*1 committed, and the former law is con- Benny PHILLIPS, M.D., Appellant, P. tinued in effect for purpose” apply- this ing non-aggregation to both the statute and the provided statute that that manda- BRAMLETT, Individually, Dale and as
tory supervision applied all sentences Independent Administrator of the Es- other than death. Bramlett, Deceased;
tate of Vicki Fuller, Ap- Fuller and Shane Michael Conclusion pellees. applicant When for sentenced No. 07-05-0456-CV. aggravated robbery, only person “a under ineligible sentence of death” was for man- Texas, Appeals Court of datory supervision. applicant Because Amarillo. eligible mandatory supervision for March sentence, that initial is eligible he likewise mandatory supervision for release on the
aggregated Nothing sentence. in the sub- sequent abrogated laws has the laws in sentence,
effect at the time of that initial aggregation and the pur- of both sentences suant saving they clause means that
should be single treated as a sentence for
a conviction eligible mandatory that is for
supervision.
I applicant conclude that is entitled to relief. previous regard- Because the laws
ing the sentence for the 1986 offense re- effect, applicant
mained is entitled have aggregated his release date on the Ap-
sentence calculated under those laws. plicant’s consecutive sentences should be aggregated eighteen-year
calculated as an applicant eligible sentence on which mandatory supervision. I respectfully dis-
sent. *5 HANCOCK,
Before CAMPBELL REAVIS, JJ., and S.J.1
OPINION HANCOCK, Justice.
MACKEY K. M.D., Benny Phillips, ap- P. Appellant, subsequent verdict and peals from Dale appellees, in favor of judgment Bramlett, individually independent and as Bram- of the estate of Vicki administrator (col- lett, Fuller, Fuller and Michael Shane “Bramlett”), medical lectively, their malpractice Phillips presents action. six 1) judgment: the evi- contesting issues factually insufficient legally dence was Phillips proxi- judgment Bramlett, mately caused the death of Vicki 2) jury argument improper Bramlett’s 3) trial court Phillips, and harmed statutory cap properly apply failed to malpractice ac- a medical 4590i, see Tex.Rev.Civ. tion, Ann. art. Stat. *6 4) 11.02(a) (Vernon § the evi- Supp.2001),2 factually legally dence was or insufficient 5) finding gross negligence, to factually insufficient the evidence was damages awarded support certain 6) jury, punitive and the award of by the by Tex. the limits set damages exceeds (Ver- PRAc. & Rem.Code Ann. § 41.008 Crv. Supp.2006). Hund, L.L.P., non Hund & Harriger Jim Lubbock, Appellant. for Background Factual III, B. Todd Trom-
Alexander Klein J. Firm, Houston, gynecologic oncologist who bley, Phillips Klein Law The Jordan, P.C., vaginal Turner, laproscopic-assisted performed Turner & Thomas J. Bramlett, Lubbock, Smithee, hysterectomy on Vicki on Octo- Templeton Smi- John L.L.P., 29, Russell, procedure appeared Hayes Heinrich & ber thee was re- Amarillo, successful and Vicki Appellees. have been 27, Reavis, (Ret.), May malpractice suit was filed on Court medical 1. Don H. Justice seventh 4590i, 2003, by assignment. Appeals, sitting prior repeal article provisions article. apply the of that must 16, 1977, R.S., Leg., ch. 2. Act of June 65th specific provisions of Further reference to 11.02, 2039, 817, § 1977 Tex. Gen. Laws will be Stat. Ann. art. 4590i Tex.Rev.Civ. repealed by Act of 2052. Article 4590i was §_” 4590i, reference to "art. 10.09, R.S., Leg., § 78th ch. June Bramlett’s Tex. Gen. Laws 884. As Background hospital approxi- turned to her room. At Procedural mately p.m., Phillips 5:30 was notified that sons, Dale Bramlett and Vicki’s two stable, Vicki, although pro- otherwise had Fuller, Shane and Michael filed suit for A only duced 50 cc of urine. low urine and wrongful against Phillips death Cove- output symptom could indicate internal trial, nant Prior to Hospital. Covenant bleeding dehydration. Phillips ordered $2,300,000 settled Bramlett’s claims for hemoglobin blood be tested for Vicki’s from the case. The and dismissed (H test) H “stat” and hematocrit levels & remaining against Phillips action went to (immediately) given 500 cc she jury trial and the returned a verdict in period over a to 60 minute I.V. fluids in- favor of Bramlett. The verdict (fluid challenge). The results of these finding Phillips cluded a had been tests were to be called to his office. Further, jury grossly negligent. being performed While the tests were required proportion negligence be- read, Phillips physician assisted another jury Phillips tween and Covenant surgical procedures hosрital. the same responsible percent assessed assisting While in these jury then for Vicki’s death. The awarded surgeries, the results of tests were Vicki’s $11,000,000 damages Bramlett in actual office, given relayed his who them $3,000,000 Phil- damages. in punitive phone. the voice mail on cell disregard certain lips filed a motion to The test results revealed that Vicki’s hem- judgment not- findings and a motion for oglobin dropped preoperative had from a trial withstanding the verdict. The court level of 15.7 to and that her urine 9.8 Judg- motions. overruled each of these output changed. Following had not subsequently awarding entered ment was completion surgery, Phillips of the last left $9,196,364.50 Bramlett in actual hospital retrieving without voice $2,972,000 damages.3 Fol- punitive phone, checking mail from his cell entry judgment, Phil- lowing the court’s status, determining Vicki’s or otherwise Correct, Modify or lips filed a Motion to the results of the ordered tests. for New Judgment Reform and a Motion to a cardi- proceeded previously scheduled post- each Trial. The trial court overruled *7 at gym. ac workout with a trainer a local Phillips motion and filed notice judgment Upon arriving gym, Phillips the re- of appeal. urgent message ceived an that Vicki’s con- issues, challenges the By Phillips dition had deteriorated and had become six sufficiency of the evi Phillips legal critical. back to the and factual hospi- rushed on the jury’s finding to support tal аnd ordered that Vicki be taken to the dence causation, jury argu During surgery, Phillips room. issue of whether operating attorney by Bramlett’s was discovered a massive amount of blood ment made the trial court to pelvis. Despite improper, and the refusal of Vicki’s lower abdomen resuscitation, caps apply statutory damage attempts at Vicki suffered judgment, sufficiency of the evidence aspiration pneumonia, damage, brain and later, Phillips organ days support jury’s finding Four on Novem- that failure. 2, 2002, complications grossly negligent, died the factual sufficien ber Vicki from jury’s bleeding. cy support of the evidence to postoperative due to percent plus prejudgment less deduc- equal do not 75 of credit interest These amounts The total calcula- jury’s findings the calculation tion for settlement offer. but rather party. damages are either of after deductions for settlement tions not contested
165 damages, puni requires prove in fact that Bramlett award of and whether the cause negligence tive award exceeded the limits of was a sub bringing set factor in about Vicki’s stantial by Tex. Civ. Prac. & Rem.Code Ann. (Vernon § Supp.2006). 41.008 af negligence We will such Vicki death and without part, suggest part, firm in a remittitur in Hosp. v. would have survived. Park Place (Tex. part. Milo, 508, reverse render Estate 909 S.W.2d 1995). ultimate contention is Phillips’s Legal Sufficiency and Factual that of сause in fact was evidence Regarding the Evidence nothing opinion more than the bare Proximate Cause expert without an identification of the
Phillips initially is, therefore, contends connection and no evi causal legally factually Warren, evidence was not suffi in fact. dence of cause Archer cient to finding his (Tex.App.-Amarillo negligence proximately caused the death of 2003, pet.). properly no order to ana both legal Vicki. When and factual contention, lyze Phillips’s a more detailed sufficiency of the challenged, evidence are procedural setting review of the and evi sufficiency will legal first review the required. dence adduced at trial is the evidence. Glover v. Tex. Indem. Gen. Bramlett to trial on the basis proceeded (Tex.1981). Co., 619 S.W.2d Petition, of their Fourth which Amended provided, pertinent part, addressing legal sufficiency,
When 1) reviewing court ultimately guilty negligence by: failing must deter was 2) care; mine whether the at trial provide appropriate proper evidence would jurors enable reasonable and fair-minded failing adequately assess Vicki’s medical 3) condition; to reach the verdict City under review. failing provide treat- Wilson, (Tex. Keller v. applicable ment in accordance with the 2005). scope requires of the review prove Phillips’s neg- of care. To standard evidence, considеration of all of the giving ligence proximately and that it caused deference to evidence favorable to the ver death, Bramlett offered the testi- Vicki’s if jurors dict reasonable and fair-minded Hemsell, M.D., mony expert of David as an disregarding could and contrary evidence specialty in the medical of obstetrics or unfavorable to the verdict unless rea gynecology. jurors sonable and fair-minded could not. opined Dr. or- Hemsell Phillips’s primary
Id. contention concerns (stat) dering ap- of the H & H test proof proximate cause. propriate, especially where malpractice might suffering As this is a medical concerned that Vicki *8 case, prove negli bleeding post-operatively. Bramlett had to that the internal Where Phillips gence proximately expert Phillips caused the the faulted not fol- lowing up death of Vicki within a reasonable medical on the test. Dr. Hemsell testi- Yelin, probability. responsibility See 751 S.W.2d fied that the to determine Duff (Tex.1988). output Proximate cause is the cause of Vicki’s low urine up post-operative made of both cause in fact and foresee whether it was due to Invs., Urena, ability. bleeding treating physician’s. W. Inc. v. was the (Tex.2005). Further, Specifically, it Dr. that the Hemsell testified give as to the element that nurses could not more fluids or blood cause fact Phillips the or take her back for further sur- posits legally evidence is insuf to Vicki Phillips correctly out that to do so from the points gery ficient. without orders treating It Dr. one of concerns physician. Phillips Hemsell’s testified that his opinion when ordered H & H the expert Phillips negligent that he the test was from checking possibility suffering in not his voice mail before leav- that Vicki was ing hospital, inquiring post-operative bleeding. Phillips the into the results admitted previously the tests had that office results of phoned he ordered for his had the phone’s that the H test his cell possible medical condition he was H & to voice about, assisting professionally going concerned or mail while he was in his last patient’s surgery day. to the room the He further admitted confirming patient. prior clinical the Dr. Hemsell that never his mail status of he checked voice leaving hospital. further that never heard to the In at least two testified he had record, patient bleeding places Phillips of nor read about a to in the trial court affirmatively responded question after to a from laproscopic-assisted vaginal death hysterectomy. Additionally, Dr. that would have checked “[i]f [he] Hemsell counsel mail, Phillips stayed at gone [his] testified that had to the bed- voice would have [he] Phillips finishing hospital....” side Vicki after his last sur- also admitted that, gone alive he to check gery, probably today. Vicki would be had to Vicki’s room finishing after his her clinical condition testimony In of Dr. Hem- addition probably last she alive surgery, would be sell, Contreras, Diana expert, Dr. Phillips that today. testified a reasonable neg- due testified that Vicki’s death was to prudent gone doctor would have Further, Dr. ligence. Contreras testified any knowledge check if had on Vicki he Phillips gone that had to Vicki’s bedside deteriorated, had that her clinical condition care given her the and treatment H having but Phillips denied received needed, today. she would alive Fi- she be & to his at the prior H test results arrival nally, agreed Dr. Contreras trial, gym. Throughout con- only person was the could have or- who Vicki died was be- tended reason dered additional I.V. fluids or blood hospital the nurses at the did not cause transfusion or to have Vicki taken back to keep properly apprised him of her clinical surgery. condition. Phillips’s partner, Dr. William Edward However, by taken emergency steps Richards, testified, treating expert, as a hospital he Phillips when returned Vicki, when first at 7:45 he observed total, were, as outlined almost same day on the was suffer- p.m. surgery, she by steps Bramlett’s expert ing from Dr. Richards hypovolemic shock. taken nurses could have without hypovolemic ap- testified that shock In physician. of a the absence orders patient the result peared steps could not be physician, these bleeding of her out of her most blood veins taken. into her area. Dr. pelvic abdomen rеcord, note considering reviewing total Richards testified also by testimony upon facts and the that much of the relied pend- known position that the challenge, H their ing & H test and fluid Phil- Bramlett sufficient came legally should have checked his voice mail evidence was lips hospital. way Dr. of the various leaving before Richards of cross-examination *9 In all of situa- reasonably prudent physi- nearly a witnesses. these testified that tions, impeached with position in the were Phillips’s cian would have witnesses Thus, the testimony. prior leaving prior deposition checked mail the his voice apparently ultimate of the hospital. resolution mail, Dr. stated checking his voice Hemsell testimony resulted in a factual conflicting either contacted should have finding Phillips. Phillips that adverse the test results directly about hospital the legal sufficiency challenge Phillips’s room to determine gone by patient’s or evi- upon perception his that the grounded The clinical condition. then-existing her was, Dr. at presented by dence Hemsell Vicki, as a result of injury by suffered best, of cause in conclusory on the issue inaction, into lapsed was that she out by Phillips point fact. The cases cited due to loss blood hypovolemic shock required compe- to offer that Bramlett was Dr. Hemsell testified died. subsequently testimony4 proved: that expert tent of or read about that hаd never heard he 1) Phillips of care that the standard following a to death patient who had bled post-opera- should have used his hysterectomy. vaginal laproscopic-assisted Vicki; tive treatment only physi- that concluded Dr. Hemsell 2) action of breached that what fluids, cian, order additional Phillips, could care; standard of transfusion, surgery. further Ac- or blood 3) Vicki; injury by suffered opinion it was Dr. Hemsell’s cordingly, 4) a causal connection between the accurately maintain the failure to of care and breach of the standard the clinical condition of awareness of injury suffered. Phil- negligence part on the patient was M.V., 416, 420 See Moreno v. proxi- negligence that this was lips and Blan v. (Tex.App.-El pet.); Paso no suffering hypovolemic mate cause of Vicki Ali, (Tex.App.-Houston in her death. shock which resulted pet.). no [14th Dist.] Hemsell, Additionally, experts other testified testimony previ- of Dr. outlined, regarding the standard of during that he the trial ously demonstrated care, breach, Both injury, H and causation. thought Phillips’s ordering of the H & initially Richards Dr. and Dr. appropriate post-operative test was for a Contreras Phil supported demonstrating urine testified in a manner that patient who was low However, theory, that opined lips’s primary Dr. defensive output. Hemsell hospital at the negligence of the nurses breached the standard care injury suf cause оf the up primary he did not on the H & H was the when follow However, test, during cross- he concerned fered especially when was Vicki. examination, Phil had patient might suffering from both testified be before lips gone to the bedside Vicki post-operative bleeding. Specifically, the given her leaving hospital any by Phillips lack of action to determine test, she be alive to required, confirm treatment would the results of the order to order day. asked about who could patient suffering When contradict Vicki, Dr. necessary treatment post-operative bleeding, from was breach doctor only testified that discussing of care. the Contreras standard fluids, care, blood Dr. additional I.V. of the standard of Hem- could order breach transfusion, patient or order that sell adamant that should Dr. subsequent surgery. checking his taken back for hospital have left the without that, when he observed mail, Richards testified especially phone voice as the cell 7:45, suffering hypo- from she was ways Phillips had ordered his Vicki one of had, fact, shock and she to communicate with him. In lieu of volemic staff challenged by Phillips. qualifications expertise were never Hemsell’s Dr. *10 bled most of her blood out of her veins and policy lic upon which the rule is into her pelvic abdomen or areas. based; testimony of these witnesses was equally 5)the statement is not destructive of available tо the trier of fact in determining opposing party’s theory of recov- the ultimate issue of whose negligence ery. proximately caused the death of Vicki. Co., v. Superior 195, Ins. 161 Tex. Griffin case, a multiple expert one, such as this (1960). each expert’s testimony on possible causes of death is appropriate to assist the Considering Phillips’s admissions jury in reaching its ultimate decision. light factors, of these there can be no Hooper Chittaluru, S.W.3d 113 question that the testimony of Phillips was (Tex.App.-Houston 2006, pet. [14th Dist.] during judicial made proceeding. It is filed) (op. reh’g.). In conducting our beyond further question that Phillips’s po- legal sufficiency review, we also must con- sition was that he committed no act of sider this testimony. City Keller, 168 negligence in Vicki, the treatment of rath- S.W.3d at 827. er that it hospital’s was the nurses that negligently. acted Accordingly, Phillips’s
Finally, the testimony of Phillips that, admissions had he checked his voice must be During considered. cross-exami mail, he would stayed have hospital nation, Phillips that, admitted gone had he and Vicki would today, be alive runs con- to the bedside of Vicki and evaluated her trary to an essential fact of Phillips’s de- condition, clinical she would be today. alive fensive theory. Phillips Further, made these ad- he admitted had he checked missions on two separate occasions mail, during his voice he stayed would have at the cross-examination, thereby, hospital. eliminating the posits Bramlett that this testi slip of the tongue or mony hypothesis. mistake judicial amounts to and, admissions Giving therefore, conclusive effect to these declara- conclusively proves Phillips’s tions is negligence. public consistent with the policy qua admissions are si-admissions, that it unjust would be a party which to allow are not conclusive. rely on one factual Fidelity Mendoza v. defense at trial and & Guar. Ins. Under writers, then, Inc., (Tex. after against the trier of fact found 1980). him, However, argue quasi-admission a different factual will be defense on appeal. judicial Finally, treated as a nothing admission if it there is about appears that: quasi-admissions these that is destructive position. We, therefore, Bramlett’s con-
1) the declaration relied upon was made clude that the quasi-admissions during judicial the course of a pro- should be judicial treated as admissions on ceeding; question negligence cause 2) the contrary statement is to an essen- fact of the death of Vicki. Id. tial fact theory in the embraced recovery or defense asserted testimony When this is reviewed to de- party giving testimony; termine whether reasonable and fair-mind- 3) deliberate, clear, statement is jurors ed could find that Phillips’s negli-
unequivocal, thereby, eliminating the
gence
proximate
was the
cause of Vicki’s
hypothesis of mere
slip
mistake or
of death, we. are convinced that the evidence
tongue;
legally
sufficient to sustain the
4) giving
Keller,
conclusive effect to the decla- verdict. City
ration will be pub- consistent with Having concluded that the evidence was
169 sufficient, we overrule verdict, factually legally we legally sufficient first issue. turn our to the issue must next attention sufficiency factual of the evidence. of the Jury Argument
Improper sufficiency reviewing In a factual next contends Phillips challenge, again we must review all of the jury argument improper an Bramlett made Corp., v. Tex. Brine evidence. See Lofton Phillips and that in harm to that resulted (Tex.1986). 804, However, 720 805 S.W.2d Phillips posits requires reversal. review, sufficiency in a factual deference is jury needed argument that the Bramlett’s the ver given to evidence favorable to of Lub message to the doctors to send contrary is not disre dict and evidence by awarding a substantial County bock Rather, a verdict garded. we will reverse improper money sum insufficiency only if on the basis of factual analyzing allegation In an and reversible. weight against great the verdict is so by jury argument begin we improper that it preponderance of the evidence a reversal based noting to obtain manifestly unjust. erroneous or See In is jury argument, alleged improper upon Estate, 662, 244 King’s re 150 Tex. S.W.2d the existence of: prove must (1951). 660, 661 1) argument; improper 2) Having heretofore reviewed all of the provoked; not invited or that was purposes legal evidence for of the suffi- 3) preserved by proper that was ciency challenge, we note that the evidence predicate; trial contrary jury cen- verdict 4) objection objection made or if if no nurses, activity hospital tered on the sustained, incura- made and that was specifically whether the nurses failed to ble; or keep Phillips properly apprised of Vicki’s 5) objection over- timely proper if clinical condition. The record reflects that court, by trial that was its ruled experts, including Phillips, all testified nature, harmful degree, and extent that, Phillips up if had followed on the test reversible error. results, Vicki would have lived. None Reese, v. 584 Fire Ins. Co. Standard experts these indicated that the nurses 885, (Tex.1979); Melendez S.W.2d 839 unduly delayed reporting the test results. (Tex. Corp., 998 280 Exxon S.W.2d conflicting testimony There was some pet.). no App.-Houston [14th Dist.] recording signs about the of Vicki’s vital McDonald, al., Roy et generally W. See hospital and whether the staff took the (2nd § Practice 23:23-24 Texas Civil However, signs as ordered. the trier vital ed.2001). of fact heard this evidence and resolved discussing the con- respon- purpose For the they apportioned the conflict when assume, Phillips, will with- per- tentions of sibility percent and 25 com- argument deciding, all of out hospital. reviewing cent to the After nothing There is evidence, jury’s plained improper. of was say we cannot argument question suggest that the great weight finding against was so Rather, provoked. as to was invited or of the evidence preponderance preserved the error was unjust. Id. contends that manifestly erroneous or and, not, incurable if was an Therefore, factually evidence trial we find the mo- by his preserved that was argument verdict. to sustain the sufficient addressing the issue trial. tion for new Having determined that the evidence error, preservation (Tex.App.Houston we note that the *12 writ). alleged improper have, first instance of argu- 1995, the no We [14th Dist.] early ment occurred in the very opening of therefore, the error al- determined that Bramlett’s final argument. Counsel stat- leged pursuant trial preserved was not at ed, years, very “For in this conservative to the Appellate Texas Rules of Procedure. community, juries very have been 33.1(a). liberal See Tex.R.App. P. doctors, very with the liberal. IWhat However, this not end our does Their mean is: verdicts didn’t much send trial, Phil inquiry. motion new his for message a at Immediately, all.” Phil- argument lips jury Bramlett’s alleged that lips’s following counsel voiced the objec- result, a must deter was incurable. As tion, I “Judge, object any to testimony was in jury argument mine this whether the propriety about of other trials and the and, therefore, preserved by curable by juries verdicts reached other in Lub- for in his motion raising the issue which, bock.” To the trial court respond- 324(b)(5); Otis new Tex.R. Civ. P. trial. ed, “This is his argument, and it is not Wood, 324, 333 v. 436 S.W.2d Elevator Co. testimony.” Subsequently, Bramlett’s (Tex.1968). Initially, that it is a we note repeatedly argued jury counsel that the rarity so inflam jury argument to be for message needed to send a the doctors of matory classified as prejudicial to be or However, Lubbock. on none of these oc- Co., Ins. “incurable.” Standard Fire Phillips object. casions did It is from this determine properly at To S.W.2d 839. record that we must determine whether or is jury argument whether a complained
not has preserved error. Texas incurable, entire case we must review the 33.1(a)(1)(A) Appellate Rule of Procedure the of final from voir dire to conclusion requires, to preserve allegation an of error Ultimately, we are argument. at 840. Id. review, appellate for the record must show prob attempting to determine whether timely objection stating grounds for ability jury argument improper that requested enough ruling specifici- with greater probabili caused than the harm is ty to make the court trial aware of the grounded proper ty that the verdict complaint, specific unless grounds type Id. proceedings and evidence. apparent were from the context. Tex. is argument this level one that reaches R.App. 33.1(a)(1)(A). P. From the lan- inflammatory its harmful that is that so guage objection used in the re- instruction nature be cured an cannot court, sponse apparent of the trial it is Melendez, 998 S.W.2d disregard. the trial court perceive objec- did not authori reviewing 280. After the various improper tion to be directed jury toward by Phillips, apparent ties it is cited Rather, argument. the record reflects judgments cases for incurable reversing trial simply that the court clarified that the jury category of argument fall into the evidentiary. statement was not Nor can calling, epi arguments that resort name saywe the objection context of thets, slurs, upon oppos and attacks racial specific makes the grounds now com- ing personal of a and extreme plained of clear. counsel Additionally, Id. Hubbard, nature. Pac. Co. v. trial never See S. court sustained or overruled (1956) 525, 120,125 (plain objection. Tex. 297 S.W.2d preserve complaint To tiffs railroad ac appeal, complaining party attorney argued required ruling anyone being to obtain an from cused who sued it of thief adverse the court object liar); Ass’n v. Employers’ trial court’s refusal to rule. Tex. Ins. Tex.R.App. 33.1(a)(2); Lee, 856, Cherry P Haywood, See 153 Tex. (1954) (counsel say argument was one that jury cannot urged not 858-59 they appealed only prejudices witnesses because were believe two white); Greyhound v. Dick inflammatory Sw. Lines so as to override or was son, 149 Tex. the evi- ability to review collective (counsel (1951) physician accused witness a verdict on the evidence. dence and base by a “for whit being Co., motivated desire 584 S.W.2d at Fire Ins. Standard employing and of the same tling flesh” Thus, Bramlett’s we conclude that because *13 “cutting the care as a fisherman had for message” jury argument was not “send a fish); Y v. guts out” of Circle Yoakum incurable, by Phillips any waived error Blevins, 753, (Tex.App. 757 a properly object and obtain failing denied) (counsel 1992, writ ac -Texarkana Tex.R.App. P. Stan- ruling at trial. 33.1; manufacturing counsel of opposing cused Co., at 839. dard Fire Ins. 584 S.W.2d evidence). Further, argument if the even had been reviewing after the ev- case, properly preserved, reflects the instant the record idence, say probability that the we cannot that the first mention of the “send mes- jury argument pre-trial during alleged improper theme made that the sage” was regarding probability the motions in limine than the greater discussions was harmful is jury Subsequent- possible questions. in the evi- grounded that the verdict was dire, ly, general during voir there was at trial. Fire dence adduced Standard discussion Bramlett’s counsel to the Co., Accordingly, Ins. 584 S.W.2d jury going that the asked effect regarding Bramlett’s clos- Phillips’s issue message to send a about what kind of ing argument is overruled. by physicians
conduct would and would Later, County. be tolerated in Lubbock Sufficiency Damage Issues Factual there was one reference to what other that the сontends next juries in County Lubbock had done sup factually evidence was insufficient malpractice other medical cases. 1) for: con damages the award of port timely objected, objection sus- 2) pain suffering, pecuniary scious tained, and counsel for was in- Bramlett 3) loss, companionship society, loss of rephrase question, structed to his which he anguish. As this is an alle 4) and mental statements, During opening did. counsel an insufficiency regarding gation factual for Bramlett made references to the fact had the burden upon issue which Bramlett asking jury that Bramlett would be all the evidence proof, we will review of message send a to doctors in Lubbock weak, or the if it is “so to determine acceptable about what was and was not overwhelming, contrary so evidence objected open- conduct. mani finding clearly wrong render more in the nature of ing statement was Constr., unjust.” Lee Inc. v. festly Lewis closing argument, which the court sus- Harrison, 1, (Tex.App.-Amar 64 S.W.3d evidence, 6 During presentation tained. (Tex.2001). 1999), ajfd 70 778 illo S.W.3d sending question regarding there was one sufficiency, it is for factual In our review message. During arguments, final there all of jury considered presumed that sending references to a mes- were several Pac. R.R. Co. evidence. Mo. However, instance, available in each the re- sage. Roberson, 251, (Tex.App. v. S.W.3d in con- frain from Bramlett’s counsel was must аlso pet.). no We the Beaumont nection with the evidence and what jury judge the sole remember that the community tolerate as a standard should framed, credibility and the of the witnesses proper for medical care. Thus we of the death, testimony. impending of their it is weight given ap to be their mil aware (Tex. Lanehart, 183,191 propriate jury for the to consider that fact lion denied). 2004, pet. evaluating suffering. mental Jenkins v. App.-Amarillo (Tex.Civ.
Hennigan, 298 S.W.2d pain suffering Conscious n.r.e.). App.-Beaumont writ refd jury Additionally, the had evidence before First, we address the issue of indicating agonal them took Vicki pain suffering. Vicki’s' lapsed before she into uncon breaths Phillips posits only that since he would sciousness, clearly indicating that Vicki phone have been able to return the call at the suffering pain time. There is after he regarding Vicki’s test results left regarding some conflict the evidence surgery, approxi the last' which was at unconsciousness, lapsed when Vicki into mately p.m., represents 7:16 the earli however, it was for the to resolve that point est at which he would have been able *14 conflict, Kuhlmann, see McGalliard v. 722 deteriorating to treat condition. Vicki’s (Tex.1986), 694, 697 and we cannot S.W.2d Further, by Phillips’s when Vicki was seen jury’s say that the resolution of this con Richards, partner, p.m., Dr. at 7:45 she against Phillips flict is one that would be regained and never con was incoherent manifestly unjust. cleаrly wrong or Lee Therefore, Phillips sciousness. contends Inc., at Fur 64 S.W.3d Lewis Constr. only time for calcula applicable ther, jury Phillips’s if the believed even suffering pain tion of Vicki’s conscious and only contention that conscious Vicki approximately 29 minutes. thirty period, for a minute we find the However, the record reflects that dur pain evidence of the that she suffered during post-operative period, at times ing period, together this with her aware especially approximately p.m., after 5:30 death, impending ness of her sufficient beginning symptoms to exhibit Vicki support jury’s Accordingly, verdict. post-operative bleeding. Specifically, of factually the evidence sufficient to we find confused, agitated she became and she $1,000,000 jury’s award of for sustain began feeling go vomited and a need to pain suffering. Vicki’s bathroom, appeared and she to be having difficulty breathing. During some Pecuniary loss however, time, reported this the nurses Next, Phillips’s contention we address signs Ac that Vicki’s vital were stable. supporting evidence the award Richards, witness, cording Dr. factually pecuniary damages was insuffi- p.m., when he saw Vicki at 7:45 she was pecuniary dam- jury cient. The awarded shock, suffering hypovolemic from because husband, Dale, in an ages to Vicki’s had most of her blood out into her she bled $33,000 past amount of for loss and area. evidence was pelvic аbdomen or No $500,000 for future loss and to each of it take for presented long as to how would Michael, sons, in the Vicki’s Shane however, death, person to bleed to $33,000 past amount of loss adduced from the second medical evidence $250,000for future loss. there were no surgery revealed pecuniary The elements of bleeding for the consistent with sources just of more than the lost Considering all of this consist rapid loss of blood. See Best information, earning capacity irrational for decedent. it would not be Hardin, Bldgs., Inc. to infer that Vicki was aware Steel 1977, writ (Tex.Civ.App.-Tyler 133 impending her death. When a decedent is n.r.e.). clearly say that the award was Additionally, pecuniary loss cannot refd manifestly unjust. See id. wrong or advice, counsel, includes the value of the services, care, maintenance, Regarding the awards to Shane Lillebo, 722 the deceased. Moore v. Michael, the record reveals (Tex.1986). Although the S.W.2d death, Michael was still the time of Vicki’s computation fact finder is not limited to minor, may appears it that Shane while projection pecuniary upon loss based young majority. his Both have reached it is the earnings, of the decedent’s future by the time of the majority men were and, say, primary ele basic some would death, both of trial. the date of Vicki’s On an Mit ment of such award. Moorhead v. living at home with her. her sons were Int’l, F.2d subishi testimony about the significant There was Aircraft (5th Cir.1987). Thus, factual to assess the daily in their lives. Most of played role she advice, sufficiency coun supporting testimony of the evidence this concerned the sel, services, care, sup maintenance and damages, pecuniary award for port provided each of her sons. Vicki must consider both the economic and emo boys living were at home and While both injury tional suffered Bramlett as school, it that neither attending appears generally result of Vicki’s death. See Lee the home. anyone worked for outside Constr., Inc., Lewis at 6. oc testimony There was some about Vicki of mon casionally giving unspecified sums *15 Turning our attention first to the unspeci At ey boys. to each of the some Dale, award to the record reflects that Vicki, fied time after the death of but fully engaged part Vicki and Dale were trial, Michael moved before the Shane and ners within the household. There is testi that Oregon. It is from this record mony about money the amount of that of the factual must make a determination making was at the time her death Vicki of support the sufficiency of the evidence to and what her earnings would have been pecuniary jury’s past award of and future during the balance of her work life. The damages and Michael. to Shane evidence supports past earnings lost of dam- past pecuniary As to the award for $64,867 and earnings future lost of ages, the evidence shows that both $472,499. Moreover, there was considera living at home at the sons still Vicki’s were testimony ble about the work that Vicki boys The had bene- time of Vicki’s death. performed day-to-day in a the home on Vicki, fitted from the advice and counsel of that basis. Evidence shows Vicki did the per- she as well as the household services cooking, cleaning, purchasing, laundry and Additionally, appears it nei- formed. family. Additionally, for the the evidence required were ther Shane nor Michael money manager shows that Vicki was prior outside of the home Vicki’s work family, bookkeeper for the for Dale’s land mind, facts in we can- death. With these business, scaping family preparer. and tax say past pecuniary not that the award of The record value approximate reflects the $33,000 clear- for each son was damages $19,000 annually. Fi of these services manifestly unjust. See Id. ly wrong or nally, we must consider the loss of Vicki’s and in the testi However, advice counsel. As stated pe future the award of and, mony, kept everything together $250,000 Vicki appears ex cuniary damages her, longer no felt like a without the house there was no evidence Again, cessive. routine fi home. this evidence is considered made substantial or even When Vicki Dale, boys. Fur- jury’s we nancial contributions light in award to ther, thy punish Phillips. the rеcord reflects that role as for Bramlett and to Vicki’s boys However, just advisor and counselor to the was allegations these are decreasing boys moving as the were to- in for nowhere the record does striking ward out on their own. Without point anything that substantiates these testimony, the financial contribution simply opines contentions. He question appears clearly award in to be jury of the award that the size must mean and, wrong manifestly unjust there- improperly considering was other matters. fore, However, factually insufficient. Id. above, jury properly As stated support the record does an award of some charged as to each of the matters com- pecuniary damages. loss of future Accord- plained punishment of. The issue of for ingly, we recommend that a remittitur is had been discussed since voir dire We, therefore, appropriate. suggest re- in punitive damages the context of for $220,000 pecuni- mittitur of for the future gross negligence. jury, answers to ary loss award to each son. See Tex. jury questions, large other awarded a sum R.App.P. 46.3. anguish to Bramlett for mental and found grossly negligent Loss companionship society punitive separate made award dam- Therefore, ages. complaint true Phillips next contends that the ev companionship and soci- factually loss of idence was insufficient to and, therefore, ety large for award was companionship award loss of factually society supported by to each of the three beneficia sufficient evi- ries. The awarded Dale the sum of dence. $1,265,000, $500,000 apportioned past for The record reflects that Dale and Vicki $765,000 damages. for future enjoyed relationship harmonious Michael and Shane each received an award partner which each was a full the mar- $2,250,000, $500,000 apportioned *16 it is true that the riage. While work $1,750,000
past damages and for future schedules of each left little time for outside A damages. Charge review of the Court’s interests, the demonstrates that record properly reveals that the trial court raising Dale and their time a spent Vicki charged jury the elements of the about family furthering goals. and their collective companionship society. loss of and The home, maintaining Vicki’s efforts at de- jury the that of charge admonished loss schedule, along spite significant work society companionship and is different and services for providing bookkeeping with damages anguish distinct from for mental landscaping Dale’s business demonstrate one, considering jury and when the marriage partnership. that the was a true should not include for the other. death, Further, testified, Dale since Vicki’s Lastly, jury the was admonished not to let empty. his life had become sympathy play any part in their delibera Moreover, object tions. did not аnd regarding The evidence Michael charge given. the as significant Shane was of the demonstrative in the Uves of the brief, played role that Vicki Phillips posits, in his that “it they major- at boys. Although were either that the apparent jury improperly seems ity reaching majority shortly, or both testi- in anguish” making considered mental its mother fied about what the loss of their society of and award companionship loss contends, alternative, personal their in meant to them. She was and he further jury sympa- things. that the the award on mentor all based
175 apply jury When in determining we this evidence could consider charge, jury it apparent damages. is that rela the amount of these The Dale, Michael, an- and with was further admonished that mental tionship Shane had separate is loss of strong. family guish Vicki was All the and distinct from members society it living companionship and and were the home at the time of death, should not consider elements of one there no Vicki’s were extended ab Lastly, jury gen- given other. anyone home, they sences from the eral admonition from bas- refraining about interests, shared significantly, most bias, prejudice, sym- or ing its decisions Moore, other. 722 lives each at S.W.2d issue, previous As with pathy. Additionally, 688. note we loss object charge given. did not as companionship to recompense is meant surviving family members of the for the Phillips has cited Saenz v. & Guar. Fid. positive family benеfits that flowed to the Underwriters, 607, Ins. 614 S.W.2d having integral from decedent been an (Tex.1996), for the mental proposition that mind, part of it. Id. With these factors in anguish damages could not be awarded say we cannot award for there unless was direct evidence loss of companionship nature, society duration, severity or of plaintiff’s clearly wrong manifestly unjust. or anguish, See thus establishing mental sub- Inc., Lee Lewis Constr. at disruption daily S.W.3d stantial in the plaintiffs Saenz, fact large mere that an Supreme award is is routine. the Texas not, itself, in and of noted passion, only indicative that Court that there were two lines prejudice, testimony or improper part motive that could on the be construed anguish of the evidence of mental resulted in the ren this verdict evidence, best, Roberson, proof dered. Pac. Co. constituted of mere Mo. R.R. 251, vexation, embarrassment, worry, anxiety, S.W.3d 257 (Tex.App.-Beaumont case, present Id. In the our pet.). anger. no considering After all evi of the dence, the evidence leads us conclude cannot review say we that this is award so nature, that there is evidence direct outrageous, flagrantly extravagant, ex duration, severity Dale’s, Michael’s, it judicial cessive that con shocks anguish. and Shane’s mental Nursing scious. Cresthaven Residence v.
Freeman,
(Tex.App.
important
It
to remember
sur
pet.).
Amarillo
no
Accordingly,
rounding
present
circumstanсes that were
*17
Phillips’s
sufficiency
overrule
factual
chal
at
time of
death in
the
Vicki’s
order to
lenge
jury’s
the
to
for
com
award
loss of
place
proper
her death in
perspective.
panionship and society as to each survivor.
hospital
laproscop
Vicki entered the
for a
All
vaginal hysterectomy.
ic-assisted
anguish
Mental
testified,
professionals
the
who
ex
medical
Phillips next contends that the ev
cept Phillips,5
that they
stated
had never
factually
idence was
insufficient to sustain
patient bleeding
of a
to
after
heard
death
jury’s
$1,000,000
the
that,
awards of
in mental
procedure.
such a
Dale testified
anguish damages
Dale, Michael,
to
29th,
each
day of
surgery,
October
the
the
he
and Shane. The record
the
expected
shortly.
reflects that
to have
He
Vicki home
jury
properly charged
the
possibility
about
never considered the
that Vicki
meaning
anguish
mental
and
as a
After
surgery.
the factors
could die
result
party inquired
Phillips’s
laproscopic-assisted vaginal hysterec-
5. Neither
into
knowl-
a
from
edge
patient
tomy.
of whether a
had bled
death
to
day-to-day
each testified about the
surgery,
appar
the
when it became
Shane
second
for
had
nothing
upon
ent that
else could be done
that the death of Vicki has
effect
Vicki,
family
get
together
Dale had to
the
apparent
them.
It is
the survivors оf
the
to
to make
decision about whether
worry,
suffered more than mere
Vicki have
vexation, embarrassment,
that was
unplug
support equipment
life
anxiety,
or an-
sustaining
As a result of Vicki’s
Woodruff,
Vicki.
Parkway
ger.
Co.
death,
feel
Saenz,
Dale testified that he does not
(Tex.1995);
S.W.2d
just
and
he is
like he has a life
now
there is fac-
S.W.2d at 614. Inasmuch as
trying to survive. When asked how
to
tually
sufficient evidence
now,
just
feels
Dale related
it is
house
damages, it
anguish
award of mental
years
Although it
been three
empty.
had
to
to
the fair and
up
determine
death,
testified that the
since Vicki’s
Dale
loss in-
compensation
reasonable
for the
At
time
hurt he feels
still the same.
is
Saenz,
Michael and Shane testified about sufficiency anguish of mental dam- tual loss each have. Each testi- they sense of ages award is overruled. their went to the fied that when mother worry them not to hospital, she told chal- all of Having overruled just for going that it was to be a short sufficiency of the lenges the factual to mother, losing a their time. As result of the vari- support the award evidence to boys where Vicki’s Oregon, moved elements, except damage ous Although the identical twin sister lives. damages Mi- pecuniary award of future it not the same. helped, move had Shane, the judg- affirm chael and we they both testified that Michael Shane damages. ment’s of those award every about their almost still talk mother pecuniary for future case the award day. pic- he a keeps Michael stated that Shane, sug- to Michael his on his bedroom wall. ture of mother $220,000 for the gest remittitur that the home was not Each testified If award both Michael Shane. after Vicki died and that this was same all of accepted, we overrule remittitur is they Oregon. big reason that moved the dam- regarding Phillips’s contentions ages awarded. anguish represents Mental torment, ex pain, suffering emotional Statutory Apply Failure to the death of
perienced a result of Caps Damage Moore, family member. Further, anguish mental meant that the tri Phillips next contends *18 har for “their compensate the survivors by fail reversible error al court committed the experience resulting from rowing of article damage caps to the ing apply determining a In death of loved one.” Id. 11.02, 4590i, the award of section to damages, jury trying the is anguish
mental to Bramlett. Ac damages non-economic to effect the death determine the adverse cording Phillips, application the correct to Id. upon has had the survivors. in a caps re damage the would result of evidence, the from of award of the duction upon Based our review $9,196,364.50 pre- in and Dale, Michael, damages and actual it apparent is
177 $1,585,365.85. judgment interest After to negligent failure of the insurer settle a jury verdict, Phillips applicable policy the return of the filed claim limits. Id. within at The of a judgment notwithstanding a motion for 547-48. elements “Stowers the (1) against claim claim Doctrine” are requesting verdict court the trial dis- scope was within of the insured cover regard jury findings judg- and enter (2) there was age, a settlement demand damage caps. ment consistent with the (3) limits, policy within the terms of The trial court denied the and Phil- motion an ordinary the demand were such that lips subsequently correct, filed a motion to prudent accepted, insurer would con have modify, judgment along or reform the with sidering degree likelihood and of the a motion for new trial requesting the same potential to an exposure insured’s excess Again, relief. the trial court denied the judgment. Physicians Am. Ins. Exch. v. motions. (Tex.1994). Garcia, 842, 876 S.W.2d 849 The in statute issue this is the matter Liability Medical Improve Insurance We review proper application Act, passed by ment Legisla damage the 65th a caps under de novo stan ture. Specifically, meaning it is the of dard of review. so This is because we 11.02(a) (c) section question, issue con must construe the this statute applicable cerns. The which of рrovide: question sections constitutes law. Tex. Needham, Dep’t Transp. v. 82 S.W.3d 11.02 Limit on Liability Civil (Tex.2002). 314, goal give is 318 Our (a) In an action on a liability health care legislative effect to the intent. See Tex. claim where final judgment is ren- 311.021, 311.023, §§ Gov’t Code Ann. dered against physician or health (Vernon 2005),6 Kroger 312.005 Co. provider, care the limit of liabili- civil (Tex.2000). 347, Keng, 23 S.W.3d 349 ty physician intent, trying legislative to arrive at the we provider health care shall be limited plain first common look mean $500,000. to an amount not to exceed ing of words used. Sorokolit v. (Tex.1994). Rhodes, S.W.2d Further, we must construe the statute as a (c) This section shall not liabili- limit the whole, provisions its isolation. ty any insurer where facts exist Downs, Cont’l Co. v. Cas. enable a party would to invoke (Tex.2002). statute, Pursuant theory the common law recovery matters, may help also look at other us commonly known in Texas as the intent, legislature’s determine such as: Doctrine.” “Stowers 1) objective sought obtained 11.02(a),(c). 4590i, § art. 2) statute; the circumstances under 3) enacted; “Stowers Doctrine” a which the statute was the leg 4) statute; common doctrine history law first enunciated islative common G.A. Furniture statutory Stowers Co. v. Am. Indem. or former provisions, law includ Co., (Tex. App. ing subjects; Comm’n on the laws same or similar 5) approved). holdings consequences particular The “Stowers con 6) struction; Doctrine” an permits any to maintain a construc insured administrative 7) against statute; cаuse of action his insurer for the tions of statute’s 6. Further references to Texas Government *19 "§ provisions by Code will be to reference caps, (caption), emergency judgment, without of the preamble, application
title
Finally,
§
in
on
provision.
applying
311.023.
if his “Stowers” action was unsuccessful
plain
meaning
the
and common
of the
the merits. Id. at 171.
words,
enlarge, by
to
we are cautioned not
the
and uti
Our review of
statute
implication,
meaning
any
the
of
word be-
to
permissible
lization of the
aids
construc
yond
ordinary meaning
its
in a manner
contrary
tion lead us to a construction
to
enlarge
meaning
the
of the
would
Initially,
by
the
court.
reached
Welch
Sorokolit,
241.
statute.
889 S.W.2d at
did not at
note that the Welch court
we
Phillips’s position
the inter-
regarding
words, “This
tempt to construe the
section
pretation
the applicable
of
section of the
4590i,
art.
beginning
...” at the
of
section
upon
opinion
is
of the
statute
founded
11.02(c).
To
what
words
ascertain
Appeals
Second District Court of
Welch
mean,
look
“This
...”
to
section
McLean,
(Tex.App.-Fort
any in art. insurer” found section 11.02(c). further identification section without Id. at 168. Under the court’s title, chapter, or a to a analysis, plain meaning in its common reference code; a the term not include section of the phy- “insurer” does Therefore, sician. Id. the court conclud- (2) subtitle, subchapter, a reference to a 4590i, ed that to hold that art. section subdivision, subsection, paragraph, 11.02(c), damage physi- lifted cap unit or lettered other numbered 11.02(a) liability cian established section is a identification without further meaning impermissibly enlarge would larger of the next reference to unit Additionally, of the terms of the statute. refer- in which the unit of the code that the the Welch court determined other appears. ence 4590i, 11.02(a), terms used art. section Therefore, § reference 311.006. legislature indicated that the never intend- “This of sec- beginning at the section ...” 11.02(c) impact damage ed section 11.02(c) mean only can tion of art. 4590i analysis keyed on the cap. Id. The court’s applies follows language phrase, “in an a health care action on Thus, we entirety 11.02. section 11.02(a). 4590i, § Art. liability claim.” 11.02(c) any preclude construe section court since a The Welch stated 11.02(a) in a manner application section liability only care claim” can “health of an insurer liability limit the that would against physician or health care asserted subsequent claim. “Stowers” provider, an insurer can never be liable for above, However, the Welch as noted liability a patient’s health care claim under that our construction court concluded Welch, statute. S.W.3d lead to an art. 4590i would section 11.02 of Therefore, liability the insurer’s “Stowers” Welch, 191 at 171. absurd result. only physician. can be owed to the insured Welch, the absurd result According posits that to Finally, Id. court Welch physi- arise in where would situations urged the construction the statute allow action in his McLeans, therein, cian is unsuccessful “Stowers” by the would appellants to bear the entire burden physician and would have foster the absurd result this Id. For uncapped judgment. amount of the would be liable for total *20 possibility to be considered an absurd re- have an old in theory law that’s called sult, we must assume that legislature says Stowers Doctrine. And what it is, abrogate intended to if you the “Stowers” doc- is that do not bargain good trine enacting art. faith —and this is kind typical 4590L In a loose term— action, loose “Stowers” an definition—but this is the es- unsuccessful insured you sence of it—if don’t always bargain good will bear the entire burden of the faith, you try ball, to hide the then underlying judgment. By enacting the you’re you have your no limits on damage caps 11.02(a), of section legis- —then liability. So the Stowers Doctrine is in provided lature statutory certain protec- here, and this will be an incentive for all physicians tions to and heаlth provid- care parties participate in good faith. And ers, expressly but excepted successful answers, think, this kind of I what health care liability claims “where facts you’re about, talking Mr. Hoestenbach. exist that would party enable a to invoke ” the ‘Stowers Texas 4590i, Liability Doctrine.’ Medical Art. & Insurance Im- 11.02(c). § Thus, provement Hearings Act: before the trial H.B. court Comm, may Affairs, enter before the House judgment in on State a medical liability (March 1977) (statement 65th case, Leg. it must determine whether facts exist Henderson). Rep. Subsequently, during that would a party enable to invoke the bill, floor debate on the Rep. Powers made “Stowers Doctrine.” following statements: 11.02(c) Our construction of section Also, (b)l, in paragraph original consistent with purposes of the statute. committee substitute or bill has a sec- 311.023(1). See § 1.02(b) In section of art. tion dealing with the Stowers Doctrine 4590i, legislature provided that art. which, many know, you is an insur- 4590i’spurpose was improve modify leverage ance negotiation device. the health liability care system, claims but Frankly, it deals with the demands for it was to “do so in a manner that will not settlement policy within limits and that’s unduly restrict a rights claimant’s any the name of a San Antonio Furniture more than necessary to deal with the cri- Company that invoked the doctrine in 4590i, 1.02(b)(3). § sis.” Art. that it imposes a degree certain of liabil- Additionally, legislative history of ity. liability That goes to the insurance art. 4590i shows that legislature did company or insuror and not physi- not intend to interfere with “Stowers” cian, doctor, so, health provider care claims. Beginning with the debate before amendment, in this simply change the House State Committee, Affairs where language to reflect that. That that original H.B. being 10487 was consid- is what the Stowers Doctrine does. It ered, there was discussion of the “Stowers runs to the They insuror. are liable if Doctrine” and the use of the doctrine to they fail to settle within policy those ensure that a physician’s insurance carrier limits. That is simply a clean-up type of bargained good faith. During general amendment. We didn’t alter the com- negotiations discussion of and bargaining mittee concept on the Stowers Doctrine. in good faith after the filing of a medical Debate on H.B. 1048 on the Floor claim, liability Rep. Henderson said: (second House, (March Leg. 65th reading) talking members, What she’s 22,1977). “liability” Rep. Powers about — you those of that are attorneys, referring we was original was the draft of enacted, 7. H.B. when became art. 4590i.
180 11.02(c). However, § the review the
H.B.
that would have allowed
our
of
filing
directly against
of a
claim
history
“Stowers”
of
a
legislative
H.B.
reveals
an
provider.
a doctor or health care
In
by the legislature
pro-
consistent intent
to
attempt
any ambiguity
to remove
related
liability protection
vide
for doctors and
provision,
Mr. Ace
initial “Stowers”
care
an
prоviders
limiting
health
without
Pickens,
representative of
Texas
the
the
liability in a
claim.
insurer’s
“Stowers”
Association,
Medical
testified:
the excerpted portions
leg-
From
hope you
There
I
will
thing
is one
that
history,
legis-
islative
we ascertain that the
and that
a section in the bill
consider
is
for the
Doctrine”
lature intended
“Stowers
of
that
to the Stowers doctrine
relates
in-
to retain its common law form. This
you
which I am sure
are familiar with.
in
tent is most evident
the discussion
that
always
my understanding
It’s
been
encourages
the
Doctrine”
how
“Stowers
the
applied
Stowers doctrine
to insurers
during
to
faith
bargain
good
insurers
I
not to
defendants.
believe
negotiation
a medical mal-
phase
that they
perhaps
have
created another
practice
Accordingly, we conclude
case.
they
cause
action in
bill because
this
of art.
history
that
4590i
legislative
ap-
made the so-called Stowers Doctrine
section 11.02
supports our construction of
insurer,
care
ply
physician, or health
liability of an insurer
limiting
as not
provider,
hope
you
and I
that
would
claim could
against whom a “Stowers”
physician
out
word
would take
just
provider
health care
leave
invoked.
doctrine
the insur-
applying
Stowers
Next, we
former
are mindful of
Chief
always
company
ance
where it
has been
dissenting opinion in Lu-
Justice
heretofore.
(Tex.1988),
U.S.,
provement Hearings Act: H.B. why he felt art. 4590i constitutional. Comm, Jurispru on before the Senate made discussing In the criticisms (March 1977). dence, Later, Leg. 65th passed majority legislature art. that during floor of the Sen discussions on the a Chief speculative experiment, 4590i as liability,8 Farabee ate about limits Sen. Justice observed: stated: undisciplined engaging Far from addition, provision in here there’s Legislature attempted speculation, if apply for a Stowers doctrine complex social in this instance to meet company negligent the insurance $100,000, “in limiting damages not then a man- settling problem by within $300,000 they if the unduly can be liable for restrict a claim- ner will So, all finds tried to retain rights any necessary that. ant’s more than things those that would contribute deal with the crisis.” Tex.Rev.Civ. Stat. settlement,.... 1.02(a)(3). 4590i, § art. exclusion limits, all medical from Debate on H.B. on the Floor of limi- adjustment provisions, inflation 1977). Senate, Leg. Ulti- (April 65th per rather a per tation on a defendant mately, passed the bill that was removed basis, exclusion of occurrence and the provider” lan- the “doctor or health care 11.02(c). 4590i, from the limits all indi- Art. Stowers claims guage from section $500,000, statement, specific dam- with non-economic 8. At the time of Sen. Farabee’s $100,000. cap cap ages proposed caps an were for overall legislative cate a solicitude for the in- exemplary To recover Bram- damages, jured claimants. required lett was to prove *22 grossly negligent by acted clear and con- added). at (emphasis Id. vincing evidence. Civ. PRAC. & Rem. Tex. Finally, Phillips that, contends if even 41.003(a) (Vernon § Supp.2006). Code Ann. 11.02(c) this court finds that section art. of standard, To convincing meet the clear and 4590i applies, proof provided by Bram- Bramlett required present evidence lett was not trigger sufficient to an invoca- produce sufficient to in the mind of the tion of the Phillips “Stowers Doctrine.” trier of fact a firm belief or conviction as to then admits that the first two of elements the truth of the allegations sought to be provided “Stowers” claim were to the 41.001(2). § established. Id. at Because court, trial but asserts that Bramlett failed proof the standard of gross negligence produce element, evidence on the third higher negli- than that for traditional that the terms of the demand are such that too, gence, so the standard of review will an ordinary prudent insurer would heightened. Keller, City 168 S.W.3d of it, accept considering the likelihood and Garza, at (citing Sw. Bell Tel. Co. v. degree of the potential insured’s exposure (Tex.2004)). 164 S.W.8d The re- to an judgment. excess spo- The has quirement for a heightened standard of ken to the third issue its verdict and review means that we all must review of that findings led to the judgment of which evidence, just not the evidence favor- Phillips is now complaining. proоf The verdict, may able to the disregard not permit sufficient to the trial court to contrary evidence City verdict. of “find that facts exist that would enable a Keller, 168 at party to invoke the theory common law recovery commonly known in Texas as the stated, previously As to recover exem- ” 4590i, ‘Stowers Doctrine.’ Art. plary damages, prove by Bramlett had to 11.02(c). § convincing clear and Phillips evidence that
Because the trial court found that grossly negligent. acted negligence Gross present case presented facts which would (A) is defined as “an act or omission: allow the invocation of a “Stowers” claim which when objectively viewed from the 4590i, because we construe art. section standpoint of the actor at the time of its 11.02(c), making as cap of occurrence involves an extreme degree of 11.02(a) section event, inapplicable in that risk, considering probability and mag- we conclude that the trial court did not err others; potential nitude of the harm to refusing apply damage caps (B) actual, subjec- which the actor has judgment rendered. involved, tive awareness of the risk but proceeds nevertheless with indif- conscious
Legal Sufficiency and Factual ference to rights, safety, or welfare of of Evidence of Gross others.” Tex. Civ. PRAC. & Rem.Code Ann. Negligence 41.001(11)(Vernon § Supp.2006). The two Phillips next contends that the рarts ev of the definition gross negligence idence legally was neither factually nor objective are described as the test and the sufficient to jury’s finding subjective respectively. test Lee Lewis gross negligence. Const., legal Harrison, When both Inc. v. (Tex.2001). insufficiency
factual
alleged,
are
Setting
objective
should 785
aside the
address the
legal
insufficiency
moment,
issue of
test for the
we will focus our
Glover,
first.
ligence, subjective signs these concluded actually bleeding had actual awareness to death inter- Vicki actions, but, by his demon peril, Vicki’s nally. is no in the There evidence record he Id. at 787. strated that did care. proves put did these allegations and Within the context of the result, and, signs together was actual- alleged when proof, Bramlett bleeding ly aware that Vicki was internal- 7:16 hospital approximately left ly. Tex. PRAC. & Rem.Code Ann. Civ. p.m., he had actual awareness Vicki’s 41.001(11) (Vernon Supp.2006), Transp. § *23 and, by leaving, condition demonstrated Co., at 25. prov- Ins. 879 S.W.2d Without to plight. conscious indifference her How of the risks ing Phillips’s actual awareness ever, only Phillips that the evidence shows involved, no proof there can be that the had H & H test and fluid ordered the Phillips taken in actions of were conscious p.m., 5:30 but challenge approximately to welfare of Vicki. Tex. indifference had not received the results of these tests. 41.001(11) § Civ. PRAC. & Rem.Code Ann. Phillips The time had received infor last (Vernon It this actual Supp.2006). is condition, regarding mation Vicki’s of the risks that demonstrates awareness reported that hospital nurses at the had sepa- that the state of mind of actor signs she Vicki’s vital were stable but that ordinary neg- gross negligence from rates output. had urine The cause of low Vicki’s v. ligence. Diamond Shamrock Co. Ref. output dur hotly low urine was contested (Tex.2005).9 Hall, 168 S.W.3d trial, however, ing the the evidence estab case, legally present there is not suffi- it of lished that could have been result demonstrate, clearly cient to evidence bleeding. dehydration or internal either Phillips that had actual convincingly, Phillips possible that a Although testified danger Vicki was in but awareness of bleeding with along concern for internal consciously disregard the risk chose the H & H dehydration lead him order find leaving hospital. Accordingly, we Challenge, is evi Fluid there no test and legally insufficient sustain the evidence suggests Phillips that had actu dence that gross jury’s finding negligence of knowledge bleeding al that Vicki was when Having of the Phillips. disposed against it Because is the hospital. he left test, subjective we need under the issue Phillips of that is the actual awareness sufficiency of the evidence not address the test, he have known is not the what should objective test portion of the regarding Ins. v. controlling inquiry. Transp. Co. Tex.R.App. P. gross negligence. See (Tex.1994). Monel, 10, 25 47.1. Phillips contends because Bramlett that the evidence Having determined bleeding “significant” knew internal was legally insufficient was urgency there an surgery, risk of the was re- finding gross negligence, of causing low finding out what portion judgment. verse con output. Additionally, Bramlett urine displayed symp “classic tends that Vicki Conclusion bleeding internal toms” of take-nothing render a We reverse and recognized, ignore. must but chose have favor issue judgment it problem analysis this with proof convinces us experts We that this evidence further note that the testified peril they Phillips’s actual awareness of Vicki’s only ever heard of case had lapro- legally to show that insufficient patient to death after a where a bled grossly negligent. scopic-assisted vaginal hysterectomy. This acted a remit- suggest negligence. We gross $220,000 as to both in the amount of titur M.D., Appellant, PHILLIPS, Benny P. of future on the issue and Michael Shane days of the If within 30 pecuniary loss. Michael Individually, opinion, BRAMLETT, of this Shane and as date Dale amount, our of that the Es- a remittitur Independent make Administrator Deceased; judg- Bramlett, reforming the trial court’s judgment of Vicki tate Fuller, Ap- Michael’s dam- reduce Shane and ment to Michael Fuller and Shane $220,000 If will issue. ages in the sum of pellees. accept the re- do nоt Shane and Michael 07-05-0456-CV. No.
mittitur, trial court we will reverse the Texas, portion Appeals herein ren- judgment, except Court Amarillo, dered, cause for a new and remand the Tex.R.App. If remittitur is Panel E. P. 46.3. trial. *24 above, judgment suggested
made as 30, 2007. April to so re- trial court will be reformed respects, In all other we affirm flect. the trial court.
judgment of CAMPBELL, J., dissenting. L.L.P., Hund, Harriger Hund & Jim Lubbock, appellant. for REAVIS, S.J., only. concurs in result III, Todd Trom- B. Klein J. Alexander CAMPBELL, Justice, T. JAMES Houston, Firm, bley, The Klein Law dissenting. Jordan, P.C., Turner, Turner & Thomas J. Smithee, Lubbock, Templeton Smi- John expressed For the reasons Welch Russell, L.L.P., & Hayes Heinrich thee McLean, (Tex.App.-Fort Amarillo, appellees. for pet.), ap- I sustain Worth no would of the tri- pellant’s complaining third issue HANCOCK, Before CAMPBELL damage caps apply al court’s failure to REAVIS, S.J.1 JJ. and 11.02 of former arti- prescribed section disagree I with the ma- cle 4590L do not OPINION ON ORDER jority’s disposition of the other issues REMITTITUR OF appeal, applica- raised in the but because damage require would caps tion of the HANCOCK, Justice. K. MACKEY judgment trial court’s reversal of the and Michael Shane Fuller Appellees, cause, respectfully I must remand of the $220,000 filled a remittitur Fuller have judgment. from this court’s dissent of March each, opinion in our suggested portion of the Accordingly, that providing that Shane judgment
trial court M.D. Benny Phillips, P. Fuller collect from principal in the loss pecuniary future $250,000 provide reformed to amount P. Benny recover from Fuller Shane Reavis, (Ret.), sitting by assignment. Appeals, Seventh Court 1. Don H. Justice