Opinion
Civil Action No. 3:02-CV-1293-D
March 25, 2004
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Findings of Fact
1. The court adopts as findings of fact the nine stipulated facts set out at § II of the Pretrial Order.
2. Plaintiff Earline Jackson, Individually and as Representative of the Estate of James William Jackson, Deceased ("Mrs. Jackson"), failed to prove by a preponderance of the evidence that Elizabeth Polanco, M.D. ("Dr. Polanco") was negligent in her care of James William Jackson ("Jackson").
3. Mrs. Jackson failed to prove by a preponderance of the evidence that any other Veterans Affairs North Texas Health Care System ("Veterans Medical Center") physician was negligent in the care of Jackson.
4. Mrs. Jackson proved by a preponderance of the evidence that Veterans Medical Center was negligent on February 3, 2000 in failing to provide an escort service for Jackson to transfer from the Transitional Care Unit to the GU Clinic for an appointment.
5. Mrs. Jackson proved by a preponderance of the evidence that Jackson was injured when he fractured his left ankle.
6. Mrs. Jackson proved by a preponderance of the evidence that the negligence of Veterans Medical Center in failing to provide an escort service proximately caused Jackson to fracture his left ankle.
7. The sum of money, if paid now in cash, that would fairly and reasonably compensate Jackson for his physical pain and mental anguish for the injury to his left ankle is $10,000. Although Jackson lived from the date of the injury on February 3, 2000 to the date of his death on June 4, 2000, Jackson was sufficiently debilitated beginning April 30, 2000 — due to a poor state of health that was not caused by the negligence of Veterans Medical Center staff or one of its physicians — that the physical pain and mental anguish he suffered as a result of his left ankle injury warrants only an award in this amount.
8. No sum of money should be awarded for physical impairment to Jackson caused by the fracture of his left ankle.
9. Because of Jackson's poor medical condition and his continued hospitalization from December 20, 1999 to June 4, 2000 for reasons that were not the result of the negligence of the Veterans Medical Center staff or one of its physicians, no sum of money should be awarded to Mrs. Jackson for loss of consortium with respect to the fracture of Jackson's left ankle.
10. Mrs. Jackson proved by a preponderance of the evidence that Veterans Medical Center was negligent on or before April 15, 2000 in the nursing staffs physical handling of Jackson in a manner that resulted in a fracture to the surgical neck region of his left humerus and a dislocated left shoulder.
11. Mrs. Jackson proved by a preponderance of the evidence that Jackson was injured when his left humerus was fractured and his left shoulder was dislocated.
12. Mrs. Jackson proved by a preponderance of the evidence that the negligence of the Veterans Medical Center nursing staff in physically handling Jackson proximately caused his fractured left humerus and his dislocated left shoulder.
13. The sum of money, if paid now in cash, that would fairly and reasonably compensate Jackson for his physical pain and mental anguish for the injury to his left humerus and left shoulder is $5,000. Although Jackson lived from the date of the injury on or about April 15, 2000 to the date of his death on June 4, 2000, Jackson was sufficiently debilitated beginning April 30, 2000 — due to a poor state of health that was not caused by the negligence of Veterans Medical Center staff or one of its physicians — that the physical pain and mental anguish he suffered as a result of his left humerus and left shoulder injury warrants only an award in this amount.
14. No sum of money should be awarded for physical impairment to Jackson caused by the injury to his left humerus and left shoulder.
15. Because of Jackson's poor medical condition and his continued hospitalization from December 20, 1999 to June 4, 2000 for reasons that were not the result of the negligence of the Veterans Medical Center staff or one of its physicians, no sum of money should be awarded to Mrs. Jackson for loss of consortium with respect to the injury to Jackson's left humerus and left shoulder.
16. Mrs. Jackson failed to prove by a preponderance of the evidence that Veterans Medical Center was negligent in any other respect.
17. The postjudgment interest rate on March 17, 2004 is 1.16% per annum.
Conclusions of Law
1. The extent of the liability of the United States of America ("the government") under the Federal Tort Claims Act ("FTC A") is generally determined by reference to state law. Molzof v. United States, 502 U.S. 301, 305 (1992). Because the alleged negligent acts occurred in Texas, Texas law governs the issue of liability. Urbach v. United States, 869 F.2d 829, 831(5th Cir. 1989).
2. Under Texas law, to recover from the government in this action for the conduct of a physician, Mrs. Jackson must prove these elements by a preponderance of the evidence: (1) a legally cognizable duty requiring the physician to conform to a certain standard of care or conduct, (2) the applicable standard of care, (3) a breach of that standard, (4) injury, and (5) a reasonably close causal connection between the breach and the injury the plaintiff suffered. Wax v. Johnson, 42 S.W.3d 168, 171 (Tex.App. 2001, pet. denied).
3. To establish that Dr. Polanco. breached the applicable standard of care, Mrs. Jackson must prove by a preponderance of the evidence that Dr. Polanco. was negligent in her treatment of Jackson. Bradford v. Alexander, 886 S.W.2d 394, 396 (Tex.App. 1994, no writ).
4. "Negligence," when used with respect to the conduct of Dr. Polanco, means failure to use ordinary care, that is, failing to do that which a physician of ordinary prudence of the particular medical specialty in question would have done under the same or similar circumstances or doing that which a physician of ordinary prudence of the particular medical specialty in question would not have done under the same or similar circumstances.
5. "Ordinary care," when used with respect to the conduct of Dr. Polanco, means that degree of care that a physician of ordinary prudence of the particular medical specialty in question would use under the same or similar circumstances.
6. "Proximate cause," when used with respect to the conduct of Dr. Polanco, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a physician of the particular medical specialty in question using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
7. To establish that any other Veterans Medical Center physician breached the applicable standard of care, Mrs. Jackson must prove by a preponderance of the evidence that the physician was negligent in his or her treatment of Jackson. Bradford, 886 S.W.2d at 396.
8. "Negligence," when used with respect to the conduct of any other Veterans Medical Center physician, means failure to use ordinary care, that is, failing to do that which a physician of ordinary prudence of the particular medical specialty in question would have done under the same or similar circumstances or doing that which a physician of ordinary prudence of the particular medical specialty in question would not have done under the same or similar circumstances.
9. "Ordinary care," when used with respect to the conduct of any other Veterans Medical Center physician, means that degree of care that a physician of ordinary prudence of the particular medical specialty in question would use under the same or similar circumstances.
10."Proximate cause," when used with respect to the conduct of any other Veterans Medical Center physician, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a physician of the particular medical specialty in question using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
11. Under Texas law, to recover from the government in this action for the conduct of Veterans Medical Center, Mrs. Jackson must prove these elements by a preponderance of the evidence: (1) a duty by the hospital to act according to applicable standards of care, (2) a breach of the applicable standard of care, (3) an injury, and (4) a causal connection between the breach of care and the injury. Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex.App. 2001, pet. denied).
12. To establish that Veterans Medical Center breached the applicable standard of care, Mrs. Jackson must prove by a preponderance of the evidence that Veterans Medical Center was negligent in its treatment of Jackson. See Bradford, 886 S.W.2d at 396 (addressing physician malpractice).
13. "Negligence," when used with respect to the conduct of Veterans Medical Center, means failure to use ordinary care, that is, failing to do that which a hospital of ordinary prudence would have done under the same or similar circumstances or doing that which a hospital of ordinary prudence would not have done under the same or similar circumstances.
14. "Ordinary care," when used with respect to the conduct of Veterans Medical Center, means that degree of care that a hospital of ordinary prudence would use under the same or similar circumstances, as the patient's condition, as it is known to be, may require, including safeguarding and protecting the patient from any known or reasonably apparent danger from himself that may arise from his known mental or physical incapacity.
15. "Proximate cause," when used with respect to the conduct of Veterans Medical Center, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a hospital using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
16. Under Texas law, a plaintiff who proves a claim for medical care negligence may recover damages that would fairly and reasonably compensate him for physical pain and mental anguish. "Pain and mental anguish" means the conscious physical pain and emotional pain, torment, and suffering experienced by Jackson before his death as a result of the injury in question.
17. Mrs. Jackson did not include a claim for damages for Jackson's loss of enjoyment of life in the pretrial order. See Pretrial Order at § I(A). Even if she had, under Texas law, loss of enjoyment of life fits best among the factors a factfinder may consider in assessing damages for physical impairment. If other elements, such as pain, suffering, mental anguish, and disfigurement are submitted, there is little left for which to compensate under the category of physical impairment other than loss of enjoyment of life. This court, as trier of fact, may consider as a factor of physical impairment loss of enjoyment of life. But the effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity, and the plaintiff should not be compensated more than once for the same elements of loss or injury. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003).
18. Under Texas law, the spouse of a plaintiff who has suffered physical injuries caused by the negligence of a third party has a cause of action for loss of consortium.
19. "Consortium" means the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to a successful marriage.
20. Because Mrs. Jackson failed to prove by a preponderance of the evidence that Dr. Polanco. was negligent, she is not entitled to recover from the government on this basis, and her action must in this respect must be dismissed with prejudice.
21. Because Mrs. Jackson failed to prove by a preponderance of the evidence that any other Veterans Medical Center physician was negligent, she is not entitled to recover from the government on this basis, and her action must in this respect be dismissed with prejudice.
22. Because Veterans Medical Center had a duty to act according to applicable standards of care, and Mrs. Jackson proved by a preponderance of the evidence that Veterans Medical Center breached the applicable standard of care, Jackson was injured, and the negligence of Veterans Medical Center proximately caused Jackson's injuries to his left ankle and to his left humerus and left shoulder, she is entitled to recover from the government the sum of $15,000 in damages that the court has found should be awarded for physical pain and mental anguish.
23. Under Texas law, a judgment in a personal injury case earns prejudgment interest. Tex. Fin. Code Ann. § 304. 102 (Vernon Supp. 2004). Under the FTCA, however, the government is not liable for prejudgment interest in this case. See 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment[.]").
24. Mrs. Jackson is not entitled to an award of damages for Jackson' s physical impairment or for her loss of consortium.
25. Mrs. Jackson is not entitled to any relief other than that which the court has expressly concluded should be awarded to her.
26. A conclusion of law that should be treated as a finding of fact is hereby adopted as such, and a finding of fact that should be treated as a conclusion of law is hereby adopted as such.