Ellis Ex Rel. A.M.G. v. United States, 2012 U.S. App. LEXIS 4306

Federal Tort Claims Act case arising from medical malpractice deaths of Melissa Busch; district court denied reducing damages for alleged NE Methodist liability and capped noneconomic damages at $250,000 under TMLA; multi-party wrongful death and underlying negligence claims consolidated for trial in Texas; two hospitals involved: BAMC (military) and NE Methodist (private) treated Busch for left foot pain and injuries; January 1997 BAMC care failed to schedule an orthopedic consult, delaying cancer diagnosis; September 1997 NE Methodist treated a workplace injury and failed to communicate a potential retained foreign body, with later cancer diagnosed in 1999; district court found Government fully liable but did not allocate NE Methodist liability, and found Busch not comparatively negligent; damages for household services challenged under TMLA cap.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Liability attribution for cancer delay	Busch family argues NE Methodist and treating physicians contributed to delay.	Government contends only its employees were liable; NE Methodist may be responsible third party.	NE Methodist not liable; Government fully liable.
Comparative negligence of Busch	Busch acted as a reasonably prudent person with EMT training.	Busch failed to seek follow-up care after advisories.	Busch was not comparatively negligent.
Damages for household services vs. TMLA cap	Household services are pecuniary losses not subject to TMLA cap; evidence supports recovery.	TMLA cap applies to noneconomic damages including household services.	District court erred; remand to determine household services as pecuniary loss.
Impact of causation evidence for third parties	Experts support some shared responsibility with NE Methodist.	Need for medical probability showing NE Methodist causation.	No clear error; insufficient proof of NE Methodist negligence.

Hannah v. United States, 523 F.3d 597 (5th Cir. 2008) (causation standard for medical malpractice under Texas law; expert testimony required)
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (medical probability causation standard in Texas Supreme Court ruling)
Hood v. Phillips, 554 S.W.2d 160 (Tex. 1977) (limits on expert testimony foundations; evidentiary standard)
Dorriety v. Christus Health, 345 S.W.3d 104 (Tex. App.—Houston [14th Dist.] 2011) (household services treated as pecuniary loss under TMLA context)
Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992) (duty to cooperate in diagnosis; patient standard of care)