Lead Opinion
OPINION
Dougherty & Associates and Dr. Jaime Molina appeal from a judgment based on a jury verdict in favor of Mr. and Mrs. Russell Gifford in a medical malpractice action.
Dougherty and Molina raise eleven points of error, asserting that limitations, improper admission of expert testimony, and insufficiency of the evidence precluded the judgment against them. They also assert that a remittitur is required.
Dougherty’s legal sufficiency points must be examined in the light most favorable to the jury findings to determine if there is any probative evidence supporting them, disregarding all contrary evidence and inferences. Garza v. Alviar,
The factual sufficiency points require us to examine all of the evidence in the record and sustain the points only if the evidence is insufficient or if the findings are so against the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Garza v. Alviar,
Gifford developed a hernia of the esophagus that worsened to the point that his family physician referred him to a specialist. The specialist, Dr. Josie Williams, took a biopsy and sent it to the pathology department of McQuistion Regional Medical Center in Paris. Dougherty & Associates had a contract to perform all pathology work for the medical center. The actual pathology work on Gifford’s biopsy, however, was performed by Dr. Jaime Molina, who worked under an arrangement with Dougherty. Molina’s work was done at the medical center laboratory, which Dougherty directed. Dougherty billed Gifford for the pathology services. Molina diagnosed malignant cancer, and as a result, Gifford was ordered to undergo irradiation and chemotherapy treatments.
After six weeks of treatments, a second biopsy was taken, and it revealed that there was no malignancy. Gifford was scheduled for surgery in Dallas, but it was avoided when the original biopsy slides were reviewed and determined to contain no indication of cancer.
The jury found that Molina was negligent in making the cancer diagnosis and that his negligence proximately caused Gif-ford’s injuries, that Molina was an employee and a borrowed servant of Dougherty, that Dougherty was estopped to deny liability for Molina’s work, that Molina and Dougherty fraudulently concealed Molina’s part in the diagnosis, and that Gifford could not have reasonably discovered Molina’s involvement before suit was filed. Damages of $1,000,000.00 to Gifford and $200,000.00 to his wife were awarded.
The relevant dates are:
February 21, 1986 First pathology report/misdiagnosis
May 1986 Gifford learns of misdiagnosis
July 10, 1986 Addendum pathology report prepared by Dougherty and Molina
August 28, 1987 Article 4590i notice letter to M.K. Dougherty & Associates
April 21, 1988 Suit filed against M.K. Dougherty d/b/a Marshall K. Dough-erty, M.D. & Associates
April 27,1988 4590i notice letter to Molina
May 8, 1988 Limitations date for February 21, 1986 (including seventy-five-day extension)
May 17,1988 Gifford’s first set of interrogatories
June 10, 1988 Dougherty’s answer filed naming Molina as pathologist doing the work
July 14, 1988 Molina added to suit
September 25, 1988 Limitations date for July 10, 1986 (including seventy-five-day extension)
March 23, 1989 Dougherty filed answer indicating that he was sued in the wrong capacity
November 16, 1989 Gifford’s petition amended to show M.K. Dougherty, M.D. & Associates as a professional association
The first four points of error are interrelated and are grouped for discussion.
The first point of error asserts that Gif-ford’s claim was barred because it was not brought within two years of the misdiagnosis.
The continuing treatment doctrine
In point two, Dougherty and Molina contend that the jury finding of fraudulent concealment is not supported by legally or factually sufficient evidence.
It is undisputed that Gifford learned of the misdiagnosis in May 1986, within the limitations period. Gifford asserts that suit was not filed earlier because Molina’s identity as the pathologist who did the work was concealed until after limitations had run. To succeed on this fraudulent concealment claim, Gifford had to show that Dougherty and Molina had actual knowledge of Molina’s involvement, a duty to disclose Molina’s identity, and a fixed purpose to conceal Molina’s identity. See Rhodes v. McCarron,
Dougherty assigned Molina to do Gif-ford’s pathology work. Molina prepared his report on Dougherty’s business forms. Dougherty billed Gifford for Molina’s work. Knowledge of Molina’s involvement is indisputably shown.
Dougherty and Molina assert that the evidence does not show a physician/patient relationship between either of them and Gifford. Relying on Childs v. Weis,
Lotspeich involved a woman who was sent to a company doctor for a pre-employment physical. That court did not reach the question of whether the physician owed a duty to disclose because they found that no duty to even discover the presence of the disease existed. Lotspeich v. Chance Vought Aircraft,
Childs involved a malpractice action where a woman went to an emergency room when she began having premature labor pains. The nurse called the doctor on duty, who merely advised the woman to call her regular doctor. The court found that there was not a physician/patient relationship because the doctor was under no duty to examine or treat Mrs. Childs. The telephone conversation with a nurse did not amount to an acceptance of the case, and the instructions could not be construed as treatment. Childs v. Weis,
We also note that the Medical Liability and Insurance Improvement Act does not predicate liability for health care related claims on physical contact. Under the statute, “health care” encompasses any treatment performed or furnished on Gifford’s behalf. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 1.03(a)(2) (Vernon Supp.1992).
We conclude that Dougherty and Molina created a physician/patient relationship with Gifford by accepting the pathology work, conducting the laboratory analysis, preparing the pathology report, and billing Gifford. In such circumstances, there is at least an implied agreement between the parties.
Although we find no Texas case addressing the issue of whether a physician/patient relationship exists between a pathologist and a person never physically contact
[A] consensual relationship between a physician and a patient may exist where others have contracted with the physician on the patient’s behalf. ... ... The important fact in determining whether the relationship is a consensual one ... is not who contracted for the service but whether it was contracted for with the express or implied consent of the patient or for his benefit. ... Where ... healthcare services are rendered on behalf of the patient and are done for the patient’s benefit, a consensual physician-patient relationship exists for the purposes of medical malpractice.
Walters v. Rinker,
In Peterson v. St. Cloud Hospital,
In this case, Dougherty contracted with the hospital to perform pathology services. Gifford’s physician sent the biopsy to the hospital, knowing that Dougherty performed all its pathology work. Dougherty had Gifford’s implied consent, at least, to perform or furnish these services. Dough-erty then assigned Gifford’s pathology work to Molina pursuant to an arrangement between Molina and Dougherty. Molina performed the services for Gifford’s benefit and with implied consent. We find that a physician/patient relationship existed between both Dougherty and Molina as a matter of law.
Molina and Dougherty argue that, even if a physician/patient relationship did exist, it existed only on February 21, 1986, the date of the original biopsy, with the duty to disclose Molina’s identity expiring on that day. That argument is illogical, because on that date neither Molina nor Dougherty knew that the misdiagnosis had occurred. They learned of the misdiagnosis at the same time that Gifford did, in late May of 1986. Regardless, the duty was breached even if it existed only on that day because Molina’s identity was not disclosed to Gif-ford at that time.
Another element of fraudulent concealment is a fixed purpose to conceal. Rhodes v. McCarron,
Molina asserts that he must have personally performed an act of concealment. It is true that the acts of third parties will not usually support fraudulent concealment. Cato v. South Atlantic & Gulf Coast District of the International Longshoreman’s Ass’n,
Another question is whether Gif-ford’s reliance was reasonable. In other words, would the discovery of the misdiagnosis cause a reasonably prudent person to make inquiry leading to discovery of Molina’s identity. See Evans v. Conlee,
Dougherty and Molina emphasize Gif-ford’s physicians’ testimony and the pathology report that bore Molina’s illegible signature and initials. The physicians testified that they knew of and would have disclosed Molina’s role if they had been asked. Dr. Cochran testified at one point that he told Gifford who made the diagnosis. Gifford sent Molina an Article 4590i notice letter on April 27, 1988, beyond limitations, but over two months before Molina was added to the suit.
On the other hand, there was evidence that the pathology report and bills were prepared and sent under Dougherty & Associates’ name. Dougherty failed to tell Gifford of Molina’s involvement even after Dougherty received an Article 4590i notice letter in September 1987. Dougherty admitted that the nature of the bills could lead to the belief that the physician named on the bills, i.e., Dougherty, was the one performing the services. Dr. Williams testified that she did not normally disclose the identity of the pathologist to her patients and did not do so with Gifford. We conclude that there was legally and factually sufficient evidence of reasonable reliance on the part of Gifford.
The trial court did not err on the statute of limitations issue because the jury finding of fraudulent concealment is supported by legally and factually sufficient evidence.
In point of error five, Dougherty contends that Gifford’s claims against Dough-erty & Associates, the professional association, were barred by limitations. Dougherty’s position is that, since he was originally sued as M.K. Dougherty d/b/a Marshall K. Dougherty, M.D. and Associates, he was sued as an individual and limitations barred Gifford’s subsequent claims that the corporation, M.K. Dougherty & Associates, P.A., was vicariously liable for Molina’s misdiagnosis. He asserts that the pleadings misled and prejudiced him, and that by failing to secure a jury finding on lack of prejudice, Gifford waived any defense against limitations.
If Gifford merely misnamed Dougherty in his original petition, limitations was tolled and Gifford’s subsequent amendment related back to the date of the original petition. Enserch Corp. v. Parker,
The primary purpose of limitations is to force the plaintiff to file suit within a reasonable time so that the defendant has a fair opportunity to gather competent and reliable evidence. Continental Southern Lines, Inc. v. Hilland,
Since Gifford did not allege or obtain findings on the prejudicial effect of his failure to correctly name Dougherty in the original petition, the question is whether the evidence conclusively proved that Dougherty was not misled or prejudiced by the amendment. See Wright v. Gifford-Hill & Co.,
It is difficult to conclude that Dougherty could have been misled or prejudiced by the mere fact that his association was not sued as a professional corporation. The corporation was wholly owned, directed and operated by Dougherty. Service was effected upon him. The same attorney represented Dougherty throughout the litigation. Dougherty received a 4590i notice letter addressed to M.K. Dougherty, M.D. & Associates in August 1987, well before the suit was filed. There is only one entity known as M.K. Dougherty, M.D. & Associates. That entity was involved in the transaction or occurrence forming the basis of Gifford’s claims. Dougherty’s verified denial contesting the capacity in which he was sued also implies that he knew that the association was the real defendant in the case.
Dougherty also asserts that he was misled because the cause of action in the amendment is different from that in the original petition. The test for determining whether limitations bars a cause of action added in an amended petition is whether the amended cause of action is wholly based on or grows out of a new, distinct, or different transaction or occurrence. Leonard v. Texaco, Inc.,
In his amended pleading, Gifford added only claims related to the ground of liability, i.e., vicarious liability, arising from the pathology work on Gifford’s biopsy. The same occurrence or transaction, the pathology services, gave rise to both the original and the amended claims. We hold that Dougherty was not misled or prejudiced by the later amendment and that the suit against him was not barred by limitations.
In points six and seven, Dougherty complains that the trial court should have granted a new trial because the evidence was legally and factually insufficient to support the jury’s findings that Molina was an employee and borrowed servant of Dougherty.
We will consider the employer/employee and borrowed servant issues together, because Molina can be a borrowed servant only if the same elements exist that
For an employer/employee relationship to exist, the right of control must extend to the means and details of accomplishment, as well as the end result. Thompson v. Travelers Indemnity Co. of Rhode Island,
Unless the evidence is conclusive and reasonably susceptible to only one inference, the question whether a person is an employee or an independent contractor is one of fact. Pitchfork Land and Cattle Co. v. King,
Gifford presented evidence that Molina was an employee of Dougherty. The two had an arrangement where Molina would perform work for Dougherty at Dougherty’s request. The arrangement continued on a fairly regular basis. Molina did his work in a hospital laboratory, in which only someone working with or for Dougherty was allowed to do pathology work. Compensation was on a per diem basis rather than on a quantitative basis. Molina could not bill independently for his services. Bills for, and reports of, Molina’s work bore Dougherty’s association’s name, and Molina signed the report just above the association’s name without indicating that he was an independent contractor. Gif-ford’s treating physician testified that doctors operating independently would not sign reports in that manner. Dougherty assigned the work to be done by Molina, and Molina’s reports were generated just as any work performed by Dougherty. There was testimony implying that Dough-erty controlled, with input from Molina, which work would be done, who would do it, and where it would be done. At one point, Molina testified that Dougherty “was the boss.” The work was exactly the same type of work Dougherty would do, unlike that generally done by a subcontractor for a genera] contractor. When asked about a similar hypothetical arrangement, Dr. Phillips testified that it would appear to be an employee-type relationship. Dough-erty conceded that the relationship might appear to some persons to be that of an employer/employee. Molina testified that control of the work details was not necessary because of the professional nature of the work, but he agreed that a professional could be an employee.
Dougherty contends that the flat per diem rate of pay, lack of a set schedule for work, failure to withhold income or social security taxes, and the lack of control over
As to lack of control over the number of hours to work, there was testimony that Dougherty made the assignments and Molina was free to reject them. However, Molina only came to Paris at Dougherty’s request. It is a reasonable inference from this testimony that Molina was merely free to terminate his relationship in the same manner as an employee.
Dougherty further argues that Molina was an employee of Masterpath, an independent business that had no obligation to work for Dougherty. The independence element goes to the nature of the work, not the nature of the entities. See Pitchfork Land and Cattle Co. v. King,
Dougherty argues that the “tools” of a pathologist are his knowledge and ability, and any physical tools, such as the laboratory, were provided by the hospital instead of Dougherty. Dougherty, however, had the pathology contracts and was director of the hospital laboratory. Since this was where Molina performed his analysis, Dougherty effectively provided the physical tools Molina used.
Finally, Dougherty claims that any limited supervision or control he may have been able to exercise was not sufficient to negate Molina’s independent contractor status. Dougherty dismisses the billing procedure as having nothing to do with control and does not address the pathology report prepared and signed by Molina on Dough-erty’s forms. Molina testified that, because of the professional nature of his work, very little supervision was necessary. However, it is the right of control and not the exercise thereof that is determinative.. The pathology report, signed by Molina above Dougherty’s name, and Molina’s testimony that Dougherty “was the boss,” present strong evidence of control. Molina also testified that when he was working for Masterpath, he used his own stationery.
On the borrowed servant issue, the evidence showed that Molina was an employee of Masterpath, which Molina owed entirely. Dougherty made payment to Masterpath rather than directly to Molina. This seems to show that Molina was employed by Masterpath at the time he rendered services to Dougherty. Thus, the evidence supports the finding of a borrowed-servant relationship.
The evidence certainly does not present a case of uncontradicted testimony or overwhelming evidence, Cochran v. Wool Growers Central Storage Co.,
In view of our disposition of the employer/employee and borrowed servant issues, it is not necessary that we consider the ostensible agency and estoppel issues, since the judgment can be supported without them.
Although not initially designated as an expert, Dr. Norton was named in Gifford’s supplemental answers as a person having knowledge of damage to Gif-ford. These supplemental answers were filed September 7, 1990, more than thirty days before trial on October 9, 1990. Gif-ford’s answers to these interrogatories were perhaps not as precise as they could have been, but Dougherty’s interrogatories themselves were lacking in clarity. They never asked specifically for the names of testifying experts or the subjects of testimony, asking instead for the names of non-consulting experts and the “services or purposes” for which each expert was employed. In the same supplemental response where Norton was listed as a person having knowledge of future damage, Gifford stated that Dr. Norton was retained to “determine whether the Defendant’s conduct was negligent.”
Dougherty argues that this designation was insufficient because Dr. Norton had barely mentioned damages in her affidavit and not at all in her deposition. Dr. Norton’s affidavit in its last sentence states, “This misdiagnosis led to unnecessary, harmful chemotherapy and irradiation to the patient.” Norton was not questioned on this statement. The closest Dougherty came to this subject was his question, “Anything else that you’re going to discuss with the jury.” After Gifford objected that the witness could not anticipate questions, Norton answered in the negative. Not only should Gifford’s objection itself have prompted a more pointed question, but, in context, this question does not really ask about any and all opinions not already covered. The question follows another “anything else” question pertaining to the biopsy slides, and precedes questions about other materials reviewed and questions about standard of care.
Dougherty’s attorney was using this affidavit as a reference in questioning Norton. He questioned Norton on most of the statements in the affidavit except this one. Under these circumstances, Dougherty cannot complain about the designation or testimony of Norton.
As to future medical care, Dougherty contends there must be testimony from doctors as to dollar figures or other evidence that future medical care will be necessary, and there was none here. As this Court has stated,
The award of future medical expenses is a matter primarily for the jury to determine. Precise evidence is not required. The jury may make its award based upon the nature and course of the injuries or disability, the medical care rendered before trial, past medical expenses, and the condition of the injured party at the time of trial. The plaintiff is not required to establish the future medical consequences of his injury by expert medical testimony grounded only on reasonable medical probability.
Gladewater Municipal Hospital v. Daniel,
Dougherty argues that there was no evidence that the past medical expenses were necessary and reasonable, and an award including these amounts is imper-missibly speculative. See Roth v. Law,
We hold that Norton’s testimony was properly admitted, and no error is shown with respect to the jury’s award of past medical as well as future damages.
In their eleventh point of error, Dougherty and Molina complain that the awards of $1,000,000.00 to Mr. Gifford and $200,-000.00 to Mrs. Gifford were excessive and
The standard of review for remit-titur is factual sufficiency, and all of the evidence must be reviewed. Snoke v. Republic Underwriters Ins. Co.,
Dougherty analogizes the present case to Louisiana & Arkansas Railway Co. v. Capps,
The physical and psychological effects of Gifford’s ordeal differ from those arising in most personal injury cases. Gif-ford was informed that this particular cancer had a fifteen percent survival rate and that he had two days to get his affairs in order. The treatments lasted weeks, while most injuries occur instantly. The effects of the treatment, such as nausea and weight loss, continued throughout the treatment period. This evidence shows that the pain, suffering and mental anguish associated with the injury itself was not the result of a sudden event, but rather slowly inflicted. Nevertheless, we conclude that the evidence is factually insufficient to support an award to Gifford of $1,000,000.00. There is no claim or proof of future lost wages, loss of earning capacity, or extensive future medical costs. As in Louisiana & Arkansas Railway Co. v. Capps,
Dougherty also complains that the $200,000.00 award to Mrs. Dougherty was not supported by the evidence. He first contends there is no evidence as to the loss of household services. The term “household services” generally relates to domestic duties. EDCO Production, Inc. v. Hernandez,
Dougherty also complains that there is no evidence linking loss of consortium damages to the chemotherapy and irradiation treatments. Loss of consortium includes loss of affection, solace, companionship, society, assistance and sexual relations necessary to a successful marriage. Whittlesey v. Miller,
We hold the evidence sufficient to support an award for loss of consortium.
The jury may exercise considerable discretion and generosity in awarding damages for personal injuries, EDCO Production, Inc. v. Hernandez,
If, within fifteen days from the date of this opinion, Gifford remits the sum of $300,000.00, the judgment will be affirmed; otherwise, the judgment will be reversed and remanded.
Notes
. Tex.Rev.Civ.Stat.Ann. art. 4590Í, § 10.01 (Vernon Supp.1992).
. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1992) provides:
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; ....
. The Cherry duty to respond truthfully seems less onerous than the physician’s duty to come forward and disclose negligence or the occurrence of an injury to a patient. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983).
. The full text is: “ 'Health care’ means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.”
. The trial court in this case seemed to recognize that this business was Dougherty’s alter ego. However, the court made no specific findings in this regard.
Dissenting Opinion
dissenting.
I dissent only from that portion of the opinion ordering a remittitur.
The jury heard evidence about how Russell Gifford was told that he had two days to get his affairs in order; that his esophageal cancer was so serious that there was not time for a second opinion, and that he must immediately begin radiation and chemotherapy treatments; about the emotional trauma he suffered when he told his father and his four children; about how he turned his hardware store over to his oldest son; and about how he wondered if he would get to see another Christmas with his children.
Texas law recognizes a right to recover damages for pain and anguish suffered in the anticipation of death. Under Texas law, a person’s knowledge of his impending death and its effect on his family are to be considered in determining the amount to be awarded as compensation for mental anguish. Tarrant County Hospital District v. Jones,
The jury heard evidence about how Russell Gifford endured the agony of chemotherapy and 3,000 rads of radiation therapy, how this treatment kept him weak (had to use a wheelchair) and nauseated (resulting in his loss of thirty-five pounds during the three-month period), and how he had then faced massive surgery in which his esophagus was going to be removed and replaced by a part of his intestines.
The jury also heard about the after-effects of radiation and chemotherapy; about how it had resulted in a deep depression, eliminated his sex life, and affected his relationship with all those around him; about how this deep depression has gone on for four-and-a-half years, requiring psychological help; and about how the physicians had told him that the long-term effects of chemotherapy and radiation on an otherwise healthy individual were unknown.
The jury award to Russell Gifford was for physical pain, mental anguish, physical impairment, and medical care. The majority opinion directs a remittitur on the basis that Gifford offered no “proof of future lost wages, loss of earning capacity, or extensive future medical costs.” Gifford did not seek compensation on those bases. “Physical impairment” is not always the equivalent of a “diminished capacity to work and earn money.” French v. Grigsby,
No court is free to substitute its judgment for that of the jury as to damages which should be awarded for mental anguish. Brown v. Robinson,
I cannot agree with the appellant’s contentions that the damages awarded by the jury were grossly excessive and not supported by factually sufficient evidence. The jury was justified in awarding a significant amount for the tragic ordeal that this man suffered and continues to suffer.