CHRISTOPHER JAMES GLENN, M.D. AND NORTHEAST OB/GYN ASSOCIATES, L.L.P, Aрpellants v. JOSEPH LEAL AND DAWN LEAL, INDIVIDUALLY AND AS NATURAL PARENTS, NEXT FRIENDS AND LEGAL GUARDIANS OF AL, A MINOR, Appellees
NO. 01-17-00010-CV
Court of Appeals For The First District of Texas
March 1, 2018
On Appeal from the 295th District Court, Harris County, Texas, Trial Court Case No. 2013-44705
BACKGROUND
Factual Background
On May 26, 2011, Dawn Leal arrived at Kingwood Medical Center for an elective induction. She was admitted and treated by Dr. Christopher Glenn. Dr. Glenn had been Mrs. Leal‘s obstetrician throughout her first pregnancy and subsequent delivery in June 2008, and Mrs. Leal began seeing Dr. Glenn again around the 15-week mark of her second pregnancy. Thereafter, she saw Dr. Glenn once a month for the next five months. Dr. Glenn knew that Mrs. Leal was a diabetic, so he scheduled her for an elective induction at 39 weeks of pregnancy.
On the day of the scheduled induction, Mrs. Leal was induced at 8:57 a.m., and Dr. Glenn checked on her progress at around noon. At around 2:50 p.m., Mrs. Leal‘s cervix was completely dilated and the nurses informed Dr. Glenn that she was ready to begin pushing. Dr. Glenn arrived to attend her delivery at 4:45 p.m.
Dr. Glenn began performing maneuvers to dislodge the baby‘s shoulder. Specifically, he instructed the nurses to perform the McRoberts Maneuver, which involves hyperflexing the mother‘s legs and pushing her knees back towards her shoulders to open the bony structure оf the pelvis. The nurses also applied suprapubic pressure to Mrs. Leal‘s pubic bone to assist in dislodging the baby‘s shoulders.
Fifteen seconds later, the baby was delivered. He suffered a permanent brachial plexus injury, which the Leals contend was due to Dr. Glenn‘s pulling, twisting, and turning of the baby‘s head to hasten delivery.
Procedural Background
The Leals filed a medical malpractice suit against Dr. Glenn and Northeast OB/GYN Associates, LLP, alleging that Dr. Glenn was negligent in failing to use ordinary care during the baby‘s delivery and that his negligence was the proximate
The case was tried to a jury on June 23, 2016. At the close of the evidence, Dr. Glenn moved for a directed verdict, arguing that there was legally insufficient evidence of the willful and wanton negligence required of an emergency health carе provider under
The jury returned a verdict in the Leals’ fаvor, awarding them (1) $100,000 for physical pain and mental anguish sustained in the past, (2) $500,000 for future physical pain and mental anguish, (3) $250,000 for future disfigurement, (4) $500,000 for physical impairment, (5) $150,000 for past medical expenses, (6) $300,000 for future medical expenses until the child reaches 18 years of age, and (7) $900,000 for future medical expenses after the child reaches 18 years of age.
The trial court denied the motion for JNOV, and entered a final judgment in accordance with the jury‘s verdict. This appeal followed.
INTERPRETATION OF CIVIL PRACTICES & REMEDIES CODE §74.153
In his first two issues on appeal, Dr. Glenn contends the trial court erroneously interpreted
[T]he trial court erroneously denied Appellants’ motion for directed verdict and for judgment notwithstanding the verdict (“JNOV“), where Section 74.153 of the Texas Civil Practice and Remedies Code governed the standard of proof in this case and Appellees wholly failed to provide legally sufficient evidence of willful and wanton negligence as required under Section 74.153.
[T]he trial court abused its discretion in refusing to submit Appellants’ requested questions and instructions regarding the application of Sections 74.153 and 74.154 of the Texas Civil Practice and Remedies Code, and whether the error in refusing to submit the questions and instructions probably resulted in the rendition of an improper judgment.
Section 74.153
Both issues require this Court to interpret
In a suit involving a health care liability claim against a physician or health care provider fоr injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.
The Leals argued, and the trial court agreed, that before treatment in either a hospital emergency department, an obstetrical unit, or a surgical suite would trigger application of the statute, there must first be the “evaluation or treatment of a patient in a hospital emergency department.” In other words, obstetrical deliveries that begin in an emergency room, but conclude in an obstetrical unit, would trigger application of the statute, but a sсheduled delivery that begins in an obstetrical unit, but later develops into an emergency would not. Dr. Leal, in contrast, contends that when an emergency develops during a delivery in an obstetrical unit, the statute is triggered and the doctor gets the benefit of the “willful and wanton” standard of negligence, regardless of whether the patient was ever evaluated in a hospital emergency department beforehand.
Statutory interpretation is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex. 2001). Our primary goal in interpreting a stаtute is to ascertain and to effectuate the Legislature‘s intent. Id. at 702. In doing so, we examine the statute‘s plain language. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex. 2001); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). We assume that the legislature tried to say what it meant; therefore, the statute‘s words should be the surest guide to the Legislature‘s intent. Fitzgerald, 996 S.W.2d at 866. We read words and phrases in context and construe them according to the rules of grammar and usage. See
In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses; rather, we examine thе entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); see
D.A. v. Texas Health Presbyterian Hospital of Denton
The Fort Worth Court of Appeals has addressed the issue raised in this case on nearly identical facts. In D.A. v. Texas Health Presbyterian Hospital of Denton, 514 S.W.3d 431, 432 (Tex. App.—Fort Worth 2017, pet. filed), the plaintiff, M.A., like Mrs. Leal here, underwent an elective induction of labor. During delivery, M.A.‘s baby‘s head delivered, but the shoulders became lodged. Id. After maneuvers to release the baby‘s shoulders, the child was delivered, and, like Mrs. Leal‘s bаby, suffered a brachial plexus injury. Id.
M.A.‘s doctor moved for summary judgment, arguing that M.A. was required to prove negligence by a willful and wanton standard. Id. The trial court agreed and granted the doctor‘s motion for summary judgment on M.A.‘s ordinary negligence claims. Id. at 433. The Fort Worth Court of Appeals granted a permissive appeal to consider “the question of whether section 74.153 applies to medical care provided in an obstetrical unit without the patient‘s first having been evaluated in a hospital emergency department.” Id. In analyzing the issue, the Fort Worth court conducted a two-step analysis. First, it considered whether the statute was ambiguous, and second, having decided that it was, it considered extrinsic aids and legislative history. Id. at 433, 439.
Because both interpretations were grammatically correct, the court held that it could not ascertain the meaning of the statute from its “plain words” as written and turned to extrinsic aids and legislative history for assistance in interpreting the statute. Id. at 439.
The court then reviewed four canons of statutory construction—the “last-antecedent” canon, the “series-qualifier” canon, the “nearest-reasonable referent” canon, and the “related statues” canon. Id. at 439-40. First, the court determined that the “last antecedent” canon did not apply because it refers to an interpretation of pronouns, and the clause being interpreted did not contain a pronoun. Id. at 439.
Third, the court concluded that the “nearest-reasonable-refеrent” canon could be applicable because it involves the interpretation of a clause other than a parallel series of nouns and verbs, and provides that the modifier applies only to the nearest reasonable referent. Id. at 339-40. As such, application of this canon supported the suggestion that only treatment in a surgical suite requires a previous evaluation in a hospital emergency department. Id. at 440.
Finally, the court discussed the “related statutes” canon, which provides that “statutes in pari materia are to be interpreted together, as though they were one law.” Id. In so doing, the court considered
The court also considered
And, the court looked at
Considering these four statutes in pari materia, the court noted that all four signaled a concern for cases in which emergency medical care must occur “in the dark” and “primarily focus[] on the risks attendant to administering care to patients who are strangers to the medical care providers in an emergency situation.” Id. at 441. The court concluded that application of the “related statutes” cаnon compelled the conclusion that the legislative scheme “focuses more on when rather than where the care was administered.” Id.
The court also looked at the legislative history of
The Fort Worth Court of Appeals concluded by holding as follows:
The protections of section 74.153 are triggered by the evаluation and treatment of the patient in the hospital emergency department. Once
triggered, whether the subsequent emergency medical care is administered in the hospital emergency department itself or whether the patient is then transferred to an obstetrical unit or a surgical suite to receive the emergency medical care, a willful and wanton negligence standard applies. . . . .
[S]ection 74.153, which provides a willful and wаnton standard for liability, does not apply to emergency medical care provided in an obstetrical unit when the patient was not evaluated or treated in a hospital emergency care department immediately prior to receiving the emergency medical care.
Analysis
We agree with the Fort Worth court‘s analysis, and likewise, we conclude that
Accordingly, we overrule issues one and two.
In issues three and four, Dr. Glenn contends that the trial court erred in denying his motions for directed verdict and JNOV because the evidence is legally insufficient to support the awards for future medical expenses.
Standard of Review
When a motion for JNOV is premised on the legal sufficiency of the evidence to support a claim, rulings on a motion for JNOV and directed verdict are reviewed under the same legal-sufficiency test as are appellate no-evidence challenges. JSC Neftegas–Impex v. Citibank, N.A., 365 S.W.3d 387, 395 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); see also In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (“[Q]uestions of law are always subject to de novo review.“). Such a no-evidence challenge “will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Evidence of Fees Actually Paid or Incurred
In issue three, Dr. Glenn contends as follows:
[T]he trial court erroneously denied Appellants’ motion for directed verdict and for JNOV, where Appellees presented legally insufficient evidence to support the award of future medical expenses awarded in the total amount of $1,200,000. Appellees’ sоle evidence addressed only the amounts currently charged or billed by providers, and failed to exclude the difference between such amounts and charges the service providers bill but would have no right to be paid, as required by Section 41.015 of the Texas Civil Practice and Remedies Code.
Dr. Glenn argues that there was no evidence that the future medical expenses would be “actually paid or incurred,” as required by
In Haygood v. DeEscabedo, 356 S.W.3d 390, 398 (Tex. 2011), the supreme court, in reviewing a claimant‘s recovery of past medical expenses, held that
Here, however, there is no evidence of any applicable law or contractual agreement limiting the amount that the providers could charge for medical expenses incurred in the future, and the jury was asked to fairly and reasonably compensate for those expenses. To assume that the amount awarded is beyond the amount of future medical bills would be speculative. See Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 854 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (finding no abuse of discretion in admitting evidence of full value of services rеndered because “[t]his record offers no basis for a conclusion that the medical expenses at issue here included list price charges for which the service providers billed but had ‘no right to be paid.‘“); Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 176 (Tex. App.—Dallas 2012, pet. ref‘d) (“Unlike Haygood, there was no evidence of any contract that would have prohibited Parkland or Southwestern from charging Gallegos for the full value of the services rendered. Thus, we cannot conclude the hospital was not ‘entitled’ to recover for the actual value of the services rendered.“); see also Guzman v. Jones, 804 F.3d 707, 712-13 (5th Cir. 2015) (refusing to apply Haygood and stating that “[r]educed prices that [an uninsured plaintiff] may have received had he participated in health benefits or insurance programs for which he may have been eligible are irrelevant according to Texas law“).
Accordingly, we overrule issue three.
Consideration of the Affordable Care Act
In issue four, Dr. Glenn contends:
[T]he trial court erroneously denied Appellants’ motions for directed verdict and for JNOV, where Appellees presented legally insufficient evidenсe to support the award of future medical expenses awarded in the total amount of $1,200,000. Appellants sole evidence failed to address the impact of the Patient Protection and Affordable Care Act (“Affordable Care Act“) on the life care plan, and failed to limit future damages to the premiums charged for that health insurance obtained from the federal government and any out of pocket expenses reasonably likely to be incurred in obtaining coverage.
Dr. Glenn argues that “with the enactment of the ACA,4 it is no longer fair to continue to feed the jury the fiction that future medical expenses projected by a life care plan . . . will or could be paid entirely out-of-pocket.” This argument is based on the assumption that all individuals can and will obtain insurance coverage, thus they will never be billed a provider‘s “full” or “list” rate, but will have to pay only their premiums and out-of-pocket expenses.
Therefore, Dr. Glenn‘s assumption that the Leals will hаve insurance coverage in the future, and in particular, coverage for the items incorporated in the future medical bills presented to the jury, is speculative. See McChristian, 449 S.W.3d at 854 (holding unadjusted medical bills properly admitted by uninsured plaintiff); Guzman, 804 F.3d at 711-12 (holding that plaintiff not required to purchase insurance, thus entitled to recover entire amount billed by providers). Dr. Glenn has not demonstrated that the Leals’ evidence is insufficient because it fails to provide speculative information about how their future medical bills might be affected if they have insurance when such expenses are incurred.
We overrule issue four.
We affirm the trial court‘s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.