Columbia Rio Grande Regional Healthcare, L.P. v. Hawley

about his obligation. Appellant’s court, first is trial may not be raised for the Tex.R.App. sue is overruled. appeal. 33.1(a); first time on P. State, 645, (Tex. Lozano v. holding Our it unnecessary makes for us 1998, App.-Eastland pet.). Appellant’s to address attorney general’s conten- third issue is overruled. tion that child support judgments never become dormant. It unnecessary is also Conclusion

for us to appellant’s address arguments that subsequent amendments to the Fami- The trial properly court included the ly may applied Code not be retroactively unpaid portion of the 1989 arrearage judg- judgment revive a dormant because the ment when it appellant’s confirmed child 1989 arrearage judgment did not become 2004, support arrearage and it properly Appellant’s issue, therefore, stale. second appellant’s calculated arrearage. The trial is overruled. judgment court’s is affirmed.

Finally, it is unnecessary for us to ad- party’s

dress either contentions concerning

whether the attorney general is a real

party or if presence its a party as results

in a different application of the Ap- law.2

pellant’s fourth issue is also overruled. issue,

In the appellant third alleges the trial improperly court calculated inter COLUMBIA RIO GRANDE REGIONAL est because payments some his were HEALTHCARE, L.P., Rio d/b/a improperly classified as support pay child Regional Hospital, Appellant, Grande ments arrearage rather payments. The original support child required order appellant pay support until daughter his Alice H. HAWLEY James turned eighteen or until further order of Hawley, Appellees. A. Appellant’s the court. daughter turned No. 13-03-427-CV. eighteen February Appellant 1995. contends that obligation his was never ex Texas, Appeals Court of and, thus, subsequent tended all payments Corpus Christi-Edinburg. should applied entirely have been to his March 2006. arrearage but that payments through his year end of the 1995 school were treat regular ed payments. child support

This resulted in a principal-calcula $700

tion attorney error. The general answers

that this issue was not presented to the and, thus, preserved is not

appeal. attorney general is correct.

Because this presented issue was not Appellant contends because the judg- child which allows the State to revive stale majority money has reached years, apply. and all of the ment for more than two do not mother, being going collected parties to the then Both also briefed issues such as statutory provisions such as Tex. Civ. Peac. applicablе whether limitations and laches are & (Vernon § Supp.2005), given attorney 16.061 general’s presence. Rem.Code Ann. M. R. LaMorgese, Cooper,

Brad Brent Faust, Cooper Scully, Dallas, Diana L. & for appellant. Vo, Lyons,

Clem V. LoAn K. R. Laura Pazin, Rhodes, Antonio, Lyons & San Dar- Walker, rin Walker, Law Office of Darrin for appellees. RODRIGUEZ,

Before Justices CASTILLO, and GARZA.

OPINION Opinion by Justice GARZA. Healthcare, L.P., Columbia Rio Grande Regional Hospital, ap- Rio Grande d/b/a peals against from a judgment entered on a verdict. Ten issues are raised appeal. general fall These into four (1) categories: challenges to the sufficien- (2) cy evidence, of the issues to the related admissibility expert testimony, of certain (3) (4) issues, jury charge issues relat- (the perfo- treatment of a pre- “Hospital”) damages post- and to the ed 23, 2000, judgment interest rates.1 To ensure On November rated diverticuli. M.D., necessary disposition for final a resec- Rodriguez, performed all issues Jesus decided, are we address of the appeal Hawley’s colon because tion Mrs. they in a order than how surgery, issues different During the ruptured diverticuli. by appellant. are Tex. presented Mrs. Rodriguez Dr. examined R.App. begin Specifically, P. 47.1. we Mrs. detected abnormalities. liver and rendition of require errors would Hawley discharged from the then judgment appellant’s favor and dis- 29, 2000. on November trial. require cuss that would a new errors portion excised require modification Errors would M.D., Valencia, Jose colon was sent judgment will be discussed last. We within pathologist whose office is located judgment overrule all issues and affirm the Dr. examination Hospital. Valencia’s of the trial court. specimen revealed that Mrs. of the tissue diag- Hawley had cancer. Dr. Valencia Background Hawley having as nosed Mrs. adenocarci- 22, 2000, Hawley On November Alice H. lymph of five noma the colon with four M.D., presented Areehiga, Armando staged being positive. Valencia nodes primary physician, complaining of care cancer, severity, Stage 3 in terms of nausea, vomiting. Are- cramps, as “Duke’s cancer. or what is known C” Hawley chiga Doppler referred Mrs. for a Hawley not learn that she had did Upon learning exam. results almost full exam, Areehiga di- cancer until October sent Mrs. Dr. Va- rectly Regiоnal Hospital year diagnosed by to Rio she was Grande after brief, cian, negli- considering the presented appellant’s in the ten when whether As gence appellant proximately Mrs. following: of caused appeal are issues on the injuries; Hawley's (1) court’s of the trial erroneous admission (6) appellant entitled to the rendition of testimony the of Dr. Susan Escudier and judgment legal in its favor based on the Billie Marek error constituted harmful support insufficiency to the of the evidence probably resulting in the rendition of an Question One; finding jury’s to improper judgment; (7) a new trial based appellant is entitled to (2) the trial court’s erroneous exclusion of segregate the dam- appellees’ on failure to independent the of new and appellant ages allegedly by from caused cause evidence constituted harmful error damages caused Mrs. those probably resulting the rendition of an condition; pre-existing judgment; improper (8) to of appellant is entitled rendition (3) appellant to a trial is entitled new based alternative, or, judgment a new trial in the the trial failure to instruct the on court's there es- because is insufficient cause; jury independent” on and "new necessity and of the reasonableness tablish (4) appellant to a trial is entitled new based expenses jury the awarded the medical charge error due to the trial court’s court; and modified the trial Hawley jury failure to instruct the that Mrs. (9) judgment because the must be modified greater a have had chance must 50% damages prejudgment the and associated 28, ap- 2000 for of survival on November pursuant been limited interest should have pellant’s negligence proximate to be a cause provisions of 11.02 of former to the section injuries; of her the Revised Civil Article 4590i of Texas (5) Statutes; appellant to a trial based is entitled new and (10) judgment failure to instruct the de- on the court’s the must be modified post-judgment rates pre- of Dr. interest not to consider the conduct crease and Valencia, percent. independent physi- ten to five an contractor time, By lencia. that had an inopera- legal she of standards rеview for and factual ble in her roughly tumor liver that was the sufficiency challenges are settled and will size of a Hawley softball. Mrs. was treat- not be restated here.2 Escudier, ed with chemotherapy by Susan Jury’s Question A. The Answer to Marek,

M.D. One and Billie M.D. Although her response initial the chemotherapy issue, In its sixth Hospital the con excellent, the cancer was too far ad- tends legally that evidence is insuffi vanced treating physi- to be cured. The support jury’s cient to affirmative an hope cians continued treatment of One, Question asked, swer to which ‘Was prolonging long life for as negligence, any, of ... possible. as proximate cause injuries of to Alice H. Hawley?” Hospital argues 26, that February 2002, there

On husband, competent was no evidence Mrs. her Haw- Hawley, James A. sued the ley had more than a percent chance of Hospital. Their petition alleged live survival in November 2000 and that Hospital was negligent failing to evidence is therefore legally insufficient to timely properly convey the cancer di- prove Hospital’s negligence that the was a agnosis Mrs. Hawley, surgeon, proximate Hawley’s injuries. cause Mrs. Rodriguez, admitting and her physician, Arechiga. Hawleys also com- Supreme The Texas Court has ex plained had failed to this, plained cases such polices procedures follow its own proof ultimate on the standard issue of reporting surgical pathology results. whether, by preponderance causation is jury, The case was tried to a which evidence, act negligent or omission returned a unanimous verdict is shown to be a substantial factor in Hospital’s negligence proximate awas bringing about the harm and without injuries cause of the damages sus- which the harm would not occurred. tained by Hawleys. The trial court Milo, Hosp. Park Place v. Estate judgment verdict, entered a on the and the (Tex.1995); Kramer v. Hospital subsequently appealed judg- Mem’l Hosp., Lewisville 858 S.W.2d ment to this Court. (Tex.1993); Yelin, Duff 175, (Tex.1988). simply, 176 Put must 2003, At February the time of trial in likely be “more not” that ultimate Mrs. life expectancy approxi- was harm or from the condition resulted defen mately months. ap- six While the instant Kramer, 858 negligence. dant’s S.W.2d at Court, peal pending was before this Mrs. Thus, recovery if the is barred defen Hawley complications succumbed to patient negligence deprived dant’s of caused her cancer. Her husband con- only percent a 50 or chance of less surviv appellee. tinues in this matter as sole Milo, 511; Kramer,

al. 909 at Challenges Sufficiency I. to the S.W.2d at 400.

of the Evidence Much on Mrs. focused Haw- issues, In eighth Hospi- ley’s its sixth chances of survival November 2000, initially tal diagnosed contends the evidence is insuffi- when Dr. Valencia produced cient to support jury’s findings. her with cancer. Both sides ex- Wilson, Jackson, Archery, City Eagle 2. See Keller v. 168 S.W.3d Inc. v. (Tex.2005) (Tex.2003) (factual (legal sufficiency); sufficiency). 827-28 Golden 761-62 you groups patients at co- cudier: look testimony explain “[I]f how pert medical average an prospectively, as a whole staged is and what the various lon cancer patient with colon cancer treated Duke’s rates of survival are for the different C five-year chemotherapy, a surviv- adjuvant es- stages.3 The uncontradicted seems percent of 60 had survival Hawley been al overall tablished Mrs. to me.” fully following diagno- her initial reasonable evaluated sis, staged at her cancer would have been very disagreement also little There was or “Duke’s D.” either “Duke’s C” suffer- patients rate of the survival about prognos- D Their at from Duke’s cancer. staged ing

Patients afflicted with cancer markedly range percent. D from zero to and Duke’s es Duke’s C of survival. Dr. Eseudier different rates at trial was whether dispute The main that the survival rate for Duke’s testified or Duke’s D Hawley had Duke’s C patients are treated is properly C who Hawleys cancer in November 2000. percent. 40 and 60 believes between She C, Duke’s that the cancer was maintained actually per- that the closer to rate attempted to prove but cent, acknowledges she the existence but already developed had rate place studies that below older and less treatable Duke’s more advanced percent. Dr. Eseudier attributes respective attempting prove In their D. the old and new stud- discrepаncy between cases, frustrated a both sides were ies, improvements imaging part, Hawley did not problem: Mrs. common patients technology. imaging, With better undergo full evaluation at the time a meaning staged accurately, are more fewer Instead, nearly diagnosis. initial patients incorrectly D Duke’s are was elapsed any ‍​‌‌‌​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌​​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‍imaging months before Thus, staged at C. in Dr. Duke’s Escudi- expert The uncontradicted performed. opinion, er’s the actual survival rate has testimony produced trial established necessarily improved pa- for Duke’s C a critical fac- radiographic imaging improved tients. survival rate has accurately staging cancer. tor Without statistically, part, pa- because fewer tumor, confirming existence of new tients with more advanced cancer are mis- staged at properly cannot be patient C, staged takenly at Duke’s which has led is, D diagnosis a Duke’s Duke’s D. That to an overall in the rate increase survival confirmation that the cancer has requires C patients. Duke’s a new location and formed new spread tumor, can which be identi- growth Dr. Escudier’s estimate of the survival area can measured. visually rate fied be supported by opinions words, clinically tumor must be oncologists other who testified at trial. other Thus, instance, For in Mrs. Marek estimated demonstrable. case, properly staged rate cancer could be approxi-

survival for Duke’s C to be onlyD evidence of a percent. Raefsky, Eric at Duke’s there was mately 65 Even trial, Nashville, Hospital At M.D., tumor in her liver. oncologist an from Ten- to estab- nessee, expert any wit- not offer direct evidence who was called as an did was in Mrs. present Es- that a tumor by Hospital, agreed ness with Dr. lish that, lowing challenged to hear the testi- appeal, 3. contends In this reasons, testimony given pro- mony. opinion, for certain we various Section II of this In by Hawley’s treating physicians in- was complaints why Mrs. these vide discussion of contends that admissible. no merit. we find them have by error al- trial court committed reversible Hawley’s liver Hawleys: on or before November Okay. Counsel for So the you’re reason equivocating, that and I 2000. understand, is beсause no one did fol- Instead, presented the Hospital expert up low on Alice when she was diag- opinion that, given large size nosed. Hawley’s Mrs. tumor 11 months after her diagnosis, initial the tumor must No up time, have one followed at that in present been liver right? her when she was staged? She wasn’t initially diagnosed in back November 2000. Raefsky: Dr. That is correct. Hawleys expert countered with testi- Hawleys: for you Counsel And said we mony explaining presence that some really don’t know if had she overt secondary cancerous cells in a location evidence of metastatic disease No- does necessarily not warrant D a Duke’s vember nothing because fact, diagnosis. all the oncologists who done? you what That’s said? at recognized testified trial a distinction Raefsky: Dr. That is correct. Let me between “micrometastatic” disease and just say we do know that she had at “macrometastatic” disease. Micrometas- least micrometastatic disease No- tatic signifies migration disease of can- vember of 2000. primary growth cerous cells from a area to Hawleys: Counsel for Right. my And other locations within the body, where the experts that, agree you may cells or may form ultimately she have had to had micrometastatic growth, new cancerous depending on the eventually disease because she came ability body’s system immune down with metastasis that was identi- defeat them. Metastatic or macrometas- bowel, originating fied as in the cor- tatic disease means that a new cancerous rect, in the colon? growth has by been formed the metastatic Raefsky: Dr. Correct. cells growth the new is discerna- can Essentially, ble and be Hawleys: measured. Counsel we So know new, means that a identifiable and demon- there was micrometastatic disease. tumor strable has formed. is, you’re What saying really we don’t know if had she overt All oncologists who testified metastatic disease November of that, agreed at the time of diag- her initial 2000? nosis, Hawley Mrs. suffered from at least Raefsky: is, Correct. micrometastatic they disease. That agreed that the had spread, cancer at least Escudiеr, Drs. Marek and oncolo- microscopically, Mrs. Hawley’s colon gists Hawley, gave who treated simi- liver. This condition is consistent lar testimony. During cross-examination with a Duke’s diagnosis. C Hospital’s attorney, Dr. Marek tes- Raefsky, expert, took tified he had “no doubt” that Mrs. opinion step his one further. He testified spread had micrometastatic of her present a tumor was in Mrs. adenocarcinoma of the colon November liver in November 2000 and that the tumor Marek further testified would have proper imag- been visible growth November would not ing, meaning that cancer been measurable current radi- already had progressed definition, to Duke’s D. ographic By means. this limita- examination, Upon further Raefsky places Dr. tion in cancer gave following testimony: Duke’s category. C Hospital: And defini- for also on the sub- Counsel Dr. Escudier testified tion, we know D is Duke’s where the cancer must ject. She testified that organ? another is metastasis to it there 2000 because spread have November was, fact, in in Haw- later discovered Mrs. Yes. Dr. Escudier: known, be ac- ley’s liver. cannot What Hospital: you agree Do for Counsel Escudier, is whether the cording to Dr. now know- retrospect, me in with disease, microscopic meaning spread was with Hawley up ends ing that Ms. [sic] C, disease, meaning macroscopic Duke’s or liver, in she this size a tumor of D. asked Duke’s Counsel for the was, fact, D in in a Duke’s November “spiral Dr. whether a CT scan” Escudier [growth] the primary when Haw- would have shown tumor Mrs. was removed? ley’s liver in November 2000. Dr. Escudi- D again, But the Duke’s Dr. Escudier: mean, you I replied, possible. er “It’s radiologic evidence is based on either say way or ... I don’t can’t one another biopsy evidence for metastatic dis- blood were. I don’t know what her tests ease, so— if at her surgeon know the looked liver following Dr. gave not.” also Escudier

testimony in maintained that a which she at wasn’t done Dr. Escudier: Which diagnosis beyond C not be Duke’s could that time. made on the information available: based Hospital: But retro- for Counsel Hospital: retrospect, Counsel for spect? can back a now that we look little bit mean, I I there was—like Dr. Escudier: years over we shе ago, two know said, certainly was some cancer there time; Duke’s C that wasn’t at much cancer was there there. How your understanding? speculation. pure Dr. Escudier: We know that be- don’t Hospital: But it was Counsel for any imaging cause don’t liver we there? exploration. or liver Again, every per- Dr. Escudier: —in Hospital: Counsel for Is reasonable [patients], the cent of Duke’s C cancer to assume that the liver cancer or the it’s already spread has at time already present liver metastases was diagnosed. of 2000 when adeno- November Testimony Rodriguez, Dr. the sur- from the co-

carcinoma was removed operated who geon lon? trial. was also offered at November Dr. Escudier: We don’t have data Rodriguez that he saw no testified had she no scans say because [that] during surgery. He of cancer signs done that time. Hawley’s abdomen for oth- examined Mrs. no indication discovered pathology er but Hospital: Okay. do You Counsel Rodriguez spe- any abnormalities. Dr. di- agree somebody’s me that Hawley’s liver cifically examined Mrs. D, agnosed they have with Duke’s body visually both from within her grim much for five- prognosis more liver with his hands. palpating her year somebody with survival procedures that such Rodriguez testified C? Is that correct? Duke’s detecting “gross pathology,” are useful tumors, but testified that including also Yes. Escudier: practices percent these were not 100 effec- and the size tumor when it was treated, tive. finally the tumor must have been present in Mrs. Hawley’s liver and clinical- a complete Based on review of the rec- ly Thus, demonstrable November 2000. ord, we is legally-suffi- conclude that there according Hospital’s to the witnesses and prove cient to evidence that Mrs. evidence, Hawley’s Mrs. cancer had al- greater had a percent chance of ready D advanced to Duke’s Hospital’s negli- survival at time of the percent. chances of survival were below 50 gence. conclusion, reaching In this we recognize that hotly- this case involved a noteworthy We find that none of the fact contested issue to as whether Mrs. given testimony Hospital’s wit- Hawley’s cancer was Duke’s C or Duke’s рrove nesses tended to that either the D in 2000. Hawleys November pro- experts or their testimony were prove duced substantial to respect incompetent or unreliable. To the Hawley’s Mrs. cancer could not be staged contrary, Hospital’s witnesses recog- beyond the category Duke’s C and that nized the qualifications competency of Hawley’s Mrs. chances of survival were Hawleys’ experts. point dissen- well percent. therefore above 50 This evi- sion among experts was whether it was included, among things, dence other testi- on the doubling reasonable to use statistics mony from the two oncologists who treated large times of tumors to estimate how Hawley, testimony from surgeon Hawley’s tumor in was in liver No- who examined Mrs. liver and Hospital’s experts sug- vember 2000. took sample the tissue led to the gested approach appro- such an was cancer, diagnosis initial of colon and testi- priate, heard but the also mony the pathologist from who made the un- approach that the was unreliable and initial diagnosis. instances, In reasonable. some mixed its

Notably, presenting sufficiency testimony Hospital’s came from the own Court, challenge has example, Raefsky witnesses. For tes- neglected Rodriguez’s testimony re- tified as follows: garding his examination of Mrs. Hawleys: you say you Counsel for And liver in November Dr. Rodriguez growth know the of most rate colon testified that his examination uncovered no cancers. is, signs gross pathology, no signs that, get going What —are we into of a signs tumor thus no macrome- grow- fast about how this cancer testimony, tastatic together disease. This ing Alice? inside expert testimony produced with the other Raefsky: know, I trial, Again, you hope strongly that Mrs. indicates Haw- Because, obviously, not. there is con- ley’s beyond cancer had not advanced here, jecture. you And as I said and that Duke’s C her chances of survival know, my talking experi- I was at the time of about Hospital’s negligence grow in ence with how colon cancers approximately percent. were people. most record, conducting our review the we excluded from consideration The fact that we don’t know certain- ty compared evidence on issue. The of 2000 November Hospital produced testimony patholo- you’re right. That October my gists oncologist prove conjecture part and from its own certainly growth likely I think based on given average tumor rates to what is most conjec- extent, on testimony was based treating of his my of hundreds experience science, ture, because of than hard rather patients. colon cancer the actual difficulty determining in Hawleys: for Dr. Escudier Counsel of untreated cancer. growth rate very it’s difficult seemed to think that predetermine generally growth to applying experi- The reasonableness you agree Raefsky’s, experiences rate colon of a cancer. Do as Dr. ences such treated, estimate are to patients with that? with who in an untreated growth rate a tumor Raefsky: Yes, Dr. I do. Hawley, as became a patient, such Mrs. Hawleys: case, And in Counsel for this jury. It was fact issue for heated microscopic spread it whether was on again cross- raised just nonpalpable in her ... lesion Anderson, M.D., examination of William know it liver in November of we expert as an witness pathologist called eight grew dramatically over the next Hawleys. Dr. Anderson’s months, It was a to ten don’t we? Raefsky’s cast value of Dr. doubt in dramatic increase size? as the other testimony, as well Raefsky: Dr. we know Again, don’t doubling evidence based on the times what the size of the lesion was and we who, patients unlike Mrs. Haw- tumors how Dr. Rodri- thoroughly don’t know ley, upon diag- treatment actually received guez palpated the liver the sense of nosis. doing surgery. he wasn’t a cancer Well, doubling Dr. Anderson: time words, it certainly other feasi- quite is rate, how basically growth long thorough ble that he than a did less tumor double. The takes that to job he he had no because felt reason problem with that is that as tumor to suspect cancer. doubling changes, going time is to this Hawleys: He like Counsel for won’t to may go pretty and it change well that, you hear know? going chart it’s much off the because thought He he pretty examined it well fast. so according deposition. his аny sta- problem The other real But anyway, microscop- there was a doubling in the time the liter- tistics ic or if there spread was lesion people are ature is that all those there, say, or two one centimeters Nobody pa- finds a patients. treated missed, that he still to con- we well, says, tumor tient with a very aggressive cede that that was a for going you to treat ten we’re to have it did gotten tumor the size get you so can into the months we months, or 11 within 10 correct? It doubling stage. happen. doesn’t Raefsky: Dr. Uh-huh. system, it In the medical care doesn’t Hawleys: say have to Counsel You people happen. group So yes or no. you have in the statistics are treated Raefsky: Yes. patients. go then we have So before, outliers, Ias mentioned the— Raefsky Although initially relied on aren’t That’s the ones that treated. professional experience support his his And tumor. the difference opinion testimony growth that a cancerous have in this situation. that’s what we in Mrs. liver would have been cross-examination, clinically On further demonstrable November how, opinion, explained in his to some Anderson subsequently he conceded Hospital’s retrospective staging what he when the re- saw colon was moved; growth cancerous liver that correct? erroneous improper and under the tradi-

tional methodology staging: of cancer But that’s all he saw was what was Hospital:

Counsel agree for We colon; that right in the there is that cor- Ms. had at [sic] least micro rect? liver,

metastases to the correct? Dr. Anderson: Yes. Dr. In all Anderson: likelihood. Hospital: Counsel for no There were done, radiologic x-rays CT scans Hospital: Counsel for Micro metastas- nobody done. So knows— D; es to the liver would be a Duke’s Well, that Dr. exactly correct? Anderson: that’s not physical true. was a There examina- Dr. Anderson: No. tion of the liver in an surgeon Hospital: Counsel for Metastases to hilum, fairly area in the which is a a the liver would Duke’s D? be thin and would to— thing, be able Dr. stages Anderson: No. The were fairly readily palpate a [sic] descent up you set actually what found. size lesion there. they up. you That’s how set it So Hospital: Counsel [sic] Descent can’t sрeculate staging because the that? size. What size is statistics, was set in all these okay, Dr. Centimeter or so. Anderson: tumor, you a palpa- know there’s it’s at ble least in the liver. If it’s less Hospital: that agree Counsel for We that, said, people then —as we percent it’s not a [accurate] hundred circulating

have these cells all the surgeon palpates when a the liver that, time. if less than a But it’s it’s if a see he feels tumor of some sort? just way C. That’s it was clinical- ly Well, up. you go set So can’t back Dr. hun- nothing’s and Anderson: a well, say, because we think it might percent dred medicine. be, we’ll D. You call it a can’t do that. Hospital: Counsel for Because it could there, you If prove can it’s it’s a D. If deep be the liver? down you don’t, it’s a C. That’s how all the point. That’s the It de- Anderson: statistics So it’s are done. erroneous pends on the tumor is in the where well, say, we think the micro metas- liver, part hilum. In thin it tases is a D because clinical crite- wedge comes into a down and where ria is being able demonstrate the probably that this tumor is about is else if you metastases somewhere And, (indicating). yeah, thick can’t you say do can’t a D. mass, a firm there’s a mass there across, you’re probably go- centimeter continued, As the cross-examination something ing to feel there. Anderson testified Dr. Rodriguez’s physical examination Mrs. liv- Thus, both the and the er probably would have revealed a tumor if Hawleys their version of supported events she had macrometastatic disease evidence, including expert testimony. liver November 2000: course, role, jury’s Of it is the finder fact, Hospital: Counsel for So Dr. Valencia to resolve conflicts the evidence. Wilson, City he diagnosed was correct when Keller v. —first (Tex.2005). re- legal sufficiency said this was a Duke’s on 820 In C based sub-issues, contends jurors view, resolved two we must assume to support insufficient evidence is with the verdict. all conflicts accordance Marek used award the final because record in Id. We have reviewed entire in his “probably” the word case, recognize the although we estimate on Dr. Marek based his because fact, hotly-contested issue of existence of Hawley had аssumption that Mrs. the false jury’s will not disturb the resolution we disease developed macrometastatic presented the conflicts contradictions Hospital’s negligence. We the time of evidence detailed by the evidence. The overrule each sub-issue. us a reason- adequately above assures juror could find that able and fair-minded Testimony Certainty of 1. of were Hawley’s Mrs. chances survival what of sufficien type It is unclear percent at time of greater the the by to cy Hospital the seeks raise challenge negligence. Accordingly, the Hospital’s appears Hospital The its first sub-issue. Hospital’s sixth issue is overruled. “proba generally to assert the word testimony expert in bly” opinion renders Necessary B. Reasonable and and competent or otherwise inadmissible Expenses Medical insufficient establish therefore issue, eighth Hospital its necessary medi award for reasonable legally contends that evidence is disagree. cal We expenses. factually insufficient to establish the rea has supreme aptly addressed necessary expenses sonable and medical between the various bur- distinction by by jury awarded and modified proof dens at trial and what the used trial court. “proof of an supreme court describes as Hawley’s certainty”: Mrs. medical bills were admit- absolute evidence, by into ted as were affidavits Dr. truth, searching for the law does [I]n Pina, Marek and Elíseo the custodian of not, not, require proof of an and should records for the South Texas Cen- Cancer certainty or absolute causation ter, Hawley hospital where Mrs. It always factual issue. settles other treated. Mrs. medical bills to- certainty, lower threshold of some $209,443. by Dr. taled The affidavits Ma- beyond a reasonable doubt whether rek and Mr. Pina asserted that ex- law, convincing evi- criminal clear penses reflected in the medical bills were involving civil dence certain matters necessary reasonable and to treat Mrs. typical or more rights, constitutional trial, Hawley. At Dr. Marek testified that probability. civil reasonable burden of only expenses one-third the medical Kramer, 405. аt S.W.2d “probably” incurred would have been cases, plain malpractice In medical negligent. had not been required tiffs to show evidence of are probability” medical “rea Hospital’s negli- found that the “reasonable injuries their Hawley probability” to incur reason- sonable gence caused negligence necessary caused expenses proximately able medical the were Milo, $400,000. defendants. The trial court re- of one more amount of $139,628.67, It is unremarkable amount at 511. thus duced award to an S.W.2d and, fact, Dr. Ma- fully expected equals which two-thirds Mrs. fall of “abso with Dr. rek’s would short expenses total and is consistent Kramer, certainty.” testimony. lute Marek’s at 405. Only testimony of expenses “reasonable excess of one-third esti- probability” required in previously such mate posited cases as Dr. Marek. Milo, this. See 909 S.W.2d at 511. Given disagree. actually We Dr. Marek testi- this “lower of certainty,” threshold we be- just unfortunately fied follows: “[W]e lieve that Dr. Marek’s use of the word lot [of can’t draw whole conclusions] “probably” qualify opinion his did not except say, certainty, that she did ipso testimony incompe- render his facto have micrometastatic disease at the time inadmissible, tent or as the con- diagnosis.” of her interpre- Kramer, tends. See 405. “mi- tation the record assumes that the The Hospital’s first sub-issue is overruled. crometastatic disease” mentioned in the

preceding quote refers and is inter- changeable Micrometastatic Disease Versus with the “metastatic disease” Macrometastatic Marek did Disease assumed not have at of her diagnosis. the time The second sub-issue raised the Hos- above, discussed As uneontradieted pital premised appears what to be an sig- evidence adduced at trial a established interpretation inaccurate of the record. nificant distinction between micrometastat- The Hospital contends that Dr. Marek’s ic or disease and metastatic macrometas- necessary estimate of and reasonable med- experts tatic disease. All the who testified expenses ical was unreliable because it was agreed that, very lеast, at trial at the Mrs. assumption based on an that Dr. Marek’s Hawley suffered from micrometastatie dis- testimony proved own later to unfound- be at diagnosis. ease the time of her Dr. ed and disagree. false. We much in Marek testified to as the above A review of the testimony reveals a criti- quote. interpret Dr. We do not Marek’s cal discrepancy Hospital’s between the testimony to mean that Mrs. con- representation of Dr. testimony Marek’s more actually dition advanced con- and actually what is documented dition of metastatic macrometastatic record. Dr. Marek testified that Mrs. disease, suggests. Ma- Hawley probably only would have incurred expressly qualified rek’s is expenses one-third of her medical she new, de- assumption clinically that a begun diagno- had at treatment the time of developed tumor had monstrable sis, assuming develop did not she ma- at the time of her Mrs. liver requiring crometastatie disease additional therefore did not diagnosis and that she treatment. suffer from metastatic or macrometastatic disease. parties disagree about whether Dr. Hawley Marek later legal-sufficiency testified Mrs. In a chal- evaluating had already developed macrometastatic lenge, every reasonable inference deduc- diagnosis. disease at the indulged time Accord- ible from the must be evidence ing to the Hospital, party. City Marek testified favor of the See prevailing Wilson, 802, of diagnosis, Hawley the time v. S.W.3d 827-28 Keller 168 [already] (Tex.2005); “had metastasized certain- Corp. Plastics USA Formosa Thus, Contractors, Inc., ty.” view, Hospital’s Eng’rs Ma- v. 960 Presidio & (Tex.1998). 41, rek’s this testimony established that Mrs. 48 Under S.W.2d standard, enough required would additional we there is conclude treatment ‍​‌‌‌​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌​​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‍and therefore would have in- for and the record reasonable curred and reach con- necessary people reasonable medical fair-minded different

853 Tex.R.App. 41.1(a); McCraw v. P. ment. of reasonable elusions as to the amount (Tex.1992). 756, Maris, 758 828 necessary expenses medical incurred S.W.2d Hospi impossible has Hawley as a found supreme result this Burroughs See deter negligence. specific tal’s Wellcome test prescribe (Tex. 497, 499 Crye, mination, v. has therefore become Co. S.W.2d and it 1995). legal-sufficiency dis to the sound call entrusted judgment challenge is therefore overruled. reviewing good sense of cretion Stores, Canchola, 121 Inc. v. Wal-Mart case. an of the whole court from evaluation (Tex.2003). 735, 739 Co., 573, S.W.3d H.R. 733 S.W.2d Mgmt. Nix v. 1987, writ d (Tex.App.-San ref Antonio factual-sufficiency evaluating n.r.e.) Mutual (citing Lorusso Members en challenge, must review the this Court (Tex.1980)); Co., 818, Ins. light in a and deter tire record neutral v. Texarkana Mem’l see also Ponder so finding the contested mine whether Inc., (TexApp.- Hosp., contrary great weight prepon to the denied). 1991, writ Dist.] [14th Houston manifestly of the evidence as be derance conscience, clearly unjust, shock Eagle Archery,

demonstrate bias. Golden Testimony A. Admission Jackson, 761-62 Inc. v. by Treating Physicians (Tex.2003) (factual sufficiency). Applying issue, Hospital argues In its first standard, we hold that the evidence by admitting the that the trial court erred factually support sufficient award and Marek. testimony of Drs. Escudier necessary ex medical reasonable penses. Testimony Dr. Escudier 1. eighth issue is Hospital’s overruled. of Dr. Escudier was deposition A video Evidentiary Rulings Challenges to II. jury at Dr. Escudier to the trial. played and second issues first Hawley’s treating physi- one of Mrs. and challenge the trial court’s admission contends appeal, cians. On expert testimony. exclusion of certain Dr. was inadmis- Escudier’s in this

trial court has broad discretion for reasons. sible numerous Zwahr, Pipeline area. Exxon Co. (Tex.2002). 623, For an ex S.W.3d matter, the Hos a preliminary As admissible, opinion testimony to be pert’s argues though even Escu- pital expert qualified, expert’s must be Hawley’s treating of Mrs. dier was one in be to the issues opinion must relevant an oncologists, qualified was not she case, expert’s opinion must be cancer treat expert the field colon upon a foundation. Id. based reliable training special she had no ment because 702; (citing Tex.R. Evid. Gammill 628-29 oncology. See beyond medical Tex.R. Chevrolet, Inc., 972 v. Jack Williams criticism un find this We Evid. (Tex.1998); E.I. du Pont exchange: given following founded Robinson, 923 & Co. v. de Nemours see, Doctor, Hospital: I for Counsel (Tex.1995)). It is settled doсtor, and you’re a medical ruling a trial on the in Texas that court’s oncology you’re certified both board will not amount admissibility of evidence correct? hematology; probably error error unless the reversible Dr. Escudier: Correct. judg improper rendition of an led Hospital: Counsel for you Have been We share the confusion expressed by practicing as an oncologist your entire counsel for Hawleys when he asked history as an MD? who eminently qualified could be more give expert opinion testimony based on Dr. Escudier: Yes. professional and knowledge intimate Hospital: Counsel for you subspe- Do particular circumstances of this disease any cialize in oncology? kind of particular this patient triple than a board- Dr. Escudier: I everything. do certified oncologist provided who has much Hospital: Counsel for youDo any have of the care undertaken to palliate cure and special interest in type one of cancer the conditions afflicting Hawley. or tumor? These very are the conditions which now Dr. Escudier: I do everything. IWhat form the heated focus of contention like the best malignant is the hematol- Surely case. preeminent practition- some ogy cancer, and breast but I I—and ers and scholars fit the but description, do everything. no means is expert this Court a medical Hospital: Counsel for you any Do its right. rely own parties We on the specific training general- other than their counsel to in many educate us mat- oncology ized in treating colon cancer ters, including complexities and nu- or colon cancer with metastases? negligence ances of arising claims in the Nothing Escudier: beyond the med- industry. healthcare ical oncology. case, In this Hospital argues Hospital: Counsel Is there Escudier, treating physician, was not specific training available, or a fellow- qualified testify, yet, not once dur- in—ship ing deposition did counsel for the Hos- Dr. Escudier: No. pital ever challenge qualifi- Dr. Escudier’s Hospital: Counsel for Okay. cations. point, At one counsel asked Dr. In response to counsel’s questioning, Dr. Escudier had any greater training or edu- еxplained that, Escudier beyond a fellow- cation in the treatment of colon cancer in ship medical oncology, specific train- than a fellowship in oncology medical from ing or fellowship is in Anderson, available the field of M.D. along with board certifica- colon cancer or colon medicine, cancer with hematology, metas- tions in internal Hospital tases. The has daily failed to direct oncology, practice treating and a of this any portion Court to cancer, of the record that patients including all forms contains evidence contradicting Dr. great Escu- from colon suffering number can- testimony, dier’s nor has this Court discov- cer. Dr. that no Escudier testified such any ered disproving her state- training Hospital never available. ments. Dr. Escudier also testified that undertook to Dr. Escudier’s testi- disprove she had completed a fellowship mony medical regard. Hospital’s this ex- oncology spent and had much of her career pert, though qualified right in his own as a treating patients with colon cancer. oncologist, We not so board-certified was vast- therefore find no merit in Hospital’s ly accomplished knowledge, training, criticism of Dr. qualifications Escudier’s to experience appreciate that this Court can give expert testimony subject he, on the any why not meaningful reason but Dr. treatment, colon cancer including Escudier, qualified survival should be deemed to patients rates for routinely testify whom she expert subject as an on the of colon oncologist. treats as an cancer treatment and survival rates. qualifications virtually are same for the These find it curious that counsel We Escudier, Hos- which the possessed Dr. objections his to Dr. Escu- lodged Hospital being as appeal pital challenges expert after his own on- testimony dier’s inadequate. Raefsky, following cologist, gave Dr. testimony:

deposition sub-issue, Hospital con- In a related having not an harmed tends that was Hawley: you I read for know Counsel voir take Dr. Escudier on opportunity to ..., deposition] but do Escudier’s [Dr. Counsel for disagree. dire trial. We agree said you with me she opрortunity Hospital afforded an was C, average five-year survival is Duke’s during depo- her Dr. Escudier to examine percent, and she said that she felt and facts under- to discover the data sition applicable to her that that would be time, testimony. if not her At that lying patient? sooner, Dr. informed that counsel was also you she to that? Do know testified at trial and appear would not Escudier Raefsky: particular I think in this Dr. recording deposition her that a video Hawley’s prognosis case that Hospital played jury. to would be probably was little bit worse based thus aware that voir dire issues need- was But positive on number nodes. deposition, during to be addressed ed think, know, you I to a reasonable given opportunity to counsel was an when guess, prognosis her is one that I’m challenge Dr. and to her examine Escudier willing accept. any experience, qualifications statistics, or ex- knowledge, methodology, Hawley: diagnosis, Counsel Whose testimony upon her would be pertise which Dr. Escudier? based. Raefsky: Dr. Correct. so, repeatedly doing Instead of counsel deposition, Raefsky In his went on to expert attempted to solicit well-trained, Dr. Escudier “a recognize as Haw- to establish that Mrs. Dr. Escudier oncologist.” well-qualified D progressed to Duke’s ley’s cancer had interesting, The record also shows some fact, it by November ironic, qualifi- if not inconsistencies that counsel for until the trial commenced “expert cations demanded complaint as first raised oncologists.” Raefsky, on- qualifications an Escudier’s gave expert oncologist, following testi- expressed a desire cologist and first mony qualifications training about his cre- dire to examine her take her voir testify: the medical bases for dentials and that the trial testimony. will not hold We Hawleys: you any for Do have

Counsel because, retrospect, in solely erred opinions on special training give thor- did examine a witness as counsel not specifically? colon cancer as have liked. oughly he would Raefsky: training I in Dr. have Finally, contends very colon cancer is a com- sense that testimony have should mon and of the most com- that Escudier’s cancer one confusing was because it mon cancers that I treat. And there- been excluded fore, I I have reviewed expertise speculative. feel a lot and We briefs, and record, management prognosis appellate as as and well about confusing I one of the most cancer. But must note that patients colon highly in case—aside aspects colon cancers. this specialize don’t experience, technical much opinion knowledge, nature of of the relevant this on her testimony individual, manner which the expertise, and well as her as —is Hospital’s represents testimony brief professional evaluation treatment of given by Dr. Escudier. Escudier testi- Hawley. do not fault We Dr. Escudi- unequivocally fied that no oncologist or er having professionalism for to ac- pathologist retrospectively could deter- knowledge opinion that her could be incor- certainty mine with absolute the exact stage rect and that the true of the cancer stage Hawley’s of Mrs. cancer Novem- certainty unknowable with absolute be- ber emphasized 2000. Dr. Escudier re- cause Mrs. initial diagnosis was that, peatedly professional in her opinion, nearly year. on acted for Nor do we the exact the cancer stage of could not be testimony any find her less helpful in as- known liver imaging per- because no was sisting simply the trier fact because it formed and thus no overt evidence of ma- qualified was limited by the data available. crometastatic was disease discovered at that, are in performing We confident its diagnosis. time of the initial Dr. Escu- function, independent, gate-keeping dier the most physician testified that trial court many considered these and oth- say could certainty with reasonable arriving er factors in at its decision to the cancer was at least Duke’s at the C testimony. Having admit Dr. Escudier’s Upon time of diagnosis. question- further decision, no basis to overturn we over- ing by Hospital, counsel Dr. Escu- rule the first issue as it relates dier acknowledged without proper liv- admissibility to the of Dr. Escudier’s testi- imaging exploration, er Duke’s D mony. could not out be ruled with absolute cer- tainty, emphasized but she also Testimony by

clinical D diagnosis criteria for Duke’s Dr. Marek new, requires demonstrable evidence of a issue, In its the Hospital first also According measurable tumor. to Dr. Es- complains of the trial court’s admission of cudier, such was lacking in this testimony Marek, deposition by Dr. a sec case, just and she therefore “would revert oncologist ond board-certified who treated prognosis.” back to the Duke’s usual C along Hawley, with Dr. Escudier. criticizes Dr. Escudier for Hospital argues Dr. Marek supposedly basing testimony specu- on testify should not have been allowed to as A disagree. complete reading lation. We to Mrs. chances of survival of Dr. Escudier’s demonstrates November 2000 his opinion because was merely acknowledged Dr. Escudier speculation, based on had factual or science, the limitations of medical unreliable, support, scientific more those of specifically, retrospective jury, would not assist the but would con cancer staging circumstances which fuse them them to speculate and cause metastatic cancer is untreated for an ex- really to what his meant. opinion Escudier, tended period. According Dr. We have reviewed Marek’s testimo- circumstances, in such diag- reasonable ny and find criticisms unfounded. these only objective nosis can be made played In for deposition a video the diagnosing physi- evidence available to the trial, Dr. that he had “no objective Marek testified cian. Based on the evidence in case, Hawley had this doubt” that Mrs. micrometas- Dr. Escudier concluded that spread tatic adenocarcinoma of the cancer had not advanced to In Duke’s D in 2000. colon in 2000. Dr. Marek’s November She based November Society of Clinical in the 2002 American the would not been opinion, spread Book, on the update Educational radiographic Oncology by measurable current the adjuvant morbidity, and absolutely chemotherapy Dr. could means. Marek not be Devita, and imaging Principles this no or scans certain of because seventh edition studies, a Oncology, the Cоhen actually performed, but he main- had been Practice that, arti- Eisenberg, and the Mortel professional opinion, by in his the treatise tained Clinic, the Mayo for detectable or cle from the counsel spread would not have been said, Raefsky, “I think when Hospital Dr. measurable November 2000. matter, being deposed he was Escudier, explained Dr. Dr. Marek Like he, mean, I your all statistics. agreed with cannot diagnosis beyond that a Duke’s C Indeed, thing.” basically said same clinically demonstrable be made without record, we having find reviewed the proof of a new tumor that is measurable. by Dr. for upon relied Marek statistics Dr. He therefore concurred with Escudi- stages colon cancer different that, opinion er’s based on the available agreed upon were generally survival rates data, not could be cancer trial, experts all the who testified at beyond staged Duke’s C as of November they pathologists were or oncolo- whether Like Hospi- 2000. Dr. Escudier and the had gists, regardless party of which Raefsky, expert oncologist, Dr. tal’s Dr. virtually expert. hired There was also Marek that the rate for a testified survival stag- as for disagreement to the criteria patient suffering from Duke’s C cancer ing cancer. colon roughly percent. was asked When counsel for Mrs. Haw- what similarity Given the substantial between ley’s chances of would have been if survival Dr. probative testimony by value immediately upon begun treatment had di- Escudier, Marek that of Dr. we be agnosis, Dr. his Marek testified in the court’s lieve that error opinion, percent she would have had a 65 Dr. Marek’s would admission of Escudier, being chance of cured. Like probably to error that led amount acknowledged “pos- Dr. Marek that it was improper judgment. of an the rendition actual could sible” cure rate be McCraw, 41.1(a); Tex.R.App. P. but percent, lower than he defended his fact, In Dr. Marek’s testi S.W.2d at prognosis consistent with available duplicated testimony from mony largely data, the staging clinical criteria for colon held to already Dr. Escudier that we have cancer, and for pa- the statistical studies No error has been demon be admissible. undergo for tients who treatment colon strated. Escudier, Dr. Marek cancer. Like professional To the extent Dr. Marek’s judg-

refused to his represent being confusing, testimony is criticized for ment as infallible. expressed agree we sentiment with appeal, On contends that following exchange: trial court specula- Dr. Marek’s opinion based Hospital: in his tion, support, Dr. Marek lacked factual and scientific Counsel also discusses different sta- deposition unreliable and inadmiss- and was therefore goes back on them. surprising appel- This is choice of tistics able. unclear, he issues, he’s given particular speculates, that the coun- late my expert with and then during agrees he sel raised no such concerns know, maybe, maybe discussing says, you deposition. After Marek’s published Dr. Marek relevant statistics not....

The you Court: That’s because do such understand the evidence or to determine a good job cross-examining. in fact issue. Evm Tex.R. case, in We believe this the trial court We have reviewed the record and find that did not in abuse its discretion determining testimony Dr. Marek’s reasonably is com- that Dr. testimony Marek’s should be ad- prehensible helpful and to resolve an issue mitted. Hospital’s first issue is over- of fact central to the case. Our review of ruled. the record also shows that the Hospital

presented evidence that conflicted with Dr. Expert Opinion B. Exclusion of testimony. Marek’s Conflicts Testimony Treating Phy- necessarily do not render evidence inad- Negligence sicians’ all, missible. After jury’s is the role to issue, In its Hospital argues second evidence, resolve conflicts in the a function the trial court committed reversible which assumes the evidence on critical is- error excluding testimony certain re- And, course, sues will be mixed. agree- garding negligence Arechiga Drs. ing with expert opinion testimony is some- Rodriguez, Hawley’s internist quite thing different than understanding it. surgeon. This evidence was offered to appreciate We counsel’s role as an advo- prove negligence that the Hawley’s of Mrs. Hospital cate for the applaud his ef- physicians was a independent new and forts to advаnce the case injuries. cause of her rigorously cross-examining Marek. trial, Counsel’s cross-examination developed Hawleys objected Before to the professional answer, differences between the opin- Hospital’s amended in which the ions of Dr. Marek and Dr. Escudier and Hospital asserted the defense of new and Raefsky. those of Dr. These board-certi- independent cause for the first time six oncologists, fied have practices days prior Hawleys who active to trial. The asked cancer, treating patients with colon pleading. disa- the trial court to strike greed also filed a motion in limine re- Hawleys about whether Mrs. had garding any Duke’s C or Duke’s D colon cancer evidence that Mrs. treating November 2000. It seems physicians negligent natural and were ren- treatment. The motion in limine disagreement dering understandable that a of this opinions nature in medical among part such has not been made of the clerk’s highly qualified physicians will appeal, reporter’s cause at record this but the least some lay confusion to observers. Dr. record trial court granted shows that the motion, Marek can hardly creating be blamed for The trial part. least Hospital put inconvenience. court could ruled testimony and of what Mrs. other evidence problem is no doubt exacerbated at treating physicians should trial the adversarial nature of how testi- circumstances, done under but mony presented to the trier of fact specifically cautioned counsel not to through examination and cross-examina- treating physicians tie the conduct of the reasons, tion of witnesses. For these “negligence.” the word others, among court must deter- trial, mine probative whether the value of the At evidence to offered outweighed by danger Rodriguez prove Arechiga that Drs. that the issues be negligent. will confused were This evidence was exclud- misled, ed, will be expert’s whether and the was allowed to make testimony will assist the trier of fact appropriate proof. appeal, offers of On

859 (2) inter fact that the the of the Hospital negligence; contends that exclusion the or the conse vening operation error force’s this evidence amounts to reversible only new after the event appear it was the evidence of thereof quences because normal independent extraordinary cause. rather to be existing at the in view of circumstances cause, independent New (3) the operation; time of the force’s the cause, is an superseding known also intervening operat force fact that the may be inferential rebuttal defense that of situation creat ing independently to as an but submitted the instruction or, by negligence, the actor’s on ed Wigglesworth Co. special not as a issue. J. hand, is is not a normal result other 659, (Tex.App. 985 Peeples, v. S.W.2d 665 (4) situation; the fact that the of such a denied) 1999, pet. (citing Fort Worth intervening is due of the force operation 277; Weingarten P. Perez v. Tex.R. Civ. to failure person’s act or his to a third Investors, 490, 496 Realty 881 S.W.2d (5) act; intervening that the fact to denied)). 1994, Antonio writ (Tex.App.-San to that person’s is due a third act force cause act independent A new and is some and as wrongful toward other separate of and independent or omission liability subjects person third such agency destroys connection causal (6) him; degree culpability of original negligent between the defendant’s person’s wrongful third act that of the question. Id. act and the occurrence intervening force in motion. sets the 638, (citing Young Massey, v. 128 101 Tex. Pena, Phan Son v. 990 S.W.2d See Van (1937)). 809, intervening If S.W.2d 810 an (Tex.1999) 751, City (citing 754 Travis v. reasonably by the cause was foreseeable (Tex. 94, Mesquite, 830 S.W.2d 98 care, of ordinary defendant the exercise Inc., Materials, 1992)); Morris JTMv. indepen it cannot be a new considered 28, (Tex.App.-Fort 54 Worth dent cause that will break the chain of 2002, pet.). Neblett, (citing causation. Id. Knoll v. 966 622, (Tex.App.-Houston [14th S.W.2d 634 Hospital any appel- not raised The has 1998, denied); Huff, writ Hall 957 Dist.] regarding sufficiency late issue 90, 1997, (Tex.App.-Texarkana 98 S.W.2d duty prove that it breached a evidence denied)). writ issue of The an “interven (i.e., conduct owed to its ing cause” as a to a liabili bar defendant’s of care that would fell below standard ty dependent is also defen whether the ordinary pru- hospital be exercised negligence generated dant’s and the forces or similar circum- dence under the same negligence to a rest. come stances). Reg’l Med. Ctr. v. Denton (citing Henry Lighting Id. v. Houston & 941, LaCroix, (Tex.App.- 950 S.W.2d Co., 748, (Tex.App. Power denied); 1997, Hilzendag- pet. Fort Worth denied)). 1996, Houston writ [1st Dist.] Hosp., er v. Methodist 1980, no following (Tex.Civ.App.-Houston factors [1st Dist.] taken writ). only challenged has (Second) Restatement ToRts (1965) sufficiency regarding may § 442 considered in deter be above, partic- As intervening an ‍​‌‌‌​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌​​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‍force ris causation. discussed mining whether challenge issue of independent the level a new and ular is limited es to (1) chances of survival superseding cause: the fact whether percent in brings greater harm than 50 November intervening force about were neg- allegedly kind from that would when different which contention advanced ligent. resulted from the actor’s sole otherwise have Hospital the is that Mrs. generated by chances concert with forces the de- were percent less 50 and thus negligence she and fendant’s and do not relieve a her husband are barred from recovering liability. defendant of Refining Phoenix damages under the 69, loss-of-chance rule. 60, v. Tips, Co. 125 Tex. 81 61 S.W.2d Milo, Kramer, 511; (1935) See 909 (“[N]ew S.W.2d at 858 independent and ... cause at 400. Hospital’s S.W.2d Given the choice means ‘the act or of separate omission a issues, appellate of we have no basis and independent agency, destroys which reviewing rejecting jury’s the finding the casual connection between the negli- Hospital’s that the performance fell below gent act or omission of the defendant and applicable the standard of care to owed of, injury complained thereby the and be- Tex.R.App. Hawley. Mrs. P. 47.1. comes, itself, in the immediate cause ”) (internal omitted); injury.’ such citations To establish the inferential re 117, Campbell, see also Bell v. 434 S.W.2d buttal independent defense of new and (Tex.1968) (“When 122 the new cause or cause, Hospital produce the to had evi agency continuing concurs with the dence negligence its and the forces cooperating original negligence in working generated by negligence its had come to a injury, negligence the the original remains rest at physicians alleg the time the were proximate injury, cause of the and the edly negligent. Henry v. Light Houston fact the concurring new cause or Co., ing 748, & Power 934 754 agency may not in such case have been 1996, (Tex.App.-Houston [1st Dist.] writ reasonably foreseeable should not relieve denied). is, That independent new and wrongdoer liability.”). cause does not exist if the chain causa case, tion this flowing from the defendant’s offers original negligence proof support nothing finding more than a is continuous and unbroken. Rest., Inc., concurring of a There is no Biaggi v. cause. evi- Patrizio 300, 2004, filed); dence that the forces and the harm (Tex.App.-Dallas pet. created Gracia, negli- by physicians’ alleged inflicted Brownsville Med. Ctr. v. 68, gence in respect were different (Tex.App.-Corpus Christi n.r.e.). by Hospi- put writ ref d the forces into motion by tal’s caused negligence or the harm by The evidence adduced the Hospital in Hospital. The causal connection this support its defense of new and inde- quite Hospi- case is straightforward: pendent cause was limited to delay 11-month negligence tal’s led to an the effect that it was unforeseeable that notifying Hawley Mrs. that she had treating physicians would not follow delay cancer. This allowed the cancer to up on pathology the results of the tests untreated, go medical doctor every and discover the report showing that Mrs. agreed who testified at trial that the can- Hawley Hospital had colon cancer. The during cer became much this 11- worse proof physicians offered were ultimately period. Hawley month however, negligent regard; this complications arising died of from her can- negligence party of a third does not neces- cer, long enough to sue the but she lived sarily create a independent new and Hospital. long cause. The courts of this state have distinguished indepen- by between new and offered causes, destroy dent which the causal the trial court tended excluded chain, freeing delay notifying a defendant of liability, prove thé causes, treat- concurring simply which work can also be attributed to the Tex. pleadings and evidence. Workers’ ing physicians, who should have reviewed Mandlbauer, Fund diagnosis. Comp. charts Ins. and discovered (Tex.2000). fair, Although certainly If a trial seems the S.W.3d requested in- proving still had the burden of refuses submit struction, question appeal that the of its were cut wheth- negligence effects alleged negligence requested off the doctors’ er the instruction was reason- ably necessary had ceased time of the to render otherwise enable The trial has negligence. proper doctors’ evidence offered a verdict. Id. The Hospital nec- by accomplish did this. discretion to determine “considerable Instead, Id. essary jury the evidence showed that instructions.” proper and imple- 911; was in to v. Hospital negligent failing Corp. at Louisianar-Pacific (Tex.1998); 674, and that 676 policies practices Knighten, ment follow and 976 S.W.2d Nicolau, delays. prevent Lloyds such The evidence 951 would State Farm v. S.W.2d (1997). 444, prove also tended to the causal forces Consequently, reversal by in motion and the set doctors Hos- will not lie because an instruction was in single were commu- pital intertwined a refused a clear abuse of unless discretion Cruz, nication failure that caused Mrs. La is Butler v. De shown. injuries. 422, causal chain in this commu- (Tex.App.-San The S.W.2d Antonio denied). 1991, nication failure was continuous and unbro- writ ken, though many it is obvious that forces play. Independent at

were A. New and Cause issue, the Hospital In its third admissibility of evidence ais that the trial court in fail contends erred discretionary for issue the trial court. ing jury regarding to instruct the the law Alvarado, City Brownsville independent of new cause. If the and (Tex.1995). Thus, 758-54 to case negligence evidence raises issue, prevail on the Hospital had to cause, it is independent issue of new and no basis establish that in law exists to include error not to the term the defini support the trial court’s exclusion tion of and to it. proximate cause define Hospital evidence. See id. The has not (citing Wigglesworth, 985 at 665 carried this Hospital’s burden. The sec 810). Massey, question ond issue is therefore overruled. refusing of whether the court erred give to turns on the definitiоn whether Challenges III. Related the record raised the issue Jury Charge to independent cause. Id. new and We Hospital’s Three of the issues record find no reviewed the and basis relate to the trial court’s to give refusal instruction. submitting this requested jury A trial court instructions. argues pleadings, must submit and defini that the “such instructions Tucker, jury testimony shall proper tions as be enable as well as the supported P. and to render verdict.” Tex.R. Crv. instruction new independent in questions, The court must submit the cause. The summa- structions, testimony are follows: and definitions that raised rizes the relevant by pleadings the written “Dr. unforeseeable and the evidence. Tucker testified was prop during Tex.R. Civ. P. 278. An treatment of Mrs. sub- instruction (1) (2) jury, accurately sequent prior if it er assists November (3) law, Arechiga nor support states the finds the October neither Rodriguez would up causation, have followed on lative on the issue of suggesting the pathology report.” The essential only con- that the doctors’ failures to up follow by tention advanced the Hospital is that on the report were unforeseeable and ar- an instruction on independent new and guably contributed to the notification and required cause was Hospital’s because the delays. treatment Dr. Tucker did not tes- alleged negligence was cut off the un- tify actually the doctors caused the Areehiga foreseeable failures of Drs. delay notification delay or that Rodriguez to independently discover the more attributable to the doctors than to pathology report and commence appropri- the negligence Hospital. Dr. Tuck- ate treatment of Mrs. cancer. testify er also did not the harm Areehiga caused the conduct of Drs. disagree. Unforeseeability We Rodriguez any way was different in sufficient, necessary, finding but not for a from harm caused negli- independent of new and cause. Interven gence. Dr. Tucker’s tended tion of an unforeseen cause of plaintiffs a prove nothing more than the unforesee- injury necessarily does not mean that ability of the doctors’ failures to act. independent there is a new and cause of There was no evidence that the forces such a character as to constitute a su Hospital’s created alleged negli- perseding cause which will relieve the de gence had come to rest. Nor was there liability. Henry, fendant of 934 S.W.2d at any evidence that the causal connection (citing 753 Bell v. Campbell, 434 S.W.2d Hospital’s alleged negligence between the 117, (Tex.1968); 121 Weingar Teer v. J. injuries and Mrs. had been de- ten, Inc., (Tex.Civ. 610, 426 S.W.2d 614 stroyed by an act omission of a or third App.-Houston [14th Dist.] writ ref d party that became the immediate cause of n.r.e.)). intervening cause of the Hawley’s injuries. Equally remarka- unforeseeable, plaintiffs injury, even if ble is the failure of the evidence to militate may a concurring be mere cause if the in any meaningful respect finding toward a chain of flowing causation from the defen of new independent cause under the original negligence dant’s is continuous supreme factors endorsed court in Bell, (citing and unbroken. Id. Van, Phan Son Van. See Phan Son 990 121.). at That the case here. S.W.2d at 754. There was therefore no Although Dr. Tucker that testified Drs. submitting jury basis for a instruction on Areehiga Rodriguez should have fol- new and cause. independent Accordingly, lowed up pathology report, on the we conclude that the trial court did not testimony Tucker’s did not tend to estab- Hospital’s abuse its discretion. The third Hospital’s negligence lish that had issue is overruled. cut off by been the doctors’ failures to act. acknowledged Tucker never that the B. Loss of Chance negligent, had been much less issue, negligence that its superseded had been its fourth best, something sug- else. At Dr. Tucker contends that the trial erred re court gested multiple played fusing give jury factors into the that an instruction greater communication failure that caused the no- Mrs. than must have had delay percent tification that led to Mrs. 50 chance of on survival November injuries. To to be impli- Hospital’s negligence the extent Tucker 2000 for the Areehiga injuries. cated Drs. Rodriguez proximate cause of her We delay, vague specu- agree understanding his with the Hospital’s rule, for the the loss-of-chance but reasons precedent that a trial court abuses holding below, trial we conclude that stated refusing give such an discretion its did commit abuse of discre- not an This independent re- instruction. Court’s warrant tion would reversal. any guiding to yield has failed search also the Texas Pat- precedent. The volume of spoken court has supreme malpractice Jury on Charges tern medical rule, great clarity on loss-of-chance loss-of-chance guidance offers no on cases recov- leaving disagreement: room for instructions, any offered in the help nor is malpractice in a cannot ery medical case See Comm. general negligence. on volume if, alleged negli- had the time of the be at CHARGES, BaR OF ON PATTERN JURY STATE gence, the had a condi- patient pre-existing Chaeges: MalpRac- Tex., Tex. PatteRN JURY tion from the chance of survival was which (2003); TICE, PREMISES, & PRODUCTS TEX. Milo, less. percent or See S.W.2d Kramer, PATTERN JURY CHARGES: GENERAL NEGLI- 511; at at GENCE & Intentional Personal ToRts being There some evidence that Mrs. Haw- (2003). We are unaware of document- ley’s less chances survival were juries practice instructing alleged ed Texas percent negli- before the say rule. This is gence, we must the loss-of-chance decide whether the practice disparaged should be refusing court abused its discretion discouraged it does not occur. give loss-of-chance instruction. Mandlbauer, 912; may But- commonplace instructions be Such ler, 812 at 426. yet escaped have documentation for S.W.2d myriad procedural strategic factors requested accurately The instruction often characterize modern trial and that so support states law and finds in the practices. appellate Nevertheless, pleadings and evidence. question answer not we must correctly trial court have could refused the loss-of-chance instruction whether instruction if it would assisted rejected Mandlbauer, should be or We must jury. endorsed. See 34 at 912. S.W.3d only court decide whether trial abused supreme court recognized has often failing include in the its discretion to the trial to court’s “considerable discretion answer, in jury charge in this case. The necessary proper jury determine in opinion, rings our clear from the absence 911; Knighten, structions.” Id. at 976 precedent. are loathe to 676; Nicolau, guiding We at S.W.2d at 951 S.W.2d court hold that reached decision Indeed, the trial court has much arbitrary to so and unreasonable as in submitting more discretion instructions prejudicial amount to clear and error of ques and definitions than in submitting to 798, guide if no was available Harris, law assistance tions. v. 765 Harris 1989, proper the trial court to the result. See In (Tex.App.-Houston [14th Dist.] 801 L.P., 164 denied) Capital Mgmt., re Cerberus (op. reh’g); see also Ishin writ (Tex.2005). Nor can we 343, S.W.3d 382 Sport Rutherford, Speed v. 933 S.W.2d clearly 1996, writ); fairly conclude that trial court (Tex.App.-Fort Worth 350 analyze correctly apply the law Inc., failed Camp, Grenier Joe appellate if no court the state has set 1995, no (Tex.App.-Corpus 850 Christi writ). precedent endorsing requiring even See such an instruction. id. produce any has failed endorsing Admittedly, this Court would be remiss precedent from a Texas court instruction, ignore significance much less if it were loss-of-chance 864

excluded instruction. recognize We its which the harm would not have occurred.” Milo, value to the Hospital. recognize 511; We also Kramer, S.W.2d at the Hospital’s chief S.W.2d at 400. complaint, which each opinion, the su- preme explained instruction, without jury- the loss-of- chance present rule did not might a new have returned a hurdle liability verdict of plaintiffs but merely was a necessary solely based on a lost chance of survival of implication of the ultimate standard of 50 percent or disagree less. We with this proof. Milo, See 511; 909 S.W.2d at above, assertion. As legally-suf- discussed Kramer, 858 at 400. The jury ficient evidence was adduced at trial charge in this entirely case was consistent prove that lost chance of with the ultimate proof.4 standard of Be- survival greater percent. cause the loss-of-chance rule necessarily This Kramer, case is thus different than follows from the ultimate standard of plaintiff where the sought recovery for a proof, there is no concluding basis for diminished chance of survival of less than a loss-of-chance instruction was reasonably percent. It Milo, is also different than necessary to enable the to render a whеre the uncontroverted evidence showed proper Mandlbauer, verdict. patient’s chance of survival was S.W.3d at 912. Accordingly, there was no only percent before the defendant’s al- discretion, abuse of and even if there were Milo, leged negligence. See 909 S.W.2d at discretion, an abuse of we would not be 511; Kramer, 858 S.W.2d 399. able to conclude that it probably led to the We also believe that no abuse of discre- rendition of an improper judgment. See tion occurred because the loss-of-chance Tex.R.App. 44.1(a). P. The Hospital’s instruction was inherent in the jury fourth issue is overruled. charge. Milo, In both Kramer and C. Conduct of Dr. Valencia

Texas Supreme Court stated that “the ulti- proof mate standard of on the causation issue, In its fifth con whether, by issue is preponderance a of tends that it is to a entitled new trial based evidence, the negligent the act or omission on the trial court’s failure to instruct the is shown to be a substantial factor in jury not to consider the conduct of Dr. bringing Valencia, about the harm and without independent an physi- contractor Question 4. juiy following One asked the the See Charges, Comm, Jury on Pattern State Bar of question: negligence, any, “Was the of ... Charges: Jury Tex., Tex. Pattern Malpractice, Hospital proximate the a injuries cause of (2003). charge 50.2 The Premises, & Products Hawley?” Alice following H. The definition juiy also instructed degree the on the of cer- "proximate of given cause” was jury to the tainty required findings: for its and mirrors the definition stated the Texas “yes” A prepon- answer must be based on a Jury Charges: Pattern derance of the evidence unless otherwise you pre- instructed. If do Cause,” not find that a respect "Proximate when used with ponderance of supports the evidence a Hospital, to the conduct of the means that answer, “yes" which, then answer "no.” The term cause in a natural and continuous "preponderance event, of the sequence, produces evidence” means the an and without greater weight degree which of credible evi- cause such event would not have dence proximate occurred. In order а admitted in to be this case. Whenever a cause, question complained requires the act "yes” or omission other a or answer, hospital using your must be such a ordinary that "no” answer must be based event, care preponderance would have foreseen that on a the or of the evidence unless event, might some reasonably similar result otherwise instructed. may therefrom. There be more than one This instruction was also taken from the Tex- proximate any Juiy Charges. cause of event. as Pattern See id. at 40.3. Hawleys’ segregate failure eian, negli based on considering when whether the caused Hospital proximately Hospital from gence damages by caused Hawley’s to the injuries. According Mrs. Hawley’s Mrs. damages caused those error is harmful because Hospital, “The disagree. The pre-existing condition. We cannot determine whether Court sufficiently segregated be- were damages Question based jury liability found One necessary medi- the reasonable and tween Valencia, invalid the conduct of an on Hawley’s from Mrs. resulting expenses cal legal theory, Appellant.” or the conduct of those pre-existing medical condition and Question Hospi- whether One asked As Hospital. demonstrated caused inju- negligence tal’s caused above, testimony plainly the evidence “[n]eg- that jury ries. The was instructed total distinguished between to the ligence, respect when used with were expenses and those that medical failure Hospital, conduct of ... means Hospital’s negli- proximately by the caused is, care, failing to do ordinary to use jury specifically instruct- gence. The was ordinary a hospital prudence that which any its award] “not include [to] [in ed under the similar would done same or of Alice Haw- amount for condition M. circumstances, doing hospi- a or which 2000,” ley existing before November not have ordinary prudence tal of would negligence. Hospital’s time of the or circum- done under the same similar charge stances.” The further instructed as to brief unclear only Hospital that the “acts or fails to act raises chal- its seventh issue a whether nurses, and through emplоyees, agents, its sufficiency of the lenge to the evidence servants.” an Out of abundance jury-charge error. cannot We conclude the exclusion caution, the issue both we address requested probably instruction led challenges. types of improper judgment the rendition of an probably prevented Hospital light in the most favorable to Viewed properly presenting appeal. the case on verdict, there more than scintilla of was Tex.R.App. 44.1(a). au- charge P. distinguish between the rea- liability finding only thorized based necessary expenses medical sonable Hospital’s negligence. resulting Hawley’s pre-existing from Mrs. negli- instructed that the could be condition and those caused medical act, gent, acts or fails to Formosa, Hospital. See nurses, through only employees, agents, its sustaining thus for There is no basis being and servants. There no evidence challenge seg- legal-sufficiency regarding agent, employee, that Valencia was an regation damages. nurse, the the Hospital, or servant of the to reach charge jury did not authorize Viewing the entire record a neutral finding based on Dr. Valen- negligence concluding no light, there is basis is Hospital’s conduct. The fifth issue cia’s contrary so to the finding the contested is overruled. weight preponderance great unjust, manifestly as to be shock Damages and Interest

IV. conscience, clearly demonstrate Segregation Damages A. Caused Eagle, 116 bias. See Golden

by Pre-Existing Condition There is no basis for sustain- 761-62. thus challenge sufficiency regard- issue, ing a factual Hospital

In its seventh damages. argues ing segregation entitled a new also recognize We try this issue solely upon persons those who are appears to raise a jury-charge predi error severely injured most and therefore most cated on the trial court’s refusal to give an (citations in need of compensation.”) omit- instruction requested by Hospital. ted). To the extent the Hospital seeks to raise this Hawleys’ The against claim Hospital challenge, ‍​‌‌‌​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌​​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‍it has failed to adequately brief is for common negligence, law not for contention, its provided as it has argu wrongful death under the survival statute. authority ment or to establish that Corp. Healthcare Horizon/CMS actually instruction given to the Auld, (Tex.2000), 901-02 erroneous or that the omission of the re the Texas Supreme Court reaffirmed that quested probably instruction led to the damage caps in former Article 4590i

rendition of an improper judgment. See are applied unconstitutional as to common- Tex.R.App. 44.1(a). 38.1(h); P. case, law claims. In this the trial court issue seventh is therefore refused to apply caps, even though the overruled. Hospital requested application their both before and after trial. findWe no error in Damage Cap B. its refusal to do so. Accordingly, the Hos- issue, In its ninth the Hospital contends pital’s ninth issue is overruled. the judgment must be modified be- cause the damages and prejudg- associated C. Interest Rates ment interest should have been limited issue, In its tenth Hospital pursuant to the provisions of section 11.02 argues that judgment must be modi of former Article 4590i of the Texas Re- pre- fied to post-judg decrease the vised Civil Statutes. Tex.Rev.Civ. Stat. ment percent interest rates from ten 4590i, § Ann. art. 11.02. Hawleys con- percent. five Essentially, ar tend that any application damage of the gues that the trial court awarded excessive caps in this case would be a clear violation interest because the provisions of House Open Courts Provision of the Texas Bills 4 govern and 2415 the interest rate Const, I, Constitution. § See Tex. art applicable to judgment in this case.5 concedes that the damage disagree. We caps under former Article 4590i have been held unconstitutional the Texas Su- House Bills 4 and 2415 amended section Court, preme argues 304.003(c) but it caps that the code, of the finance reducing the have never been held to be unenforceable effective post-judgment interest rate from under the state legislature’s police broad ten to percent.6 five The bills also powers. States, See Lucas v. United changed rate, pre-judgment interest (Tex.1988) (“It simply equal which is post-judgment to the inter- unfair and impose unreasonable to the bur- est applicable rate at the time of judg- den оf supporting (Ver- the medical care § indus- ment. Tex. Fin.Code Ann. 304.103 2, 2003, R.S., 5. See Act Leg., of June 78th of the regard, they finance code. this 4, (House 4); 2, § H.B. 6.01 Bill Act of June only differ in that House Bill 4 contains 2003, R.S., 676, (House Leg., § 78th ch. 1 Bill provision prohibiting pre-judgment interest 2415). 2, damages. Compare on future Act of June 2003, R.S., 4, (House Leg., § 78th 6.02 H.B. Although 6. House 4Bills and 2415 are differ- 4) 2, 2003, Leg., Bill with Act of June 78th acts, they ent contain almost identical revi- R.S., 676, (House 2415). § ch. 1 Bill post-judgment provisions sions to the interest

867 Conclusion The revisions of each Y. Supp.2004-05). non judg- “a final to in which apply cases bill are All the issues raised subject appeal to on or signed ment is judgment the of the overruled and the act.7 The the effective date” of after court is affirmed. if the apply judgment therefore provisions on or after the signed in this case was by Justice Dissenting Opinion act, judg- or if the date of either effective ERRLINDA CASTILLO. is, subject appeal,

ment became by Justice Dissenting Opinion being appealed, of on after the capable CASTILLO. SunBridge of act. effective date Rio Health- Appellant, Grande Columbia Corp. 160 Penny, Healthcare v. S.W.3d care, L.P., Regional Rio Hos- Grande 2005, 280, (Tex.App.-Texarkana no d/b/a judgment a final entered pital, challenges applicability To of pet.).8 determine of subsequent jury verdict in favor to a (1) bills, we must first determine Hawley appellees, A. and the estate (2) James effective, bill became the date date each issue, Hawley. By Alice its fourth (3) of H. judgment signed, was the date the trial asserts judgment appealable. became request its instruct denying erred Bill 4 on Sep- House became effective Be- independent cause.” “new and 1, 2003. judgment tember The this case has hospital I hold that the cause would 27, signed on March 2003 and became was error, I reverse reversible would shown See, e.g., on that date. appealable Tesfa Thus, I re- judgment and remand. Stewart, 272, (Tex.App.- my analysis of spectfully because dissent denied) 2004, pet. (holding Fort Worth reaches a different dispositive issue judgment appealed that a final can be after Tex.R.App. P. 47.1. result. See signed judge). it is Because the was on or judgment signed not after the Background I. of effective date House Bill and because Hawley presented regular her subject appeal did become on or of physician many years symptoms of date, apply Bill 4 does not after House her screen- diverticulitis. He referred Penny, in this case. See and, results, was ing because of she day. ov- hospitalized the same Stabilized 1, 2003, surgery legislature passed ernight, Mrs. underwent On June morning. surgeon re- following Bill 2415 than a House more two-thirds part digestive tract. majority Again, vote of each house. the moved group, aby pathology tested signed specimen in this case was on March was judgment 27, independent is an contractor 2003 and therefore did not become which diagnosis was included hospital. on or A cancer appealable after the effective date report. pathology pathology Bill is no basis for in the House 2415. There in Mrs. completed filed Accordingly, report House Bill 2415. applying day release Hawley’s chart the before her Hospital’s tenth issue is overruled. 2, 2003, R.S., Corp., Leg., City also Dallas v. Redbird Dev. 78th 8. See 7. See Act June 375, 2, (Tex.App.-Dallas 4, (House 4); 143 S.W.3d 388-89 § Act of 6.04 Bill June H.B. 2004, Las pet.); Columbia Med. Ctr. 676, 2003, R.S., 2(a) (House Leg., § 78th ch. Bush, (Tex. Colinas v. 2415). Bill denied). pet. App.-Fort Worth from the hospital. subsequent After two C.Reports will be physi- delivered to cian(s) hospital short stays period over a record via certified mail months, Hawley’s general Mrs. health and jury heard it was the custom and well-being hospital stay deteriorated. One practice of the pathology department em- involved a surgical procedure routine ployees to reports by transmit cancer fax stemming from her surgery initial and was and certified mail to the in- physicians performed by surgeon. the same The sub- volved, exceptions.” “without jury sequent stay diagnosis involved a of a cir- also heard that pathologists attempt would culatory system condition, a follow-up notification, verbal dependent with success clinical regular physician. visit with her on physician immediate contact with the screening After enzymes telephone showed elevated a return call. At the time in liver, regular physician question, logs her recom- document the distribu- place. tion were in mended additional Evidence showed that diagnostics. After a a return receipt delivery confirmed delay of the stemming Hawleys’ pre- from the pathology report to Hawley’s treating Mrs. arranged family plans, vacation additional physician. heard numerous screening showed a dramatic increase qualified testify witnesses experts. the liver-enzyme level and a soft-ball sized From those witnesses the jury heard that mass on her A biopsy liver. showed that original pathology report was in Mrs. malignant. the mass was seeking After Hawley’s chart prior to her release and the second opinion physician from a who ob- discharge summary did not reference the records, tained and reviewed her medical indicating report, report was not read. Hawley learned for the first time Therefore, witnesses, according to those before, from him eleven months she irrespective policy, a of the distribution diagnosed was with intestinal cancer.1 existed, minimum, responsibility Both Hawley’s treating physician physician surgeon secure treating surgeon receipt pathology denied (1) report to determine what was re- report that contained the intestinal cancer (2) surgery, patient during moved from the diagnosis. report No reference to the (3) diagnosis, post-surgical made in discharge summaries dictated treatment. post-surgery stays. and post-hospital evidence, hospital At close of Mr. hospital and Mrs. sued the requested, among things, pattern other negligence. for At the heart of their claim jury charge instruction new and inde- policy was a hospital place had pendent The trial court cause. denied the transmitting cancer-diagnosis pathology jury charge instruction. The contains the reports treating physicians and sur- following instruction: geons. policy The distribution includes cause,” “Proximate when used with re- original pathology distribution of the spect to the conduct RIO GRANDE report “to the medical record.” For a HOSPITAL, REGIONAL means cancer,” report “positive for the distribu- which, cause in a natural and continuous states, in policy part: tion event, sequence, produces an and with- A. Pathologist verbally notify phy- will out such event which cause would sician(s) of record proxi- In order to be a occurred. cause, Pathology secretary B. fax com- report will mate the act or omission physician(s) hospital of record that a plained of must be such physician pathology port 1. The reviewed the records. re- contained in her medical

869 raise an issue. pleadings and evidence using ordinary care would have foreseen event, event, 278; v. some similar P. Pac. R.R. Co. or Union Tex.R. Civ. (Tex.2002). Williams, 162, might reasonably result therefrom. 166 85 S.W.3d may substantive, non-discretionary di proximate There be more one a This is any courts, cause of event. to requiring to trial them rective jury to if requested questions submit jury “yes” jury Question answered to support evidence pleadings states, if negligence, 1 which No. “Was Smith, 240, v. 845 them. Elbaor S.W.2d of RIO REGIONAL HOS- any, GRANDE (Tex.1992). failure To determine 243 PITAL, injuries cause of to proximate a error, requested instruction is to submit The jury H. award- ALICE HAWLEY?” reviewing must consider the damages. ed The trial court entered the evidence, and pleadings, trial the entire hospital judgment appeals. which the Dev. charge. See Recreational Island Charge Jury II. Error Ass’n, Republic Sav. 710 Corp. v. Tex. (Tex.1986) 551, (op. reh’g); A. Standard of 555 on Review- S.W.2d Tex.R.App. 44.1(a)(1). Jury Charge Error P. An incor see also only grounds for jury rect instruction is The standard of review for in the error probably if it caused the rendition reversal discretion, R jury charge is abuse of R & Tex.R.App. P. improper judgment. of an Torres, 685, v. Contractors 88 S.W.3d 696 44.1(a)(1); Corp. v. Louisiana-Pacific 2002, (Tex.App.-Corpus pet.), Christi (Tex. 674, Knighten, 976 675-76 S.W.2d only which occurs the trial court acts when 1998) curiam). (per any guiding princi without reference to V.L.K., 338, In re 24 ples. S.W.3d 341 Independent B. “New and (Tex.2000). A trial court abuses its discre Cause” Instruction2 by acting arbitrarily, unreasonably, tion an defendants blame occurrence When guiding prin without reference rules or something other than them- on someone Downer ciples. Aquamarine Operators, v. selves, Charges Inc., 238, (Tex.1985); Jury Pattern 701 241-42 Texas S.W.2d provide v. multiple alternatives. Dillard Kajima Corp., Int’l v. Formosa 15 Plastics (Tex. 289, 429, Coop., Tex. Elec. (Tex.App.-Corpus S.W.3d Christi denied). 2005). of these instructions pet. purpose The trial court has jurors, appropriate considerable neces advise the discretion determine is to case, they place have to sary proper jury In re do not blame instructions. V.L.K., 24 if the shows party S.W.3d at 341. When the trial on a the suit person not a court refuses to in the conduct of some requested submit struction, caused occur- question appeal party litigation to the is wheth requested question. (citing instruction reason See id. Reinhart er rence (Tex.1995)). 471, 472 ably necessary Young, to render jury enable Comp. of the alternatives involves a new-and- proper verdict. Tex. Workers’ One Mandlbauer, independent-cause Fund v. instruction if the occur- Ins. (Tex.2000) curiam); (per see Tex.R. rence is later caused someone else. Texas, party (citing P. 277. A to a id. entitled Texas Pat- State BaR of Civ. Charges (1987)). instruction, or if the PJC 3.1 question, definition teRn JURY independent Hawleys acknowledge hospi- cause. 2. The that the notice of new and (unstruck) provided pleading general tal’s live “ independent ‘New and cause’ means the broad-form (citing submission. Id. Lemos act or separate Montez, omission of a and indepen- 798, (Tex.1984)). v. 680 S.W.2d 801 agency, foreseeable, dent reasonably not supreme adoption The court’s of broad- connection, that destroys any, the causal jury form submissions was intended to act inquired between the or omission about simplify jury charges for the benefit of the and the in question occurrence and there- jury, parties, and the trial court. by becomes the immediate cause of the Consol., Inc., Romero v. KPH 166 S.W.3d Dillard, occurrence.” 157 at n. S.W.3d 432 (Tex.2005). 212, certainly 230 It was nev- 3; Pena, 751, Phan Son Van v. 990 S.W.2d permit, er intended to and therefore en- (Tex.1999) (adopting 754 the factors to de- courage, jury charge. more error in a Id. termine concurring whether an act is a utilized, properly When broad-form sub- cause);3 independent new and Taylor v. simplify charge mission can conferences Carley, 1, (Tex.App.-Houston 158 S.W.3d 9 and provide comprehensible ques- more filed). 2004, pet. [14th Dist.] Texas courts jury. tions for the id. at 230. Howev- distinguish indepen- between new and er, it always practicable is not to submit dent cause and a concurrent act. Taylor, every broadly, issue in а case and broad- (citing 158 S.W.3d at 9 Benitz v. Gould form submission cannot be used to broad- 109, Group, 27 (Tex.App.-San S.W.3d 116 deny en rule to a party the harmless error 2000, Antonio pet.)) no A concurrent act it charge correct to which would other- cooperates original with the act in bringing wise be entitled. Id. injury about the and does not cut off the

liability original of the actor. Id. A “new C. Refusal to Instruct cause,” independent sometimes re- cause, however, ferred to a superseding I the failure to first address whether is an act or omission of a separate and Romero, 166 instruct is error. See S.W.3d independent agency destroys 227; v. Wright Way at Constr. Co. Harlin causal connection between the negligent (Tex. Co., 415, 422 gen Mall 799 S.W.2d act or omission of the defendant and the writ). 1990, App.-Corpus Christi When of, injury complained thereby becomes evaluating party whether a is entitled to a injury. the immediate cause of such Id. instruction, reviewing court must independent issue of new and cause is support examine the record for evidence component of the ultimate proxi- issue of ing ig submission of the instruction and mate cause and not an affirmative defense. contrary. nore evidence to the See Elb Moerbe, (citing Rodriguez Id. v. 963 aor, at 243. The S.W.2d 808, 12 (Tex.App.-San S.W.2d 821 n. Anto- Hawley’s treating physi asserts that Mrs. denied)). 1998, pet. nio timely surgeon cian and failed to access chart, pathology report hospital indepen-

The instructions on new and and, thus, operated indepen dent their failure proximate cause and sole cause can territory. dently allegedly cover much of the situation created same Dil- lard, However, Hawleys that an hospital. 434. such the counter redundancy contrary to spirit properly instruction was denied because a Further, Testimony may properly showed that the time differential refuse from notice to treatment is critical in cancer question merely to submit a because the evi- Thus, timing cases. follows that factually support dence is insufficient to an question notice would correlate with the of a Alviar, finding. affirmative Garza different harm in the first factor in Phan Son (Tex.1965). Pena, (Tex.1999). Van v. thirty daily physicians’ requires requests an suрerseding cause event duplicate surgeons’ requesting that the effect offices must be unforeseeable and after negligence copies reports, must have docu- hospital’s pathology ceased, mented, neither the distribu- supports compliance but the evidence full that it Hawleys Testimony further state showed policy. element. tion most, concurring request copy a a new at the evidence shows often easier to department than to locate pathology cause. the a office. In Mrs. reports the in medical hospital discharge Prior to her from the case, showed that Hawley’s documentation surgery, Hawley’s Mrs. chart con- after report to and re- pathology the was sent pathology report. treating the tained Her treating by by physician’s ceived the office compiled discharge the physician sum- mail, requested. receipt return certified report mary and did not reference the one the is consistent with notice which, showed, testimony chart re- for in the provided transmittal methods the was not Testimo- report flected read. the basis of the policy distribution made treating ny phy- established that both the by placement negligence claim. Notice surgeon and access to Mrs. sician the had chart consistent Hawley’s Mrs. is also with purposes post-opera- chart for so, policy. Even distribution diagnosis and treatment. A return tive not for cancer until was treated that receipt pathology re- establishes after it approximately eleven months was by to and port was mailed received by initially pathologist. discovered indepen- treating physician’s office. No surgeon dent recollection notice to the during afforded the sub- discretion evident; however, showed mission of instructions is absolute. custom, habit, practice that the was substantive, P. 277. The See Tex.R. Civ. positive policy that distribution non-discretionary to trial courts directive pathology reports cancer was followed requires requested ques- to submit them terms, exceptions.” By plain “without its jury if the pleadings tions policy require the distribution does not Elbaor, support evidеnce them. 845 fax, orally, by that notice provided be examining the plead- at 243. After S.W.2d question, certified mail. Without evidence, I ings, charge, and the the entire however, pathology all must reports be that the of new and would hold evidence in the patient’s filed chart. The evidence fairly raised independent cause was unequivocally places report the pathology and, thus, pleadings and evidence was chart prior to her re- jury a fact for the to decide. See issue hospital post-surgery. lease from the (“The P. 278 court shall submit Crv. TexR. questions, and definitions instructions Hospital’s argument

The crux of the provided by in the Rule 277 which form Hospital complied even if the by the and the pleadings are raised written policy positive for a notice/distribution evidence.”). litigant A is entitled to have report, it is pathology cancer unforesee- of fact submitted to controlling questions itself result in compliance able would jury they supported are “some patient lack of notice to the afflicted 278; P. Wright diagnosis. Ample testimony estab- evidence.”4 cancer Tex.R. Civ. Constr., Way (citing twenty S.W.2d lished two secretaries received Co., Harlingen controlling one Mall 4. A or ultimate issue is 1990, writ). jury ground presents complete (Tex.App.-Corpus to the Christi recovery Way Wright defense. Constr. Co. Lillebo, Moore v. requested 686-87 instruction. The trial court’s (Tex.1986) (reversing for new trial because refusal to instruct on this matter effective- trial court failed to requested submit is- ly upon directed a verdict it. Wright supported sues that were by some evi- Constr., Way at 424. Based on dence)). and, The pleadings importantly, evidence, jury could have found some supported this issue. See superseding cause. The verdict was Constr., Wright Way 799 S.W.2d at 422. against Thus, proponent of the issue. Because the was entitled to a the error harmful. Accordingly, I requested jury instruction on new and in- would hold the failure of the trial dependent cause, I would hold that denial independent to instruct on new and requested of the instruction is without re- rights cause was such denial of the gard Downer, to guiding principles. See reasonably as was calculated to 701 at S.W.2d 241-42. probably did cause the rendition of an improper verdict. id. See Harmful error D. Harmful Error certainly almost if a occurs defendant who I next address whether the denial of the properly requested has an appropriate in- requested instruction is reversible error. struction controlling on a defensive issue Tex.R.App. 44.1(a); Romero, P. 166 S.W.3d does not have that issue submitted to the 230; Constr., at Wright Way 799 S.W.2d at jury. precisely Id. That is what occurred 44.1(a) 422. Rule provides that error in at trial. I Accordingly, Id. would sustain the trial court properly complained of re- the Hospital’s fourth issue. I would also quires judgment reversal of the appeal on reverse judgment the and remand for a “(1) if it probably caused the rendition of Tex.R.App. 43.2(d). new trial. P. See (2) an improper judgment; or probably prevented appellant the properly pre- from E. Rendition or Remand senting the case to appeals.” the court of Tex.R.App. I am mindful a reversal and remand 44.1(a). P. For an instruction of judgment ‍​‌‌‌​‌‌‌‌‌​‌‌‌‌‌​‌‌‌​​‌​‌​​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‍the trial court’s does not dis- (1) (2) proper, be it must jury, assist the pose of appellant the issues in which (3) re- law, accurately state the be sup- quests of judgment. Wright rendition See ported by pleadings the and evidence. Constr., Way at 424. S.W.2d Ordinari- 277,278. Tex.R. Civ. P. charge court’s ly, I would next consider whether the contains an proximate instruction on cause judgment Hawleys for the can rest includes, on the in part, may “There be more Romero, jury’s finding negligence. of See proximate than one cause of event.” Although at I S.W.3d 230. would find independent The issue of new and is cause entitling Hospital reversible error the to a component proxi- a of the ultimate issue of remand, pause briefly I mate nonetheless cause and not an affirmative defense. raised, Taylor, 158 consider the seventh issue because always 9. It is not practicable every presented legally to submit in a the evidence insuf- issue case broadly, ficient, in broad-form submission. then the is entitled to a Hospital Rome- ro, 166 S.W.3d at 230. The evidence in rendition in favor.5 R & R Con- its See tractors, supported case the inclusion of the at 706. issue, instruction, By Hospital ages its ninth the asserts that the fact finder has discre question range it is entitled to rendition the damages on of tion to find within the of evi exрenses medical presented because the evidence does dence at trial. See States Gulf Low, (Tex. expenses not show the were reasonable and Utils. Co. v. 2002). necessary. proper jury's Under measure-of-dam The trial modified the court issue, alleged negligence.”6 at the time of By Hospital its seventh as- legally is insuffi- argument re- serts crux jury’s finding negli- of support cient legal on lost chance of survival garding gence Question a matter of Number as grounds rests sufficiency charge error must law. The statement of the issue be in- proximate court’s cause trial every subsidiary ques- covering treated struction, I hold necessitated which would Tex.R.App. fairly included. tion that issue is a further instruction. The seventh 38.1(e). In a sub-issue of the same P. determinative of whether issue sole issue, recovery asserts that Hospital is, force, appropriate rendition is negligence when de- barred a defendant’s conditional con- negated by somewhat patient only fifty-percent prived the cession that “some evidence existed” Hawleys chance less of survival. in the lost chance of survival maintained sub-issue, Hospital counter its fifth Based on Hospital’s related issue.7 challenges negligence and concedes sufficiency challenges, legal the collateral finding proximate cause on the matter coupled finding charge er- reversible probability Importantly, of survival. ror, I hold that would erroneous issue, its fifth asserts charge proper- prevents reversibly by denying its re- erred ly presenting the to this Court.8 See case quested instruction on lost chance sur- Tex.R.App. 44.1(a). Thus, I re- would existed that vival because “some evidence P. Tex.R.App. P. remand. a less 50% chance survival existed verse and so, verdict, proper damage legal-sufficiency review in the award. Even I would hold that dispositive light this issue is whether to must credit favorable evidence if reason not could, jurors disregard contrary evi able remand render. jurors dence could not.” unless reasonable Wilson, 802, City v. 168 S.W.3d 827 Keller recognize 6. Texas does not a common law (Tex.2005). "in We will review evidence cause of action for lost chance of survival in а verdict, light most favorable to the disre malpractice Hosp. medical case. Park Place garding contrary Milo, all evidence that a reason 508, (Tex. v. Estate 909 S.W.2d able have In 1995) could disbelieved.” Ysleta (citing Hosp., Kramer v. LewisvilleMem. Monarrez, 915, dep. Dist. v. 177 S.W.3d 397, Sch. (Tex.1993)). 858 S.W.2d There is no (Tex.2005) curiam). (per If the evidence liability negligent medical treatment "that presented permit at would reasonable patient’s avoiding decreases a chance of death people to differ their con fair-minded or other cases medical conditions in where clusions, jurors must be allowed to do then probably the adverse result would oc Keller, reviewing at 822. "A Kramer, so. 168 S.W.3d anyway.” (citing curred Id. judgment court for that cannot substitute its 398). at trier-of-fact, long of the as the evidence so disagree falls of reasonable within zone appellate legal-sufficien court 7. An addresses ment.” Id. challenges cy either "no-evidence” or Sling "matter-of-law” issues. Gooch v. Am. proof the cau- Co., 8.The ultimate standard of on (Tex.App.-Fort 902 S.W.2d 183-84 whether, by preponderance "is writ). sation issue analyze Worth We the issue evidence, negligent act or omission party challenge as a "no-evidence” when bringing is shown to be substantial factor in complaining appeal did bear the bur the harm about the harm and without which proof reviewing Id. den of at trial. When facts, Hosp., Park Place legal sufficiency would not have occurred.” the "final test for must Kramer, (citing at 511 always be at trial would whether evidence Thus, 400). recovery people is barred when enable reasonable fair-minded negligence deprived patient of defendants' under review. Whether a reach verdict by considering only fifty percent reviewing begins all or less chance of survival. only supporting Id. evidence 43.3(b). 43.2(d), Hospital’s Because the

remaining issues not dispositive, are I Tex.R.App.

need not address them. P.

47.1.

III. Conclusion

I would sustain the fourth jury charge

issue. Because the used in

this case probably contained an error that

caused the rendition of an improper judg-

ment, I judgment would reverse the

remand the cause to the lower court for a

new trial.

Tracy WARD, Appellant, Yolanda Texas, Appellee. STATE

No. 07-04-0457-CR. Dawson, Morgan

Joe for Tracy Yolanda Texas, Appeals Court of Ward.

Amarillo. King King, Rebecca and Rebecca Potter County Amarillo, Atty., District for State March 2006. of Texas. Rehearing April Overruled C.J., QUINN,

Before and REAVIS and CAMPBELL, JJ.

Opinion QUINN, BRIAN Chief Justice. The State indicted Tracy Yolanda Ward (appellant) for knowingly delivering a con- “by trolled substance actual transfer Ward, Rodger person [sic] who [was] years age younger.” was the Ward unborn child of appellant at the time of the purported delivery, and the “actual trans- purportedly through appel- fer” occurred

Case Details

Case Name: Columbia Rio Grande Regional Healthcare, L.P. v. Hawley

Court Name: Court of Appeals of Texas

Date Published: Mar 23, 2006

Citation: 188 S.W.3d 838

Docket Number: 13-03-427-CV

Court Abbreviation: Tex. App.