*1
necessary
privileged.
in a
party
and is not a
records remain
The trial court
ment
Wygal Myers,
allowing
it.
their
proceeding
enforce
v.
abused its discretion
dis-
(1890).
covery.
disclosed,
Un-
of
76 Tex.
S.W.
Once
retraction
a
appoints
guardian
the court
a
of the
privileged
possible.
less
document is not
Bos-
estate,
recovery
adequate
child’s
the minor’s
remains
remedy
son
at law. See
has
TexPROp.
(Tex.
subject
supervision.
Solito,
to court
See
S.W.2d
West
(Vernon 1984).
142.001-.005
orig. proceeding).
hold Bosson
§§
Ann.
Code
relief
has shown entitlement
to the
she
friend,
by
a minor
next
When
sues
conditionally grant
pe-
seeks. We
relators’
recovery belong
cause of action and the
tition
of
for writ mandamus.
Sax,
minor.
friend, her Bosson cannot recover individu- damages.
al Under the doctrine of waiver use, may not party offensive a “use one
hand to seek affirmative relief court and the other lower an iron curtain
with hand silence” around the facts of the ease.
of at 108. Ginsberg, Bosson DOUGHERTY, M.D. Marshall K. d/b/a seeking Consequent- relief. affirmative Associates, K. & Marshall mental infor- ly, her assertion of the health Associates, Dougherty, M.K. M.D. privilege of mation is not an offensive use M.D., Molina, Appellants, and T. Jaime (d)(5)excep- privilege. The subsection not apply.
tion does Mary Imogene Russell GIFFORD III. APPLICATION OF MANDAMUS Gifford, Appellees. STANDARDS No. 6-91-023-CV. This issue a writ man court of exist. Texas, damus when two conditions Appeals of of Court First, the trial court’s action must be a Texarkana. or the of clear abuse discretion violation Feb. Second, duty imposed by law. the relator remedy no adequate have law. must Appeals, v. Fourth Court
See Johnson (Tex.1985, pro orig.
ceeding). A trial court abuses its discre arbitrary so it reaches a decision
tion when to amount a clear
and unreasonable as Johnson, 700 prejudicial error of law. at 917. discretion,
To show an abuse that, under the circum
relator must show per case, facts and law
stances one trial court to make but decision.
mit the
Johnson, at 917. While the largely
scope discovery rests within court, a court of the trial trial
discretion discovery privi improperly orders materials its discretion. See
leged abuses Jones, Hosp. v. Memorial
Texarkana 33, 35 (d)(5) exception
Because subsection mental health apply, Bosson’s
does *4 Brown, partment McQuistion Regional Dal- Medical Vaughn, John K. Riddle & las, appellants. Dougherty Associates for Center Paris. & perform pathology had a contract to all Clem, Moore, Rodgers, Payne, R. James work for the medical center. actual Paris, Rodgers Hodgkiss, appellees. biopsy, pathology Gifford’s how- work on Molina, ever, performed by Dr. Jaime CORNELIUS, C.J., BLEIL Before arrangement GRANT, with who worked under JJ. Dougherty. work was done at the Molina’s laboratory, Dougher- center which medical OPINION ty Gifford for directed. billed CORNELIUS, Justice. Chief diagnosed services. Molina Dr. cancer, result, & Associates and Jaime and as malignant Gifford appeal judgment based on a from undergo ordered to irradiation and Mrs. Rus- jury verdict favor Mr. and chemotherapy treatments. malpractice sell in a medical action. treatments, a six second After weeks raise eleven and Molina taken, and revealed that biopsy was it limitations, error, points asserting *5 malignancy. there was Gifford was expert testimony, improper admission Dallas, surgery in but it was scheduled precluded insufficiency of the evidence original biopsy slides avoided when the judgment They also as- against the them. determined to contain were reviewed and is required. sert that a remittitur no indication of cancer. legal sufficiency points Dougherty’s negli- that jury found light must in the most favor be examined diagnosis gent making in the cancer findings if jury able the to determine negligence proximately caused Gif- that any probative supporting there is evidence employ- injuries, Molina was an ford’s that them, contrary disregarding all evidence Dougherty, servant of ee and a borrowed Alviar, 395 and inferences. Garza v. estopped deny liabil- Raw Hide 821, (Tex.1965); Oil 823 S.W.2d work, Molina and ity for Molina’s Exploration, & Gas v. Maxus fraudulently Molina’s concealed 1988, 264, writ de (Tex.App.-Amarillo 276 part diagnosis, in the Gifford nied). any probative If there is evidence Moli- reasonably discovered could not have support findings, point must be was filed. involvement before suit na’s findings upheld. South overruled and the $1,000,000.00 to Gifford and Damages of State, v. Transportation, Inc. ern States $200,000.00 awarded. to his wife were 639, 774 640 The relevant dates are: sufficiency points re The factual 21, re- February pathology 1986 First in quire all of the evidence us to examine port/misdiagnosis only if points and sustain the record findings misdiagno- or if the learns of May evidence is insufficient 1986 Gifford overwhelming weight of against are so sis wrong clearly the evidence as to be re- 10, pathology July Addendum 1986 Alviar, Garza manifestly unjust. 395 by Dougherty and Moli- port prepared Estate, 150 823; King’s In re na (1951); 660, 662, 244 661-62 Tex. 28, let- Article 4590i notice August 1987 Explora Oil Maxus
Raw Hide & Gas Associates Dougherty & ter to M.K. tion, S.W.2d at 766 21, against M.K. Suit filed April 1988 esopha- developed a hernia of Gifford Dough- K. Dougherty d/b/a Marshall point that his gus worsened & Associates erty, M.D. special- him to a family physician referred 27,1988 letter to Moli- Williams, 4590inotice April took specialist, Dr. Josie ist. The de- na biopsy and sent it 8,May apply, Limitations date for Febru- began does not and limitations 21,
ary (including seventy-five- misdiagnosis February the date of the in extension) day expired in February 1986 and 1988. Gif- pursuant ford’s notice letter sent 17,1988 to Tex. May Gifford’s first set inter- (Vernon art. 4590i rogatories Rev.Civ.Stat.Ann. Supp.1992) April timely 1988 was not 10, Dougherty’s June answer filed filing and did not extend the deadline. naming pathologist doing Molina as Herman, 743, Shook v. the work 1988, denied). (Tex.App.-Dallas As July 14, 1988 Molina added to suit earlier, against noted filed suit Mo September 1988 Limitations date for July lina in well outside the limita July (including seventy-five- period. Thus, tions his claim is barred extension) day jury’s finding unless of fraudulent con March filed answer cealment is sustainable. indicating that he was sued in the point two, Dougherty and Molina con- wrong capacity tend jury finding of fraudulent November petition 1989 Gifford’s supported by legally concealment is amended to Dougherty, show M.K. factually sufficient evidence. professional M.D. & Associates as a association undisputed It that Gifford points The first four of error are interre- misdiagnosis May learned grouped lated and are for discussion. period. within the limitations Gifford as point The first of error asserts that Gif- serts that suit was not filed earlier because ford’s claim was barred because it *6 identity pathologist was not Molina’s the as who did brought years misdiagno- within two of the the work was concealed until after limita brought sis.1 Suit was against Molina on tions had run. To succeed on this fraudu 14, July 1988. claim, Gifford contends that limi- lent concealment had to tations should be measured from the last show that and Molina had actu day case, involvement, Molina’s involvement in knowledge the al of Molina’s a 10, 1986, July which was prepared when he duty identity, to disclose and a Molina’s an report. disagree. amended purpose We identity. fixed to conceal Molina’s McCarron, 518, See Rhodes v. 763 S.W.2d continuing The treatment doct denied); (Tex.App.-Amarillo 524 applies rine2 in pa situations where a (Tex. Cooley, Leeds v. 702 S.W.2d 215 injury tient’s occurs during a course of App. writ ref’d [1st Dist.] — Houston condition, particular treatment for a n.r.e.). If fraudulent concealment is estab only readily the ascertainable date is the lished, estopped claiming is Molina from day last of treatment. Kimball v. Broth limitations as an affirmative defense. Bor ers, 372 The (Tex. Peck, derlon v. apply Kimball rule does not to this case. 1983). causing There is a course of treatment injuries, negligent Dougherty assigned but the date of the mis to do Gif- diagnosis readily is prepared Further ford’s work. Molina ascertainable. more, only report treatments were on Dougherty’s rendered on business forms. February diagnosis, Dougherty the basis of the for billed Gifford Molina’s July follow-up report. Knowledge not the Conse work. of Molina’sinvolvement quently, continuing the indisputably treatment doctrine is shown. 4590Í, (Ver- years § art. 10.01 the action is filed within two from the Tex.Rev.Civ.Stat.Ann. 1. Supp.1992). non occurrence of the breach or tort or from the or date the medical health care treatment 4590i, (Ver- art. 10.01 § Tex.Rev.Civ.Stat.Ann.
2.
subject
hospital-
is
of the claim or the
the
Supp.1992) provides:
non
ization for which the claim is made is com-
law,
Notwithstanding any
health
other
pleted;
....
liability
may
care
claim
be commenced unless
duty
presence
be no
Fraudulent concealment
even discover
party affirmatively
shown where a
con
Lotspeich
the disease existed.
v. Chance
responsible party’s
ceals
identity,
Cher Vought Aircraft, 369
at
S.W.2d
Inc.,
ry
Equipment
Supply,
&
Victoria
duty
compa-
doctor’s sole
was owed to the
(Tex.1983),
if there
a ny
employed
which
him because the exami-
duty
identity.
Cherry,
disclose one’s
company’s
nation was
for the
benefit.
potential
repeatedly
a
defendant
disa
at
Id.
710. The services in our case were
vowed,
deposed, any
when
involvement
for Gifford’s benefit.
in question.
the occurrence
The court rea
malpractice
involved a
action
Childs
testimony, being
soned that
under
such
a
emergency
where woman went to an
oath,
finding
support a
of fraudulent
could
began having premature
room when she
Equip
Cherry
concealment.
v. Victoria
pains.
labor
The nurse called the doctor on
Inc.,
Supply,
ment
at 782.
duty,
merely
who
advised
woman
Cherry
standing
princi
We
see
regular
call her
doctor. The
found
court
parties’
ple
of the
relation
that the nature
physician/patient
there
not a
rela-
Thus,
ship
duty
controls
of disclosure.
tionship
because
doctor was under
under a
party responding
a
under oath is
duty to
or
examine
treat Mrs. Childs.
higher
duty to disclose than someone
a
telephone conversation with a nurse did not
Likewise,
negotiation process.
higher
case,
acceptance
amount
duty
physician/pa
disclose
in a
exists
the instructions could not be construed as
relationship.3
Dough-
Consequently,
tient
Weis,
treatment. Childs
erty
duty
depends
and Molina’s
to disclose
Thus,
106-07.
rendered no ser-
doctor
relationship
on their
with Gifford. For
here.
vices at all. That
not
case
below,
find that
reasons discussed
we
duty
had a
to dis
Dougherty and Molina
Liability
Medical
also note
physi
identity
close Molina’s
because a
Improvement Act does not
and Insurance
relationship
cian/patient
existed between
liability for
care related
predicate
health
each of them and Gifford.
physical
claims on
contact. Under the stat-
ute,
encompasses any
care”
treat-
Dougherty and Molina assert
“health
physician/patient
performed
evidence does
show
ment
furnished
Gifford’s
4590i,
relationship
either of
between
them
behalf. Tex.Rev.Civ.Stat.Ann.
art.
*7
Weis,
Relying
1.03(a)(2)(Vernon
Supp.1992).4
Gifford.
on Childs v.
There is
§
(Tex.Civ.App.-Dallas
diagnostic
S.W.2d 104
fur-
no doubt the
services were
writ),
Lotspeich
Vought
v.
Chance
nished on Gifford’s behalf.
(Tex.Civ.App.
Aircraft, 369 S.W.2d
Dougherty and
We conclude that
n.r.e.),
argue
they
-Dallas
ref’d
physician/patient
a
relation
Molina created
pathology
that
because Gifford’s
work
ship
by accepting
patholo
the
with Gifford
doctors,
exclusively
pa
done
for other
the
work,
analy
conducting
laboratory
the
gy
Gifford,
Gifford
thologist did
see
sis,
pathology report, and
preparing the
Dough-
personally
did not
select Molina or
circumstances,
In
billing Gifford.
such
erty,
physician/patient rela
there was no
agreement
implied
be
there is at least
misplaced.
tionship. Their reliance
parties.
the
tween
a woman who was
Lotspeich involved
Although
case
we find
Texas
address
company
pre-employ-
sent
for a
to a
doctor
physician/pa
a
ing the
of whether
reach
issue
physical.
ment
That court did not
relationship
patholo
a
exists between
question
the
owed tient
physician
the
of whether
physically contact
gist
person
and a
never
duty
they
a
to disclose
found
because
“
any act
duty
respond truthfully
is:
care’ means
furnished,
Cherry
seems
4. The full text
'Health
3. The
performed
or which
or treatment
or
physician’s duty
come
less
than
onerous
the
furnished, by
performed or
been
should have
any
negligence
the occur-
and disclose
or
forward
for, to,
provider
on
of
or
behalf
health care
injury
patient.
v.
rence of an
to a
Borderlon
care,
during
patient’s
patient
the
medical
a
Peck, 661 S.W.2d
treatment,
confinement.”
or
Dough-
perform
these services.
have
or furnish
ed,
jurisdictions
other
at least two
assigned Gifford’s
erty
Rink
then
In
v.
the issue. Walters
considered
arrange-
pursuant
to an
the
to Molina
er,
(Ind.Ct.App.1988),
physician and a physi- have contracted with others that, argue even Molina and patient’s on the behalf. ... cian exist, relationship did physician/patient if a determining important fact in ... The 21, 1986, the February only it existed relationship is a consensual whether biopsy, duty original with date of the for the one ... is not who contracted identity expiring on that Molina’s disclose for it was contracted service but whether argument illogical, because day. That express implied consent of or with nor neither Molina on that date ... Where patient his benefit. misdiagnosis had occurred. knew that rendered on healthcare services are ... misdiagnosis They learned patient are done for the behalf did, May late same time benefit, physician- a consensual patient’s duty was breached Regardless, the 1986. pur- patient relationship exists for the only day on that because if it existed even poses malpractice. of medical identity not disclosed to Gif- Molina’s Rinker, 472. ford at that time. 520 N.E.2d at v. Walters Hospital, Peterson St. Cloud element of fraudulent Another (Minn.Ct.App.1990),the court N.W.2d 635 purpose is a fixed to conceal. concealment a matter of law that a consensual held as McCarron, Rhodes v. relationship existed be- physician/patient pur of a certainly some evidence There is patient. That pathologist tween a and the Molina’s involvement. pose to conceal A factually to this case. case is similar fact that rely on the erroneously diagnosed as hav- patient was of affirmative acts is no evidence there ing requiring chemotherapy cancer and ra- concealment, physicians’ and on Gifford’s Treatments were ad- diation treatments. any testimony they did not know ministered, although no cancer. there was However, silence acts of concealment. argument That court dismissed an act duty disclose be an face of a patient pre- lack of direct contact with See, e.g., Borderlon concealment. relationship. physician/patient Id. cluded a Peck, at 908. Gifford’s court, court, like the at 638. Walters bills pathologist was the contact with *8 relationship physician/patient found that Dougherty & Associates. from he received nature of of the consensual existed because Indeed, the not name Molina. did bills relationship. It clear to that court the was when the lab code to indicate bill has a the pathologist contracted with that the by independent, an but done work has been either the ex- examining physician with The bills was shown. no such information for implied patient consent of the press or stationery, Dougherty’s on were written the This established patient’s the benefit. acknowledged that Dougherty and even relationship as a matter physician/patient such that persons could believe reasonable at 638. of law. Id. person actual indicate the who a bill would damaging evi The most case, ly the work. Dougherty contracted with did In this prepared report, the addendum dence is perform pathology services. hospital the to diagnosis was dis error in the initial biopsy to the after physician sent the Gifford’s covered, Dougherty testified was which knowing Dougherty per- hospital, that Moli up.” it to “clean in order Dougherty prepared its work. formed all disclosed. still not was consent, least, na’s involvement to implied had Gifford’s that of after Finally, Dougherty did not disclose Gifford Molina’s involvement even even he received Dougherty Molina was involved after an 4590i notice received Article none Article 4590i notice letter. While September Dougherty letter in ad- con- of this evidence shows overt acts of that could mitted the nature the bills cealment, legally factually it and suffi- physician to the belief that the named lead jury cient for a to conclude that there were bills, i.e., Dougherty, the one on the continuing prevent to efforts mislead tes- performing the services. Dr. Williams discovery information would the which normally not disclose the tified she did involvement. Texas reveal Molina’s See identity pathologist patients her the to Co., 210 Wilson-Whaley Harvester Co. v. con- did not so with Gifford. We and do (Tex.Civ.App.-Fort Worth S.W. factually legally and clude there was ref’d). reliance sufficient evidence of reasonable part on the of Gifford. that he must have Molina asserts personally performed an of conceal act err The trial did not on the statute court It is of third ment. true acts find- jury of limitations issue because usually support fraudulent parties will not supported ing of fraudulent concealment is & concealment. Cato v. South Atlantic by legally factually sufficient evidence. and Coast District International Gulf five, point Dougherty con- In of error Ass’n, F.Supp. 489 Longshoreman’s Dough- against tends that Gifford’s claims (5th Cir.1973). (S.D.Tex.), 485 F.2d Associates, erty professional associa- & holding duty had a light of our Molina tion, Dougher- by were barred limitations. involvement, identity disclose and to his that, originally he ty’s position is since was however, participating is a act silence K. Dougherty M.K. Marshall sued as d/b/a may rest. which fraudulent concealment Associates, he was Dougherty, M.D. and unnecessary ques it find discuss barred sued as an individual and limitations Dougherty’s alleged acts tion whether corpo- subsequent claims that Gifford’s imputable Molina as concealment be P.A., Associates, ration, M.K. a co-defendant. misdiag- vicariously liable Molina’s question is whether Gif- Another mis- pleadings nosis. He asserts that In other ford’s reliance was reasonable. him, failing prejudiced led misdiag words, discovery would the finding preju- jury on lack of to secure reasonably prudent person to cause a nosis dice, against any Gifford waived defense inquiry leading discovery of Moli make limitations. Conlee, identity. na’s Evans v. See (Tex.App.-Corpus Christi merely misnamed If Gifford writ). 1987, no original limita petition, in his emphasize Gif- subsequent Gifford’s tions was tolled and testimony pathol- physicians’ ford’s date of back amendment related sig- illegible ogy report Molina’s that bore Par petition. Corp. Enserch original testi- physicians nature initials. however, If, ker, they of and would have fied that knew sue, was mistaken about whom Gifford if they role had been disclosed Molina’s defendant, limita i.e., he misidentified point Dr. testified at one asked. Cochran 5. Misidentifica Id. at tions is tolled. diagno- told who made the that he *9 dis there are two tion often arises where Molina an Article 4590i sent sis. Gifford having or similar corporations same tinct 27, 1988, beyond limi- April letter on notice See, Par Corp. v. e.g., Enserch names. tations, over two months before but 2; ker, Southern 794 S.W.2d Continental to the suit. added was Hilland, 828 Lines, 528 S.W.2d Inc. v. 728 Corp., (Tex.1975); v. Enserch hand, Palmer there was evidence the other On 1987, writ (Tex.App.-Austin 431 report pathology and bills were the that Bottling n.r.e.); v. Coca-Cola As- ref’d Howell Dougherty under & and sent prepared (Tex.Civ. Lubbock, 208 595 S.W.2d tell Dougherty failed to Co. sociates’ name. 677 1987, App.-Amarillo), August cu & Associates well before per writ in n.r.e. ref'd riam, only 801 In the the entity 599 S.W.2d suit was There is one filed. case, present dis there was evidence of Dougherty, known as M.D. & Associ- M.K. tinctly separate bearing entities similar in entity ates. That involved the was The here rath names. error was misnomer forming transaction or the basis occurrence er than misidentification. Dougherty’s of Gifford’s verified claims. in contesting capacity denial the which he primary purpose of limita that implies was sued also that he knew the plaintiff tions is to force the file suit in defendant association was the real the within time so a reasonable that the defen case.5 opportunity gather dant has a fair com petent evidence. and reliable Continental that Dougherty also asserts he Lines, Hilland, Southern Inc. v. 528 misled the cause of action in was because statute S.W.2d at 831. The should not from that the amendment is different apply in is party circumstances where no original petition. The test deter disadvantaged by misled or the error mining a cause whether limitations bars pleading. Corp., Palmer v. Enserch 728 petition action added in an amended 434; S.W.2d at see also Barnett v. Hous whether the amended cause of action is Co., 305, ton 617 306 Natural Gas new, wholly grows based on or out of 1981, (Tex.Civ.App.-El Paso ref'd writ distinct, or different transaction or occur n.r.e.). misidentification, Even in cases of Texaco, Inc., rence. Leonard does not bar suits limitations where the 160, (Tex.1967); Meisler v. Re proper prejudiced by defendant was not S.W,2d Ass’n, public Savings Texas mistake. Continental See Southern (Tex.App.-Houston Dist.] [14th Lines, Hilland, Inc. v. S.W.2d at writ); Brown, Stone v. 621 S.W.2d why One reason statute is tolled in (Tex.Civ.App.-Texarkana writ cases misnomer is that the party intend n.r.e.). ref’d ed has served put to be sued been notice he is the intended defendant. In pleading, his amended Gifford added Builders, Braselton-Watson v. Bur Inc. ground claims to the related liabil- gess, (Tex.Civ.App.-Cor i.e., arising ity, liability, from vicarious pus n.r.e.). writ refd Christi pathology biopsy. on Gifford’s work transaction, allege
Since did not The same occurrence or or obtain services, findings prejudicial gave on the rise to both the effect of his correctly original name We Dougherty failure to in the and the amended claims. hold original petition, question preju- not misled or whether was conclusively proved the evidence and that by diced later amendment or prejudiced by by was not misled against suit him was not barred limita- Wright the amendment. See tions. Gifford- Co., (Tex.App.- Hill seven, Dougherty points com- six and n.r.e.). ref'd Waco plains should the trial court have is difficult conclude that It granted trial because evidence new preju could have been misled or legally factually insufficient was that his diced the mere fact association support findings that Molina jury’s was professional corporation. was sued as a employee servant of and borrowed wholly owned, corporation direct Dougherty. operated by Dougherty. ed and Service employer/em consider the will upon attorney him. The same effected togeth issues throughout ployee and borrowed servant
represented Dougherty the liti er, can be a borrowed serv gation. Dougherty received a notice because Molina 4590i exist Dougherty, only if same elements to M.K. M.D. ant letter addressed *10 However, specific recog- ego. the court made no find- court in this case seemed to The trial 5. ings regard. Dougherty’s in this business was alter nize that this 678 Co., Indemnity him an if he were v. Ins. employee
would make
Halliburton
Texas
(1948);
already employed by
147 Tex.
677
El
not
another. United
S.W.2d
Gonzales, 36
Fidelity
Guaranty
Laundry
&
v. Good
Co. v.
S.W.2d
States
Co.
Paso
son,
(Tex.Civ.App.-El
(Tex.Civ.App.
Paso
568 S.W.2d
n.r.e.).
dism’d).
conflicting
The evidence here is
Texarkana
writ ref’d
determining
susceptible to
inferences.
right
key
of control is the
in
and
different
employee.
Molina was
News
whether
an
presented evidence that
Love,
582, 590
papers, Inc. v.
380 S.W.2d
employee
Dougherty.
was an
of
Molina
(Tex.1964). The
consid
relevant factors to
arrangement
had an
where
The two
Molina
determining
er in
whether one is an inde
perform
Dougherty
work for
at
would
employ
pendent contractor rather than an
arrangement
Dougherty’s request. The
(1)
his
ee are
whether the nature of
busi
fairly regular
on a
basis. Molina
continued
independent
of the “em
ness is
from that
laboratory,
in a hospital
did his work
tools,
(2)
sup
the
ployer”;
who furnishes
only
working with or for
which
someone
materials;
plies,
(3)
control of
and
who has
Dougherty was allowed to do
results;
of the work to the final
the details
Compensation
per
diem
was on
work.
(4)
employ
length
regularity
and
of
the
quantitative
rather than on a
basis.
basis
ment;
(5)
by
is
compensation
whether
independently for
could not bill
by
job.
the
Land
the time or
Pitchfork
for,
of,
reports
Bills
Molina’s
services.
331, 346
King,
v.
162 Tex.
and Cattle Co.
name,
Dougherty’s
bore
association’s
work
(1961).
signed
report just above the
and Molina
rela
employer/employee
For an
indicating
name
association’s
without
exist,
must
tionship
right
of control
independent contractor. Gif-
he was an
to the means
details of accom
extend
treating physician testified
doc
ford’s
plishment,
end result.
as well as the
operating independently would not
tors
Indemnity
v.
Co.
Thompson
Travelers
reports
Dougherty
manner.
sign
of
Island,
Molina,
Rhode
by
assigned the work
be done
employer
normally
will
control “when
An
just
reports
generated
and Molina’s
were
work,
begin
regularity of
and where to
performed by Dougherty.
any work
spent on
and the amount of time
Dough-
hours
implying that
testimony
There was
work,
physical
particular aspects of
controlled,
Molina,
erty
input
with
from
accomplishing
an end
or manner
done,
method
would
would be
who
do
which work
result,
type
of tools and
and control
At
it,
it
be done.
one
and where would
perform
used to
the work.”
appliances
Molina testified that
point,
Indemnity
Thompson v. Travelers
Co.
exactly
the boss.” The work
“was
Island,
278-79;
do,
789 S.W.2d at
Unit
Rhode
of work
would
type
same
Fidelity
Guaranty
v.
Co.
ed States
generally
done
a subcontrac
unlike that
Goodson,
is the
It
When
genera] contractor.
asked
tor for a
existence,
exercise, of the
rather than the
arrangement,
hypothetical
a similar
about
nature
control that determines the
right
appear
it would
Phillips
Dr.
testified that
relationship. Newspapers, Inc.
Dough-
of the
relationship.
employee-type
be an
Love,
of the
at 590. The nature
relationship
380 S.W.2d
might
erty conceded
con
much
require
involved
persons
work
that of
some
to be
an
appear to
Blanscett,
supervision.
or
Keith
trol
testified that
employer/employee. Molina
Paso
(Tex.Civ.App.-El
was not neces
of the work details
control
writ).
1969, no
nature
sary
professional
because
work,
agreed
professional
he
that a
but
is conclusive
Unless
evidence
employee.
an
could be
in
reasonably susceptible
one
per
the flat
contends that
ference,
person
question
whether
pay,
a set schedule for
lack of
independent contractor
diem rate
employee or an
income
social
work, failure to withhold
Cattle
fact.
Land and
one of
Pitchfork
taxes,
598;
lack of control over
security
King, 162 Tex.
Co. v.
*11
pathology report
required
and does not address the
of hours Molina was
the number
Dough-
prepared
signed
and
Molina on
weighs against
employer/em-
an
to work
that,
Molina testified
be-
erty’s
forms.
ployee relationship. Pay
daily
on a
basis
nature of his
professional
employee relationship,
an
as
cause
indicative of
necessary.
work,
supervision was
job
very little
output
is not
on amount of
or
it
based
However,
right of control and not
it is the
completion. There is no evidence at all
that is determinative..
securi-
the exercise thereof
regarding whether income or social
report, signed by Molina
pay.
ty taxes were withheld from Molina’s
schedule,
name, Molina’s tes-
Dougherty’s
and
there was no set
Molina above
While
boss,”
Dough-
timony
Dougherty
“was
regularly came to Paris to work for
Molina
present strong evidence of control.
erty.
working
he
also testified that when was
As to lack of control over the number of
stationery.
Masterpath,
his own
he used
work,
testimony
hours to
there was
issue,
servant
the evi-
Dougherty
assignments
made the
and Moli-
On the borrowed
However,
employee
them.
Mo- dence showed that
reject
na was free to
entirely.
Masterpath,
Molina owed
Dougherty’s
to Paris at
which
lina
came
Masterpath
payment to
request.
It is a
inference from
made
reasonable
directly
This seems
testimony
merely
rather than
to Molina.
this
that Molina was
free
employed by
relationship in
same
to show that Molina was
to terminate his
he rendered servic-
employee.
Masterpath at the time
manner as an
Thus,
sup-
Dougherty.
es to
the evidence
argues
further
that Molina
ports
finding
of a borrowed-servant
employee Masterpath, an inde-
was an
relationship.
pendent
obligation
business that had
Dougherty.
independence
work for
certainly
The evidence
does not
work,
goes to
element
the nature of the
testimony
present a case of uncontradicted
the nature of the entities. See
evidence,
overwhelming
Cochran
Pitchfork
King,
162 Tex.
Land
Cattle Co. v.
Co., 140
Storage
Growers Central
Wool
331,
Dougherty argues the “tools” of a findings only if jury’s should overturn pathologist knowledge ability, his are weight pre great tools, they against are any physical as the labo- such Bain, the evidence. Cain v. ratory, provided by hospital ponderance in- were find however, Dougherty. Dougherty, stead of employee and jury’s answers to the pathology contracts and was di- had the supported questions are hospital laboratory. servant rector of the Since borrowed evidence and not performed analy- by legally sufficient where Molina this was weight preponder sis, against great Dougherty effectively provided the the evidence. ance of physical tools Molina used. employ- disposition of any limit- of our
Finally, Dougherty claims that view issues, servant er/employee and borrowed he have been supervision ed or control necessary consider is not that we to ne- it to exercise was not sufficient able issues, since estoppel agency and independent sta- ostensible gate Molina’s contractor supported without can be billing pro- judgment Dougherty dismisses the tus. having nothing control them. to do with cedure *12 using this
Dougherty
Dougherty’s attorney
also
the trial
was
affi-
contends
by allowing
Norton.
questioning
court committed harmful error
davit as a reference in
designated
improperly
expert,
questioned
Dr. Nor- He
Norton on most of the state-
ton,
testify
except
to
on
future dam-
in the affidavit
this one. Un-
the issue of
ments
circumstances,
Dougherty
this
cannot
ages.
asserts that without
der these
testimony
any
designation
of
or testimo-
complain
there was no evidence
about
damages.
Norton.
ny
future
designated
Although
initially
not
care, Dough
As to future medical
Dr.
named in
expert,
as an
Norton was
testimony
there
erty contends
must be
supplemental
per
as a
Gifford’s
answers
figures
as to
or other
from doctors
dollar
having
damage to Gif-
knowledge
son
future
care will be
medical
evidence
supplemental answers were
ford. These
necessary, and there
none here. As
was
7, 1990,
September
thirty
than
filed
more
stated,
has
this Court
days before trial on
1990. Gif-
October
expenses
The
of future medical
award
interrogatories
ford’s answers
these
primarily
jury
for the
is a matter
they could
perhaps
precise
not as
were
determine. Precise
is not re-
evidence
been,
Dougherty’s interrogatories
have
but
jury
its
quired.
The
make
award
They
lacking
clarity.
were
in
themselves
upon the
course of the
based
nature and
names of
specifically
never asked
for the
care
injuries
disability,
or
the medical
testifying experts
subjects of testi
or the
trial,
medical ex-
past
rendered before
asking
names of non-
mony,
instead
injured
penses, and
condition
consulting experts
the “services
plaintiff
time of
party at the
trial.
em
expert
for which
was
purposes”
each
future medi-
required to
not
establish
supplemental
In the
re
ployed.
same
by expert
consequences
injury
cal
his
per
as a
sponse where Norton was listed
testimony
grounded
on rea-
medical
having
damage,
knowledge of future
son
probability.
sonable medical
re
stated that Dr. Norton was
Daniel,
Municipal
the Defen
Hospital
tained to “determine whether
Gladewater
negligent.”
(Tex.App.-Texarkana
dant’s conduct was
writ)
added).
(emphasis
no
argues
designation
that this
Dr. Norton had
was insufficient because
there was
Dougherty argues that
damages in her affidavit
barely mentioned
past
expenses
that the
medical
no evidence
Nor-
deposition.
all in her
Dr.
and not at
reasonable,
necessary and
and an
were
states,
last sentence
ton’s affidavit
its
imper-
including
amounts is
these
award
unnecessary,
misdiagnosis
“This
led to
Law, 579
missibly speculative.
Roth v.
See
chemotherapy and irradiation
harmful
(Tex.Civ.App.-Corpus
questioned
not
patient.” Norton was
n.r.e.). Dougherty
writ ref’d
Christi
this statement. The closest
the evi
objection
Molina made
subject
question,
to this
came
on this or
past
expenses
medical
dence of
discuss
you’re going
“Anything else
Indeed,
counsel
ground.
their
any other
objected that
jury.”
After Gifford
with
objection to
expressly stated
he had
questions,
anticipate
could
the witness
not
respect
Any
error
this
such evidence.
negative. Not
in the
Norton answered
waived.
have
objection itself
only should Gifford’s
testimony was
hold that Norton’s
but, in
pointed question,
prompted a more
admitted,
error is shown
and no
properly
really ask
context,
question
not
this
does
past
jury’s
to the
award
respect
with
opinions
already cov-
any and all
not
about
damages.
as future
medical as well
“any-
another
question
follows
ered.
error, Dougher-
point of
biop-
In their eleventh
question pertaining to the
thing else”
complain
the awards
slides,
ty and
precedes questions
about oth-
sy
$200,-
$1,000,000.00 to Mr. Gifford
questions
reviewed and
about
er materials
excessive
to Mrs. Gifford were
000.00
of care.
standard
factually
insuffi-
supported by factually
evi- clude that the evidence
sufficient
an award to Gifford of
support
cient to
dence.
$1,000,000.00.
proof
There is no claim or
The standard of review for remit-
earning capac-
wages, loss of
of future lost
*13
sufficiency,
titur is factual
and all of
future medical costs. As
ity, or extensive
Re
evidence must be reviewed. Snoke v.
Railway
v.
in Louisiana & Arkansas
Co.
Co.,
Ins.
770 S.W.2d
public Underwriters
291,
sugges-
there is no
Capps, 766 S.W.2d
(Tex.1989);
Utility
777
Larson v. Cactus
work,
to
that Gifford will be unable
tion
(Tex.1987);
Co.,
Pope
GRANT, Judge, partially dissenting. psy- years, requiring on for four-and-a-half physi- chological help; and how the about portion I from that dissent long-term ef- cians him that the had told ordering opinion a remittitur. chemotherapy radiation on an fects of Rus- jury heard evidence about how The healthy were un- individual otherwise days was that he had two Gifford told sell known. order; esopha- that his get his affairs in serious that there was geal cancer so jury award Russell Gifford opinion, a and that he for second not time physical pain, anguish, physical for mental begin immediately radiation must majori impairment, and medical care. treatments; chemotherapy about the emo- ty opinion directs a remittitur on basis his he suffered when he told tional trauma of future “proof offered no Gifford children; about how he his four father and capacity, or wages, earning lost loss of over to his old- his store turned hardware extensive future medical costs.” he son; how he wondered if and about est compensation those bases. did not seek on another Christmas with get see would “Physical always the impairment” is not his children. equivalent capacity to of a “diminished money.” Grigs right French v. a to recover work and earn recognizes law Texas (Tex.Civ.App.-Beau anguish by, S.W.2d 604 pain for suffered damages curiam, mont), per Under Texas writ n.r.e. anticipation of death. ref'd Gifford’s knowledge impending his Russell law, person’s only in family damages not be to be should viewed are its effect death and loss, light because his losses of economic more than economic.
were judg- free to substitute its
No court is damages jury for that of the as to
ment an- awarded for mental
which should be Robinson, S.W.2d 24
guish. Brown v. writ). The
(Tex.App.-El Paso pain damages to be awarded for
amount of suffering left to the sound must be of the trier of fact. Carrell
discretion
Richie, (Tex.App.-Austin n.r.e.). especially ref d This suffering, regard pain,
true in to claims neces- anguish, which are areas
and mental compensatory dam-
sarily speculative, that
ages should be left to the determination credibility jury judges the jury, as the *15 weight given and the be witnesses testimony. Kneip v. UnitedBank-
their
Victoria,
(Tex.App.-Corpus
Christi agree appellant’s con-
I cannot with the damages awarded
tentions that grossly sup-
jury were excessive and not
ported by factually sufficient evidence. awarding signif- jury justified tragic ordeal that this
icant amount for and continues to suffer.
man suffered
Peggy George Ann GLASS Neely, Appellants,
R. GLASS, Appellee.
Dale Steen
No. 6-91-042-CV. Texas, Appeals
Court of
Texarkana. 25, 1992.
Feb.
Rehearing March Denied