*1 necessary privileged. in a party and is not a records remain The trial court ment Wygal Myers, allowing it. their proceeding enforce v. abused its discretion dis- (1890). covery. disclosed, Un- of 76 Tex. S.W. Once retraction a appoints guardian the court a of the privileged possible. less document is not Bos- estate, recovery adequate child’s the minor’s remains remedy son at law. See has TexPROp. (Tex. subject supervision. Solito, to court See S.W.2d West (Vernon 1984). 142.001-.005 orig. proceeding). hold Bosson §§ Ann. Code relief has shown entitlement to the she friend, by a minor next When sues conditionally grant pe- seeks. We relators’ recovery belong cause of action and the tition of for writ mandamus. Sax, minor. 648 S.W.2d at 666. Be- suing only next cause she K.P.’s

friend, her Bosson cannot recover individu- damages.

al Under the doctrine of waiver use, may not party offensive a “use one

hand to seek affirmative relief court and the other lower an iron curtain

with hand silence” around the facts of the ease.

of at 108. Ginsberg, Bosson DOUGHERTY, M.D. Marshall K. d/b/a seeking Consequent- relief. affirmative Associates, K. & Marshall mental infor- ly, her assertion of the health Associates, Dougherty, M.K. M.D. privilege of mation is not an offensive use M.D., Molina, Appellants, and T. Jaime (d)(5)excep- privilege. The subsection not apply.

tion does Mary Imogene Russell GIFFORD III. APPLICATION OF MANDAMUS Gifford, Appellees. STANDARDS No. 6-91-023-CV. This issue a writ man court of exist. Texas, damus when two conditions Appeals of of Court First, the trial court’s action must be a Texarkana. or the of clear abuse discretion violation Feb. Second, duty imposed by law. the relator remedy no adequate have law. must Appeals, v. Fourth Court

See Johnson (Tex.1985, pro orig.

ceeding). A trial court abuses its discre arbitrary so it reaches a decision

tion when to amount a clear

and unreasonable as Johnson, 700 prejudicial error of law. at 917. discretion,

To show an abuse that, under the circum

relator must show per case, facts and law

stances one trial court to make but decision.

mit the

Johnson, at 917. While the largely

scope discovery rests within court, a court of the trial trial

discretion discovery privi improperly orders materials its discretion. See

leged abuses Jones, Hosp. v. Memorial

Texarkana 33, 35 (d)(5) exception

Because subsection mental health apply, Bosson’s

does *4 Brown, partment McQuistion Regional Dal- Medical Vaughn, John K. Riddle & las, appellants. Dougherty Associates for Center Paris. & perform pathology had a contract to all Clem, Moore, Rodgers, Payne, R. James work for the medical center. actual Paris, Rodgers Hodgkiss, appellees. biopsy, pathology Gifford’s how- work on Molina, ever, performed by Dr. Jaime CORNELIUS, C.J., BLEIL Before arrangement GRANT, with who worked under JJ. Dougherty. work was done at the Molina’s laboratory, Dougher- center which medical OPINION ty Gifford for directed. billed CORNELIUS, Justice. Chief diagnosed services. Molina Dr. cancer, result, & Associates and Jaime and as malignant Gifford appeal judgment based on a from undergo ordered to irradiation and Mrs. Rus- jury verdict favor Mr. and chemotherapy treatments. malpractice sell in a medical action. treatments, a six second After weeks raise eleven and Molina taken, and revealed that biopsy was it limitations, error, points asserting *5 malignancy. there was Gifford was expert testimony, improper admission Dallas, surgery in but it was scheduled precluded insufficiency of the evidence original biopsy slides avoided when the judgment They also as- against the them. determined to contain were reviewed and is required. sert that a remittitur no indication of cancer. legal sufficiency points Dougherty’s negli- that jury found light must in the most favor be examined diagnosis gent making in the cancer findings if jury able the to determine negligence proximately caused Gif- that any probative supporting there is evidence employ- injuries, Molina was an ford’s that them, contrary disregarding all evidence Dougherty, servant of ee and a borrowed Alviar, 395 and inferences. Garza v. estopped deny liabil- Raw Hide 821, (Tex.1965); Oil 823 S.W.2d work, Molina and ity for Molina’s Exploration, & Gas v. Maxus fraudulently Molina’s concealed 1988, 264, writ de (Tex.App.-Amarillo 276 part diagnosis, in the Gifford nied). any probative If there is evidence Moli- reasonably discovered could not have support findings, point must be was filed. involvement before suit na’s findings upheld. South overruled and the $1,000,000.00 to Gifford and Damages of State, v. Transportation, Inc. ern States $200,000.00 awarded. to his wife were 639, 774 640 The relevant dates are: sufficiency points re The factual 21, re- February pathology 1986 First in quire all of the evidence us to examine port/misdiagnosis only if points and sustain the record findings misdiagno- or if the learns of May evidence is insufficient 1986 Gifford overwhelming weight of against are so sis wrong clearly the evidence as to be re- 10, pathology July Addendum 1986 Alviar, Garza manifestly unjust. 395 by Dougherty and Moli- port prepared Estate, 150 823; King’s In re na (1951); 660, 662, 244 661-62 Tex. 28, let- Article 4590i notice August 1987 Explora Oil Maxus

Raw Hide & Gas Associates Dougherty & ter to M.K. tion, S.W.2d at 766 21, against M.K. Suit filed April 1988 esopha- developed a hernia of Gifford Dough- K. Dougherty d/b/a Marshall point that his gus worsened & Associates erty, M.D. special- him to a family physician referred 27,1988 letter to Moli- Williams, 4590inotice April took specialist, Dr. Josie ist. The de- na biopsy and sent it 8,May apply, Limitations date for Febru- began does not and limitations 21,

ary (including seventy-five- misdiagnosis February the date of the in extension) day expired in February 1986 and 1988. Gif- pursuant ford’s notice letter sent 17,1988 to Tex. May Gifford’s first set inter- (Vernon art. 4590i rogatories Rev.Civ.Stat.Ann. Supp.1992) April timely 1988 was not 10, Dougherty’s June answer filed filing and did not extend the deadline. naming pathologist doing Molina as Herman, 743, Shook v. the work 1988, denied). (Tex.App.-Dallas As July 14, 1988 Molina added to suit earlier, against noted filed suit Mo September 1988 Limitations date for July lina in well outside the limita July (including seventy-five- period. Thus, tions his claim is barred extension) day jury’s finding unless of fraudulent con March filed answer cealment is sustainable. indicating that he was sued in the point two, Dougherty and Molina con- wrong capacity tend jury finding of fraudulent November petition 1989 Gifford’s supported by legally concealment is amended to Dougherty, show M.K. factually sufficient evidence. professional M.D. & Associates as a association undisputed It that Gifford points The first four of error are interre- misdiagnosis May learned grouped lated and are for discussion. period. within the limitations Gifford as point The first of error asserts that Gif- serts that suit was not filed earlier because ford’s claim was barred because it *6 identity pathologist was not Molina’s the as who did brought years misdiagno- within two of the the work was concealed until after limita brought sis.1 Suit was against Molina on tions had run. To succeed on this fraudu 14, July 1988. claim, Gifford contends that limi- lent concealment had to tations should be measured from the last show that and Molina had actu day case, involvement, Molina’s involvement in knowledge the al of Molina’s a 10, 1986, July which was prepared when he duty identity, to disclose and a Molina’s an report. disagree. amended purpose We identity. fixed to conceal Molina’s McCarron, 518, See Rhodes v. 763 S.W.2d continuing The treatment doct denied); (Tex.App.-Amarillo 524 applies rine2 in pa situations where a (Tex. Cooley, Leeds v. 702 S.W.2d 215 injury tient’s occurs during a course of App. writ ref’d [1st Dist.] — Houston condition, particular treatment for a n.r.e.). If fraudulent concealment is estab only readily the ascertainable date is the lished, estopped claiming is Molina from day last of treatment. Kimball v. Broth limitations as an affirmative defense. Bor ers, 372 The (Tex. Peck, derlon v. apply Kimball rule does not to this case. 1983). causing There is a course of treatment injuries, negligent Dougherty assigned but the date of the mis to do Gif- diagnosis readily is prepared Further ford’s work. Molina ascertainable. more, only report treatments were on Dougherty’s rendered on business forms. February diagnosis, Dougherty the basis of the for billed Gifford Molina’s July follow-up report. Knowledge not the Conse work. of Molina’sinvolvement quently, continuing the indisputably treatment doctrine is shown. 4590Í, (Ver- years § art. 10.01 the action is filed within two from the Tex.Rev.Civ.Stat.Ann. 1. Supp.1992). non occurrence of the breach or tort or from the or date the medical health care treatment 4590i, (Ver- art. 10.01 § Tex.Rev.Civ.Stat.Ann.

2. subject hospital- is of the claim or the the Supp.1992) provides: non ization for which the claim is made is com- law, Notwithstanding any health other pleted; .... liability may care claim be commenced unless duty presence be no Fraudulent concealment even discover party affirmatively shown where a con Lotspeich the disease existed. v. Chance responsible party’s ceals identity, Cher Vought Aircraft, 369 at S.W.2d Inc., ry Equipment Supply, & Victoria duty compa- doctor’s sole was owed to the (Tex.1983), if there a ny employed which him because the exami- duty identity. Cherry, disclose one’s company’s nation was for the benefit. potential repeatedly a defendant disa at Id. 710. The services in our case were vowed, deposed, any when involvement for Gifford’s benefit. in question. the occurrence The court rea malpractice involved a action Childs testimony, being soned that under such a emergency where woman went to an oath, finding support a of fraudulent could began having premature room when she Equip Cherry concealment. v. Victoria pains. labor The nurse called the doctor on Inc., Supply, ment at 782. duty, merely who advised woman Cherry standing princi We see regular call her doctor. The found court parties’ ple of the relation that the nature physician/patient there not a rela- Thus, ship duty controls of disclosure. tionship because doctor was under under a party responding a under oath is duty to or examine treat Mrs. Childs. higher duty to disclose than someone a telephone conversation with a nurse did not Likewise, negotiation process. higher case, acceptance amount duty physician/pa disclose in a exists the instructions could not be construed as relationship.3 Dough- Consequently, tient Weis, treatment. Childs erty duty depends and Molina’s to disclose Thus, 106-07. rendered no ser- doctor relationship on their with Gifford. For here. vices at all. That not case below, find that reasons discussed we duty had a to dis Dougherty and Molina Liability Medical also note physi identity close Molina’s because a Improvement Act does not and Insurance relationship cian/patient existed between liability for care related predicate health each of them and Gifford. physical claims on contact. Under the stat- ute, encompasses any care” treat- Dougherty and Molina assert “health physician/patient performed evidence does show ment furnished Gifford’s 4590i, relationship either of between them behalf. Tex.Rev.Civ.Stat.Ann. art. *7 Weis, Relying 1.03(a)(2)(Vernon Supp.1992).4 Gifford. on Childs v. There is § (Tex.Civ.App.-Dallas diagnostic S.W.2d 104 fur- no doubt the services were writ), Lotspeich Vought v. Chance nished on Gifford’s behalf. (Tex.Civ.App. Aircraft, 369 S.W.2d Dougherty and We conclude that n.r.e.), argue they -Dallas ref’d physician/patient a relation Molina created pathology that because Gifford’s work ship by accepting patholo the with Gifford doctors, exclusively pa done for other the work, analy conducting laboratory the gy Gifford, Gifford thologist did see sis, pathology report, and preparing the Dough- personally did not select Molina or circumstances, In billing Gifford. such erty, physician/patient rela there was no agreement implied be there is at least misplaced. tionship. Their reliance parties. the tween a woman who was Lotspeich involved Although case we find Texas address company pre-employ- sent for a to a doctor physician/pa a ing the of whether reach issue physical. ment That court did not relationship patholo a exists between question the owed tient physician the of whether physically contact gist person and a never duty they a to disclose found because “ any act duty respond truthfully is: care’ means furnished, Cherry seems 4. The full text 'Health 3. The performed or which or treatment or physician’s duty come less than onerous the furnished, by performed or been should have any negligence the occur- and disclose or forward for, to, provider on of or behalf health care injury patient. v. rence of an to a Borderlon care, during patient’s patient the medical a Peck, 661 S.W.2d treatment, confinement.” or Dough- perform these services. have or furnish ed, jurisdictions other at least two assigned Gifford’s erty Rink then In v. the issue. Walters considered arrange- pursuant to an the to Molina er, (Ind.Ct.App.1988), 520 N.E.2d 468 work Dougherty. Mo- Molina and physician/pa ment between court found that a consensual pa the services for Gifford’s performed existed the relationship between lina tient find implied court rea consent. We thologist patient. the That and with benefit soned, relationship exist- physician/patient a Dougherty and Molina ed between both a relationship between consensual [A] matter of law. patient may exist where

physician and a physi- have contracted with others that, argue even Molina and patient’s on the behalf. ... cian exist, relationship did physician/patient if a determining important fact in ... The 21, 1986, the February only it existed relationship is a consensual whether biopsy, duty original with date of the for the one ... is not who contracted identity expiring on that Molina’s disclose for it was contracted service but whether argument illogical, because day. That express implied consent of or with nor neither Molina on that date ... Where patient his benefit. misdiagnosis had occurred. knew that rendered on healthcare services are ... misdiagnosis They learned patient are done for the behalf did, May late same time benefit, physician- a consensual patient’s duty was breached Regardless, the 1986. pur- patient relationship exists for the only day on that because if it existed even poses malpractice. of medical identity not disclosed to Gif- Molina’s Rinker, 472. ford at that time. 520 N.E.2d at v. Walters Hospital, Peterson St. Cloud element of fraudulent Another (Minn.Ct.App.1990),the court N.W.2d 635 purpose is a fixed to conceal. concealment a matter of law that a consensual held as McCarron, Rhodes v. relationship existed be- physician/patient pur of a certainly some evidence There is patient. That pathologist tween a and the Molina’s involvement. pose to conceal A factually to this case. case is similar fact that rely on the erroneously diagnosed as hav- patient was of affirmative acts is no evidence there ing requiring chemotherapy cancer and ra- concealment, physicians’ and on Gifford’s Treatments were ad- diation treatments. any testimony they did not know ministered, although no cancer. there was However, silence acts of concealment. argument That court dismissed an act duty disclose be an face of a patient pre- lack of direct contact with See, e.g., Borderlon concealment. relationship. physician/patient Id. cluded a Peck, at 908. Gifford’s court, court, like the at 638. Walters bills pathologist was the contact with *8 relationship physician/patient found that Dougherty & Associates. from he received nature of of the consensual existed because Indeed, the not name Molina. did bills relationship. It clear to that court the was when the lab code to indicate bill has a the pathologist contracted with that the by independent, an but done work has been either the ex- examining physician with The bills was shown. no such information for implied patient consent of the press or stationery, Dougherty’s on were written the This established patient’s the benefit. acknowledged that Dougherty and even relationship as a matter physician/patient such that persons could believe reasonable at 638. of law. Id. person actual indicate the who a bill would damaging evi The most case, ly the work. Dougherty contracted with did In this prepared report, the addendum dence is perform pathology services. hospital the to diagnosis was dis error in the initial biopsy to the after physician sent the Gifford’s covered, Dougherty testified was which knowing Dougherty per- hospital, that Moli up.” it to “clean in order Dougherty prepared its work. formed all disclosed. still not was consent, least, na’s involvement to implied had Gifford’s that of after Finally, Dougherty did not disclose Gifford Molina’s involvement even even he received Dougherty Molina was involved after an 4590i notice received Article none Article 4590i notice letter. While September Dougherty letter in ad- con- of this evidence shows overt acts of that could mitted the nature the bills cealment, legally factually it and suffi- physician to the belief that the named lead jury cient for a to conclude that there were bills, i.e., Dougherty, the one on the continuing prevent to efforts mislead tes- performing the services. Dr. Williams discovery information would the which normally not disclose the tified she did involvement. Texas reveal Molina’s See identity pathologist patients her the to Co., 210 Wilson-Whaley Harvester Co. v. con- did not so with Gifford. We and do (Tex.Civ.App.-Fort Worth S.W. factually legally and clude there was ref’d). reliance sufficient evidence of reasonable part on the of Gifford. that he must have Molina asserts personally performed an of conceal act err The trial did not on the statute court It is of third ment. true acts find- jury of limitations issue because usually support fraudulent parties will not supported ing of fraudulent concealment is & concealment. Cato v. South Atlantic by legally factually sufficient evidence. and Coast District International Gulf five, point Dougherty con- In of error Ass’n, F.Supp. 489 Longshoreman’s Dough- against tends that Gifford’s claims (5th Cir.1973). (S.D.Tex.), 485 F.2d Associates, erty professional associa- & holding duty had a light of our Molina tion, Dougher- by were barred limitations. involvement, identity disclose and to his that, originally he ty’s position is since was however, participating is a act silence K. Dougherty M.K. Marshall sued as d/b/a may rest. which fraudulent concealment Associates, he was Dougherty, M.D. and unnecessary ques it find discuss barred sued as an individual and limitations Dougherty’s alleged acts tion whether corpo- subsequent claims that Gifford’s imputable Molina as concealment be P.A., Associates, ration, M.K. a co-defendant. misdiag- vicariously liable Molina’s question is whether Gif- Another mis- pleadings nosis. He asserts that In other ford’s reliance was reasonable. him, failing prejudiced led misdiag words, discovery would the finding preju- jury on lack of to secure reasonably prudent person to cause a nosis dice, against any Gifford waived defense inquiry leading discovery of Moli make limitations. Conlee, identity. na’s Evans v. See (Tex.App.-Corpus Christi merely misnamed If Gifford writ). 1987, no original limita petition, in his emphasize Gif- subsequent Gifford’s tions was tolled and testimony pathol- physicians’ ford’s date of back amendment related sig- illegible ogy report Molina’s that bore Par petition. Corp. Enserch original testi- physicians nature initials. however, If, ker, they of and would have fied that knew sue, was mistaken about whom Gifford if they role had been disclosed Molina’s defendant, limita i.e., he misidentified point Dr. testified at one asked. Cochran 5. Misidentifica Id. at tions is tolled. diagno- told who made the that he *9 dis there are two tion often arises where Molina an Article 4590i sent sis. Gifford having or similar corporations same tinct 27, 1988, beyond limi- April letter on notice See, Par Corp. v. e.g., Enserch names. tations, over two months before but 2; ker, Southern 794 S.W.2d Continental to the suit. added was Hilland, 828 Lines, 528 S.W.2d Inc. v. 728 Corp., (Tex.1975); v. Enserch hand, Palmer there was evidence the other On 1987, writ (Tex.App.-Austin 431 report pathology and bills were the that Bottling n.r.e.); v. Coca-Cola As- ref’d Howell Dougherty under & and sent prepared (Tex.Civ. Lubbock, 208 595 S.W.2d tell Dougherty failed to Co. sociates’ name. 677 1987, App.-Amarillo), August cu & Associates well before per writ in n.r.e. ref'd riam, only 801 In the the entity 599 S.W.2d suit was There is one filed. case, present dis there was evidence of Dougherty, known as M.D. & Associ- M.K. tinctly separate bearing entities similar in entity ates. That involved the was The here rath names. error was misnomer forming transaction or the basis occurrence er than misidentification. Dougherty’s of Gifford’s verified claims. in contesting capacity denial the which he primary purpose of limita that implies was sued also that he knew the plaintiff tions is to force the file suit in defendant association was the real the within time so a reasonable that the defen case.5 opportunity gather dant has a fair com petent evidence. and reliable Continental that Dougherty also asserts he Lines, Hilland, Southern Inc. v. 528 misled the cause of action in was because statute S.W.2d at 831. The should not from that the amendment is different apply in is party circumstances where no original petition. The test deter disadvantaged by misled or the error mining a cause whether limitations bars pleading. Corp., Palmer v. Enserch 728 petition action added in an amended 434; S.W.2d at see also Barnett v. Hous whether the amended cause of action is Co., 305, ton 617 306 Natural Gas new, wholly grows based on or out of 1981, (Tex.Civ.App.-El Paso ref'd writ distinct, or different transaction or occur n.r.e.). misidentification, Even in cases of Texaco, Inc., rence. Leonard does not bar suits limitations where the 160, (Tex.1967); Meisler v. Re proper prejudiced by defendant was not S.W,2d Ass’n, public Savings Texas mistake. Continental See Southern (Tex.App.-Houston Dist.] [14th Lines, Hilland, Inc. v. S.W.2d at writ); Brown, Stone v. 621 S.W.2d why One reason statute is tolled in (Tex.Civ.App.-Texarkana writ cases misnomer is that the party intend n.r.e.). ref’d ed has served put to be sued been notice he is the intended defendant. In pleading, his amended Gifford added Builders, Braselton-Watson v. Bur Inc. ground claims to the related liabil- gess, (Tex.Civ.App.-Cor i.e., arising ity, liability, from vicarious pus n.r.e.). writ refd Christi pathology biopsy. on Gifford’s work transaction, allege

Since did not The same occurrence or or obtain services, findings prejudicial gave on the rise to both the effect of his correctly original name We Dougherty failure to in the and the amended claims. hold original petition, question preju- not misled or whether was conclusively proved the evidence and that by diced later amendment or prejudiced by by was not misled against suit him was not barred limita- Wright the amendment. See tions. Gifford- Co., (Tex.App.- Hill seven, Dougherty points com- six and n.r.e.). ref'd Waco plains should the trial court have is difficult conclude that It granted trial because evidence new preju could have been misled or legally factually insufficient was that his diced the mere fact association support findings that Molina jury’s was professional corporation. was sued as a employee servant of and borrowed wholly owned, corporation direct Dougherty. operated by Dougherty. ed and Service employer/em consider the will upon attorney him. The same effected togeth issues throughout ployee and borrowed servant

represented Dougherty the liti er, can be a borrowed serv gation. Dougherty received a notice because Molina 4590i exist Dougherty, only if same elements to M.K. M.D. ant letter addressed *10 However, specific recog- ego. the court made no find- court in this case seemed to The trial 5. ings regard. Dougherty’s in this business was alter nize that this 678 Co., Indemnity him an if he were v. Ins. employee

would make Halliburton Texas (1948); already employed by 147 Tex. 677 El not another. United S.W.2d Gonzales, 36 Fidelity Guaranty Laundry & v. Good Co. v. S.W.2d States Co. Paso son, (Tex.Civ.App.-El (Tex.Civ.App. Paso 568 S.W.2d n.r.e.). dism’d). conflicting The evidence here is Texarkana writ ref’d determining susceptible to inferences. right key of control is the in and different employee. Molina was News whether an presented evidence that Love, 582, 590 papers, Inc. v. 380 S.W.2d employee Dougherty. was an of Molina (Tex.1964). The consid relevant factors to arrangement had an where The two Molina determining er in whether one is an inde perform Dougherty work for at would employ pendent contractor rather than an arrangement Dougherty’s request. The (1) his ee are whether the nature of busi fairly regular on a basis. Molina continued independent of the “em ness is from that laboratory, in a hospital did his work tools, (2) sup the ployer”; who furnishes only working with or for which someone materials; plies, (3) control of and who has Dougherty was allowed to do results; of the work to the final the details Compensation per diem was on work. (4) employ length regularity and of the quantitative rather than on a basis. basis ment; (5) by is compensation whether independently for could not bill by job. the Land the time or Pitchfork for, of, reports Bills Molina’s services. 331, 346 King, v. 162 Tex. and Cattle Co. name, Dougherty’s bore association’s work (1961). signed report just above the and Molina rela employer/employee For an indicating name association’s without exist, must tionship right of control independent contractor. Gif- he was an to the means details of accom extend treating physician testified doc ford’s plishment, end result. as well as the operating independently would not tors Indemnity v. Co. Thompson Travelers reports Dougherty manner. sign of Island, Molina, Rhode by assigned the work be done employer normally will control “when An just reports generated and Molina’s were work, begin regularity of and where to performed by Dougherty. any work spent on and the amount of time Dough- hours implying that testimony There was work, physical particular aspects of controlled, Molina, erty input with from accomplishing an end or manner done, method would would be who do which work result, type of tools and and control At it, it be done. one and where would perform used to the work.” appliances Molina testified that point, Indemnity Thompson v. Travelers Co. exactly the boss.” The work “was Island, 278-79; do, 789 S.W.2d at Unit Rhode of work would type same Fidelity Guaranty v. Co. ed States generally done a subcontrac unlike that Goodson, is the It When genera] contractor. asked tor for a existence, exercise, of the rather than the arrangement, hypothetical a similar about nature control that determines the right appear it would Phillips Dr. testified that relationship. Newspapers, Inc. Dough- of the relationship. employee-type be an Love, of the at 590. The nature relationship 380 S.W.2d might erty conceded con much require involved persons work that of some to be an appear to Blanscett, supervision. or Keith trol testified that employer/employee. Molina Paso (Tex.Civ.App.-El was not neces of the work details control writ). 1969, no nature sary professional because work, agreed professional he that a but is conclusive Unless evidence employee. an could be in reasonably susceptible one per the flat contends that ference, person question whether pay, a set schedule for lack of independent contractor diem rate employee or an income social work, failure to withhold Cattle fact. Land and one of Pitchfork taxes, 598; lack of control over security King, 162 Tex. Co. v. *11 pathology report required and does not address the of hours Molina was the number Dough- prepared signed and Molina on weighs against employer/em- an to work that, Molina testified be- erty’s forms. ployee relationship. Pay daily on a basis nature of his professional employee relationship, an as cause indicative of necessary. work, supervision was job very little output is not on amount of or it based However, right of control and not it is the completion. There is no evidence at all that is determinative.. securi- the exercise thereof regarding whether income or social report, signed by Molina pay. ty taxes were withheld from Molina’s schedule, name, Molina’s tes- Dougherty’s and there was no set Molina above While boss,” Dough- timony Dougherty “was regularly came to Paris to work for Molina present strong evidence of control. erty. working he also testified that when was As to lack of control over the number of stationery. Masterpath, his own he used work, testimony hours to there was issue, servant the evi- Dougherty assignments made the and Moli- On the borrowed However, employee them. Mo- dence showed that reject na was free to entirely. Masterpath, Molina owed Dougherty’s to Paris at which lina came Masterpath payment to request. It is a inference from made reasonable directly This seems testimony merely rather than to Molina. this that Molina was free employed by relationship in same to show that Molina was to terminate his he rendered servic- employee. Masterpath at the time manner as an Thus, sup- Dougherty. es to the evidence argues further that Molina ports finding of a borrowed-servant employee Masterpath, an inde- was an relationship. pendent obligation business that had Dougherty. independence work for certainly The evidence does not work, goes to element the nature of the testimony present a case of uncontradicted the nature of the entities. See evidence, overwhelming Cochran Pitchfork King, 162 Tex. Land Cattle Co. v. Co., 140 Storage Growers Central Wool 331, 346 S.W.2d 598. The work Molina (1942); Broa Tex. 166 S.W.2d performed clearly type the same Johnson, (Tex. dy v. Dougherty regularly engaged in. work 1988, writ), from which App.-Texarkana This evidence shows that Molina/Master- conclusion could be only one reasonable business, independent yet path could be an Land and Cattle Co. reached. Pitchfork employee still be an Paris. In situa at 603. King, Texaco, Inc., 382 See Clark v. tion, jury weigh right of the it is the (Tex.Civ.App.-Dallas ref’d Suson, Ins. Co. v. Royal evidence. Globe n.r.e.). (Tex.App.-Fort Worth n.r.e.). appellate An court writ ref’d

Dougherty argues the “tools” of a findings only if jury’s should overturn pathologist knowledge ability, his are weight pre great tools, they against are any physical as the labo- such Bain, the evidence. Cain v. ratory, provided by hospital ponderance in- were find however, Dougherty. Dougherty, stead of employee and jury’s answers to the pathology contracts and was di- had the supported questions are hospital laboratory. servant rector of the Since borrowed evidence and not performed analy- by legally sufficient where Molina this was weight preponder sis, against great Dougherty effectively provided the the evidence. ance of physical tools Molina used. employ- disposition of any limit- of our

Finally, Dougherty claims that view issues, servant er/employee and borrowed he have been supervision ed or control necessary consider is not that we to ne- it to exercise was not sufficient able issues, since estoppel agency and independent sta- ostensible gate Molina’s contractor supported without can be billing pro- judgment Dougherty dismisses the tus. having nothing control them. to do with cedure *12 using this

Dougherty Dougherty’s attorney also the trial was affi- contends by allowing Norton. questioning court committed harmful error davit as a reference in designated improperly expert, questioned Dr. Nor- He Norton on most of the state- ton, testify except to on future dam- in the affidavit this one. Un- the issue of ments circumstances, Dougherty this cannot ages. asserts that without der these testimony any designation of or testimo- complain there was no evidence about damages. Norton. ny future designated Although initially not care, Dough As to future medical Dr. named in expert, as an Norton was testimony there erty contends must be supplemental per as a Gifford’s answers figures as to or other from doctors dollar having damage to Gif- knowledge son future care will be medical evidence supplemental answers were ford. These necessary, and there none here. As was 7, 1990, September thirty than filed more stated, has this Court days before trial on 1990. Gif- October expenses The of future medical award interrogatories ford’s answers these primarily jury for the is a matter they could perhaps precise not as were determine. Precise is not re- evidence been, Dougherty’s interrogatories have but jury its quired. The make award They lacking clarity. were in themselves upon the course of the based nature and names of specifically never asked for the care injuries disability, or the medical testifying experts subjects of testi or the trial, medical ex- past rendered before asking names of non- mony, instead injured penses, and condition consulting experts the “services plaintiff time of party at the trial. em expert for which was purposes” each future medi- required to not establish supplemental In the re ployed. same by expert consequences injury cal his per as a sponse where Norton was listed testimony grounded on rea- medical having damage, knowledge of future son probability. sonable medical re stated that Dr. Norton was Daniel, Municipal the Defen Hospital tained to “determine whether Gladewater negligent.” (Tex.App.-Texarkana dant’s conduct was writ) added). (emphasis no argues designation that this Dr. Norton had was insufficient because there was Dougherty argues that damages in her affidavit barely mentioned past expenses that the medical no evidence Nor- deposition. all in her Dr. and not at reasonable, necessary and and an were states, last sentence ton’s affidavit its imper- including amounts is these award unnecessary, misdiagnosis “This led to Law, 579 missibly speculative. Roth v. See chemotherapy and irradiation harmful (Tex.Civ.App.-Corpus questioned not patient.” Norton was n.r.e.). Dougherty writ ref’d Christi this statement. The closest the evi objection Molina made subject question, to this came on this or past expenses medical dence of discuss you’re going “Anything else Indeed, counsel ground. their any other objected that jury.” After Gifford with objection to expressly stated he had questions, anticipate could the witness not respect Any error this such evidence. negative. Not in the Norton answered waived. have objection itself only should Gifford’s testimony was hold that Norton’s but, in pointed question, prompted a more admitted, error is shown and no properly really ask context, question not this does past jury’s to the award respect with opinions already cov- any and all not about damages. as future medical as well “any- another question follows ered. error, Dougher- point of biop- In their eleventh question pertaining to the thing else” complain the awards slides, ty and precedes questions about oth- sy $200,- $1,000,000.00 to Mr. Gifford questions reviewed and about er materials excessive to Mrs. Gifford were 000.00 of care. standard factually insuffi- supported by factually evi- clude that the evidence sufficient an award to Gifford of support cient to dence. $1,000,000.00. proof There is no claim or The standard of review for remit- earning capac- wages, loss of of future lost *13 sufficiency, titur is factual and all of future medical costs. As ity, or extensive Re evidence must be reviewed. Snoke v. Railway v. in Louisiana & Arkansas Co. Co., Ins. 770 S.W.2d public Underwriters 291, sugges- there is no Capps, 766 S.W.2d (Tex.1989); Utility 777 Larson v. Cactus work, to that Gifford will be unable tion (Tex.1987); Co., Pope 730 S.W.2d 640 v. ability many to do of the physical that his 622, (Tex.1986). Moore, 711 S.W.2d 624 ordinary life has been substantial- tasks of requiring The standard of favorable review ly impaired, or that he will be unable to only, expressed in evidence Armellini many are con- engage in activities which Florida, Express Ansley, Lines Inc. v. style. part sidered of a normal life While 297, (Tex.Civ.App.-Corpus disparage severity of his we do not n.r.e.), express ref Christi writ d injuries, we find the evidence emotional Moore, ly disapproved Pope v. $1,000,- justify insufficient to an award S.W.2d at 624. in the circumstances of this case. 000.00 Dougherty analogizes present case to suggest Consequently, we will a remittitur Railway Louisiana Arkansas Co. v. $300,000.00. Capps, (Tex.App.-Texar 766 S.W.2d 291 complains also denied), kana this Court writ where $200,000.00 award to Mrs. case, a knee ordered a remittitur. He supported the evidence. career, injury ended a railroad worker’s there is no evidence as to the first contends continuing pain depression, caused loss of household services. The term prior interfered recreational and with generally relates to “household services” home This noted the lack activities. Court Production, domestic duties. EDCO Inc. work, going inability to total to evidence (Tex. Hernandez, impairment, life-threatening inju mobility denied); App.-San see Antonio ry, physical and normal mental and func Miller, Whittlesey v. present tions. The case also lacks evidence also factors, i.e., There is evidence that inability on some of those to 666 n. However, longer no active around the mobility impairment. work and Mr. Gifford is house, psychological longer he no handles the cou there is evidence adverse matters, effects, he is irrita ple’s for which Gifford received medi financial and that depressed. Through evidence that counseling. cation and When Dr. Norton’s ble and considered, couple’s twenty-eight-year-old handi testimony is there is evidence the totally life-threatening capped son lives at home and as to nature of couple support, for his injury dependent because of the risk of future cancer. on the jury could infer that some out-of-the-ordi physical psychological ef ample required. find nary duties were We those fects of Gifford’s ordeal differ from support for loss of an award evidence arising personal injury in most cases. Gif- household services. particular ford was informed that this can complains also percent had a fifteen rate and cer survival linking loss of consor days get his affairs in there is no evidence that he had two weeks, damages chemotherapy lasted while tium order. The treatments treatments. Loss of consortium injuries instantly. occur The effects irradiation most affection, solace, compan treatment, such as nausea and includes loss of sexual rela loss, throughout ionship, society, assistance and weight continued marriage. necessary to a successful period. This evidence shows tions treatment Miller, 572 at 666. suffering anguish Whittlesey v. pain, and mental long and testified to their injury itself was not Mrs. Gifford associated with event, marriage the treatments. happy rather before the result of a sudden but Nevertheless, the state of their testified as to slowly They inflicted. we con- both afterwards, including determining relationship considered in the amount be loss of compensation mental an they sexual relations the fact that now awarded as marriage County undergo counseling. guish. Hospital Mr. Gifford District Tarrant Jones, (Tex.App.-Fort do testified that close friends not come 664 S.W.2d 191 anymore. writ). Mrs. Gifford testified around Even when con Worth being longer enjoyed impending that she no around sciousness of death mo husband. proper her to be con mentary, it is a element evaluating suffering. mental sidered sup- hold the evidence sufficient (Tex. Hale, See Green v. port an award of consortium. for loss 1979, writ). Russell Gif Civ.App.-Tyler jury may exercise consider *14 for ford should be entitled to recover those awarding in generosity able discretion and damages same led to be because he was personal damages injuries, for Pro EDCO for three months lieve and did believe over duction, Hernandez, Inc. v. 794 staring in the face. he was death 77; Millett, Loyd 767 Electric Co. jury The heard evidence about how Rus- (Tex.App.-San Antonio agony of chemo- sell Gifford endured the 1989, writ); Tire & Firestone Rubber 3,000 rads thera- therapy and of radiation Battle, (Tex. Co. v. (had py, kept this treatment him weak how denied). App.-Houston writ [1st Dist.] (result- wheelchair) use a and nauseated jury appears made a conscious The to have ing thirty-five during in pounds his loss of attempt compensate Mrs. and deliberate period), he the three-month and how had for her EDCO Produc Gifford loss. See in surgery then massive which his faced Hernandez, tion, Inc. v. 794 S.W.2d at esophagus going to removed and was be factually sup sufficient to The evidence replaced part of by a his intestines. port the award to Mrs. Gifford. If, days from the within fifteen date The heard the after-ef- jury also about opinion, remits the this Gifford sum chemotherapy; about fects of radiation $300,000.00, affirmed; be judgment will depression, deep resulted how it had a otherwise, judgment will be reversed life, his his sex and affected eliminated and remanded. him; all around relationship with those gone deep has depression about how this

GRANT, Judge, partially dissenting. psy- years, requiring on for four-and-a-half physi- chological help; and how the about portion I from that dissent long-term ef- cians him that the had told ordering opinion a remittitur. chemotherapy radiation on an fects of Rus- jury heard evidence about how The healthy were un- individual otherwise days was that he had two Gifford told sell known. order; esopha- that his get his affairs in serious that there was geal cancer so jury award Russell Gifford opinion, a and that he for second not time physical pain, anguish, physical for mental begin immediately radiation must majori impairment, and medical care. treatments; chemotherapy about the emo- ty opinion directs a remittitur on basis his he suffered when he told tional trauma of future “proof offered no Gifford children; about how he his four father and capacity, or wages, earning lost loss of over to his old- his store turned hardware extensive future medical costs.” he son; how he wondered if and about est compensation those bases. did not seek on another Christmas with get see would “Physical always the impairment” is not his children. equivalent capacity to of a “diminished money.” Grigs right French v. a to recover work and earn recognizes law Texas (Tex.Civ.App.-Beau anguish by, S.W.2d 604 pain for suffered damages curiam, mont), per Under Texas writ n.r.e. anticipation of death. ref'd Gifford’s knowledge impending his Russell law, person’s only in family damages not be to be should viewed are its effect death and loss, light because his losses of economic more than economic.

were judg- free to substitute its

No court is damages jury for that of the as to

ment an- awarded for mental

which should be Robinson, S.W.2d 24

guish. Brown v. writ). The

(Tex.App.-El Paso pain damages to be awarded for

amount of suffering left to the sound must be of the trier of fact. Carrell

discretion

Richie, (Tex.App.-Austin n.r.e.). especially ref d This suffering, regard pain,

true in to claims neces- anguish, which are areas

and mental compensatory dam-

sarily speculative, that

ages should be left to the determination credibility jury judges the jury, as the *15 weight given and the be witnesses testimony. Kneip v. UnitedBank-

their

Victoria, (Tex.App.-Corpus 774 S.W.2d 757 1989, writ).

Christi agree appellant’s con-

I cannot with the damages awarded

tentions that grossly sup-

jury were excessive and not

ported by factually sufficient evidence. awarding signif- jury justified tragic ordeal that this

icant amount for and continues to suffer.

man suffered

Peggy George Ann GLASS Neely, Appellants,

R. GLASS, Appellee.

Dale Steen

No. 6-91-042-CV. Texas, Appeals

Court of

Texarkana. 25, 1992.

Feb.

Rehearing March Denied