of after September 1, 2003. Columbia Med. Ctr., 122 S.W.3d at
865-66.
We agree with the court
of appeals' interpretation of the amendment. Cigna Healthcare of Texas, Inc. v. Pybas, No.
05-03-00517-CV, 2004 WL 253941, at *16-17 (Tex. App.-Dallas Feb. 12, 2004, no
pet. h.)(same holding). Because the judgment in this case was both signed and
subject to appeal before September 1, 2003, the amended statute setting
post-judgment interest rates does not apply. Id. at *17. Accordingly, we
conclude appellant's argument lacks merit. We resolve this issue against
appellant.
Conclusion
Having overruled
appellant's second through fourth issues, we reverse and render judgment on the first issue and conclude that damages
obtained in the trial court are subject to the statutory cap contained in the
MLIIA. See, Tex. Rev. Civ. Stat. Ann. art. 4590i, §11.02(a) (Vernon Supp.
2003). The initial Final Judgment of the trial court dated August 30, 2002,
before it removed the cap in its Amended Final Judgment on December 3, 2002, was
the correct rendition. Therefore, we reverse the Amended Final Judgment in part,
and render judgment that the calculations used in the August 30, 2002 judgment,
were correct. In all other respects, we affirm the judgment of the trial
court.
MARTIN
RICHTER
JUSTICE
030279F.P05
Footnote
1
Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2003). Repealed effective
September 1, 2003 and re-codified with changes
at Tex. Civ. Prac. & Rem. Code Ann. § 74.001-74.507 (Vernon Supp.
2004).
Footnote
2
Effective September 1, 2003, a “health care liability claim” now includes
professional or administrative services. Tex.
Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon Supp.
2004)
Footnote
3
Appellant did not brief this aspect of its second issue, and has waived any
alleged error. Failure to cite any authority
constitutes waiver of the alleged error. Kang v. Hyundai Corp., 992
S.W.2d 499, 503 (Tex. App.-Dallas 1999, no pet.)
Footnote
4
Appellant's designation of issues three and four are apparently reversed in its
argument and authorities. As noted in another
recent case involving the same appellant and the same counsel, “appellant's
issues are extremely long and multifarious. . . . we cannot tell which arguments
and authorities sections in the brief address which issues. Consequently, we
address only the issues raised by the arguments presented in the body of
appellant's brief.” Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d
835, 841 (Tex. App.-Fort Worth 2003, pet. filed). We find the same factors
present in the instant case, and deal with the problem in like
manner.
Footnote
5
The parties do not address the effect, if any, of Texas community property laws
on decedent's ownership interests in the
foregoing assets. Because the issue is not before us, we decline to address
it.
Footnote
6
By our resolution of the first issue, we rendered judgment that the damages cap
of Section 11.02(a) of the MLIIA was applicable.
Tex. Rev. Civ. Stat. Ann. art. 4590i, §11.02(a) (Vernon Supp. 2003). Thus, the
proper calculation for exemplary damages is that contained in the original Final
Judgment. Thus, the amount of exemplary damages should have been
$3,356,296.
File Date[04/13/2004]
File Name[030279F]
File
Locator[04/13/2004-030279F]
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