Azle Manor, Inc. v. Patty Patterson and Pamela Beavers, Individually as Representatives of The Estate of Mary Ann Davis

ACCEPTED 02-15-00111-cv SECOND COURT OF APPEALS FORT WORTH, TEXAS 12/14/2015 4:31:00 PM DEBRA SPISAK CLERK

CASE NO. 02-15-00111-CV ________________________________________________________________________ FILED COURT OF APPEALS IN THE COURT OF APPEALS SECOND DISTRICT OF TEXAS FOR THE SECOND JUDICIAL DISTRICT FORT WORTH, TEXAS December 15, 2015 ________________________________________________________________________ DEBRA SPISAK, CLERK

AZLE MANOR, INC.,

Appellant,

V.

PATTY PATTERSON and PAMELA BEAVERS, Individually and as Representatives of the ESTATE OF MARY ANN DAVIS, Deceased,

Appellees. ________________________________________________________________________

Appeal from 48th Judicial District Court of Tarrant County, Texas Cause No. 048-260807-12 ________________________________________________________________________

APPELLEES’ MOTION TO SUPPLEMENT CASE LAW IN SUPPORT OF APPELLEES’ BRIEF

TO THE HONORABLE COURT:

Appellees Patty Patterson and Pamela Beavers, Individually and as Representatives of the Estate of Mary Ann Davis, Deceased (collectively “Appellees”) file this Motion to Supplement Case Law in Support of Appellees’ Brief pursuant to Texas Rules of Appellate Procedure 38.7, respectfully showing the Court as follows:

APPELLEES’ MOTION TO SUPPLEMENT CASE LAW IN SUPPORT OF APPELLEES’ BRIEF - Page 1 Page 1 of 22

1. Appellant filed its brief in this matter on August 27, 2015. Appellees then filed their brief in this matter on October 28, 2015. Finally, Appellant filed its reply brief on November 17, 2015.

2. After Appellees filed their brief and Appellant filed its reply brief, Appellees became aware of additional relevant case law in Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214 (Tex. App.—Amarillo 2003, no pet.).

3. Because Cresthaven arises from similar facts and involves the expert testimony of a family practitioner on the cause of death of a nursing home resident, like this appeal, this case is highly relevant and justice requires that Appellees’ brief be supplemented with this case law.

4. Accordingly, pursuant to Texas Rule of Appellate Procedure 38.7, Appellees respectfully request the Court grant this motion and supplement Appellees’ brief with Cresthaven Nursing Residence v. Freeman in support of Appellees’ arguments.

5. A copy of Cresthaven Nursing Residence v. Freeman is attached

hereto as Exhibit “A.”

WHEREFORE, premises considered, Appellees Patty Patterson and Pamela Beavers, Individually and as Representatives of the Estate of Mary Ann Davis pray that the Court grant Appellees’ Motion to Supplement Case Law in Support of Appellees’ Brief as requested herein, and for such other and further relief, at law or

APPELLEES’ MOTION TO SUPPLEMENT CASE LAW IN SUPPORT OF APPELLEES’ BRIEF - Page 2 Page 2 of 22

in equity, to which Appellees may be justly entitled.

Respectfully submitted, CURNUTT & HAFER, L.L.P. By: /s/Kelly J. Curnutt Kelly J. Curnutt State Bar No. 00787316 KCurnutt@CurnuttHafer.com Adam K. Alexander State Bar No. 24082613 AAlexander@CurnuttHafer.com

101 East Park Row Arlington, TX 76010 (817) 548-1000 - Telephone (817) 548-1070 - Facsimile COUNSEL FOR APPELLEES PATTY PATTERSON and PAMELA BEAVERS, Individually and as Representatives of the ESTATE OF MARY ANN DAVIS, Deceased

APPELLEES’ MOTION TO SUPPLEMENT CASE LAW IN SUPPORT OF APPELLEES’ BRIEF - Page 3 Page 3 of 22

CERTIFICATE OF CONFERENCE

I hereby certify that I attempted to confer with Gail Friend and Staci Bouthillette, counsel for Appellant, on December 14th, 2015 regarding the relief sought in the Motion. Ms. Friend’s assistant informed me that Ms. Friend and Ms. Bouthillette were unavailable, and I left a message. Due to the upcoming oral argument in this matter, I could not wait to confer with opposing counsel before filing this Motion, and thus the Motion is presented to the Court for determination.

/s/ Adam K. Alexander Adam K. Alexander

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument was delivered electronically to the following counsel of record this 14th day of December, 2015:

Gail N. Friend Staci Bouthillette Friend & Associates 1010 Lamar, Suite 1010 Houston, Texas 77002 Counsel for Appellant

/s/ Kelly J. Curnutt Kelly J. Curnutt

APPELLEES’ MOTION TO SUPPLEMENT CASE LAW IN SUPPORT OF APPELLEES’ BRIEF - Page 4 Page 4 of 22

EXHIBIT A

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| | Caution As of: December 14, 2015 4:30 PM EST

Cresthaven Nursing Residence v. Freeman Court of Appeals of Texas, Seventh District, Amarillo February 5, 2003, Decided NO. 07-02-0011-CV

Reporter 134 S.W.3d 214; 2003 Tex. App. LEXIS 1187

CRESTHAVEN NURSING RESIDENCE; CANTEX Overview HEALTHCARE CENTERS D/B/A CRESTHAVEN NURSING RESIDENCE; BRATEX, INC.; GAMTEX, The daughters sued the healthcare providers for INC.; MEDCO MEDICAL SERVICES; ONTEX, INC.; damages resulting from the care and treatment the AMLON U.S.A., INC., APPELLANTS v. DEBORAH decedent received while a resident of the nursing home, FREEMAN, INDIVIDUALLY, AND ON BEHALF OF THE which allegedly resulted in her death. The appellate ESTATE OF WANDA GRANGER, ET AL., APPELLEES court held that (1) because the daughters did not submit a charge segregating past damages from future Subsequent History: On rehearing at Cresthaven damages, no prejudgment interest was available on the Nursing Residence v. Freeman, 2003 Tex. App. LEXIS wrongful death damages awarded; (2) the trial court did 4291 (Tex. App. Amarillo, May 19, 2003) not abuse its discretion in refusing to offset prejudgment interest; (3) the judgment should be calculated based Prior History: [**1] FROM THE 60TH DISTRICT on a single statutory cap adjusted by the consumer COURT OF JEFFERSON COUNTY; NO. B155491; price index and that prejudgment interest should be HONORABLE GARY SANDERSON, JUDGE. calculated on the award of survival damages only; (4) the facts rose to a scintilla of evidence which would Disposition: Issues sustained in part and overruled in support the giving of the spoliation jury instruction within part. the discretion afforded to the trial judge; and (5) the trial court did not abuse its discretion in allowing the Core Terms daughters' expert to testify. Additionally, the awards of survival damages and wrongful death damages were pre judgment interest, damages, appellees, cap, general excessive and the trial court would have to reduce the partner, nursing home, records, pain, pet, infection, damages as suggested in the appellate court's remittitur Nursing, spoliation, trial court, healthcare provider, or conduct a new trial. awarding damages, past damages, no evidence, appellants', survival, days, mental anguish, catheter, Outcome parties, trier of fact, entries, patient, issues, standard of care, amount awarded, broken leg The appellate court sustained the healthcare providers' point on the issue of the damages cap. It reversed the Case Summary trial court's finding that prejudgment interest was subject to the damages cap. Additionally, the appellate court Procedural Posture suggested reduced awards for damages, which if not accepted would result in reversal and a remand for a A jury for the 60th District Court of Jefferson County new trial. The appellate court overruled the remaining (Texas) found that appellant nursing home negligently issues. caused injury and death to the decedent and awarded $ 4.5 million in survival damages and $ 4.5 million in wrongful death damages. The court signed a judgment LexisNexis® Headnotes awarding all appellee daughters damages jointly and severally from appellant healthcare providers. All of the Healthcare Law > ... > Actions Against Facilities > Facility parties appealed. Liability > General Overview

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Page 2 of 17 134 S.W.3d 214, *214; 2003 Tex. App. LEXIS 1187, **1

HN1 Under Medical Liability and Insurance Business & Corporate Law > ... > Management Duties & Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, Liabilities > Causes of Action > General Overview there is a cap on damages recoverable from a health Business & Corporate Law > ... > Management Duties & care provider. Liabilities > Causes of Action > Partnership Liabilities Torts > Procedural Matters > Multiple Defendants > Joint & Healthcare Law > ... > Actions Against Facilities > Facility Several Liability Liability > General Overview Torts > Vicarious Liability > Partners > General Overview Healthcare Law > Healthcare Litigation > Actions Against Healthcare Workers > General Overview HN5 Statutory law imposes joint and several liability on general partners for the debts and obligations of a Healthcare Law > Healthcare Litigation > Actions Against partnership making them vicariously liable. Tex. Rev. Healthcare Workers > Doctors & Physicians Civ. Stat. Ann. art. 6132b-3.04. Vicarious liability is a judicially created vehicle for enforcing remedies for HN2 See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.02(a) wrongs. It is the imposition of liability on one party for (Vernon Supp. 1999). the actionable conduct of another based on a relationship between the parties. Healthcare Law > ... > Actions Against Facilities > Facility Liability > General Overview Business & Corporate Law > ... > Management Duties & Torts > Wrongful Death & Survival Actions > General Liabilities > Causes of Action > General Overview Overview Healthcare Law > ... > Actions Against Facilities > Facility Torts > Wrongful Death & Survival Actions > Survival Liability > General Overview Actions Torts > ... > Types of Damages > Compensatory Damages > General Overview HN3 The cap on damages recoverable from a health Torts > ... > Types of Damages > Compensatory care provider is further subject to a consumer price Damages > Measurements index adjustment. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.04. The cap applies to both wrongful death and Torts > Vicarious Liability > Partners > General Overview survival actions. Torts > Vicarious Liability > Partners > General Partners

Healthcare Law > ... > Actions Against Facilities > Facility HN6 One of the stated purposes of the Medical Liability Liability > General Overview and Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, is to decrease the cost of claims and Torts > ... > Defenses > Comparative Fault > General assure that awards are rationally related to actual Overview damages. Tex. Rev. Civ. Stat. Ann. art. 4590i, § Torts > Procedural Matters > Multiple Defendants > Joint & 1.02(b)(2) (Vernon Supp. 1999). Several Liability Civil Procedure > Remedies > Judgment Interest > General Torts > Vicarious Liability > Partners > General Overview Overview Torts > Vicarious Liability > Partners > General Partners Civil Procedure > Remedies > Judgment Interest > Prejudgment Interest HN4 It has been held that the damages provision in Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.02(a) (Vernon Supp. Healthcare Law > ... > Actions Against Facilities > Facility 1999) of the Medical Liability and Insurance Liability > General Overview Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, is Torts > Remedies > Damages > General Overview to be applied on a per defendant basis. Thus, a plaintiff who recovers against more than one defendant may HN7 Pursuant to Tex. Rev. Civ. Stat. Ann. art. 4590i, § obtain a judgment in excess of the cap as long as the 16.02 of the Medical Liability and Insurance combined statutory liability of all defendants is not Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, exceeded. Further, the cap applicable to a single judgments must include prejudgment interest on past defendant who is jointly and severally liable in a damages found by the trier of fact, but are not to include comparative negligence situation is not increased by prejudgment interest on future damages. Tex. Rev. Civ. the number of culpable defendants. Stat. Ann. art. 4590i, § 16.02(b) (Vernon Supp. 1999).

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Page 3 of 17 134 S.W.3d 214, *214; 2003 Tex. App. LEXIS 1187, **1

Civil Procedure > Remedies > Judgment Interest > General Stat. Ann. art. 4590i, § 11.02(a) (Vernon Supp. 1999) of Overview the Medical Liability and Insurance Improvement Act, Civil Procedure > Remedies > Judgment Interest > Tex. Rev. Civ. Stat. Ann. art. 4590i. Prejudgment Interest Civil Procedure > Remedies > Judgment Interest > General Healthcare Law > ... > Actions Against Facilities > Facility Liability > General Overview Overview

Healthcare Law > Healthcare Litigation > Actions Against Civil Procedure > Remedies > Judgment Interest > Healthcare Workers > General Overview Prejudgment Interest

Healthcare Law > Healthcare Litigation > Actions Against Healthcare Law > ... > Actions Against Facilities > Facility Healthcare Workers > Doctors & Physicians Liability > General Overview Torts > Remedies > Damages > General Overview Torts > Remedies > Damages > General Overview

HN8 Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.02 of the HN11 Tex. Rev. Civ. Stat. Ann. art. 4590i, § 16.02(d)(1) Medical Liability and Insurance Improvement Act, Tex. of the Medical Liability and Insurance Improvement Act, Rev. Civ. Stat. Ann. art. 4590i, states that where final Tex. Rev. Civ. Stat. Ann. art. 4590i, provides that judgment is rendered against a physician or health care prejudgment interest shall be paid on past damages provider, the limit of civil liability for damages of the found by the trier of fact, but not on future damages. physician or health care provider shall be limited to an Past damages are defined as those awarded to amount not to exceed $ 500,000. Thus, the cap applies compensate the claimant for their loss incurred from the to damages, not the amount of the judgment. Further, the cap does not include the amount of damages period beginning on the date of injury and ending on the awarded on claims for necessary medical, hospital, and day before the date of judgment. custodial care. Tex. Rev. Civ. Stat. Ann. § 11.02(b) (Vernon Supp. 1999). Civil Procedure > Remedies > Judgment Interest > General Overview Civil Procedure > Remedies > Judgment Interest > General Civil Procedure > Remedies > Judgment Interest > Overview Prejudgment Interest Civil Procedure > Remedies > Judgment Interest > Healthcare Law > ... > Actions Against Facilities > Facility Prejudgment Interest Liability > General Overview Healthcare Law > ... > Actions Against Facilities > Facility Torts > Remedies > Damages > General Overview Liability > General Overview Torts > ... > Remedies > Damages > Measurement of Torts > Remedies > Damages > General Overview Damages

HN9 Tex. Rev. Civ. Stat. Ann. art. 4590i, § 16.02 of the HN12 The legislature did not provide that prejudgment Medical Liability and Insurance Improvement Act, Tex. interest is to be awarded on the amount of past damages Rev. Civ. Stat. Ann. art. 4590i, provides that the included in the judgment, but on the amount awarded judgment must include prejudgment interest on past by the trier of fact. Prejudgment interest is applicable on damages, but shall not include prejudgment interest on the full amount of past damages found by the jury prior future damages. Tex. Rev. Civ. Stat. Ann. art. 4590i, § to the application of the liability cap, which determines 16.02(b). the amount for which the defendant is liable in the judgment. Therefore, Tex. Rev. Civ. Stat. Ann. art. Civil Procedure > Remedies > Judgment Interest > General 4590i, § 16.02(d)(1) of the Medical Liability and Overview Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. Civil Procedure > Remedies > Judgment Interest > art. 4590i, requires calculation of prejudgment interest Prejudgment Interest on the amount of damages found by the jury. Healthcare Law > ... > Actions Against Facilities > Facility Civil Procedure > Remedies > Judgment Interest > General Liability > General Overview Overview HN10 Prejudgment interest is not included in the Civil Procedure > Remedies > Judgment Interest > statutory cap on damages provided for in Tex. Rev. Civ. Prejudgment Interest

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Page 4 of 17 134 S.W.3d 214, *214; 2003 Tex. App. LEXIS 1187, **1

Healthcare Law > ... > Actions Against Facilities > Facility Civil Procedure > Remedies > Judgment Interest > Liability > General Overview Prejudgment Interest

Torts > Remedies > Damages > General Overview Civil Procedure > Appeals > Standards of Review > Abuse of Discretion HN13 Tex. Rev. Civ. Stat. Ann. art. 4590i, § 16.02(d)(1) of the Medical Liability and Insurance Improvement Act, HN17 An appellate court reviews a trial court's refusal to offset prejudgment interest under an abuse of Tex. Rev. Civ. Stat. Ann. art. 4590i, clearly provides that discretion standard. prejudgment interest is not to be awarded on future damages. Civil Procedure > Pretrial Matters > Continuances

Civil Procedure > ... > Jury Trials > Jury Instructions > Civil Procedure > Remedies > Judgment Interest > General Overview General Overview Civil Procedure > Remedies > Judgment Interest > Civil Procedure > Remedies > Judgment Interest > General Prejudgment Interest Overview Civil Procedure > Appeals > Standards of Review > Abuse Civil Procedure > Remedies > Judgment Interest > of Discretion Prejudgment Interest Criminal Law & Procedure > ... > Standards of Review > Torts > Remedies > Damages > General Overview Abuse of Discretion > Continuances

HN14 The burden of segregating past and future HN18 It has been held not to be an abuse of discretion damages is on the party seeking to obtain prejudgment to refuse to make an offset against prejudgment interest interest. It is fair to place the burden of submitting a when one motion for continuance was granted at one proper jury charge on the party to whom the benefit of party's request, another motion for continuance was the charge will result. granted at the other party's request, and one was granted pursuant to a joint motion. Civil Procedure > Remedies > Judgment Interest > General Overview Civil Procedure > ... > Jury Trials > Jury Instructions > General Overview Civil Procedure > Remedies > Judgment Interest > Prejudgment Interest Evidence > Relevance > Preservation of Relevant Evidence > Spoliation Healthcare Law > ... > Actions Against Facilities > Facility Liability > General Overview HN19 The doctrine of spoliation refers to the improper intentional destruction of evidence relevant to a case. HN15 Prejudgment interest is to be computed in Trial courts have broad discretion to take measures to accordance with the Texas Finance Code. Tex. Rev. correct the ill effects resulting from spoliation, including Civ. Stat. Ann. art. 4590i, § 16.02(c) (Vernon Supp. a jury instruction on the spoliation presumption and 1999). death penalty sanctions.

Civil Procedure > Remedies > Judgment Interest > General Evidence > Relevance > Preservation of Relevant Overview Evidence > Spoliation Civil Procedure > Remedies > Judgment Interest > Prejudgment Interest HN20 A party may have a statutory, regulatory or ethical duty to preserve evidence. HN16 Under Tex. Fin. Code Ann. § 304.108(a), a court may consider the periods of delay in the trial and order Evidence > Relevance > Relevant Evidence that prejudgment interest does not accrue during them. Evidence > Relevance > Preservation of Relevant However, prejudgment interest is to be denied only for Evidence > Spoliation delays caused by the parties and not a crowded trial docket. HN21 A party has a duty to preserve relevant evidence once litigation arises, and a duty to exercise reasonable Civil Procedure > Remedies > Judgment Interest > General care to preserve relevant evidence if it actually or Overview reasonably should anticipate litigation.

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Evidence > Relevance > Preservation of Relevant HN26 No physical manifestation of mental anguish is Evidence > Spoliation necessary in wrongful death cases, and the issue can be submitted to the jury on the basis of the impact HN22 The deliberate spoliation of evidence relevant to suggested by the circumstances surrounding the loss. a case raises the presumption that the evidence would have been unfavorable to the cause of the spoliator. Evidence > ... > Testimony > Expert Witnesses > General The presumption may be rebutted with a showing that Overview the evidence was not destroyed with a fraudulent intent Healthcare Law > ... > Actions Against Facilities > or purpose. The presumption does not apply when Standards of Care > General Overview documents are merely lost. Torts > Malpractice & Professional Liability > Healthcare Civil Procedure > ... > Jury Trials > Jury Instructions > Providers General Overview HN27 In a medical malpractice case, a plaintiff must HN23 A trial court must submit in the charge to the jury establish a duty requiring defendants to conform to a all questions, instructions, and definitions raised by the certain standard of conduct, the applicable standard of pleadings and the evidence. If the instruction might aid care and its breach, a resulting injury, and a reasonably the jury in answering the issues presented or if there is close causal connection between the breach of the any support in the evidence for the instruction, it is standard of care and the injury. Expert testimony is proper. necessary to meet that burden.

Torts > Remedies > Damages > General Overview Evidence > ... > Testimony > Expert Witnesses > General Overview HN24 In determining whether damages are excessive, an appellate court should use the same test as that for HN28 An expert qualified by knowledge, skill, a factual sufficiency question. Thus, the appellate court experience, training, or education may testify as to must consider and weigh all of the evidence and should scientific, technical, or other specialized knowledge if it set aside the award only if the challenged finding of fact will assist the trier of fact to understand the evidence or is so contrary to the overwhelming weight of the determine a fact in issue. Tex. R. Evid. 702. evidence as to be manifestly unjust. The mere fact that an award is large does not show that the jury was Evidence > Types of Evidence > Testimony > General Overview influenced by passion, prejudice, sympathy, or other circumstances not in evidence, and the award must be Evidence > ... > Testimony > Expert Witnesses > General flagrantly outrageous, extravagant, and so excessive Overview that it shocks the judicial conscience. Evidence > Admissibility > Expert Witnesses > Helpfulness

Torts > Remedies > Damages > General Overview HN29 Every licensed doctor is not automatically qualified to testify as an expert on every medical HN25 Mental anguish must be a high degree of mental question. Nevertheless, the fact that an expert is not a pain and distress and must necessarily involve more specialist in the particular branch of medicine for which than mere worry, anxiety, vexation, embarrassment, or the testimony is offered will not automatically disqualify anger. While juries must be afforded discretion in arriving him as an expert. The question to be resolved is the at the determination of a figure for which there is no specific subject matter and the expert's familiarity with exact evaluation, there must be some evidence to justify it. The proponent of the expert bears the burden of the amount awarded, and juries cannot simply pick a showing that the expert's testimony is qualified, relevant number. to the issues, based on a reliable foundation, and will assist the trier of fact. Torts > Remedies > Damages > General Overview

Torts > Wrongful Death & Survival Actions > General Civil Procedure > Appeals > Standards of Review > Abuse Overview of Discretion Torts > ... > Types of Damages > Compensatory Evidence > ... > Testimony > Expert Witnesses > General Damages > Pain & Suffering Overview

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Page 6 of 17 134 S.W.3d 214, *214; 2003 Tex. App. LEXIS 1187, **1

HN30 An appellate court reviews a ruling of a trial court the five general partners of Cantex because there was as to the qualifications of an expert witness under an no evidence presented of their liability and there were abuse of discretion standard. no affirmative jury findings of liability against them; (4) the trial court erred in submitting a spoliation instruction Counsel: R. Brent Cooper, Michelle E. Robberson, in the jury charge because the three elements of a Diana L. Faust, Cooper & Scully, Dallas, TX. spoliation complaint were not established and Cresthaven rebutted the spoliation presumption with a Kevin H. Dubose, Hogan Dubose & Townsend, Houston, reasonable explanation; (5) the damages awarded for TX. the survival action are excessive and not supported by factually sufficient evidence; (6) the damages awarded Thomas S. Hornbuckle, Stephen S. Hornbuckle, for the wrongful death action are excessive and not Houston, TX. supported by factually sufficient evidence; (7) the trial court erred in admitting the testimony of appellees' Judges: PANEL E, Before QUINN and REAVIS, JJ., medical expert because he was not [**3] qualified to and BOYD, S.J. 1 render expert medical opinions on the issues in this case; and (8) there is no evidence to establish the Opinion by: John T. Boyd standard of care, breach of the standard and proximate causation. Opinion Appellees, as cross-appellants, contend that (1) the benefits of article 4590i do not extend to general [*218] Appellees Deborah Freeman (Freeman), Denise partners who have admitted they are not health care Corbello and Lynette Calvert, the daughters of Wanda providers; and (2) even if article 4590i is applicable to Granger (Granger), sued appellants Cresthaven the general partners, the damage cap amount should Nursing Residence (Cresthaven) and its owner Cantex by multiplied by the number of defendants, which would Healthcare Centers d/b/a Cresthaven Nursing include the general partners. Residence (Cantex) 2 for damages resulting from the care and treatment Granger received while a resident of This lawsuit was brought as a health care liability claim Cresthaven, which allegedly resulted in her death on under the Medical Liability and Insurance Improvement July 20, 1996. A jury found that [*219] Cresthaven Act, article 4590i of the Texas Revised Civil Statutes. negligently caused injury and death to Granger and HN1 Under that statute, there is a cap on damages awarded $ 4.5 million in survival damages and $ 4.5 recoverable from a health care provider. HN2 million in wrongful death damages. There was no finding Specifically, the statute provides: of gross negligence. The court signed a judgment awarding all three appellants $ 6,051,259.20 in (a) In an action on a health care liability claim where damages jointly and severally from Cresthaven, Cantex, final judgment is rendered against a physician or health and the five general partners of Cantex. That judgment care provider, the limit of civil liability for damages of the has resulted in this appeal by all parties. physician or health care provider shall be limited to an amount not to exceed $ 500,000. [**2] In eight issues, appellants claim (1) the judgment erroneously awarded damages exceeding the statutory Tex. Rev. Civ. Stat. Ann. art. 4590i § 11.02 (a) [**4] limit on civil liability in section 11.01(a) of article 4590i of (Vernon Supp. 1999). HN3 The cap is further subject to the Texas Revised Civil Statutes; (2) the judgment a consumer price index adjustment. Id. § 11.04. The erroneously awarded damages to Lynette Calvert and cap applies to both wrongful death and survival actions. Denise Corbello, who had non-suited with prejudice all Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, their claims against appellants; (3) the judgment 902, 43 Tex. Sup. Ct. J. 1151 (Tex. 2000); Rose v. erroneously awarded damages against Cresthaven and Doctors Hosp., 801 S.W.2d 841, 848, 34 Tex. Sup. Ct.

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2003). 2 The five general partners of Cantex Healthcare Centers are the remaining appellees, Bratex, Inc., Gamtex, Inc., Medco Medical Services, Ontex, Inc., and Amlon U.S.A., Inc.

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Page 7 of 17 134 S.W.3d 214, *219; 2003 Tex. App. LEXIS 1187, **4

J. 177 (Tex. 1990). It is the interpretation of this provision Cresthaven, Cantex, and the five general partners of and its applicability to the judgment in this lawsuit that is Cantex. While appellees assert that Cantex is liable the subject of dispute between the parties. because it is the owner and operator of Cresthaven, they do not contend that both Cantex and Cresthaven Appellants allege in their first issue that the trial court are culpable defendants, even though the jury found awarded damages that exceeded the civil liability cap. Cresthaven to be negligent and judgment was rendered They contend that the trial court should have limited against both parties. Therefore, appellees apparently damages to one cap, including prejudgment interest recognize that Cresthaven and Cantex are not two computed at the time the judgment was signed or $ separate legal entities, and Cantex is responsible for 1,413,008.13. Alternatively, if prejudgment interest is the liabilities of Cresthaven because Cantex did not appropriately included in the liability cap, the business as Cresthaven. judgment should have included prejudgment interest computed on the amount of capped damages, the As noted, appellees did not seek recovery against the judgment [*220] should not have included prejudgment general partners in their pleadings as joint tortfeasors, interest on the wrongful death damages, and accrual of and no issue as to the negligence of the general partners prejudgment interest should have been tolled by lengthy was submitted [**7] to the jury. Therefore, even if the periods of delay caused by appellees. The cross-issues general partners have judicially admitted that they are of appellees are related [**5] to these arguments, and not health care providers, as appellees contend, it is we will address them in our discussion of these matters. irrelevant since appellees did not seek damages from the general partners on the basis that they were health Appellants initially argue that, because the liability of care providers. The basis upon which appellees sought only one defendant, Cresthaven, was submitted to the damages against the general partners, and upon which jury, the judgment is limited to a single cap. HN4 It has the judgment against them was entered, is that HN5 been held that the damages provision is to be applied statutory law imposes joint and several liability on on a "per defendant" basis. Rose, 801 S.W.2d at 847. general partners for the debts and obligations of a Thus, a plaintiff who recovers against more than one partnership making them vicariously liable. Tex. Rev. defendant may obtain a judgment in excess of the cap Civ. Stat. Ann. art. 6132b-3.04. Vicarious liability is a as long as the combined statutory liability of all judicially created vehicle for enforcing remedies for defendants is not exceeded. Id. Further, the cap wrongs. Dutcher v. Owens, 647 S.W.2d 948, 950-51, 26 applicable to a single defendant who is jointly and Tex. Sup. Ct. J. 289 (Tex. 1983). It is the imposition of severally liable in a comparative negligence situation is liability on one party for the actionable conduct of not increased by the number of culpable defendants. another based on a relationship between the parties. Columbia Hosp. Corp. of Houston v. Moore, 43 S.W.3d Black's Law Dictionary 1566 (6th ed. 1990). No liability 553, 556 (Tex.App.--Houston [1st Dist.] 2001, pet. under the law was imposed on the general partners granted). independent of their status as a partner.

Conversely, appellees argue in response to this issue [*221] Therefore, the general partners can only be and also in their first cross-issue that, because the five liable for the debt incurred by Cantex d/b/a Cresthaven. general partners of the owner and operator of the It is appropriate to [**8] include them in the judgment, nursing home have admitted they are not health care but not to increase the amount of the judgment by providers, they are not entitled to the protection of the treating each general partner as a tortfeasor in its own cap. Alternatively, even if the cap is available to [**6] all right. We believe this interpretation is consistent with of the defendants, there are six culpable defendants the HN6 stated purposes of the Medical Liability and against whom the court has rendered judgment, and Insurance Improvement Act, one of which is to decrease therefore the cap should be multiplied by six. This is so, the cost of claims and assure that awards are rationally appellees posit, because it is not necessary for the related to actual damages. See Tex. Rev. Civ. Stat. Ann. defendant to have been found liable by a jury for a art. 4590i § 1.02(b)(2) (Vernon Supp. 1999). Otherwise, defendant to be culpable pursuant to the judgment. the amount of an award against a health care provider could be doubled simply by the fact it has four general Only the issue of Cresthaven's negligence was partners instead of two. Thus, the judgment is limited by submitted to the jury. However, the judgment recites a single cap of $ 500,000 adjusted by the consumer that appellees may recover jointly and severally from price index.

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Appellants also contend that prejudgment interest is in the judgment. Further, if the legislature had intended included within the section 11.02 cap on damages. This the cap to apply to prejudgment [*222] interest, it would question has not been definitively answered by the surely have made that provision. We believe this is a Texas Supreme Court. In Auld, the court concluded that logical interpretation of the act relying on the language prejudgment interest under the general prejudgment used in the act. Thus, we find that HN10 prejudgment interest statute 3 was included in the damages cap. interest is not included in the statutory cap on damages. Auld, 34 S.W.3d at 900-01. However, the majority opinion specifically declined to address whether We must next determine whether prejudgment interest sections 16.01 and 16.02 of article 4590i, [**9] added in is calculated on the capped or uncapped amount of 1995, conflict with this interpretation. HN7 Pursuant to damages. HN11 The statute provides that prejudgment section 16.02, judgments must include prejudgment interest shall be paid on past damages found by the trier interest on past damages found by the trier of fact, but of fact, but not on future damages. Past damages are are not to include prejudgment interest on future defined as those awarded to compensate the claimant damages. Tex. Rev. Civ. Stat. Ann. art. 4590i § 16.02(b) for their loss incurred from the period beginning on the (Vernon Supp. 1999). Nevertheless, in a concurring date of injury and ending on the day before the date of and dissenting opinion, four justices indicated their judgment. Id. § 16.02(d)(1). belief that this section confirms that prejudgment interest is not subject to the cap. Auld, 34 S.W.3d at 908. More Appellees contend that, because the statutory language recently, the Houston Court of Appeals ruled that the provides that prejudgment interest is to be paid on majority opinion in Auld with respect to prejudgment damages found "by the trier of fact," prejudgment interest under the general statute was not binding when interest should be calculated on that amount awarded prejudgment interest was awarded under the more before application of the damages cap and cite to recent provisions of the Medical Liability and Insurance Moore in support of that proposition. However, the court Improvement Act, which shows a legislative intent to held that prejudgment interest [**12] is not included in exclude prejudgment interest from the cap. Moore, 43 the damages cap and is recoverable on all damages. S.W.3d at 562. Moore, 43 S.W.3d at 562. However, that statement was, as noted, made within the context of whether [**10] We agree with the Houston court that the holding prejudgment interest was included within the cap. in Auld is not binding, and we must determine the effect Therefore, the court was merely stating that of the legislature having added Subchapter P dealing prejudgment interest is owed, even though it exceeds with prejudgment interest to the act and reconcile it with the amount authorized by the damages cap and should the liability limits in Subchapter K. We note initially that be paid on all damages, both those covered and not section 11.02 of Subchapter K HN8 states that where covered by the cap, i.e., medical, hospital, and custodial final judgment is rendered against a physician or health care. care provider, "the limit of civil liability for damages of the physician or health care provider shall be limited to The issue in the other two cases cited by appellees, an amount not to exceed $ 500,000." Thus, the cap Samples v. Graham, 76 S.W.3d 615 (Tex.App.--Corpus applies to damages, not the amount of the judgment. Christi, 2002, no pet. h.) and Battaglia v. Alexander, Further, the cap does not include the amount of 2002 Tex. App. LEXIS 2938, 2002 WL 730530 damages awarded on claims for necessary medical, (Tex.App.--Houston [14th Dist.] April 25, 2002, no pet. hospital, and custodial care. Tex. Rev. Civ. Stat. Ann. § h.), was whether prejudgment interest should be 11.02(b) (Vernon Supp. 1999). However, in Subchapter awarded on past damages found by the trier of fact prior P, section 16.02 HN9 provides that the judgment must to a deduction for settlement credits. In both cases, the include prejudgment interest on past damages, but courts found that the deduction for settlement credits shall not include prejudgment interest on future should be made after calculation of prejudgment interest damages. Id. § 16.02(b). Thus, it seems clear that the on the amount awarded by the jury. However, we note legislature intended to make a distinction between that in Graham, the court stated that prejudgment damages awarded and the final judgment by providing interest is included [**13] in the statutory cap and that the cap applies to the damages [**11] awarded, but refused to find that "allowing prevailing plaintiffs to prejudgment interest on past damages must be included recover prejudgment interest only on a statutorily limited

3 Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, section 6(a) now codified as Tex. Fin. Code 304.102 (Vernon Supp. 2003).

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measure of past damages found by the jury presents an prejudgment interest is available on the wrongful death absurd scenario." (Emphasis added). Graham, 76 damages awarded. S.W.3d at 621. Finally, appellants contend with respect to prejudgment Nevertheless, we must assume the legislature intended interest that the award should be reduced for periods of the plain meaning of its words and, if possible, ascertain delay caused by appellees. HN15 Prejudgment interest their intent from the language used in the statute. Na- is to be computed in accordance with the Texas Finance tional Liability & Fire Ins. Co. v. Allen, 15 S.W.3d 525, Code. See Tex. Rev. Civ. Stat Ann. § 16.02(c) (Vernon 527, 43 Tex. Sup. Ct. J. 690 (Tex. 2000). HN12 The Supp. 1999). HN16 Under section 304.108(a), a court legislature did not provide that prejudgment interest is may consider the periods of delay in the trial and order to be awarded on the amount of past damages included that prejudgment interest does not accrue during them. in the judgment, but on the amount awarded by the trier Tex. Fin. Code Ann. § 304.108 (Vernon Supp. 2003). of fact. This language implies that prejudgment interest However, prejudgment interest is to be denied only for is applicable on the full amount of past damages found delays caused by the parties and not a crowded trial by the jury prior to the application of the liability cap, docket. Purcell Constr. Inc. v. Welch, 17 S.W.3d 398, which determines the amount for which the defendant is 403 (Tex.App.--Houston [1st Dist.] 2000, no pet.). HN17 liable in the judgment. We therefore interpret the statute We review a court's refusal to offset prejudgment interest to require calculation of prejudgment interest on the [**16] under an abuse of discretion standard. Helena amount of damages found by the jury. Chemical Co. v. Wilkins, 18 S.W.3d 744, 760 (Tex. App.-- San Antonio 2000), aff'd, 47 S.W.3d 486, 44 Tex. In light of that finding, appellants argue that appellees Sup. Ct. J. 675 (Tex. 2001); City of Alamo v. Casas, 960 are limited to prejudgment interest on the amount of S.W.2d 240, 260 (Tex.App.--Corpus Christi 1997, pet. damages [**14] awarded by the jury for the survival denied). claims because appellees did not request segregation of past and future damages with respect to their wrongful Appellants argue that the court should have granted an death claims. Appellants and appellees agree that the offset from appellees first request for continuance on amount awarded as survival damages constitutes past October 1, 1998, to the date of the fifth trial setting when damages. Essentially, the only disputed issue between the case actually went to trial on May 7, 2001. They the parties is [*223] which of them had the burden of base this contention on their claim that appellees did requesting segregation of the wrongful death damages. not promptly pursue a speedy resolution of their claims Appellants argue that, under the law, the burden is on by requesting at least four continuances. the plaintiff. Conversely, appellees argue that, because appellants pled the statutory limitation on prejudgment While this case took almost five years to come to trial, interest as an affirmative defense, they had the burden the clerk's record reveals only three motions for to request segregation. continuance by appellees and only one of those motions was opposed by appellants. If appellants felt that HN13 The statute clearly provides that prejudgment appellees were unnecessarily delaying the trial, they interest is not to be awarded on future damages. could have been more proactive in seeking and holding Appellees have cited no authority stating that to be appellees to a trial setting. HN18 It has been held not to entitled to the benefit of this statute, a defendant must be an abuse of discretion to refuse to make an offset assert it as an affirmative defense in his pleading. against prejudgment interest when one motion for However, it has been held that HN14 the burden of continuance was granted at one party's request, [**17] segregating past and future damages is on the party another motion for continuance was granted at the seeking to obtain prejudgment interest. Cavnar v. Qual- other party's request, and one was granted pursuant to ity Control Parking, Inc., 696 S.W.2d 549, 556, 28 Tex. a joint motion. Aquila Southwest Pipeline, Inc. v. Har- Sup. Ct. J. 466 (Tex. 1985); Domingues v. City of San mony Exploration, Inc., 48 S.W.3d 225, 244 Antonio, 985 S.W.2d 505, 511 (Tex.App.--San Antonio (Tex.App.--San Antonio 2001, pet. denied). Under the 1998, pet. denied). [**15] This is so because it is fair to record before us, we cannot say the trial court abused place the burden of submitting a proper jury charge on its discretion in refusing to offset prejudgment interest. the party to whom the benefit of the charge will result. In summary, we sustained in part and overruled in part Id. Because appellees did not submit a charge appellants' first issue. In doing so, we found that the segregating past damages from future damages, no judgment should be calculated based on a single

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statutory cap adjusted by the consumer price index and concluded that a single cap should apply. However, we [*224] that prejudgment interest should be calculated also concluded that it was appropriate to include the on the award of survival damages only. We also overrule general partners in the judgment because, under the appellees' cross-issues. law, they have joint and several liability for the debts of the partnership. In their second issue, appellants argue that the judgment improperly included Denise Corbello and Lynette Appellants argue that, in the last live pleading by Calvert, as heirs at law of the Estate of Wanda Granger appellees, they only alleged that "the corporate partners because they non-suited their claims with prejudice were responsible for the management and operation of against appellants prior to trial. Appellees respond that Cresthaven Nursing Residence, that each of the Corbello and Calvert only non-suited their individual corporate partners were general partners of Cantex claims against appellants, not their survival claims. Healthcare Centers, and that the corporate partners Thus, they assert, because the judgment only awards were jointly and severally liable for the acts and them damages as heirs at law, the judgment [**18] does omissions of the employees of Cresthaven." Appellants not include improper plaintiffs. now appear to be arguing that these allegations are asserting claims against the general partners arising Corbello and Calvert sued both on an individual basis under the law independent of their status as [**20] and as heirs at law of Granger's estate. The notice of general partners and, because they filed a verified non-suit was brought by them only in their individual denial of these allegations and no evidence of capacities. Further, it specifically states that the non-suit negligence of the general partners was submitted at "is only being taken as to individual claims made on the trial, they are improperly included in the judgment. part of DENISE CORBELLO AND LYNETTE CALVERT As already stated, we interpret these allegations as and not as to any claims made by the Estate of Wanda asserting a claim against the general partners based Granger." only on their status as general partners, which we Appellants appear to contend that because Corbello believe is supported by the fact that no evidence was and Calvert did not appear at trial and no claims were introduced at trial as to their individual negligence and submitted by them in the charge to the jury, the judgment no issue submitted to the jury with respect to any such is in error. However, the jury was asked what sum of negligence. Even if the allegations included [*225] money would fairly and reasonably compensate independent individual liability for which no findings Granger for pain and mental anguish. This question were made by the jury, those facts would not obviate the represents the claim for survival damages which is the statutory mandate which holds the general partners claim brought by Granger's estate. Because the claims liable. The general partners were named as parties to of Corbello and Calvert, as heirs at law of Granger's the lawsuit and, under the law, they are jointly and estate were not non-suited, this question represents severally liable for the debt owed under the judgment by their claims. Appellants' second issue is overruled. Cantex. Thus, it is appropriate to include them in the judgment. By way of their third issue, appellants contend that the Appellants have failed to present any argument or trial court erred in awarding judgment against authorities as to why Cresthaven should not be included Cresthaven and the five general partners. Appellants in the judgment. Therefore, nothing is presented for object to the inclusion of the [**19] general partners review. 4 Dunlap v. Excel Corp., 30 S.W.3d 427, 434 because no evidence was submitted to support the (Tex. App.--Amarillo 2000, no pet.); [**21] Jefferson liability of the general partners and the jury made no County Drainage Dist. No. 6 v. Lower Neches Valley finding of liability for them. We have already discussed Authority, 876 S.W.2d 940, 953 (Tex. App.--Beaumont this issue with respect to whether there should be a 1994, writ denied). We overrule appellants' third issue. single cap on damages. It was because there was no assertion or finding of liability against the partners In their fourth issue, appellants complain of the trial independent of their status as general partners that we court's error in submitting a spoliation instruction to the

4 We would tend to agree that it was unnecessary to include Cresthaven in the judgment. However, because there is no evidence that Cresthaven and Cantex are separate legal entities, we fail to see any harm in its inclusion in the judgment, and appellants have not asserted any such harm.

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jury, which probably caused the rendition of an improper [**24] HN20 A party may have a statutory, regulatory or judgment. The instruction given by the court was as ethical duty to preserve evidence. Trevino, 969 S.W.2d follows: at 955. HN21 A party also has a duty to preserve relevant evidence once litigation arises, and a duty to You are instructed that, when a party has possession of exercise reasonable care to preserve relevant evidence a piece of evidence at a time he knows or should have known it will be evidence in a controversy, and thereafter if it actually or reasonably should anticipate litigation. he disposes of it, alters it, makes it unavailable, or fails See Wal-Mart Stores, Inc. v. Johnson, 39 S.W.3d 729, to produce it, there is a presumption in law that the 730, 732 (Tex.App.--Beaumont 2001, pet. granted). [**22] piece of evidence, had it been produced, would have been unfavorable to the party who did not produce The evidence shows that Granger had been a resident it. If you find by a preponderance of the evidence that of the nursing home since February 1995. On July 5, Cresthaven Nursing Residence had possession of 1996, she was admitted to the hospital with a broken original, unaltered nurses notes pertaining to Wanda femur. She returned to Cresthaven on July 8, 1996, but Granger at a time it knew or should have known they was readmitted to the hospital on July 19 after vomiting would be evidence in this controversy, then there is a dried blood. She died the next day. On July 20, just presumption that the original, unaltered nurses notes hours prior to the death of her mother, Freeman visited pertaining to Wanda Granger, if produced, would be the nursing home seeking information as to her mother's unfavorable to Cresthaven Nursing Residence. This condition in the days prior to her hospitalization and presumption may be rebutted by Cresthaven Nursing requested a copy of her mother's records. From this Residence with the evidence of a reasonable evidence, the trial court could have concluded that explanation for the non-production of the evidence. 5 there was a duty on the part of Cresthaven to preserve those records. HN19 The doctrine of spoliation [**23] refers to the improper intentional destruction of evidence relevant to The evidence further shows that on July 20, one of the a case. See Malone v. Foster, 956 S.W.2d 573, 577 nurses, Gloria Thompson, [**25] was asked by Joan (Tex.App.--Dallas 1997), aff'd, 977 S.W.2d 562 (Tex. Adams, the assistant director of nursing, to recopy a 1998). Trial courts have broad discretion to take July 19 entry in her nursing notes with respect to measures to correct the ill effects resulting from Granger. The original note was apparently given to spoliation, including a jury instruction on the spoliation presumption and death penalty sanctions. Trevino v. Adams, but was not available at trial. However, Ortega, 969 S.W.2d 950, 953, 41 Tex. Sup. Ct. J. 907 Thompson testified that she recopied her note verbatim (Tex. 1998). In making that determination, appellants and there is no evidence to the contrary. 6 She urge reliance on the factors set forth in Justice Baker's additionally stated that everything in the note was concurring opinion in Trevino, which are (1) whether accurate and based on her personal observations. there was a duty to preserve evidence, (2) whether the alleged spoliator negligently or intentionally spoliated Late entries were also made in the records of Granger evidence, and (3) whether the spoliation prejudiced the although they were not noted as such. There is some nonspoliator's ability to present its case. Id. at 954-55. evidence that Adams may have told Thompson and Several courts have adopted these factors in their Cynthia Arceneaux that the chart was not completely analysis of the propriety of an instruction. See White- documented and information needed to be filled in. side v. Watson, 12 S.W.3d 614, 621-22 (Tex. However, none of the persons making those entries App.--Eastland 2000, pet. denied); [*226] Offshore testified that they provided false information. 7 There Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 667-68 was also testimony that there were times when the staff (Tex.App.--Houston [1st Dist.] 1998, no pet.). was so busy with resident care that they did not have

5 Appellants also complain that the instruction did not assist the jury, but confused and misled them and improperly shifted the burden of proof. However, in their reply brief, they clarify that these complaints are raised only to show the harm suffered from the instruction, not as a direct attack on the instruction itself. 6 There is no explanation as to why she was asked to recopy that particular note. 7 Tashia Essex testified at trial that she was asked to fill in information for days she did not work, but admitted that in her deposition she had testified she was only asked to fill in information for days that she did work. No explanation for this inconsistency is provided.

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time to complete their records on their [**26] shift and HN22 The deliberate spoliation of evidence relevant to completed them later. a case raises the presumption that the evidence would In addition to these acts, appellees claim that they have been unfavorable to the cause of the spoliator. established that (1) medical records are missing notes Ordonez v. M. W. McCurdy & Co., Inc., 984 S.W.2d 264, from the charge nurse for several shifts during a critical 273 (Tex.App.--Houston [1st Dist.] 1998, no pet.); Wal- period of Granger's care, (2) intake/outflow records for Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 the entire month of July are missing, (3) nurses were (Tex.App.--San Antonio 1998, pet. denied); Brewer v. directed to fill in missing portions of the medical record, Dowling, 862 S.W.2d 156, 159 (Tex. App.--Fort Worth and (4) catheter care was given by a medication aide 1993, writ denied). The presumption may be rebutted who could not give catheter care. However, the pages with a showing that the evidence was not destroyed cited in the record with respect to the missing notes with a fraudulent intent or purpose. Hight v. Dublin from the nurse only establish that one nurse, Maridel Veterinary Clinic, 22 S.W.3d 614, 619 Potato Meja, and Thompson herself did not know where (Tex.App.--Eastland 2000, pet. denied). [**29] The Thompson's notes were, if she had in fact worked on presumption does not apply when documents are July 16. It does not prove that the notes ever existed merely lost. Williford Energy Co. v. Submergible Cable [**27] or that either person was responsible for being Services, Inc., 895 S.W.2d 379, 389-90 the custodian of those records. Further, the evidence (Tex.App.--Amarillo 1994, no pet.). shows that intake/outflow sheets were not placed by HN23 A trial court must submit in the charge to the jury Granger's bed, which is evidence that the documents all questions, instructions, and definitions raised by the never existed. pleadings and the evidence. Hyundai Motor Co. v. Ro- [*227] Entries in the records for July 12 through July 19 driguez ex rel. Rodgriguez, 995 S.W.2d 661, 663, 42 show that Granger was eating 100% of her food, Tex. Sup. Ct. J. 738 (Tex. 1999). If the instruction might although nurse's aide Essex testified she was not eating aid the jury in answering the issues presented or if there much, if anything. Freeman also stated that, although is any support in the evidence for the instruction, it is records indicate that her mother was talking and asking proper. Knighten v. Louisiana Pacific Corp., 946 S.W.2d for food that week, from her own personal observations 638, 642 (Tex.App.-- Beaumont 1997), rev'd on other her mother was not responding to questions or eating. It grounds, 976 S.W.2d 674 (Tex. 1998). is not established if these inconsistencies are the result We will assume that the purported alteration of records of false records or if there are other explanations such can satisfy the requirement of destroyed evidence. as differences in the time of observation. There is also However, the evidence with respect to the rewriting of evidence that entries in care were initially made for one Thompson's nurse's notes for July 19 does not show or more days when Granger was in the hospital, that there was any false information or that any prejudice although some of these were later scratched out. Once resulted to appellees as a result of the rewriting of those again, the record does not affirmatively establish if notes. The same is true with respect to any late entries these incorrect records are the result of deliberate made to the [**30] nursing home records except for the falsification or honest mistakes. As to catheter care, inconsistent testimony of Essex as to whether she was Arceneaux denied that the initials which looked like "C. asked to make late entries for any days that she did not A." next to catheter care were hers, and no explanation actually work. Further, the evidence as to the [**28] for who performed the catheter care was intake/outflow records is that they never existed, which provided. may be evidence of negligent care, but not of spoliation Kenneth Blanda, administrator of Cresthaven, testified of evidence. that he had not been aware at the time it happened that any entries had been made late or recopied. Further, [*228] Thus, the only evidence that might raise the there was no directive from upper managment, he issue of spoliation is the inconsistent testimony of Essex averred, for them to "get those records straight" or as to whether she was asked to make late entries for make sure there were no blanks in the record. He days that she did not actually work, inconsistencies denied that the records had been falsified and stated between nurse's records showing the patient was eating that as far as he knew, they were accurate. However, he and talking in the days before her death and the admitted that a notation should have been made of any testimony of a nurse's aide and the patient's daughter late entry. which stated she was not, and Thompson's notes for

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July 16, which may be missing but were not shown held that HN25 mental anguish must be "a high degree conclusively to have actually existed. Although not of mental pain and distress" and must necessarily particularly strong, these facts rise to a scintilla of involve more than mere worry, anxiety, vexation, evidence which would support the giving of the embarrassment, or anger. Id. at 614. While juries must instruction within the discretion afforded to the trial be afforded discretion in arriving at the determination of judge. Further, if the medical records were altered to a figure for which there is no exact evaluation, there show that the patient was eating and talking in the days must be some evidence to justify the amount awarded, before her death when, in fact, she was not, that and juries cannot simply pick a number. Id. information could have constituted [**31] some evidence that the nursing home was aware she had a bladder At the time of her admission to the nursing home, infection which continued to worsen, thereby resulting Granger suffered from Alzheimer's Disease, organic in her death, according to appellees' theory of the case. [**33] brain syndrome, decreased functional activity, Appellants' fourth issue is overruled. diabetes, hypertension, and urinary tract infections. During the time relevant to this lawsuit, there was In their fifth and sixth issues, appellants claim the testimony that Granger suffered from pain as a result of damages awarded arising out of both the survival claim a broken leg on July 4, 1996, prior to her death on July and wrongful death claim are excessive and not 20, 1996. This apparently occurred as a result of two supported by factually sufficient evidence. Therefore, employees attempting to move her to her bed when she they assert, they are entitled to a new trial or, fell, collapsed or was [*229] dropped. 8 The nursing alternatively, this court should suggest a remittitur of home records show that immediately after her fall, damages. Granger was asked if she had any problems, and she HN24 In determining whether damages are excessive, replied negatively. However, the pain from the broken the court should use the same test as that for a factual leg was described by her daughter as "excruciating," in sufficiency question. Pope v. Moore, 711 S.W.2d 622, spite of pain medication. The pain would be exacerbated 624, 29 Tex. Sup. Ct. J. 412 (Tex. 1986). Thus, we must by being moved by nursing home personnel, although consider and weigh all of the evidence and should set Freeman also complained that her mother was in pain aside the award only if the challenged finding of fact is because she would be left in one position too long. so contrary to the overwhelming weight of the evidence There is further evidence that Granger may have been as to be manifestly unjust. In re King's Estate, 150 Tex. despondent, lacking an appetite, and producing cloudy 662, 244 S.W.2d 660, 661-62 (1951). The mere fact that and unpleasant smelling urine through her catheter an award is large does not show that the jury was during this time period, although Freeman stated that influenced by passion, prejudice, sympathy, or other she did not notice any foul odors when she visited. circumstances not in evidence, and the award must Additionally, there was some testimony from Freeman [**32] be flagrantly outrageous, extravagant, and so that, at one time when she asked the staff [**34] to clean excessive that it shocks the judicial conscience. Mis- up her mother, it was discovered that her mother was souri Pacific R. Co. v. Roberson, 25 S.W.3d 251, 257-58 lying in caked feces. Further, she was vomiting on July (Tex. App.--Beaumont 2000, no pet.). 19 prior to her admission to the hospital. After she had been admitted to the hospital on July 19, her daughter The jury was asked what sum of money would have described her as shaking and non-responsive, although fairly and reasonably compensated Granger for pain hospital records described her as alert, awake, not and mental anguish, which was defined as the running a temperature, and having no speech problem. conscious physical pain and emotional pain, torment, However, her condition worsened within hours after and suffering experienced by her before her death as a admission to the hospital, and she died, according to result of the occurrence in question. The jury found that appellees, from sepsis occurring as a result of an $ 4.5 million would so compensate her. untreated bladder infection. Nevertheless, appellants presented autopsy evidence that her death was the In Saenz v. Fidelity & Guaranty Ins. Underwriters, 925 result of coronary artery sclerosis due to a pinpoint S.W.2d 607, 39 Tex. Sup. Ct. J. 743 (Tex. 1996), it was narrowing of one of her arteries.

8 The nursing home records show that Granger had a fainting episode, although Freeman stated she did not believe that to be true. There is evidence that Granger was obese and weighed 295 pounds at the time of admission to the nursing home.

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In examining the excessiveness of the damages [**35] indeed she was producing abnormal urine in the days awarded, the holdings in two cases out of the same preceding her death, she was even aware of that fact or court provide some guidance. In Casteel v. Crown Life that it caused her worry or pain. Further, because such Ins. Co., 3 S.W.3d 582 (Tex.App.--Austin 1997), rev'd in a short time occurred between the incident where her part on other grounds, 22 S.W.3d 378, 43 Tex. Sup. Ct. leg was broken and her sudden deterioration and death, J. 348 (Tex. 2000), the plaintiff was awarded $ 6,000,000 there is no evidence as to how the broken leg might for past mental anguish as a result of his claim for have affected her long term physical and mental damages resulting from a misrepresentation of an prognosis. We do not believe the record supports an insurance agent that the obligation to pay premiums award of $ 4.5 million for Granger's physical pain and under a policy would eventually vanish. The plaintiff mental anguish. We therefore suggest a remittitur in the testified that he lost business, friends, and his reputation amount of $ 3.5 million in that regard. Having sustained due to the dispute, he required psychiatric treatment appellants' fifth issue to that extent, if a remittitur is not and medications due to stress, he suffered short and voluntarily filed, then a new trial should be granted. long term memory loss, and he had attempted suicide due to depression. His wife also testified about the The jury was also asked what sum of money would fairly effect of the dispute on his life. However, the court found and reasonably compensate Freeman for her damages, that although the evidence supported a finding that he if any, resulting from the death of her mother. In making suffered from past mental anguish, nothing in the record that decision, the jury was instructed to consider loss of showed that $ 6,000,000 was reasonable compensation companionship and society, meaning the loss of positive for that anguish. Id. at 593. [**38] benefits flowing from the love, comfort, companionship, and society that she would have In Rehabilitation Facility at Austin, Inc. v. Cooper, 962 received from her mother if she had lived, and mental S.W.2d 151 (Tex.App.--Austin 1998, no pet.), a anguish, meaning the emotional pain, torment, and 71-year-old woman suffering from rheumatoid [**36] suffering experienced by Freeman because of the death arthritis and osteoporosis was being moved from a of her mother. The jury was allowed to consider the wheelchair to her hospital bed when she experienced relationship between Freeman and her mother, their great pain, became nauseous, and blacked out. It was living arrangements, any extended absences from one discovered several hours later that two bones had been another, the harmony of their relations, and their broken in her right leg. The next day, after further common interests and activities. The jury awarded $ 4.5 complaints of pain, it was discovered that two bones in million, the same amount awarded as survival damages. her left leg were also broken. She spent two months in full leg casts. Although she had not been able to walk Freeman offered the following testimony with respect to prior to the incident, after the incident she was unable to her feelings on the death of her mother: stand even with a walker and could not sit for more than 20 minutes at a time. The rest of the time she was prone A. It was horrible. I was shocked, hurt, saddened. My and could no longer enjoy car rides with her son. She kids were all upset. You know, we loved my mama a [*230] experienced pain at the fracture sites and whole lot; and she loved us. became depressed. There was also testimony that her chances of living as long as she might have were Q. Did it come too quickly for you, ma'am? decreased. In finding that she had been deprived of what little hope and independence she had, the court A. Of course. I never dreamed, never, that my mother held that the evidence supported an award of $ would go in a hospital on a Friday and be dead on a 1,235,000 for pain, mental anguish and physical Saturday. impairment alone. Id. at 155. Q. Do you feel a loss? Although there is evidence that Granger suffered pain between July 4 and July 20 as a result of breaking a A. Terribly. bone in her leg, she may have been depressed, [**37] lacking an appetite, and may not have been timely Q. And on top of that do you feel that you have been washed after having defecated in her bed on one misled by this nursing home? occasion, there is nothing in the evidence to support an award of $ 4.5 million. There is no evidence that, if A. Totally.

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Q. And let down? Granger had periods of time in which her mental status was altered. A. Yes. In Russell v. Ramirez, 949 S.W.2d 480 Q. Did you love your mother as much as any child could (Tex.App.--Houston [14th Dist.] 1997, no writ), the court love a mother? found an award of $ 750,000 for mental anguish and loss of the companionship of the plaintiff's 16-year-old A. I loved my [**39] mother with all my heart, and my son to be supported by the evidence. Id. at 487. In doing kids loved my mother with all their hearts. so, the court noted the plaintiff was a single parent and her son had lived at home at the time of his death, there Q. You feel like they have taken away years that you was evidence that they did a lot of activities together otherwise could have had, such as a Mother's Day such as skating, going to the mall, to movies and to yesterday? Astroworld, there was a videotape of him dancing with his mother shortly before his death, the plaintiff stayed A. Yes. [**41] with her son at the hospital for 12 days before he died and, even though she was advised he would not Q. And I'm sorry to be testifying for you, but I'm going to recover, she talked to him and prayed for him, she still let you tell the [*231] jury something and that is what goes to his grave two or three times a week to tell him you feel. she misses him, she places a memorial to him in the newspaper every year, and she testified she has never A. I didn't get to tell her "goodbye." stopped grieving for him. Id. at 486-87.

(Weeping) My kids didn't get to tell her "goodbye." HN26 No physical manifestation of mental anguish is necessary in wrongful death cases, and the issue can We didn't get to say those things that we needed to say. be submitted to the jury on the basis of the impact And we looked forward to the holidays. We still talk suggested by the circumstances surrounding the loss. about it. We eat food, and I fix certain kinds of things my Moore v. Lillebo, 722 S.W.2d 683, 687-88, 29 Tex. Sup. mother liked to eat. They would always say, "That's Ct. J. 513 (Tex. 1986). From the evidence presented, a grandma's - - you know, "That's what she liked." rational trier of fact could have found that, at the time of her death, the relationship between Freeman and her We would bring her food, and my kids enjoyed my mother was close, and they had lived together happily mother. And they told her things that went on with the for eight years until Freeman could no longer care for day. She took lots of time with them. And they miss her, her mother who, by the time of her admission to the and I miss her. And it's like every holiday we miss my nursing home, had significant health problems. mother. However, throughout her life, Freeman and her mother had been separated for extended periods of time, and And the way - - and the way she died is just like - - it's there is little or no evidence of common interests or horrible. Nobody should have had to suffer like that, activities. nobody. And I hope that nobody's mother or anybody else has to suffer ever what I feel in my heart. We believe in this [**42] instance the amount of the award is not supported by the evidence. We therefore There was additional testimony that Granger had sustain appellants' sixth issue and suggest a remittitur suffered from nervous breakdowns [**40] throughout of $ 3 million in that regard. In the event the [*232] her life and that Freeman and her sister had been raised remittitur is not voluntarily made, the matter will be by others while her mother was in and out of hospitals. reversed for a new trial. Granger had also been unable to raise a younger half- sister. As an adult, Freeman built a relationship with her Appellants complain in their eighth issue that the trial mother. Beginning in 1987, Granger lived in her court abused its discretion in admitting the testimony of daughter's home, but Freeman became unable to appellees' medical expert, Dr. J. D. Britton, because he physically care for her mother's needs, particularly those was not qualified to render an expert opinion on the related to her catheter, and placed her in the nursing issues in this case relating to urology, cardiology, and home in 1995. During her stay at the nursing home, pathology.

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Dr. Britton testified he was a family practitioner for blood pressure dropping and increased pulse and approximately nine years. During that time, he was a respiratory rates, indicated she was septic. By the time medical director of a nursing home in Austin for almost antibiotics were given, it was too late. seven years. Then, he moved to Houston and began a residency program in occupational medicine for two According to Britton, Granger had three kinds of bacteria years. He obtained a master's degree in public health that are common in persons with catheters for a long and completed his training in occupational medicine. period of time. The bacteria are easily treated if done so He has since been in private practice in occupational promptly. If the hospital had received accurate records medicine. Dr. Britton is certified in preventive medicine as to the nature of Granger's [**45] urine, her lack of with occupational medicine as a specialty and board input and output, and her non-responsiveness prior to eligible in family practice, meaning he has not taken the admission to the hospital, proper treatment could have final exam to be certified. His experience [**43] in the saved her life. areas of urology, cardiology, and pathology are from medical school and his subsequent internship, as well Dr. Britton found it to be a breach of the standard of care as having treated patients with urological and cardiac for a nurse to not follow up on an order for an antibiotic, problems. thereby discontinuing its use and that was [*233] a proximate cause of injury. Further, the nursing home With respect to the care of Granger, he testified there was grossly negligent, in his opinion, in their awareness was evidence that she was suffering from a bladder of certain problems about which nothing was done, infection and that the nursing home staff had failed to such as having no intake/outflow records. The failure of give her antibiotics, even though they had been the nursing home to communicate Granger's problems prescribed, which was negligence. She was known to to the hospital was reasonably certain to have caused have frequent urinary infections, had been treated with her death. antibiotics for over a year and when the antibiotics ceased, she still had a "smoldering infection." He further HN27 In a medical malpractice case, the plaintiff must stated that weakness resulting from her infection would establish a duty requiring the defendants to conform to have contributed to her fall, resulting in a broken leg. a certain standard of conduct, the applicable standard When Granger was admitted to the hospital with her of care and its breach, a resulting injury, and a broken leg, her white cell count indicated an infection, reasonably close causal connection between the breach which was untreated from July 1 through July 20. On of the standard of care and the injury. Blan v. Ali, 7 admission to the hospital on July 19, her white cell count S.W.3d 741, 744 (Tex. App.-- Houston [14th Dist.] 1999, also indicated a severe infection. In the emergency no pet.). Expert testimony is necessary to meet this room on July 19, she was diagnosed with burden. Id. HN28 An expert qualified by knowledge, gastrointestinal bleeding, but later in intensive care, a skill, experience, training, or education may testify as nurse reported that there was pus coming out of her [**46] to scientific, technical, or other specialized bladder. There were also dark clots of urine which knowledge if it will assist the trier of fact to understand would [**44] indicate the urinary tract was bleeding. the evidence or determine a fact in issue. Tex. R. Evid. 702. According to Dr. Britton, this infection entered into Granger's bloodstream and sepsis resulted in her death. However, HN29 every licensed doctor is not He further opined that sepsis can shut down any vital automatically qualified to testify as an expert on every organ including the heart, resulting in sudden heart medical question. Broders v. Heise, 924 S.W.2d 148, failure. Also, the stress of infection and the pain of a 152, 39 Tex. Sup. Ct. J. 752 (Tex. 1996). Nevertheless, broken leg could have caused heart failure. The fact the fact that an expert is not a specialist in the particular that she had no temperature is not indicative that she branch of medicine for which the testimony is offered had no infection, because the elderly can have will not automatically disqualify him as an expert. Ali, 7 subnormal or normal temperature when they have an S.W.3d at 745. The question to be resolved is the infection, and a severe infection can cause intestinal specific subject matter and the expert's familiarity with bleeding. He further stated that as of 11:00 p.m. on July it. See Heise, 924 S.W.2d at 153; Ali, 7 S.W.3d at 745. 19, the information available, including the fact she was The proponent of the expert bears the burden of showing elderly with gastrointestinal bleeding, a white cell count that the expert's testimony is qualified, relevant to the of 27,000, IV fluids needing to be administered, her issues, based on a reliable foundation, and will assist

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the trier of fact. E. I. du Pont de Nemours and Co., Inc. manifestation and also an article on precipitating causes v. Robinson, 923 S.W.2d 549, 556, 38 Tex. Sup. Ct. J. of heart failure. Moreover, one of the consulting hospital 852 (Tex. 1995). HN30 We review the ruling of the trial physicians for Granger on June 20, a cardiologist, gave court as to the qualifications of an expert witness under his impression of her condition as "hypotension and an abuse of discretion standard. Heise, 924 S.W.2d at shock, probably secondary to sepsis, probably 151. urosepsis and urinary tract infection." Additionally, her attending physician at the time of her death, a doctor of [**47] Appellants complain that Dr. Britton was not osteopathy, listed one of the causes of death on her qualified by education, training, knowledge, or death certificate as sepsis. 9 Thus, there is nothing to experience in the fields of urology, cardiology, or indicate that the opinions offered required an expertise pathology, which would qualify him to make a diagnosis peculiar to the [**49] fields of cardiology or urology. of sepsis or urosepsis or to render opinions that the Further, multiple doctors who are not pathologists same were the proximate cause of Granger's broken offered opinions as to the cause of Granger's death. leg, heart failure, and/or death. This is primarily so The trial court did not abuse its discretion in allowing Dr. because his only training or experience in those fields Britton to testify. Appellants' seventh issue is overruled. occurred in medical school or in his practice of family medicine, which ended in 1984. Therefore, his opinions In their eighth issue, appellants argue that because Dr. were mere speculation. Britton's testimony was not competent, the record contains no evidence to establish the standard of care, The focus of our determination is not on the doctor's breach of that standard, or proximate causation. area of expertise, but on the condition involved in the However, we have found Dr. Britton's testimony to have claim. Ali, 7 S.W.3d at 746. If Dr. Britton is offering been admissible, and thus there was some evidence on opinions peculiar only to the fields of urology, cardiology, all three elements of appellees' claims. It was up to the and pathology, then he is unqualified to render them. jury to assign whatever credibility they chose to that However, if the standards of care he discusses apply to testimony. We therefore also overrule appellants' eighth any physician or health care provider who treats an issue. elderly patient with long term catheter care and cardiology problems, then his lack of expertise in those Summarized, we overrule [**50] appellants' second, special fields is irrelevant. See id. at 747. third, fourth, seventh and eighth issues and appellees' two cross-issues. We sustain in part appellants' first Dr. Britton's opinions as to the negligence of the nursing issue by finding that the damages should be limited to a home involved [**48] the failure to give an antibiotic that single statutory cap. Prejudgment interest is not subject had been prescribed for a urinary tract infection, to to the cap and should be computed on the amount of maintain accurate information in nursing home records survival damages alone. We also sustain appellants' and to communicate that information to hospital fifth and sixth issues. If the suggested remittiturs are not personnel upon transfer of a patient to the hospital. The voluntarily made within a period of 45 days from the standard of care with respect to these actions are date of this opinion, this cause will be reversed and common to all patients in a nursing home and, further, remanded for a new trial. If the remittiturs are made Dr. Britton had experience as a nursing home director. within that time, the cause will be affirmed. [*234] As to the cause of death, Dr. Britton relied on his John T. Boyd medical training and general experience treating patients. He further researched reference articles with Senior Justice respect to sepsis and the conditions which indicate its

9 At trial, he changed his opinion of the cause of her death based on the autopsy report, which found the cause to have been coronary arteriosclerosis. He also stated that the consulting cardiac physician now believes her death was cardiac-related.

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