Respondent’s Brief on the Merits

Columbia Medical Center of Las Colinas, Inc. v. Hogue

Description: This case was a medical malpractice case arising out of the death of Robert Hogue at a Columbia hospital as a result of his failure to receive timely care and treatment. The jury found negligence and gross negligence and awarded Hogue’s wife and sons $9 million. The Dallas Court of Appeals affirmed and the hospital filed a petition with the Texas Supreme Court, which granted the petition and heard oral argument. The Texas Supreme Court thereafter affirmed the verdict, including the award of punitive damages. This brief was filed by Eric Pearson of Heygood, Orr & Pearson on behalf of the Hogue family.

NO. 04-0575
IN THE SUPREME COURT OF TEXAS
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC.
d/b/a LAS COLINAS MEDICAL CENTER,Petitioner,v.

ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE
OF ROBERT HOGUE, JR., DECEASED, CHRISTOPHER HOGUE,
AND ROBERT HOGUE, III,

Respondents

On Petition for Review from
Fifth District Court of Appeals at Dallas, Texas

RESPONDENTS’ BRIEF ON THE MERITS

______________________________________________________________________

 

TABLE OF CONTENTS

 

TABLE OF CONTENTS………………………………………………………………………………………………. i

INDEX OF AUTHORITIES……………………………………………………………………………………….. iv

ABBREVIATIONS AND RECORD REFERENCES…………………………………………………… vii

STATEMENT OF THE CASE…………………………………………………………………………………….. 1

STATEMENT OF JURISDICTION……………………………………………………………………………… 2

ISSUES PRESENTED…………………………………………………………………………………………………. 2

STATEMENT OF FACTS…………………………………………………………………………………………… 3

I.          Robert Hogue, Jr. and His Family……………………………………………………………………. 3

II.         History of Columbia Medical Center of Las Colinas………………………………………. 4

III.        Columbia Failed to Develop Systems to Ensure that Emergency Patients Were Given Prompt and Proper Treatment…………………………………………………………………………. 5

A.         No on-call list of physicians by specialty……………………………………………. 5

B.         No emergency echocardiogram capability…………………………………………… 5

IV.       Mr. Hogue Answered his Doctor’s Questions Honestly and Fully After He Was Brought to Columbia by Coppell EMS on March 9, 1998……………………………….. 6

V.         Columbia’s Failure to Have an On-Call List of Specialists and Emergency Echo Capability Caused Hogue’s Untimely Death…………………………………………………… 7

SUMMARY OF THE ARGUMENT……………………………………………………………………………. 9

ARGUMENT AND AUTHORITIES………………………………………………………………………….. 10

I.          The Trial Court Did Not Commit Reversible Error by Submitting Hogue’s Contributory Negligence in a Separate Question………………………………………….. 10

A.         The issue was submitted……………………………………………………………………. 10

B.         There was no requirement that Mr. Hogue’s negligence be submitted contemporaneously with Petitioner’s negligence………………………………. 10

C.         Petitioner has failed to show any harm from the manner in which Mr. Hogue’s negligence was submitted to the jury…………………………………………………. 13

1.         To obtain a reversal, Petitioner was required to show harm……. 13

2.         There was no harm because the contributory negligence question was submitted……………………………………………………………………………….. 14

3.         There was no harm for the simple reason that the evidence did not mandate submission of the contributory negligence question… 18

a.        Contrary to Petitioner’s innuendo, Mr. Hogue was

never asked by any of the doctors at Columbia

whether he had previously been diagnosed

with cardiac problems………………………………….…18

b.       The supposed negligence of others is irrelevant……………. 20

c.        There was no evidence Dr. Blomquist would have acted differently had he known of Hogue’s previous heart murmur 21

d.       There was no evidence Dr. Schroeder would have acted differently had he known of Hogue’s previous heart murmur 26

e.        There was no expert medical testimony at trial that any act of negligence by Hogue proximately caused his death………. 28

D.         The Court of Appeals properly analyzed the issue…………………………….. 29

E.         Petitioner has waived the alleged charge error…………………………………… 30

II.         Legally and Factually Sufficient Clear and Convincing Evidence Exists to Support the Jury’s Finding of Gross Neglect……………………………………………………………………. 31

A.         Sufficient clear and convincing evidence – objective prong……………… 31

1.         Lack of stat echo capability……………………………………………………. 31

2.         Lack of prospective on-call list by specialty………………………….. 33

B.         Sufficient clear and convincing evidence – subjective prong……………. 35

1.         Lack of stat echo capability……………………………………………………. 35

2.         Lack of prospective on-call list by specialty………………………….. 39

III.        The Loss of Inheritance Damage Award Is Supported by Legally Sufficient Evidence……………………………………………………………………………………………………………………… 40

A.         There was ample evidence that Athena Hogue probably would have outlived her husband……………………………………………………………………………………….. 41

B.        There was sufficient evidence that Mr. Hogue’s earnings would outweigh his expenses…………………………………………………………………………………………….. 41

IV.       The Court of Appeals Properly Interpreted the Post-Judgment Interest Statute 43

CONCLUSION AND PRAYER…………………………………………………………………………………. 45

CERTIFICATE OF SERVICE……………………………………………………………………………………. 46
INDEX OF AUTHORITIES

CASES

 

Acord v. General Motors,

669 S.W.2d 111 (Tex. 1984)………………………………………………………………………….. 17

Axelrad v. Jackson,

142 S.W.3d 418 (Tex. App.–Houston [14th Dist.] 2004, pet. filed)……. 19, 20, 28

Bennett v. Cochran,

No. 14-00-01660-CV, 2004 WL 852298 (Tex. App.–Houston [14th Dist.] April 22, 2004, no pet.)…………………………………………………………………………………………………………… 44

Boorhem-Fields, Inc. v. Burlington Northern Railroad Co.,

884 S.W.2d 530 (Tex. App. – Texarkana 1994, no writ)………………………………… 31

Burke v. Union Pacific Resources Co.,

138 S.W.3d 46 (Tex. App.–Texarkana 2004, pet. filed)………………………………… 44

City of Dallas v. Redbird Dev. Corp.,

143 S.W.3d 375 (Tex. App.–Dallas 2004, no pet. h.)…………………………………….. 44

 

City of San Antonio v. Doyle,

………… No. 04-98-00286-CV, 1999 WL 89728 (Tex. App.–San Antonio

………… Feb. 24, 1999, pet. denied) (not designated for publication) ………………………… 16

 

Columbia Medical Center of Las Colinas v. Bush,

………… 122 S.W.3d 835 (Tex. App. – Fort Worth 2003, pet. denied)……………………… 2, 43

Columbia Medical Center of Las Colinas v. Hogue,

………… 132 S.W.3d 671(Tex. App.–Dallas 2004, pet. filed)……………….. 30, 35, 38, 41-44

Doe v. Mobile Videotapes, Inc.,

………… 43 S.W.3d 40 (Tex. App. – Corpus Christi 2001, no pet.)………………………………. 30

Elbaor v. Smith,

………… 845 S.W.2d 240 (Tex. 1992)……………………………………………………………………… 2, 12

Ghidoni v. Stone Oak, Inc.,

………… 966 S.W.2d 573 (Tex. App. – San Antonio 1998, pet. denied)………………………. 14

H.E. Butt Grocery Co. v. Warner,

………… 845 S.W.2d 258, 260 (Tex. 1992) …………………………………………………………………. 16

Hernandez v. Montgomery Ward & Co.,

………… 652 S.W.2d 923 (Tex. 1983)………………………………………………………………………….. 31

Iley v. Hughes,

………… 311 S.W.2d 648 (Tex. 1958)………………………………………………………………………….. 11

Ins. Co. of North Amer. v. Myers,

………… 411 S.W.2d 710 (Tex. 1966)………………………………………………………………………….. 28

Island Recreational Dev. Corp. v. Republic of Texas Savings Ass’n,

………… 710 S.W.2d 551 (Tex. 1986)………………………………………………………………………….. 14

In re Kajima Int’l,

139 S.W.3d 107 (Tex. App.–Corpus Christi 2004, no pet.)……………………………. 44

Lemos v. Montez,

………… 680 S.W.2d 798 (Tex. 1984)……………………………………………………………………. 12, 17

Lenger v. Physician’s Gen. Hosp., Inc.,

………… 455 S.W.2d 703 (Tex. 1970)………………………………………………………………………….. 28

Liberty Nat’l Fire Ins. Co. v. Akin,

927 S.W.2d 627 (Tex. 1996)………………………………………………………………………….. 11

 

Miller v. Wal-Mart Stores, Inc.,

………… 918 S.W.2d 658 (Tex. App. – Amarillo 1996, writ denied)………………………. 10, 12

 

Otis Elevator, Co. v. Bedre,

776 S.W.2d 152 (Tex. 1989)………………………………………………………………………….. 11

Phaup v. Boswell,

………… 731 S.W.2d 625 (Tex. App. – Houston [1st Dist.] 1987, no writ)…………………… 15

 

Rosell v. Central West Motor Stages, Inc.,

………… 89 S.W.3d 643 (Tex. App. – Dallas 2002, pet. denied)…………………………….. 11, 12

Russell v. City of Bryan,

………… 919 S.W.2d 698 (Tex. App. – Houston [14th Dist.] 1996, writ denied)………….. 30

Sendejar v. Alice Phys. & Surgeons Hosp., Inc.,

555 S.W.2d 879 (Tex. Civ. App.–Tyler 1977, writ ref’d n.r.e.)……………………… 28

Sibley v. RMA Partners,L.P.,

138 S.W.3d 455 (Tex. App.–Beaumont 2004, no pet.)…………………………………… 44

St. Joseph Hosp. v. Wolff,

94 S.W.3d 513 (Tex. 2002)……………………………………………………………………………. 40

Tesfa v. Stewart,

135 S.W.3d 272 (Tex. App.–Fort Worth 2004, pet. denied)…………………………… 44

Transp. Ins. Co. v. Moriel,

879 S.W.2d 10 (Tex. 1996)……………………………………………………………………………. 11

Utts v. Short,

No. 03-03-00512-CV, 2004 WL 635342 (Tex. App.–Austin April 1, 2004, pet filed)        44

Vingcard AS v. Merrimac Hospitality Systems, Inc.,

………… 59 S.W.3d 847 (Tex. App. – Fort Worth 2001, pet. denied)……………………… 14, 16

Wal-Mart Stores, Inc. v. Johnson,

106 S.W.3d 718 (Tex. 2003)………………………………………………………………………….. 17

Waples-Platter Co. v. Commercial Standard Ins. Co.,

294 S.W.2d 375 (Tex. 1956)………………………………………………………………………….. 11

 

STATUTES/RULES

Tex. R. App. P. 44.1………………………………………………………………………………………………….. 14

Tex. R. Civ. P. 277……………………………………………………………………………………………………. 17

Tex. Fin. Code § 304.003(c) ………………………………………………… 43
ABBREVIATIONS AND RECORD REFERENCES

 

Abbreviations

“Petitioner,” “Columbia” and “the hospital” refer to Petitioner Columbia Medical Center of Las Colinas, Inc. d/b/a  Las Colinas Medical Center.

“Respondents” refers to Respondents Athena Hogue, Individually and as Executrix of the Estate of Robert Hogue, Jr. Deceased, Christopher Hogue, and Robert Hogue, III.

Record References

“CR” refers to the Clerk=s Record on appeal.  Citations to the Clerk=s Record are to the page number on which the information appears.

“RR” refers to the Reporter=s Record.  Citations to the Reporter=s Record are to the volume and page number on which the information appears, to the Plaintiff=s/Respondent’s Exhibits (“PX”) or to the Defendant’s/Petitioner=s Exhibits (“DX”).

 

NO. 04-0575
IN THE SUPREME COURT OF TEXAS
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC.
d/b/a LAS COLINAS MEDICAL CENTER,Petitioner,v.

ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE
OF ROBERT HOGUE, JR., DECEASED, CHRISTOPHER HOGUE,
AND ROBERT HOGUE, III,

Respondents

On Petition for Review from
Fifth District Court of Appeals at Dallas, Texas

RESPONDENTS’ BRIEF ON THE MERITS

______________________________________________________________________

 

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

Respondents Athena Hogue, Individually and as Executrix of the Estate of Robert Hogue, Jr., Deceased, Christopher Hogue, and Robert Hogue, III (“Respondents”) submit this Brief on the Merits in accordance with Rule 55.3 of the Texas Rules of Appellate Procedure.

STATEMENT OF THE CASE

Respondents generally agree with Petitioner’s Statement of the Case.

STATEMENT OF JURISDICTION

Respondents assert that this Court lacks jurisdiction and that the Petition for Review fails to assert valid grounds for jurisdiction.  Specifically, there is no conflict between the Court of Appeals’ decision and this Court’s decision in Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992), which merely held that the issue of contributory negligence should be submitted to the jury when the evidence supports it — as was done here — and which said nothing about the manner in which the issue must be submitted.

Moreover, the Court of Appeals’ interpretation of the post-judgment interest provisions of the Texas Finance Code was consistent with every other court’s interpretation, including the interpretation of the Fort Worth Court of Appeals in Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835 (Tex. App.–Fort Worth 2003, pet. denied), a case involving the same Respondent and same counsel.

ISSUES PRESENTED

  1. Did the evidence at trial mandate the submission of Mr. Hogue’s alleged negligence to the  jury?
  2. Did the trial court err by submitting separate questions 6 and 7 inquiring into the alleged negligence of Robert Hogue, Jr. and asking the jury to determine the percentage of negligence of each party it had found negligent as opposed to submitting these issues in the same question as that inquiring into Petitioner’s negligence?
  3. Because the trial court submitted properly worded questions regarding Mr. Hogue’s alleged negligence and the comparative negligence of the parties, can the trial court’s failure to include such questions in the same question as that inquiring into Petitioner’s alleged negligence amount to such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment and therefore constitute reversible error?
  4. Even if the court committed reversible error by the manner in which it submitted Hogue’s alleged negligence, did Petitioner waive this error by failing to object to Question 1 of the Charge of the Court, the question it contends should have included Mr. Hogue’s negligence?
  5. Was the jury’s answer to Question 4 regarding gross neglect supported by factually and legally sufficient clear and convincing evidence?
  6. Was there legally sufficient evidence to support the loss of inheritance damages awarded by the jury in response to Question 2?
  7. Did the Court of Appeals properly interpret the post-judgment interest provisions of the Texas Finance Code?

STATEMENT OF FACTS

I.         Robert Hogue, Jr. and His Family.

Robert Hogue, Jr. was 52 years old when he suddenly and unexpectedly died.  His wife, Athena, was 50 years old.  RR 16:93.  They  were married more than 25 years.  They had a very close, harmonious relationship and were in the process of building a new home. CR 9:2902; RR 16:90, 103.  The Hogues had two children, Robert Hogue, III (“Robert”) and Christopher Hogue, who were ages 18 and 22, respectively, when their father died. PX 5N.  Robert and Chris lived together in Lubbock, Texas, as undergraduates at Texas Tech University and were financially supported by their father. RR 16:104-105.  Mr. Hogue was very involved in his boys’ lives and had a very close relationship with them. RR 16:98-99.  Robert testified that his father visited him and his brother often and would stay with them in their apartment, that he spoke to his father several times a week, and that his relationship with his dad was “turning more from a parent/son to a best friend” when his father died.  RR 20:230.  The Trial Court also recognized the close relationship that existed among Mr. Hogue and his wife and sons.  CR 9:2902.

II.        History of Columbia Medical Center of Las Colinas.

On March 2, 1995, the Centre for Health Facilities Planning, Inc., which had been hired by Columbia/HCA’s North Texas Division, issued its revised Service Needs Analysis (the “Analysis”) which provided projections regarding the new Emergency Department of Columbia Medical Center of Las Colinas. PX 3.  The Analysis projected that the Emergency Department would have 12,000 visits in 1998-1999 and specifically projected that in 1999 there would be 21 emergency echocardiograms.  PX 3A; RR 19:43-44.  The Hospital Administrators knew that they were “offering full service emergency care 24 hours a day, seven days a week …” and that Columbia would be “responsible for the immediate treatment of any medical or surgical emergency,” which would include patients with emergency cardiac problems. PX 2A; PX 14A, p. 15; RR 20:257-58; RR 19:41.  They also knew that  Columbia would not offer  “Open Heart Surgery” services and that patients needing open heart surgery would be “transported to a tertiary facility after initial evaluation and stabilization.” PX 14(a), p. 15.  Based on the Analysis, the hospital advertised and promoted that it had a cardiology department, and intentionally promoted its emergency room as having a full service emergency room which provided “real service, real fast.” RR 19:41; RR 18:172, 178, 191.

Coppell EMS was one of the primary EMS providers who Stan Morton, CEO, testified that Columbia met with to promote the services of its Emergency Department.  RR 20:257.   The hospital was incorporated in the State of Texas in 1996 and accepted its first patient in August, 1997, about seven months before Coppell EMS brought Robert Hogue to the Medical Center.  PX 53; RR 20:7.

III.      Columbia Failed to Develop Systems to Ensure that Emergency Patients Were Given Prompt and Proper Treatment.

A.        No on-call list of physicians by specialty.

Petitioner’s COO Pat Sullivan testified that the hospital knew that it was responsible for ensuring that there were a sufficient staff on call to the emergency room to care for patients if needed and that it would be a problem if a doctor did not know who to call when a specialist was needed.  RR 18:165; RR 19:57-58; RR 19:61-62. Petitioner’s hospital administration expert testified that prospective on-call awareness is required to allow doctors to be able to commit themselves to a hospital, but that Columbia had no such lists.  RR 22:229-32; RR: 22:224-25. In fact, the hospital’s Plan of Care states: “The Medical Staff provides specialty consultation on a 24-hour basis with a 30-minute response time.”  PX 14A, p. 15.  Notwithstanding, CEO Stan Morton testified that the hospital did not have a list of cardiologists or a list of pulmonologists that were on call on a particular day.  RR 20:256-57; RR 22:80-81.

B.         No emergency echocardiogram capability.

From the hospital administrators’ point of view, and based on the Analysis, there was a high probability, if not a certainty, that a life-threatening medical emergency requiring stat echo services would occur.  RR 21:234-35; RR 21:186, 194; RR 20:251-52; RR 21:167-68.  The hospital administrators purchased an echocardiogram machine before the hospital opened, and on November 25, 1997, entered into a Medical Services Contract (the “Contract”) with an echocardiogram technologist service, Cardio Vascular On-Call Specialists, instead of hiring an echo technologist to be present in-house at all times.  PX 7.  Columbia understood that, according to the Contract, it would cost $3 per hour to guarantee emergency echo response time and further, that if it did not pay the fee, there would be no guarantee that echo services were going to be available.  RR 20:248-49.  Mort Graham, of Cardio Vascular On-Call Specialists, testified that he met with Scott Montgomery, the hospital’s Director of Clinical Outpatient Services, and advised him of the available services, including the on-call guaranteed response time and that he followed up with Montgomery on several occasions regarding the on call fee and guaranteed response time, but the hospital was never interested.  RR 21:110, 138-40.  Columbia never contracted for emergency guaranteed response time and failed to communicate to the medical and nursing staff that echocardiograms could not be performed on an emergency basis.  RR 20:248-51.

IV.      Mr. Hogue Answered his Doctor’s Questions Honestly and Fully After He Was Brought to Columbia by Coppell EMS on March 9, 1998.

 

At about 8:55-9:05 a.m. on March 9, 1998, Coppell EMS brought Robert Hogue to Petitioner’s Emergency Department.  Hogue was wheeled into the emergency room on a stretcher, breathing rapidly and short of breath.  RR16:183, 184, 236.  He had severe trouble breathing even at rest, was coughing up blood-tinged sputum and had been sweating. RR16:245.  Dr. Blomquist testified that Hogue was in respiratory distress and getting fatigued and was put on an ETT right away because he could not breathe on his own.  RR17:25-27.  Blomquist was able to converse with Hogue for only four to five minutes before Hogue was intubated.  RR16:233.

During his initial four to five minute consult, Dr. Blomquist asked Mr. Hogue to describe what symptoms he was experiencing at the time.  RR 16:236, 239.  He asked Mr. Hogue specifically whether he was experiencing any chest pain, and he said no.  RR 16:239.  The only symptoms Hogue said he was experiencing — and there is no evidence he was experiencing any other symptoms at the time — were “shortness of breath times three days, and a slight cough.”  RR 16:236.  When Blomquist asked him whether he had experienced “similar symptoms previously,” i.e., shortness of breath with a cough, Mr. Hogue said no.  RR 16:236.  There is no evidence that this answer was anything other than truthful and complete.

At no time did Blomquist or any other doctor ask Hogue whether he had previously been diagnosed with heart problems.  Nor did Blomquist or any other doctor at Columbia ever ask Hogue if he had ever been diagnosed with a heart murmur.  Instead, Blomquist asked Hogue very specific questions about family cardiac history and the presence of various cardiac risk factors.  RR 16:239.  It was Hogue’s honest and complete response to these questions — not an alleged failure to disclose a history of a heart murmur — that caused Blomquist to move a cardiac cause lower on his differential.  RR 16:239.

V.        Columbia’s Failure to Have an On-Call List of Specialists and Emergency Echo Capability Caused Hogue’s Untimely Death.

 

Dr. Blomquist testified that he knew he needed a critical care specialist “within the first three seconds” of Hogue’s arrival to the emergency room, that the hospital did not have a list of on‑call pulmonologists or intensivists on that day, and that he did not know of anyone other than Dr. Schroeder that was a pulmonologist or intensivist that he could call.  RR 17:49; RR 16:204-05.  Dr. Schroeder was initially called at about 9:10 a.m. but did not arrive at the hospital until about 1:30 p.m., more than four hours after he was called, because he was “committed that day and seeing critically-ill patients” at another hospital.  RR 17:107-108, 114.  Similarly, Dr. Lawson, the cardiologist called by Schroeder, said he would not be able to come to the hospital for several hours because he was at “another facility.” RR 22:97-98, 140. When Dr. Lawson finally showed up at the hospital at 8:30 p.m., Robert Hogue had already been transferred.  RR 22:98.

At about 3:35 p.m., Dr. Schroeder placed an order for Mr. Hogue to have an “echocardiogram now.”  PX 72; RR 17:116. Over two and one half hours later, Mort Graham, the echo tech from Cardiovascular On-Call Specialists, arrived at the hospital to perform the echocardiogram.  Within minutes, Graham recognized that Robert Hogue had a “very severe leakage of his mitral valve” which had occurred “recently.”  RR 21:129, 135.  Based on the results of the echocardiogram, a second cardiologist, Dr. Hecht, was called.  He determined that Mr. Hogue required open heart surgery for the repair of his mitral valve, a service not offered at Columbia.  RR 20:225.  Dr. Hecht immediately made arrangements with a tertiary facility to accept Mr. Hogue and to prepare to perform open heart surgery, and ordered Mr. Hogue transferred to the tertiary facility.  RR 20:226-27.  Upon arrival at the tertiary facility, Robert Hogue “coded,” and after one hour of resuscitation attempts, he died at the age of 52 years.  RR 20:227-28.

SUMMARY OF THE ARGUMENT

There was no requirement that the issue of decedent’s alleged negligence be submitted to the jury, since there was no evidence that Mr. Hogue was negligent or that such negligence proximately caused his death.  Although the evidence did not necessitate the submission of decedent’s alleged contributory negligence, the trial court submitted the issue to the jury, and there was no requirement that the issue be submitted contemporaneously with Petitioner’s negligence or in the same question as that inquiring into Petitioner’s negligence.  Moreover, to the extent the trial court erred in the manner in which it submitted Hogue’s negligence to the jury, Petitioner suffered no harm from the manner in which the issue was submitted.  Finally, Petitioner has waived this argument on appeal.

There was legally and factually sufficient clear and convincing evidence of gross neglect as reflected in the Trial Court’s separate Findings and Conclusions Regarding Exemplary Damage Award.

The loss of inheritance damages awarded by the jury were supported by legally sufficient evidence.

Finally, the Court of Appeals properly interpreted the post-judgment interest provisions of the Texas Finance Code.  For the foregoing reasons, this Court should affirm the Court of Appeals’ decision.

ARGUMENT AND AUTHORITIES

I.         The Trial Court Did Not Commit Reversible Error by Submitting Hogue’s Contributory Negligence in a Separate Question.

 

A.         The issue was submitted.

 

Petitioner asserts that “reversal is warranted when the trial court denies a proper submission of a valid theory of recovery raised by the pleadings or the evidence.”  Petitioner’s Brief on the Merits (“Brief”) at 6.  The problem with this observation is that it overlooks the fact that the issue of Mr. Hogue’s negligence was submitted to the jury by the trial court.  CR 6:2088-90.  In fact, when the court denied Petitioner’s request for a question regarding the issue of Mr. Hogue’s negligence, the court’s hand-written denial stated merely that the request was denied until the third phase of trial, at which time it was submitted.  CR 6:2075.  The issue before this Court, therefore, is not whether the trial court erred in failing to submit the issue of Mr. Hogue’s negligence to the jury, but whether it committed reversible error by submitting that issue in the form of a separate question.  As set forth below, such submission does not constitute error by the trial court and, in any event, caused Petitioner no discernible harm.  For this reason, the trial court’s judgment should be affirmed.

B.        There was no requirement that Mr. Hogue’s negligence be submitted contemporaneously with Petitioner’s negligence.

 

Petitioner’s complaint merely involves the timing of the trial court’s submission of an issue relating to Mr. Hogue’s negligence.  As numerous courts have held, however, “the trial court has broad discretion in submitting jury questions so long as the questions submitted fairly place the disputed issues before the jury.”  Miller v. Wal-Mart Stores, Inc., 918 S.W.2d 658, 663 (Tex. App. – Amarillo 1996, writ denied); see also Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex. App. – Dallas 2002, pet. denied) (“The trial court is accorded broad discretion so long as the charge is legally correct.”).  The trial court exercised its discretion by submitting the issue of Mr. Hogue’s negligence to the jury after the jury had already determined Petitioner’s negligence.  Such bifurcated submission, as was also done in this case with the submission of the gross negligence and exemplary damage questions (CR: 2072-73, 2079, 2084), was clearly within the court’s broad grant of discretion.

Petitioner cites several cases dealing with separate trials in an attempt to demonstrate that the trial court committed error by the manner in which it submitted the contributory negligence issue.  Brief at 6.  In Otis Elevator, Co. v. Bedre, 776 S.W.2d 152 (Tex. 1989), this Court merely held that the court of appeals erred in ordering a limited remand of the defendant’s negligence without also remanding for trial the issue of the plaintiff’s contributory negligence.  In reaching its decision, this Court cited Waples-Platter Co. v. Commercial Standard Ins. Co., 294 S.W.2d 375 (Tex. 1956), which held that the issues of liability and damages could not be “tried piecemeal.”  Id. at 237.  This Court’s ruling said nothing about the manner in which the issues could or should be submitted to the jury on remand.  The other cases cited by Petitioner also dealt solely with the issue of separate trials rather than the submission of jury issues.  See, e.g., Iley v. Hughes, 311 S.W.2d 648 (Tex. 1958) (trial court not authorized to grant separate trial of liability and damage issues in personal injury suit); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1996) (allowing separate trial of exemplary damages); Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627 (Tex. 1996) (permitting separate trials in bad faith cases).  None of the cases dealt with a court’s submission of jury questions during a single trial, the issue in this case and an area in which, Petitioner concedes, trial courts are given “broad discretion.”  Brief at 7.

Despite its lengthy argument on this point, Petitioner fails to cite even a single case holding that a trial court is required to submit the plaintiff’s contributory negligence contemporaneously with the defendant’s negligence.  Nor does Petitioner cite any cases holding that a trial court is required to submit those two issues in one combined question.  The Elbaor case Petitioner repeatedly cites says absolutely nothing about the timing or form of a contributory negligence submission; it merely addressed “Dr. Elbaor’s assertion that the trial court erred by refusing to submit to the jury a question on Ms. Smith’s contributory negligence . . . .”  Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) (emphasis added).  And the Lemos case merely stated that a joint submission of negligence and contributory negligence was “a proper way” to submit the issue in a car wreck case.  Lemos v. Montez, 680 S.W.2d 798, 800 (Tex. 1984).

Neither Elbaor nor Lemos nor any other case cited by Petitioner stands for the proposition that a joint submission is preferred, necessary, or mandatory.  In fact, other courts have approved of jury charges in which issues of negligence were submitted in separate questions.  See Rosell, 89 S.W.3d at 655-6 (in wrongful death case, court upheld trial court’s submission of question regarding negligence of bus driver’s employer which was separate from question regarding negligence of injured motorist, decedent and bus driver);  Miller, 918 S.W.2d at 663-4 (court approved of question regarding act of negligence by store clerk in selling ammunition to minor which was separate from question regarding the negligence of Wal-Mart, the decedent and the decedent’s parents).

As in Rosell and Miller, the trial court in the instant case properly exercised its discretion by submitting separate questions regarding Petitioner’s and Hogue’s negligence.  The trial court’s submission was not only permissible, it also furthered goals of efficiency and judicial economy by deferring the submission of Mr. Hogue’s negligence until after the jury had found Petitioner negligent, much the way courts submit other affirmative defense issues only after an adverse finding on the initial liability question.  Finally, regardless of the form in which the question was asked or the order in which it was submitted, it is unquestioned that Petitioner was permitted to submit to the jury a properly worded question inquiring about Mr. Hogue’s negligence and to obtain a finding on such question.  For this reason, the manner in which the question was submitted to the jury cannot possibly constitute reversible error.

C.        Petitioner has failed to show any harm from the manner in which Mr. Hogue’s negligence was submitted to the jury.

 

1. To obtain a reversal, Petitioner was required to show harm.

Petitioner has failed to show any harm from the manner in which Mr. Hogue’s negligence was submitted to the jury.  And yet it is unquestioned that jury charge error is reversible only if it was reasonably calculated to cause and probably did cause the rendition of an improper judgment:

To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings of the parties, the evidence presented at trial and the charge in its entirety.  Alleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment.

Island Recreational Dev. Corp. v. Republic of Texas Savings Ass’n, 710 S.W.2d 551, 555 (Tex. 1986); Tex. R. App. P. 44.1; Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 582 (Tex. App. – San Antonio 1998, pet. denied) (“Jury charge error is only reversible if, in light of the entire record, the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.”); Vingcard AS v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847, 865 (Tex. App. – Fort Worth 2001, pet. denied) (“Even if a trial court abuses its discretion in refusing to submit a question or instruction, the aggrieved party must establish harm for the error to constitute reversible error.”).      

2.         There was no harm because the contributory negligence question was submitted.

Because the Trial Court submitted Mr. Hogue’s negligence to the jury in a properly worded question, Petitioner cannot possibly demonstrate reversible error.  In fact, the only “harm” Petitioner identifies is the fact that it “was precluded from arguing during closing on Phase 1 any request for a finding of contributory negligence of Hogue.”  Brief at 18.  But Petitioner fails to demonstrate how such a preclusion was reversible error, particularly where it was given a separate closing argument prior to the submission of Mr. Hogue’s negligence in Phase 3 of the trial.  RR 26:64-72.

Petitioner also states that “the right of the defendant to have its affirmative defense submitted must not be determined from the viewpoint of conditions as they appear after the verdict is returned, but from the viewpoint of what the jury might have found from the evidence if the issue had been submitted to them.”  Brief at 14-5.  In each of the cases cited by Petitioner, the precise issue was never submitted to the jury and the court held it was improper to speculate on appeal what the jury might have found if the issue had been submitted.  In the instant case, however, the issue of Mr. Hogue’s negligence was submitted to the jury, and this Court is therefore not forced to speculate as to how the jury would answer such a question.

Also inapplicable to the current case are cases holding that an error in refusing to submit an issue “is not cured or rendered harmless by findings of the jury on other issues that were submitted which have the effect of negating a favorable answer to the requested issue.”  Brief at 15.[1] In the instant case, it is not a finding of the jury on an “other issue” that is relevant, but the jury’s answer to the precise issue — Mr. Hogue’s alleged negligence — that forms the basis of Petitioner’s complaint.

In Phaup v. Boswell, 731 S.W.2d 625 (Tex. App. – Houston [1st Dist.] 1987, no writ), the plaintiff and the defendant were involved in an automobile collision.  At trial, both parties alleged that the other was negligent.  On appeal of a plaintiff’s verdict, the defendant argued that the trial court erred in failing to submit his requested special issue on comparative negligence.  The Court of Appeals agreed that the issue should have been submitted, but held that the failure to submit the issue was harmless “since special issues were submitted to the jury separately inquiring of each party’s negligence, and the jury failed to find any negligence on the part of the appellee …. ” Phaup, 731 S.W.2d at 628; see also Vingcard, 59 S.W.3d at 866 (“Because the submitted charge allowed consideration of VingCard’s affirmative defense of excuse, we conclude the trial court did not abuse its discretion in refusing VingCard’s requested issue on excuse.”).

Similarly, in City of San Antonio v. Doyle, No. 04-98-00286-CV, 1999 WL 89728 (Tex. App.–San Antonio Feb. 24, 1999, pet. denied) (not designated for publication), the city complained that it had not been allowed to submit a separate question regarding whether a firefighter who caused a traffic accident on the way to a fire had acted in good faith, thus entitling the city to official immunity.  The court noted that the same issue was presented to the jury through the negligence question and its accompanying instructions.  The court therefore concluded that any error in the jury charge was harmless:

While separate questions regarding liability and official immunity as an affirmative defense may have constituted a more logical presentation of the issues in this case, the question asked did not deprive the City of its defense, given the accompanying instructions. We therefore overrule the City’s second point of error.

Id. at *5; see also H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 260 (Tex. 1992) (“Because the charge fairly submitted to the jury the disputed issues of fact and because the charge incorporated a correct legal standard for the jury to apply, we hold that the trial court’s refusal to submit Warner’s tendered question and instructions did not amount to harmful error.”).

Petitioner attempts to articulate some type of harm by arguing that the trial court’s charge somehow “tilted” or “nudged” the jury in Respondents’ favor.  Brief at 17.  The cases it cites for this proposition, however, each involved an erroneous jury instruction which, by its very wording, was intended to influence the jury’s deliberation.  See, e.g., Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003) (reversing judgment based on erroneous spoliation instruction whose “very purpose is to ‘nudge’ or ‘tilt’ the jury.”); Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984) (unavoidable accident instruction); Acord v. General Motors, 669 S.W.2d 111, 116 (Tex. 1994) (addressing erroneous instruction in product liability case informing jury that manufacturer was not an insurer of its products and was not required to design an “accident proof” product where instruction was a “comment on the weight of the evidence.”). Here, Petitioner provides no explanation or analysis regarding how the trial court’s method of submission tilted or nudged the jury in any way.

Finally, while Petitioner makes much over the fact the trial court instructed the jury not to reduce its damage award, if any, based on Mr. Hogue’s alleged negligence (Brief at 12, 13), such an instruction is required and would have been given whether Hogue’s negligence was submitted in the same question as Columbia’s or in a separate question.  Tex. R. Civ. P. 277 (“The court shall also instruct the jury to answer the damage question or questions without any reduction because of the percentage of negligence or causation, if any, of the person injured.”).  Because the charge in the instant case allowed the jury to determine the negligence of both Petitioner and Mr. Hogue, any supposed error in the manner of submission was clearly harmless.

 

3.        There was no harm for the simple reason that the evidence did      not mandate submission of the contributory negligence question.

 

a.       Contrary to Petitioner’s innuendo, Mr. Hogue was never    asked by any of the doctors at Columbia whether he had         previously been diagnosed with cardiac problems.

Although the contributory negligence issue was submitted, it was submitted solely out of an abundance of caution by the trial court.  The evidence did not mandate the submission of the issue.  As such, the manner in which it was submitted cannot possibly have caused Petitioner harm.

In it’s Brief, Petitioner states that “Hogue denied any cardiac symptoms or history, and did not inform Blomquist of his previous heart murmur.” Brief at 2.  Petitioner in essence argues that Mr. Hogue should have told his doctors about a previous heart murmur when he was only asked about his current symptoms and their history.  Petitioner makes this argument despite the fact that the questions Hogue was asked did not focus on whether he had been previously diagnosed with a cardiac problem.  As to symptoms, Blomquist asked Hogue whether he was experiencing any chest pain, and he said no.  RR 16:239.  Blomquist then asked Hogue to describe what symptoms he was experiencing.  RR 16:236, 239.  Hogue responded that he was experiencing shortness of breath and a slight cough.  RR 16:236.  When Blomquist asked Hogue whether he had experienced “similar symptoms previously,” i.e., shortness of breath with a cough, he said no.  RR 16:236.  There is no evidence that these answers to Blomquist’s questions were anything other than truthful and complete.

Importantly, at no time did Blomquist or any other doctor ask Hogue if he had previously been diagnosed with heart problems.  Petitioner’s argument therefore boils down to this:  when a man presents to an emergency room in dire condition, experiencing shortness of breath and a cough, he is negligent if he fails to volunteer a previously-diagnosed heart murmur even though the doctor never asks him about previous heart problems.  Brief at 2 (“Hogue . . . did not inform Dr. Blomquist of his previous heart murmur.”), 10 (“Hogue never told him he had a heart murmur.”), 13 (“Hogue’s failure to disclose his prior cardiac history to Dr. Blomquist also affected the type of medical care and treatment Hogue received”).  This same argument was recently rejected by the Houston Court of Appeals in Axelrad v. Jackson, 142 S.W.3d 418 (Tex. App.–Houston [14th Dist.] 2004, pet. filed).  In that case, a man presented to his doctor with flu-like symptoms and abdominal pain.  His doctor examined him, questioned him and recommended treatment.  Later, the patient was found to be suffering from diverticulitis, which necessitated removal of part of his colon and extensive surgeries.  Id. at 421-22.  At trial, the jury found the patient 51% liable and the doctor 49%.  On appeal, the patient argued that his contributory negligence — based on his failure to specifically inform his doctor of the origin of his abdominal pain and of a previous doctor visit in which a colonoscopy had been recommended– should not have been submitted to the jury.  The Court of Appeals first reviewed the factual record and determined that the defendant doctor had never asked specific questions calculated to elicit the omitted information.  Id. at 425-27.  Examining legal precedent from other jurisdictions, the court rejected the notion that a patient has a duty to volunteer medical information to his treating physician:

Following our survey of authority from other states, we hold that a patient’s duty to cooperate includes responding truthfully to a physician’s questions.  A patient has no general duty to self-diagnose or volunteer information. A duty to volunteer information arises only when a patient knows the significance of unrevealed history and knows the physician has failed to ascertain the history.

Id. at 424-25.  Because there was no evidence the defendant asked his patient questions regarding his medical history and no evidence the patient knew the significance of the unrevealed history, the Court of Appeals held that the plaintiff’s contributory negligence should not have been submitted and reversed the trial court’s judgment.  Id. at 427.

For the same reasons contributory negligence need not have been submitted in Axelrad, it need not have been submitted in the instant case.  Here, there is no evidence Mr. Hogue’s physicians ever asked him about previous heart murmurs or cardiac problems.  And there is no evidence Mr. Hogue knew the significance of his unrevealed medical history.  Because there was no evidence mandating the submission of a contributory negligence question in this case, the manner in which the question was actually submitted to the jury cannot constitute reversible error.

b.         The supposed negligence of others is irrelevant.

Petitioner also attempts throughout its Brief to muddle the issue by pointing to statements or omissions made by Mrs. Hogue and by other doctors:

  • “Mrs. Hogue testified that Dr. Gregory Blomquist, the ER physician, asked her whether Hogue had any cardiac history.”
  • “Dr. Story provided no information suggesting any suspicion of flailed mitral valve or other cardiac condition.”
  • “If it had been reported to him by history, by either Hogue or a family member, that he had chest pain, it may have affected his decision making.”
  • “Neither Hogue nor Mrs. Hogue informed the physicians or the Las Colinas staff of his previous cardiac problems.”
  • “Dr. Story provided no information suggesting Hogue had any cardiac condition.”

Brief at 2, 10.  But Petitioner has never alleged that Mrs. Hogue was negligent.   Nor did Petitioner seek to submit the negligence of any of Mr. Hogue’s other health care providers such as Dr. Story.  Thus, what these other third parties may or may not have told the doctors at Columbia is entirely irrelevant and is cited time and again by Columbia solely to confuse the issue.[2]

c.          There was no evidence Dr. Blomquist would have acted differently had he known of Hogue’s previous heart murmur.

Contrary to Petitioner’s assertions, there was no evidence Dr. Blomquist would have acted differently had he known of Hogue’s previous heart murmur.  Importantly, Dr. Blomquist testified that he did search for a cardiac cause for Mr. Hogue’s problem:

3         Q.  In the time that you were there physically hands‑on

4    involved in Mr. Hogue’s care, based upon the information that

5    Mr. Hogue and his family did give you, did you go and search

6    for a cardiac cause for Mr. Hogue’s problem?

7         A.  Yes, sir, I did.

RR 16:239.  Blomquist further testified that in such search he specifically did not hear a murmur (RR 16:185), but did hear an extra heart beat (RR 17:21) and an abnormal gallop (RR 17:22).  Furthermore, Dr. Blomquist testified that Hogue had palpitations and a racing heart. RR 17:11.  As a result of his examination and testing of Hogue, Blomquist put congestive heart failure and mitral valve insufficiency on his differential immediately. RR 17:89.  In fact, cardiac condition was among the top five, if not the top two, items on his differential.  RR 16:187-88.[3]

In it’s Brief, Petitioner states that “Hogue denied any cardiac symptoms or history, and did not inform Blomquist of his previous heart murmur.” Brief at 2.  As for cardiac “history,” it is important to note the specific questions Blomquist asked Mr. Hogue:

8         Q.  And what is it that you did in order to search for

9    that, sir?

10         A.  The first part of searching in my mind is the

11    history.  And I specifically asked him, as you can see by

12    this T‑sheet, by this template, about specific cardiac

13    problems.  This is a man who could not breathe.  I asked him,

14    do you have any chest pain?  Do you have any family history?

15    Do you have any risk factors for any type of heart disease,

16    which include smoking, which include family history, which

17    include a previous history problem of high cholesterol, high

18    blood pressure.  He had none of those.

RR 16:239.  Contrary to Petitioner’s misrepresentation, it was Hogue’s honest and complete response to these questions — not an alleged failure to disclose a history of a heart murmur — that caused Blomquist to move cardiac lower on his differential:

19         Q.  And how did that affect your search for a potential

20    heart problem, given the fact that he denied having any of

21    those types of symptoms or history?

22         A.  To my mind, it moved a heart problem lower on the

23    list.

* * * * * * *

20    And I noted that not only did he

21    not have any heart condition in his family, but that I was

22    told his mother and father ‑‑ the arrows up signify were

23    alive in their 90’s.

24         Q.  In their 90’s meaning they were age 90’s?  That they

25    had lived that long?

1         A.  Yes, sir.

2         Q.  What ‑‑ what information did that give to you with

3    respect to the consideration of whether Mr. Hogue was

4    suffering from a cardiac condition, given the fact that he

5    had this family history?

6         A.  It put it lower on my differential list.

RR 16: 239; RR 17:14-15.

As for “symptoms,” Petitioner argues repeatedly that Dr. Blomquist would have acted differently had Hogue reported chest pains:

  • “Based on the information he had, including the negative past history and Hogue’s presentation without chest pain, he did not order Hogue transferred to a different facility because he did not believe Hogue had a cardiac condition.”
  • “If it had been reported to him by history, by either Hogue or a family member, that he had chest pain, it may have affected his decision making.”
  • “He would have considered a cardiac cause higher on the list than he did when he did not have any chest pain or cardiac symptoms – that would possibly have meant he would have considered obtaining a consultation from a cardiologist or requesting an echocardiogram.”

Brief at 10.  But these allegations completely miss the mark, since there is no evidence that Hogue was experiencing chest pains when he arrived at the hospital!  The only symptoms Hogue said he was experiencing — and there is no evidence he was experiencing any other symptoms at the time — were “shortness of breath times three days, and a slight cough.”  RR 16:236.  Petitioner’s observation that if Hogue’s true symptoms had been different than they actually were, his treatment may have been different is not only stating the obvious, but adds nothing to this Court’s analysis of the contributory negligence issue.  Moreover, even the testimony that Blomquist “may” have acted differently if Hogue had chest pains is speculative and conjectural:

24       Q.  (BY MR. WENTZ)  Let me ask it in the event that we

25  didn’t.  If it had been reported to you by history, by either

1  Mr. Hogue or one of his family members that he had chest

2  pain, would that have effected your care?

3       A.  It may have effected my decision-making.

4       Q.  And how would it have effected your decision-making

5  concerning Mr. Hogue’s care?

6       A.  I would have had to consider a cardiac cause higher

7  on the list than I did when he did not have any chest pain or

8  cardiac symptoms.

9       Q.  And if you would have considered that cardiac cause

10  higher on that list, would that have meant you would have

11  considered obtaining a consultation of a cardiologist?

12       A.  Possibly.

13       Q.  Would that have meant that you would have considered

14  requesting an echocardiogram?

15       A.  Possibly.

 

RR 17:72-73 (emphasis added).  Such speculation did not rise to the level of reasonable medical probability and did not justify the contributory negligence submission.

Clearly, it was not anything Mr. Hogue did or did not do that caused his death.  Rather, it was Petitioner’s failure to have adequate systems in place to treat critically ill patients.  According to the trial record, because Dr. Blomquist immediately knew that a cardiac condition was one of the likely causes of Hogue’s symptoms, he knew he needed a critical care specialist within seconds of Hogue’s arrival to the emergency room.  RR 17:49.  Unfortunately, the hospital did not have a list of on‑call pulmonologists or an on‑call list of intensivists on that day and Blomquist did not know of any pulmonologists or intensivists besides Dr. Schroeder that he could call.  RR 16:204-05.   Blomquist further testified that he called Schroeder within minutes of Hogue’s arrival, made Schroeder aware of the gravity of Hogue’s condition and expected that he would arrive at the hospital within 30 minutes of the call, as he recorded in the medical record. RR 17:37, 75-8; RR 16:206, 210.  Blomquist further testified that he had to call Schroeder again around 11:10 because Hogue was ready to be transferred to the ICU, but that the Schroeder  had not arrived at the hospital yet.  RR 16:210-11.

Even though Schroeder was called by Blomquist around 9:05 a.m., and even though Hogue was transferred to the ICU at Columbia around 12:30, Schroeder was still at Harris HEB treating patients at 1:10 and did not arrive at Columbia until approximately 1:30.  RR 17:112-14.  The reason for this delay was that Schroeder had a commitment at other hospitals, including Harris HEB, but no such commitment to Columbia.  RR 17:106-09.  Even worse, Schroder was obligated to leave Hogue unattended by a physician and return to Harris HEB to  tend to his other patients after spending only two hours at Columbia because he was not on-call at Columbia. RR 17:120-23.  When he left Columbia, Dr. Schroeder was unaware that the echocardiogram he had ordered be done “immediately” would not be done for hours because Columbia had failed to contract for the provision of “stat” echoes. RR 17:118- 122; RR 20:248-49.

d.       There was no evidence Dr. Schroeder would have acted       differently had he known of Hogue’s previous heart    murmur.

 

As stated above, Petitioner alleges that Mr. Hogue was negligent because he failed to inform his doctors of a previously diagnosed heart murmur.   But Dr. Schroder, the critical care specialist called by Dr. Blomquist shortly after he evaluated Hogue, dismissed the usefulness of evidence of a previous heart murmur:

5         Q.  Would that have been the kind of information doctor,

6    that you would have wanted to have included in and known

7    about in Mr. Hogue’s history?

8         A.  It’s not something that I routinely ask about.

9         Q.  Okay.  Would that have been something; namely,

10    history of heart murmur and complaints of onset of chest

11    pain, would that be the kind of symptom that you as a

12    critical care specialist would want to know about of a

13    patient?

14         A.  I did ask about chest pain, and he ‑‑ there was no

15    report of any chest pain.  I don’t usually ask about heart

16 murmurs, and that’s not a bit of information that I would

17  find useful in an initial history.

RR 18:69 (emphasis added).  There is no evidence that Dr. Schroeder — or any of the other doctors — would have acted differently had he known of Hogue’s previous heart murmur.

Petitioner also asserts that Dr. Schroeder “formed impressions concerning Hogue’s medical condition (sepsis and leukocytosis) that did not include a cardiac condition.” Brief at 11.   This is false.  In fact, Schroeder testified that when he arrived at the hospital, the first thing he did was look at Hogue’s X-rays which had been taken earlier and immediately concluded that Hogue’s diagnosis was either pneumonia or cardiogenic cause, meaning something related to the heart. RR 18:64-65.  Moreover, Schroeder testified that prior to his arrival at Columbia, he had called ahead and requested that a Swan Ganz catheter be ready for his use with Hogue (RR 18:137) and that the information he received from performing the procedure after he arrived at the hospital:

6     . . . allowed me to know that some of the pressures in

7    the chest were abnormal, leading me to think that perhaps

8    this was ‑‑ the cause could be related to the heart that was

9    causing Mr. Hogue to be having problems. . . .

22    By the fact that the pressures were elevated, it

23    pretty much by definition tells me that a problem with the

24 heart is a potential ‑‑ is a potential situation that’s going

25    on, just by definition.

RR 17:138-139 (emphasis added).

Schroeder also testified that he called Dr. Lawson, a cardiologist, for a cardiology consult immediately and told him specifically about the “information he had received from the Swan‑Ganz Catheter, namely, the elevated wedge pressures that suggested to you potential heart involvement.” RR 17:97-98, 140.  In fact, Dr. Lawson was the only consult included in Dr. Schroeder’s initial plan of care, specifically because Schroeder wanted the cardiologist to evaluate the pressures that were obtained with the Swan‑Ganz catheter.  RR 17:85, 91.  Lawson also testified that after Schroeder described Hogue’s case to him, that they discussed the need for an echo (RR 22:93), which further supports the fact that a cardiac source was on the top of everyone’s list.

Unfortunately for Mr. Hogue, Dr. Lawson Also had a commitment to other hospitals, but not Columbia.  As a result, Lawson told Schroeder that he would not be able to come right away, but would come to Columbia as soon as he could.  RR 17:140-41.   Due to his commitments at other hospitals, Lawson, who Schroeder called around 1:30, shortly after he arrived at Columbia, did not arrive to see Hogue and view the echo until around 8:30 that evening.  RR 22:98.  By that time, Mr. Hogue had been transferred to Baylor Irving where he “coded” at 8:46 p.m. and was pronounced dead about an hour later at the age of 52.  RR 22:98-9;  RR 20:226-28.  Simply put, the evidence established that it was Columbia’s deficient policies and procedures that caused Bob Hogue’s death, not any alleged act of negligence by Mr. Hogue.

e.         There was no expert medical testimony at trial that any act of negligence by Hogue proximately caused his death.

Finally, “there must be some evidence or proof of a causal connection between the alleged contributory negligence and the subject injury.”  Axelrad, 142 S.W.3d at 427; Sendejar v. Alice Phys. & Surgeons Hosp., Inc., 555 S.W.2d 879, 885 (Tex. Civ. App.–Tyler 1977, writ ref’d n.r.e.) (“[t]he contributory negligence of the patient must have been an active and efficient contributing cause of the injury made the basis of the patient’s claim”).  It is well established in Texas that a matter of medical causation “is a question of science determinable only from the testimony of expert medical professionals,” and that “causal connection in such a fact situation must rest in reasonable probabilities.”  Ins. Co. of North Amer. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966); see also Lenger v. Phys. General Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970).  The trier of fact will be permitted to decide the question of breach and causation without expert testimony only “when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition.”  Lenger, 455 S.W.2d at 706.

Whether Hogue’s alleged failure to recall and offer to his treating physicians in March of 1998 something a physician may have told him two years earlier — for which he was asymptomatic and about which he was not asked — proximately caused his death is not a matter on which “general experience and common sense will enable a layman fairly to determine.”  As a result, expert testimony to a reasonable degree of medical probability was required to prove such negligence, as the Trial Court properly recognized.  RR 17:72.  Because Petitioner offered no such evidence at trial, the submission of a contributory negligence question was not warranted and the method by which it was ultimately submitted is therefore immaterial.

D.         The Court of Appeals properly analyzed the issue.

Petitioner claims that the Court of Appeals failed to properly analyze this issue of alleged charge error.  This is simply false.  The Court of Appeals applied the proper standards to its review and carefully articulated the basis for its decision:

To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety to determine if the trial court abused its discretion. A reversal is warranted when the trial court denies a proper submission of a valid theory of recovery raised by the pleadings or the evidence. A reversal is also warranted when the trial court denies a proper submission of a valid defense theory that is raised by the pleadings or the evidence. We do not reverse unless harm results. For harm to result, the error must probably cause the rendition of an improper judgment. After reviewing the entire charge, the pleadings, and the evidence produced at trial, we cannot conclude the way in which the trial court submitted the contributory negligence issue was in error or harmful. The issue was ultimately submitted, and the jury answered it in the negative. The fact the issue was submitted after the liability issue is inapposite. Even were the submission timing in error, it cannot be said the error probably caused the rendition of an improper judgment. The trial court did not abuse its discretion. We overrule appellant’s second issue.  There is simply no basis to overturn the Court of Appeals’ ruling.

Columbia Medical Center of Las Colinas v. Hogue, 132 S.W.3d 671, 679 (Tex. App.–Dallas 2004, pet. filed).

E.        Petitioner has waived the alleged charge error.

Because the trial court actually submitted the comparative negligence question tendered by Petitioner, Petitioner’s true complaint is not one of omission, but rather one of commission, i.e., that Question 1 was improperly worded because it did not include Mr. Hogue’s alleged negligence.  As such, Petitioner was required to object to the submission of Question 1 in order to preserve error.  See, e.g., Russell v. City of Bryan, 919 S.W.2d 698, 707 (Tex. App. – Houston [14th Dist.] 1996, writ denied) (“To preserve error, a party is required to object to the submission of an erroneous question, instruction, or definition.”); Doe v. Mobile Videotapes, Inc., 43 S.W.3d 40, 50 (Tex. App. – Corpus Christi 2001, no pet.) (“Courts have insisted that whether or not a party tenders a correct issue, he must first object to the defect in the court’s charge.”).

Although Columbia admits in its Brief that it “was required to object and tender,” its statement that “Petitioner did so” is patently false.  Brief at 18.  While Columbia tendered questions to the court regarding Mr. Hogue’s negligence and the comparative negligence of Hogue and Columbia, Petitioner never objected to the submission of Question 1.  RR 24:37:5-7 (“[w]e have no objection to Question 1, Your Honor.”).  Nor did Columbia object to the submission of Question 7, the comparative negligence question.  RR 26:58.  As this Court has held, “[o]bjections to the charge and requests for submission of issues are not alternatively permissible methods of complaining of the charge.”  Hernandez v. Montgomery Ward & Co., 652 S.W.2d 923, 925 (Tex. 1983), overruled on other grounds by Acord v. General Motors, 669 S.W.2d 111 (Tex. 1984); see also Boorhem-Fields, Inc. v. Burlington Northern Railroad Co., 884 S.W.2d 530, 535 (Tex. App. – Texarkana 1994, no writ) (“When a defectively framed issue is contained in the proposed charge, the tender of a correct issue does not preserve error.”).  As a result, Petitioner has waived any error in the trial court’s submission of Question 1.

II.        Legally and Factually Sufficient Clear and Convincing Evidence Exists to Support the Jury’s Finding of Gross Neglect.

A.        Sufficient clear and convincing evidence – objective prong.

1.         Lack of stat echo capability.

From Petitioner’s point of view at the time it opened the hospital and entered into the contract for echocardiogram services, there was a high probability, if not a certainty, that a life-threatening medical emergency requiring stat echo services would occur.[4] Scott Montgomery, Petitioner’s Director of Outpatient Services, testified that it was “obvious” and “elementary” that a hospital with an emergency department is going to need to provide echoes on a stat or emergency basis.  RR 21:234-35.  He also testified that providing a quality study by an echo tech is an important service in patient care because it is a diagnostic tool that a cardiologist will need to make a diagnosis and anticipate treatment that will be provided.  RR 21:186.  Furthermore, Montgomery testified Petitioner knew that the timeliness with which echoes are completed is important because “[t]he cardiologists are going to have an expectation that on occasion you’re going to need studies done on a ‑‑ on an emergency basis, and the results need to be available to that cardiologist when they come to treat the patient and assist in the diagnostic process.”  RR 21:194.  Finally, Montgomery’s admission that had he been approached by a physician regarding the need for a stat echo, he would have advised the physician to start the transfer process, shows further support that, objectively, from the hospital’s point of view, there was a high probability of extreme risk.  RR 20:251-52.

Such evidence is more than a scintilla supporting the fact that, from Petitioner’s point of view, at the time it opened the hospital and entered into the contract for echocardiogram services, there was a high probability, if not a certainty that a life-threatening medical emergency would occur.  Despite such knowledge, Petitioner failed to enter into a contract which would provide echoes on a stat basis.  RR 20:248-49.  As the Court of Appeals recognized, “[t]hese facts indicate that from the hospital’s point of view, there was a high probability of extreme risk. Despite this knowledge, Petitioner failed to enter into a contract for echocardiogram services on a ‘stat’ basis.”  Hogue, 132 S.W.3d at 682.

Columbia’s failure to contract for stat echo capability was only compounded by its failure to inform the doctors working at the hospital of this limitation.  For example, Dr. Blomquist testified that in the seven months he had been working at Columbia since it opened, no one on behalf of the hospital told him that the hospital outsourced its echoes, that the hospital did not get a time commitment concerning the outsourcing, and that the hospital could not do an echocardiogram on a “stat” basis.  RR 16:217-19.   Similarly, Dr. Schroeder, who was the Director of the ICU at Columbia, was unaware at the time he placed an order for a “stat” echo that Columbia had outsourced its echocardiograms.  RR 17:123.  As a result, Schroeder was unaware how long it would take for the “stat” echo to be performed and was unable to obtain that information from hospital personnel.  RR 17:121; RR 18:99-101.  This evidence of Columbia’s complete failure to inform its doctors of the hospital’s limitations clearly supports the jury’s finding of gross neglect.

2.         Lack of prospective on-call list by specialty.

Petitioner’s COO Pat Sullivan testified that the hospital knew that it was responsible for ensuring that there were sufficient staff on call to the emergency room to care for patients if needed, and that it would be a problem if a doctor did not know who to call when a specialist was needed.  RR 18:165; RR 19:57-58; RR 19:61-62.  Further, she admitted she would be critical of any hospital which did not have an effective process for having on‑call physicians available by specialist. RR 18:185; RR 19:61-62.  Consistent with this concept, Petitioner’s hospital administration expert testified that prospective on-call awareness is required to allow doctors to be able to commit themselves to a hospital, and that all hospitals of which he knows have such lists. RR 22:224-25; RR 22:229-30.  And Respondents’ hospital administration expert testified that an on-call list by specialist was required by EMTALA, a federal guideline providing regulations for all U.S. hospitals.  RR 20:14, 21.

Moreover, Petitioner intentionally held itself out as having a full service ER with ancillary services including echocardiogram services, the latest in high‑tech equipment, and a cardiology department with full knowledge that it did not have a contract for stat echo guaranteed response time, with full knowledge that it did not have a list of on-call specialists, including cardiologists, and with full knowledge that the latest high-tech equipment was useless without the staff to use it.  See PX 2A; RR 18:191-93; RR 19:40-41.  Petitioner promoted its emergency room as one of the primary services of the hospital and held itself out as having a full service emergency room which provided “real service, real fast.” RR 18:172, 178.  The Hospital brochure actually stated:

At Las Colinas Medical Center we understand that an emergency needs to be treated as just that, an emergency.  That’s why we are able to treat and release most patients in less than two hours.  Offering full‑service emergency care 24 hours a day, 7 days a week.  Our exceptional nursing staff, physicians and ancillary services gets you in and out as quickly as possible while still providing the best medical care to you and your family.

See PX 2A; RR 19:40.

Moreover, Petitioner anticipated that there would be cardiac needs arriving at the hospital and advertised and promoted that it had a cardiology department.  RR 19:41; RR 18:191.  In fact, the Service Needs Analysis specifically projected that 21 echocardiograms would be needed out of the ER. PX 3A; RR 19:43-44.  Columbia’s inclusion of these important services in its Service Needs Analysis and Advertising Brochures shows that from its point of view at the time it opened and set up the hospital, it understood the extreme risks associated with not providing such services to the public in a complete and timely manner, and specifically knew of the probability of having cardiac/echo issues, and the magnitude of the risk involved.

The foregoing facts show that from Petitioner’s point of view, at the time it opened the hospital and drafted these documents, there existed a significant probability that a patient coming to its emergency room would require timely care by, and a rapid response from, a physician not present in the hospital, and that the magnitude of the harm which flows from not having an effective system would be significant.  Despite such knowledge, Petitioner had no on-call list by physician specialty, including no on-call list for cardiologists or pulmonary specialists.  20:256-57.  As the Court of Appeals observed in upholding the finding of gross neglect:

These facts indicate that from the hospital’s point of view, there was a high probability of extreme risk by not having a list of on-call physicians by specialty. Appellant advertised itself in the community as having a full service emergency room, open 24 hours a day, seven days a week. Despite this knowledge of extreme risk and the advertisements concerning full service, appellant failed to create an on-call list by specialty as required under federal guidelines.

Hogue, 132 S.W.3d at 682.

B.        Sufficient clear and convincing evidence – subjective prong.

1.         Lack of stat echo capability.

 

According to Scott Montgomery, Petitioner’s Director of Outpatient Services, the hospital had actual knowledge that there would be a need for echo services out of the emergency room.  RR 21:167-68.  Montgomery also testified that the hospital had actual subjective knowledge that it would cost $3 per hour to guarantee an emergency response time, and had actual subjective knowledge that if it did not pay the fee, there would be no guarantee that services were going to be available.  RR 20:248-49.  Nevertheless, the Hospital chose not to pay the fee and therefore not to guarantee any response time.

Montgomery further testified that Petitioner had actual subjective knowledge that the echo contract did not provide stat or immediate services.  RR 20:250.  And he admitted that a hospital has a responsibility to communicate to its physician and nursing staff that an echocardiogram could not be provided on a stat basis.  RR 21:231-32.  Nevertheless, he admits that he did not communicate with the physician and nursing staff on this issue, and has no explanation as to why Dr. Schroeder did not know what he could expect when an echo is ordered on a stat basis.  RR 20:250-51; RR 21:228-30.

Further support for the fact that Columbia consciously disregarded known risks can be found in the testimony of Mort Graham, the echo tech with whom it contracted for services.  Graham testified that he was not obligated to do stat services at Columbia because they did not exercise that option in the contract.  RR 21:105-06. Graham testified that he met with Montgomery and advised Montgomery of the availability of an on-call guaranteed response time and that he followed up with Montgomery on several occasions, but the Hospital was never interested.  RR 21:110; RR 21:138-40.  Graham further testified that if the hospital wanted to pay to guarantee a response time within 30-45 minutes, he could have provided such service, and that there would have been some benefit to the hospital to pay the fee and guarantee the availability, but that he never discussed with Montgomery what the expected response time would be because the hospital was not interested.  RR 21:140; RR 21:161; RR 21:138-40.

Petitioner’s CEO, Stan Morton, acknowledged that if a doctor orders a stat echo, it is the hospital’s duty to execute the order in a stat manner, yet the hospital does not even know if it has such capability.  RR 22:48.  Morton admitted that the hospital needs to be sure that its staff knows what to expect when ordering a stat echo, but that the hospital never communicated to its staff that it could not provide stat echo services. RR 20:256; RR 22:49-50;  RR 22:73.  Moreover, Morton admitted he signed the contract for echo services but does not even know what an echocardiogram is and never had the contract reviewed by a medical provider.  RR 20:255-56.

CEO Stan Morton further testified that Petitioner made decisions with respect to the services to be offered based in part upon the Service Needs Analysis.  RR 20:254-55.  Even though Petitioner had subjective awareness that the Service Needs Analysis projected that 21 echoes “would be referred from the ER,” the hospital did not have an employee providing echo services and consciously chose not to pay the guaranteed response time fee or to otherwise contract for echo services on stat basis. RR 20:253-56.  The Court of Appeals recognized as much when it stated as follows:

The Director of Outpatient Services testified the hospital had actual knowledge that there would be a need for echocardiogram services originating from the emergency room. He also testified the hospital knew that it could arrange for echocardiogram on-call services on a ‘stat’ basis for an additional charge of $3 per hour. It knew that if it did not pay the fee, there was no guarantee services would be available. In conscious indifference to the safety and welfare of others, it chose not to pay the fee and guarantee a response time. Furthermore, the hospital did not communicate to its physicians and nurses that an echocardiogram could not be guaranteed on a ‘stat’ basis.

Hogue, 132 S.W.3d at 682.  Moreover, Petitioner did not talk with any medical provider, any other hospitals, or anyone at Columbia/HCA in an effort to determine how such a situation would impact the medical care at the Hospital.  RR 20:253-56.

Petitioner relies on the testimony of Director of Outpatient Services Montgomery wherein he claims he decided to outsource the hospital’s echo services based on the advice of a Dr. Overbeck.  Petitioner fails to refer the Court, however, to the testimony of Montgomery wherein he admits that he testified at deposition on December 15, 2000, that he did not recall talking with anyone, including Dr. Overbeck, about the echo contract or the implications of not contracting for stat services. RR 21:214-16.  Even if advice was obtained from Dr. Overbeck, it does not negate the fact that Petitioner opted not to pay $3/hour for emergency echo services knowing that such services would be needed.

Petitioner also relies on the testimony of Mort Graham, the echo tech with whom Columbia contracted, for the proposition that Montgomery was satisfied with Graham’s qualifications and that he would meet the hospital’s needs.  Again, Petitioner fails to refer the Court to the testimony of Graham wherein Graham testified that he met with Montgomery and advised Montgomery of the available services, including the on-call guaranteed response time if the hospital was interested, and that he followed up with Montgomery on several occasions regarding the on-call fee and guaranteed response time, but the Hospital was never interested.  RR 21:110; RR 21:138-40.  The foregoing facts shows Petitioner’s conscious disregard for the safety and welfare of its patients.

2.  Lack of prospective on-call list by specialty.

Petitioner had actual, subjective awareness that it did not have an on-call list by specialty; at the time the hospital opened, it had no on-call list and knew that it had no on-call list.  RR 22:80-81.  Yet Sullivan, the COO since prior to the hospital’s opening, claimed to be surprised that the ICU and ER doctors said there was no on‑call list of doctors by specialty for the hospital in March of 1998.  RR 18:184.  Further, she had no explanation as to why the hospital physicians did not know who to call when in need of a specialist.  RR 19:61.

Petitioner’s hospital administration expert testified that prospective on-call awareness is required to allow doctors to be able to commit themselves to a hospital.  RR 22:229-30.  And yet he admitted that Columbia had no such lists.  RR 22:224-25, 231-32.  Columbia CEO Stan Morton also admitted that the hospital did not have an on-call list by specialty. RR 22:80-81.

Petitioner had experience writing hospital policies, and knew of the importance of a physician’s response time in providing care to patients, and of the importance of requiring doctors to be on call to the ER, as evidenced by the By-Laws, Plans of Care, and what it called a “primary on call list.”  RR 19:93, 96; PX14A; PX14B.  Yet Petitioner did not clearly state in its Plan of Care whether the physician 30-minute response time to the ER was by telephone or in person, and did not have an on-call list by specialty. RR 19:54-55, 61.            Petitioner’s knowing failure to have an on-call list by specialty notwithstanding such knowledge shows Petitioner’s conscious disregard of the rights, safety and welfare of its patients.

Petitioner knew that it did not have a list of cardiologists or pulmonary specialists who were on call on a specific day, yet advertised in its brochures that it had a full service ER with “physicians and ancillary services” that can get a patient in and out in less than two hours.  RR 20:256-58.    Petitioner’s CEO admitted that the hospital should convey accurately to the public what it can and cannot provide.  RR 22:73.  Yet the Hospital intentionally held itself out as having a full service ER with ancillary services including echocardiogram services, the latest in high‑tech equipment  and a cardiology department  with full knowledge that it did not have a contract for stat echo guaranteed response time, with full knowledge that it did not have a list of specialists, including cardiologists, on call to its hospital, and with full knowledge that the latest high-tech equipment was useless without the staff to use it.  See PX 2A; RR 18:191-93; RR 19:40-41.  The foregoing facts show Columbia’s conscious disregard of the rights, safety and welfare of its patients, justifying the finding of gross neglect.

III.      The Loss of Inheritance Damage Award Is Supported by Legally Sufficient Evidence.

 

In ruling on Petitioner’s legal sufficiency objection, this Court must “consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor.”  St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002).  This Court will sustain a legal insufficiency point only if there is “no more than a scintilla of evidence” of the challenged finding.  Id. at 520.  As set forth below, there is ample evidence supporting the jury’s award of loss of inheritance damages.

A.        There was ample evidence that Athena Hogue probably would have outlived her husband.

Respondents clearly introduced evidence that Athena Hogue would probably have outlived her husband.  For example, Respondents adduced testimony that Athena Hogue was 53 years old at the time of trial while Robert Hogue would have been 56 at the time of trial. RR 22:93.  Respondents also introduced, without objection, life expectancy tables demonstrating that Athena Hogue’s life expectancy at the time of trial was an additional 29.1 years, while her husbands life expectancy would have been an additional 22.2 years.  See PX 86.  The jury also observed Mrs. Hogue’s appearance and demeanor at trial, heard testimony regarding her employment and was presented no evidence by Petitioner that she had any health problems.   The Court of Appeals carefully considered this evidence in affirming the jury’s award of loss of inheritance damages:

The evidence supporting the award for loss of inheritance includes life expectancy tables introduced into evidence which indicate decedent’s wife would live 6.9 years beyond that of decedent’s natural life had he lived. There was also evidence she had no health problems.

Hogue, 132 S.W.3d at 684.  Based on this evidence, the jury was free to conclude that Athena Hogue in reasonable probability would have outlived her husband.

B.        There was sufficient evidence that Mr. Hogue’s earnings would outweigh his expenses.

 

There was sufficient evidence that Mr. Hogue’s earnings would outweigh his expenses. Respondents’ economic expert, Dr. Allen Self, specifically accounted for Mr. Hogue’s likely expenditures in support of his family.  In fact, the entire loss of inheritance damage figure was based on an estimated savings rate of 10% of Mr. Hogue’s salary as well as 401k contributions of 5% of his salary.  PX 84 at p. 3.  As such, this calculation assumed that 85% of Mr. Hogue’s salary would go towards supporting his family.  Moreover, the assumptions on which Dr. Self based his calculations in this case were supported by historical facts:  Mr. Hogue had been investing 5% of his salary in his 401k and had been saving a great deal of his salary as evidenced by the fact that at the time of his death, Mr. Hogue had accumulated $65,000 in cash or money market funds, almost $51,000 in common stock and equity in his home of $85,000, for total savings of over $200,000.  PX 86 at p. 3; R.R. Vol. 20, p. 160.  As the Court of Appeals concluded, “[t]here was evidence introduced from which the amount of the estate could be reasonably calculated.”  Hogue, 132 S.W.3d at 684.[5]

Moreover, Dr. Self provided a detailed economic analysis of the Hogue family’s earnings and spending to support his opinion that an estate in the amount of $306,000 would have been built up and left to Mrs. Hogue.  The evidence on which Dr. Self based his analysis included the following:

a.         Evidence of past and future lost earning capacity.  PX 84, p. 2.

b.         Evidence of past and future loss of household services.  PX 84, pp. 2-3.

c.         Evidence of Mr. Hogue’s prior earnings through his employment records and tax returns.  RR 20:139.

d.         Evidence of Mr. Hogue’s likely raises and bonuses.  RR 20:178-79.

e.         Evidence of Mr. Hogue’s past and future fringe benefits.  PX 84, p. 2.

f.          Evidence of Mr. Hogue’s 401k contributions and the matching contributions of his employers.  RR 20:186.

g.         Evidence of Mr. Hogue’s personal consumption.  RR 20:147-51.

h.         Evidence regarding the expected life expectancies of Mr. and Mrs. Hogue.  PX 86.

i.          Evidence that Mr. Hogue’s will left his entire estate to his wife, Athena. RR 20:193; RR 16:139-40.

j.          Evidence of Mr. Hogue’s savings during his lifetime.  RR 20:160; PX  84, p. 3.

Reviewing this evidence, the Court of Appeals concluded that “the economic expert provided a detailed analysis wherein he arrived at a dollar amount for the future expected estate of decedent.”  Hogue, 132 S.W.3d at 684.  This evidence clearly supported the jury’s conclusion that Mr. Hogue’s earnings would have exceeded his expenses as they had during his lifetime.  While Petitioner claims that the foregoing detailed evidence was inadequate to support the loss of inheritance damages, the Court of Appeals properly noted that the “level of evidentiary detail appellant seeks would eviscerate lost inheritance damages.”  Id. Petitioner’s legal sufficiency challenge should be rejected.

IV.      The Court of Appeals Properly Interpreted the Post-Judgment Interest Statute.

 

In Columbia Medical Center v. Bush, 122 S.W.3d 835, 864-66 (Tex. App.- Fort Worth 2003, pet. denied), Petitioner, represented by the same counsel herein, made the same arguments regarding post-judgment interest as those made in its Brief in this case.  In effect, Petitioner argued then and argues now that the phrase “subject to appeal” in Section 304.003(c) of the Texas Finance Code really means “on appeal” rather than “capable of being appealed.”  The Fort Worth Court of Appeals rejected this argument in Bush, citing a long line of cases in which the phrase “subject to appeal” was interpreted as meaning the judgment “fully and finally disposes of all parties and is therefore capable of being appealed.”  Id. at 865.  The court held that “giving the statutory language its plain meaning, the amendments to finance code section 304.003(c) apply to cases where a judgment is signed on or after the effective date of the Act and to cases where a judgment becomes subject to appeal, i.e., capable of being appealed, on or after the effective date of the Act.”  Id. Significantly, this Court denied Columbia’s Petition for Review in the Bush case.

Like the Fort Worth Court of Appeals in Bush, every court that has been presented with the argument advanced by Petitioner herein has rejected it.  See, e.g., City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 388-89 (Tex. App.–Dallas 2004, no pet. h.); In re Kajima Int’l, 139 S.W.3d 107, 117 (Tex. App.–Corpus Christi 2004, no pet.); Bennett v. Cochran, No. 14-00-01660-CV, 2004 WL 852298 at *7-8 (Tex. App.–Houston [14th Dist.] April 22, 2004, no pet.); Sibley v. RMA Partners,L.P., 138 S.W.3d 455, 459 (Tex. App.–Beaumont 2004, no pet.); Utts v. Short, No. 03-03-00512-CV, 2004 WL 635342 at *5-6 (Tex. App.–Austin April 1, 2004, pet filed); Tesfa v. Stewart, 135 S.W.3d 272, 279 (Tex. App.–Fort Worth 2004, pet. denied);  Burke v. Union Pacific Resources Co., 138 S.W.3d 46, 74 (Tex. App.–Texarkana 2004, pet. filed).  Clearly the Court of Appeals did not err by concluding that the amendments to the post-judgment interest statute do not apply to this case because both the judgment and amended judgment herein were signed well before the effective date of the Act.  Hogue, 132 S.W.3d at 688 (“Because the judgment in this case was both signed and subject to appeal before September 1, 2003, the amended statute setting post-judgment interest rates does not apply.”).

CONCLUSION AND PRAYER

For the reasons set forth above, Respondents respectfully pray that the Court deny the Petition for Review and grant Respondents such other and further relief to which they may be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)


[1] Petitioner practically concedes the inapplicability of the cases cited for this proposition when it admits that “these cases do not involve the unprecedented trifurcation procedure utilized by the trial court here, and further, interpreted charge error analysis prior to this Court’s adoption of broad form submission . . . .”  Brief at 15.

[2] Petitioner also seeks to mislead the Court through its use of  cleverly-worded headings in its Brief.  For example, Petitioner states in heading “b” on page 1 of its Brief that “Hogue Presented to Dr. Story Without Providing History of Cardiac Findings.”  Brief at 1.  Petitioner fails, however, to provide any citation to the record for this accusation.  Nor does Petitioner inform the Court what questions, if any, Dr. Story asked Mr. Hogue and what answers, if any, Mr. Hogue gave him.  Petitioner also alleges through one of its headings that Mr. Hogue “provided no medical history” when he was admitted to the hospital.  Brief at 1, heading C and 2, heading D.  Once again, Petitioner provides no cite to the record for these accusations, which are false and misleading given the information Mr. Hogue provided to Dr. Blomquist as described above.

[3] Although Petitioner alleges that Nurse Katherine Jensen testified that “Hogue was not considered a cardiac patient when she began reading the progress notes and orders in ICU,” (Brief at 11), Jensen admitted that she only “began to read the progress notes, but was focusing on the orders. . . .” RR 22:181.  She also admitted that she never looked at the Swan Ganz readings that showed pressure in Mr. Hogue’s heart and never spoke to Dr. Blomquist, the ambulance drivers, any of the other ER nurses or anyone else regarding what they observed with Mr. Hogue.  RR 22:181-82.

[4] A summary of some of the evidence supporting the existence of gross negligence can be found in the trial court’s Findings and Conclusions Regarding Exemplary Damage Award.  CR 9:2903-04.

[5]This Court should note that the Court of Appeals was confronted with the more rigorous factual sufficiency challenge to the loss of inheritance damages.  Hogue, 132 S.W.3d at 676-77, 685; Appellant’s Brief at xix, 38 (specifying factual sufficiency challenge).   It appears that Petitioner has abandoned its factual sufficiency challenge in light of Respondents’ prior argument that such a challenge has been waived.  See Appellee’s Brief at 37.  In the event it has not, Petitioner respectfully incorporates herein its waiver argument as set forth in its Appellee’s Brief.