Randall S. Zane, M.D. and Michael J. Burke, M.D. v. Kelley Brooke Surber, Individually, and on Behalf of the Estate of William Tate Surber, and as Next Frind of Loren Bailey Surber And, Nicholas Tate Surber, Minors

NUMBER 13-02-360-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RANDALL S. ZANE, M.D. AND MICHAEL J. BURKE, M.D., Appellants, v. KELLY BROOKE SURBER, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF WILLIAM TATE SURBER, DECEASED, AND AS NEXT FRIEND OF LOREN BAILEY SURBER AND, NICHOLAS TATE SURBER, MINORS, Appellees. On appeal from the 28th District Court of Nueces County, Texas. DISSENTING OPINION Before Justices Hinojosa, Yañez and Castillo Dissenting Opinion by Justice Castillo With respect to Dr. Burke's first issue presented, I would hold that the evidence is legally insufficient to prove the standard of care and breach of that standard. With respect to Dr. Zane's seventh issue presented, I would hold that the record demonstrates prima facie harm. Accordingly, I respectfully dissent. I. Background Twenty-six years old at the time, Mr. Surber presented to Dr. Brandt with advanced, progressive sinus disease that by that time had led to blindness in one eye. After a CT scan and an MRI, Mr. Surber underwent surgery for, in part, removal of diseased tissue and polyps to facilitate breathing, among other things. Dr. Burke assisted Dr. Brandt to stop a bleeder during the surgery. After release from the hospital, Mr. Surber subsequently presented for emergency treatment because of a bleed (hereafter, the "October 3" episode).[1] On call for Dr. Brandt, Dr. Zane reviewed the MRI and CT scans taken at the initial hospitalization. Prior to surgery, Dr. Zane conferred by telephone with Dr. Burke regarding the first surgery bleed and, during surgery, located the bleeder and contained it. Dr. Burke was not part of the surgical team for the October 3rd surgery or for follow up to that surgery.[2] Subsequently, Mr. Surber appeared for a previously set appointment with Dr. Burke for removal of surgical staples from the first surgery, but the staples had already been removed.[3] Mr. Surber apprised Dr. Burke of the events leading to the second surgery and his current symptoms. Dr. Burke released him from his care. Several days later, Mr. Surber suffered another bleed at home and expired en route to the hospital. Suit was brought and the case was tried to a jury on issues of medical negligence. After an adverse jury verdict, Dr. Zane and Dr. Burke present several issues for our decision. Those issues include whether reasonable minds could differ on the proximate cause of Mr. Surber's death. With regard to Dr. Zane and Dr. Burke, appellants maintain that they should have performed an arteriogram because it is foreseeable to an otolaryngologist and a neurosurgeon, respectively, that failing to order an arteriogram will result in the failure to determine the existence or not of an aneurysm or pseudo-aneurysm in an artery. They additionally argue that had an arteriogram been performed, the doctors could have seen a defect in an artery[4] and taken steps to prevent the fatal bleed. Appellees state that they "contended that Appellants should have performed an angiogram[5] after the second surgery, on October 3." (Emphasis original). Appellees recognize that, to show proximate cause, they must have shown that the arteriogram, if performed, would in reasonable medical probability have resulted in the institution of medical treatment which would have prevented Mr. Surber's death.[6] They contend that they have done so by the testimony of their experts because they need only prove that a physician using reasonable prudence could have foreseen that Mr. Surber would suffer a hemorrhage if an arteriogram were not performed and the defect in the artery corrected. II. Dr. Burke[7] By his first issue, Dr. Burke asserts that the evidence does not prove the standard of care and that he breached any standard of care. Dr. Burke asserts that he had no duty to order an arteriogram because he did not participate in the October 3 surgery or treatment, was not consulted, and did not make any decisions with regard to that surgery or whether an arteriogram was indicated. Appellees counter that if Dr. Burke and Dr. Zane had acted prudently under the circumstances (including Mr. Surber's likely anatomical abnormality due to advanced sinus disease), they probably would have prevented Mr. Surber's death by performing " an arteriogram which would probably have revealed whatever defect existed." Appellees maintain that they did not have to prove which defect existed because an arteriogram "would probably have revealed it, whatever it was." They further posit that, even if one arteriogram failed to reveal a defect, the standard of care required sequential arteriograms, indicated by the two bleeds. In particular, as to Dr. Burke, appellees contend that, when Mr. Surber presented to him for follow-up after the second bleed, Dr. Burke was required to order an arteriogram. A. Scope and Standard of Review A contention that there is no evidence of an applicable standard of care in a health care liability suit is a granulation of the contention that there is no evidence of negligence. Battaglia v. Alexander, 177 S.W.3d 893, 899 (Tex. 2005). One element required to prove a medical negligence claim is evidence of the applicable standard of care, which usually requires expert testimony. Id.; Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1966). Therefore, in our review of the record we must consider both the evidence of negligence and the more specific subsidiary question of whether a standard of care was established. See Battaglia, 177 S.W.3d at 899. The medical standard of care must be established so that the fact finder can determine whether the physician's act or omission deviated from the standard of care to the degree that it constituted negligence or malpractice. See Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex. App.BCorpus Christi 1987, writ ref'd n.r.e.). The plaintiff must establish from expert testimony (1) the standard of care, and (2) the facts which show that the physician deviated from that standard. Id. It necessarily follows that she must also show that the decedent's death was proximately caused by such deviation. Id. The fact finder would then decide whether the deviation was of such degree that it constituted negligence or malpractice. Id. The burden of proof, then, in a medical malpractice case is on the patient to prove that the physician has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have taken under the same or similar circumstances. Bauer v. King, 700 S.W.2d 650, 651 (Tex. App.BCorpus Christi 1985, no writ) (citing Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977)). It is the jury's role to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Owens v. Perez, 158 S.W.3d 96, 110 (Tex. App.BCorpus Christi 2005, no pet.). In determining the sufficiency of the evidence, appellate courts must accept the jury's resolution of any conflicts or inconsistencies in the evidence. Id. In reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W. 3d 802, 827 (Tex. 2005). In this case, Dr. Burke did not bear the burden of proof at trial. See Holloway v. Skinner, 898 S.W.2d 793, 795-96 (Tex. 1995); see also Kingston, 82 S.W.3d 755, 763 n. 3 (Tex. App.BCorpus Christi 2002, pet. denied). Thus, we analyze his legal‑sufficiency challenge in his first issue as a no‑evidence issue. See Gooch v. Am. Sling Co., 902 S.W.2d 181, 183 (Tex. App.BFort Worth 1995, no writ). Dr. Burke must show that the record presents no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Specifically, he must show that the record presents no probative evidence to support the essential facts as to the applicable standard of care and breach of that standard. See Holloway, 898 S.W.2d at 795; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.BCorpus Christi 2000, no pet). B. The Record Appellees recognize that they must have shown proof of a standard of care and breach of that standard. They maintain they have done so by the testimony of their experts, Drs. Gates, Mattox, and Garza-Vale. Appellees concede that their experts, Drs. Gates and Mattox, admitted that Dr. Burke was not negligent in failing to perform an arteriogram on October 3 because he was not present. Appellees assert, however, that Dr. Burke had an "independent responsibility" to order an arteriogram in view of Mr. Surber's pathology and history.[8] Appellees refer to Dr. Garza-Vale's testimony as follows: Q. . . . [D]o you believe that the standard of care required all of these Defendants to perform an angiogram after the October 3rd '98 bleed, serially, if necessary, anytime up until the time of his death? A. Certainly I think it would have been the prudent thing to do. . . . And it is at that point that I think it is mandatory to do an arteriogram. Dr. Garza-Vale did not testify that the standard of care was that Dr. Burke had an independent responsibility to order an arteriogram or serial arteriograms when Mr. Surber presented with symptoms of vertigo after the October 3 bleeding episode. Even assuming that his testimony suffices, in the context of Dr. Burke's care, Dr. Garza-Vale later testified as follows:[9] Q. . . . Now, I want to visit with you a little bit about Dr. Burke, if I can. When I first talked to you about Dr. Burke B and I think you conceded that today you don't have any criticism of that first [surgery] at all, do you? A. No, sir. Q. Nor any criticism of what he reported to Dr. Zane. That would be appropriate because that is what he thought he saw. A. Yes. Q. All right. Now, you know they had a conversation before he went into surgery. . . . . Now, he wasn't at the hospital at the time. . . . [Y]ou agreed with me that under those circumstances where if he wasn't at the hospital, he could rely upon the physicians at the hospital to make a decision about whether an arteriogram was necessary. A. Yes, sir. . . . And I said given those circumstances, yes, I would agree with you. Q. . . . And you believe . . . that the decision about whether or not there should have been an arteriogram should have been done at the time of that hospitalization? A. Yes, sir. My opinion was that the arteriogram should have been done on that second hospitalization. Q. Okay. And remember the first time I asked if [Dr. Burke] was not at the hospital, you weren't criticizing him for not doing an arteriogram, and you agreed. A. Yes, sir. I believe that is the testimony. Q. And you didn't have any other criticisms when I asked you all of the questions. Is that correct? A. That is correct. Q. Is that still your testimony today? A. Yes, sir, presuming again, those facts were correct. When asked if the standard of care required "all of the defendants to perform an angiogram . . . serially if necessary" after the October 3 bleed "anytime up until the time of his death," Dr. Garza-Vale testified that "it would have been the prudent thing to do." However, in the context of the breach of the proffered standard of care, Dr. Garza-Vale did not offer opinions critical of Dr. Burke. Moreover, Dr. Burke was not at the hospital during, and not otherwise involved, in the October 3 surgery, the point in time Dr. Garza-Vale testified it was mandatory to do an arteriogram. Dr. Garza-Vale did not testify that Dr. Burke breached the mandatory standard of care. He also did not testify that Dr. Burke breached any standard of care for serial arteriograms.[10] Appellees also point to Dr. Gates's testimony. However, Dr. Gates testified he was "critical of the team that failed this patient" but did not have an opinion as to Dr. Burke and the October 3 episode. He did not testify that Dr. Burke had an independent responsibility to order an arteriogram. The evidence does not demonstrate that Dr. Burke was a member of the surgical team for the October 3 episode.[11] Dr. Gates testified he knew Dr. Garza-Vale and further testified as to the latter's opinion of Dr. Burke: Q. And [Dr. Garza-Vale] would be familiar with what would be expected of a reasonably careful neurosurgeon under circumstances similar to this? A. I believe so. Q. And you would trust his judgment with regard to neurosurgical standards, wouldn't you? A. Well, assuming things hadn't changed from when I knew him before. As indicated above, Dr. Garza-Vale did not testify that Dr. Burke breached a standard of care. He did not criticize Dr. Burke. Dr. Gates testified he trusted Dr. Garza-Vale's judgment as to the neurosurgical standard of care. The record does not demonstrate that Dr. Gates was specifically questioned as to whether Dr. Burke had an independent responsibility to order an arteriogram or serial arteriograms; rather, Dr. Gates testified that the team failed Mr. Surber. Dr. Gates also did not testify that Dr. Burke breached the standard of care. Similarly, the record demonstrates that Dr. Mattox did not testify as to a standard of care or a breach of the standard of care. Outside the jury's presence, the trial court sustained the defense's objection on grounds Dr. Mattox is a surgeon and not qualified to testify as to the standard of care as to a neurosurgeon. C. Application One element to prove a medical negligence claim is evidence of the applicable standard of care, which usually requires expert testimony. Battaglia, 177 S.W.3d at 899. The standard of care must first be established so that the fact finder can determine if the doctor's conduct deviated from the standard to the degree that it constituted malpractice. Moreno v. M.V., 169 S.W.3d 416, 420‑21 (Tex. App.BEl Paso 2005, no pet.); Bauer, 700 S.W.2d at 651. It is not sufficient for a medical expert to simply state that he knows the standard of care and to then draw a conclusion as to whether that standard was met. Moreno, 169 S.W.3d at 420-21. Rather, the expert must explicitly state the standard of care and explain how the defendant's acts met or failed to meet that standard. Id.; Bauer, 700 S.W.2d at 651. In this case, Dr. Garza-Vale was not critical of Dr. Burke. He unequivocally testified that the arteriogram was mandatory on October 3, when Dr. Burke was not present. Dr. Garza-Vale and Dr. Gates did not provide a standard of care for Dr. Burke's independent responsibility to order an arteriogram. Similarly, they did not provide a standard of care that Dr. Burke order serial arteriograms in the context of either the October 3 episode or any independent responsibility after that time. Appellees' experts' testimony does not satisfy the threshold question of what standard is used by which to measure the physician's acts or omissions. See Rodriguez, 730 S.W.2d at 21. Even assuming that the evidence presented by appellees' experts, collectively or individually, established a standard of care applicable to an independent responsibility to order an arteriogram or serial arteriograms, the experts did not testify that Dr. Burke breached either one to the degree that it constituted malpractice. Moreno, 169 S.W.3d at 420-21. Because there is no evidence to show that the conduct of the physician violated or breached the standard of care, I would hold that the evidence is legally insufficient to prove standard of care and breach of a standard of care. See Rodriguez, 730 S.W.2d at 21. Accordingly, I would sustain Dr. Burke's first issue. Respectfully, because resolution of the issue would be dispositive, I do not address his remaining issues. See Tex. R. App. P. 47.1. III. Dr. Zane By his seventh issue, Dr. Zane asks us to decide whether the trial court erred in overruling his properly preserved complaints as to opposing counsel's letter published in the local newspaper on the third day of trial.[12] Dr. Zane asserts that the letter improperly criticized physicians as dishonest and committing malpractice without consequence. He complains that the letter amounted to jury tampering and was prima facie prejudicial. Dr. Zane assigns error to both the denials of the motion for mistrial on grounds of attorney misconduct and the motion for new trial on grounds of juror misconduct. He maintains that prejudice from the letter alone could be presumed and the testimony from one juror post-trial shows that prejudice indeed existed. Appellees respond that the trial court did not abuse its discretion in denying the motion for new trial. The majority decides that the bare presence of the letter is insufficient to establish prima facie harm. Respectfully, I disagree. A. Relevant Facts The jury trial involved both Dr. Burke and Dr. Zane. After the jurors were impaneled and sworn, the trial court admonished that jurors were "not to seek information contained in law books, dictionaries, public or private records, including the Internet these days, including any newspaper, television, radio broadcasts, which is not admitted in evidence." On the morning of the third day of trial when counsel's letter was published, Dr. Zane moved for a mistrial on grounds, in part, that the letter constituted an inappropriate ex parte communication with the jury to improperly influence them and posited, "We can hardly imagine that we could get a fair trial from this point forward as the result of this . . . letter to the editor." Opposing the motion for mistrial, appellees responded that Dr. Burke had appeared on the front page of the same newspaper a few weeks before trial "to affect what goes on in this courtroom." They added that the letter was in response to that article and argued, "[A]bsent Dr. Burke appearing on the front page of the paper, complaining of being sued too much and complaining of malpractice suits generally, this letter would never have been written." They further argued, "Once [Dr. Burke] has allowed the paper to run the picture and to run the article, we are damaged in a way that the Court cannot repair." Some discussion ensued as to a media war on the question of medical malpractice in the community. The letter's author stated that he wrote it as a response "immediately upon reading Dr. Burke's article." The trial court stated that it was inappropriate for "either party to be doing their war in the newspaper." Subsequently, the trial court stated it might question the jury regarding whether they had read the letter. Appellees argued that it "would just bring it to their attention. . . . they will just go pick up the paper tonight, if they haven't read it already." Appellees stated that prejudice, if any, was to appellees. Appellees argued, "[T]his jury is smart enough to B hopefully, will weigh the things they read in the paper and what they hear on the radio and television and judge this case on the merits." The trial court recalled it had admonished the jury not to read newspaper articles. The trial court admonished the parties to "not do further harm, potential harm" and denied Dr. Zane's motion for mistrial. The parties do not dispute that the article featuring Dr. Burke appeared two and a half weeks before trial. The record does not demonstrate that Dr. Zane was involved in, with, or through the media, either offensively or defensively. B. The Law A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.BHouston [1st Dist.] 1999, no pet.). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or, in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex. 1985). The mere fact that a trial court may decide a matter within its discretionary authority in a different way than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. Every claim of jury prejudice because of media attention appearing during a trial must turn on its own facts. See Ladner v. State, 868 S.W.2d 417, 423 (Tex. App.BTyler 1993, pet. ref'd) (citing Marshall v. United States, 360 U.S. 310, 312 (1959)). An overt act may be the most compelling factor to show prejudice. Texas Employers' Ins. Ass'n v. McCaslin, 159 Tex. 273, 275 (Tex. 1958). There is no requirement that the party asserting error must show injury beyond a reasonable probability in order to secure a reversal of a judgment. McCaslin, 159 Tex. at 275. There are some types of misconduct that are so highly prejudicial and inimical to a fair trial that probable injury can be assumed, and the burden of proving probable injury is met, prima facie at least, by simply showing the improper act and nothing more. See Strauss v. Cont'l Airlines, Inc., 67 S.W.3d 428, 448 (Tex. App.BHouston [14th Dist.] 2002, no pet.) (finding no harm in improper communication with juror because the juror voted in appellant's favor). C. Application The letter stated, "The repercussions for the patients are far more severe and often result in death." Thus, it touched on the health care claim against Dr. Zane. The letter also stated, "The malpractice problem is further exacerbated when fellow physicians fail to come forward and honestly testify in malpractice cases against malpracticing doctors, even when the malpractice is obvious." Thus, it also touched on the credibility of the doctors testifying in defense of the claim, including Dr. Zane both as a defendant and a "fellow physician" of Dr. Burke. The sole defense in support of the letter was that it was in response to the article featuring Dr. Burke. Appellees conceded that they were "damaged in a way that the Court cannot repair" by the article featuring Dr. Burke that appeared over two weeks before trial. I conclude that the letter published in the midst of trial was no less harmful to Dr. Zane. The record does not demonstrate that Dr. Zane was directly involved with the pre-trial article featuring Dr. Burke. The letter touched on the claims against which Dr. Zane must defend. By admonishing that the parties not do "further harm," the trial court implicitly found the published letter demonstrated prima facie harm. I would hold that the trial court's implicit finding is supported by this record. Ladner, 868 S.W.2d at 423; McCaslin, 159 Tex. at 275. Accordingly, I would also hold that the trial court abused its discretion by denying Dr. Zane's motion for a mistrial. Downer, 701 S.W.2d at 241‑42. I would sustain Dr. Zane's seventh issue presented. IV. Conclusion Absent proof of a standard of care or breach of that standard, I would sustain Dr. Burke's first issue presented. Finding the record demonstrates that opposing counsel's letter demonstrates prima facie harm, I would sustain Dr. Zane's seventh issue presented. Thus, I respectfully dissent. ERRLINDA CASTILLO Justice Dissenting Opinion delivered and filed this the 8th day of June, 2006. [1] Three key dates are material. On September 25, 1998, Dr. Brandt and Dr. Burke performed surgery. On October 3, 1998, Dr. Zane performed a second surgery. On October 15, 1998, Dr. Burke had a post-operation visit with Mr. Surber with respect to the September 25, 1998 surgery. [2] In a civil case, we accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f). [3] On the same day, Mr. Surber saw Dr. Brandt. [4] In their brief, appellees maintain that it is not essential to the judgment that the evidence support a finding that the ICA was the artery involved and assert that the doctors were negligent regardless of which artery hemorrhaged. Appellees' experts appeared to agree that the stage of the disease had compromised Mr. Surber's vascular system. As to the first surgery, Dr. Garza-Vale conceded that the doctors involved would be in the best position to know whether a major vessel bled. [5] The jury heard that the terms angiogram and arteriogram are synonymous. [6] Without reference to the record, appellees state that, even if an arterial defect would not appear on the arteriogram immediately after the injury, the injury that caused the defect in this case occurred on September 25, during the first surgery. [7] Dr. Burke presents three issues: 1. There was no evidence or, alternatively, insufficient evidence to support the jury's finding that he was negligent. (a) appellees failed to establish Dr. Burke's duty to act according to a certain standard of care; and (b) appellees failed to establish that he breached the applicable standard of care. 2. The evidence was legally and factually insufficient to support the proximate cause finding of the jury. Testimony by appellees' experts was legally and factually insufficient to support the proximate cause finding because it was unreliable. 3. Jury misconduct in this case warrants a new trial. Improper jury contact in this case was harmful error as a matter of law and requires that the Court grant a new trial. [8] In their brief, appellees assert: [I]f [Mr. Surber] had presented to Burke with those symptoms before the second bleed, Burke would not have been required to perform an angiogram. But on October 15, 1998, when [Mr. Surber] presented to Burke for follow-up, after the second bleed, Burke was required to order an angiogram. Burke was negligent in not doing so. (Emphasis original). [9] Dr. Garza-Vale testified that he did not know that Dr. Burke was not at the hospital on October 3, or that Dr. Burke talked to Dr. Zane by telephone before Dr. Zane actually "went in to see the vessel" that day, or that Dr. Burke told Dr. Zane to call him if he needed him. [10] The question was directed to both an independent responsibility to order an an arteriogram and serial arteriograms. Dr. Garza-Vale testified an arteriogram was mandatory on October 3 but he did not address serial arteriograms. Importantly, Dr. Garza-Vale had previously testified that serial arteriograms were required after the October 3 episode. He testified as follows: Q. The records that the jury will have in the case indicate that on October the 15th of '98, Tate returned to the offices of Dr. Brandt and Dr. Burke for follow-up visits. Assume with me that the records show that on those visits Tate had a dizzy B a complaint of dizziness, weakness, lightheadedness and had nausea and he described when he was in the shower he would get a feeling of dizziness or vertigo. Would that have been a good time for these physicians to order an angiogram? A. Personally, I would have been worried if he gave me those kind of signs and symptoms that something was going on in his vascular system, perhaps instability of the artery or the artery spasming, opening, closing, pressures varying from moment to moment. Perhaps he is even embolizing. Sometimes what happens is you have a cap of clot on the outside of the artery; you may have some inside the artery, too. So some of those clots may shower up into the brain and cause some dizziness and lightheadedness. As long as they dissolve, there's a process constantly in the body where you're forming clots and lysing them or breaking them down. That type of history would just worry me. Q. Would standard of care require that an angiogram be done with those complaints? A. Well, I don't know that it would necessarily in that circumstance; but, as I say, I think it would on the second bleed. Symptoms of that nature, per se, no; but the bleed, yes. Q. So with nothing more than just the fact that on October 3 he bled, serial angiograms were required from that point on? A. I do believe so. However, in the context of Dr. Burke's independent responsibility to perform serial arteriograms after not participating in the October 3 surgery, Dr. Garza-Vale did not answer the question. [11] Dr. Garza-Vale testified that it was mandatory that an arteriogram be ordered after the October 3 episode. [12] In addition to the text of the letter reproduced in note 4 of the majority opinion, the letter begins as follows: Bad doctors Re: "Malpractice Insurance Goes Under the Microscope" Feb. 10. As an attorney who handles medical malpractice cases, I think the situation described by the Caller-Times writer Naomi Snyder needs clarification. First, let me say there are many fine physicians practicing in Corpus Christi. We as a community are lucky to have them. Having reviewed many cases, I can tell you there are certainly some physicians who consistently provide poor, substandard care.