Opinion
No. 10-01-00420-CV
Opinion delivered and filed October 6, 2004.
Appeal from the 170th District Court, McLennan County, Texas, Trial Court # 99-2717-4.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is an appeal from an adverse judgment in a medical malpractice case. Because we find no error, we will affirm the judgment.
THE EVENTS
Early on a Saturday, twenty-one-year-old Lance Dowell was taken by Freestone County Sheriff's Deputies to Providence Health Center in Waco (Providence) because he had self-inflicted wounds and was talking about committing suicide. He was seen at the emergency room by Dr. James C. Pettit, who requested a psychological assessment from the DePaul Center (DePaul), which is affiliated with Providence. Sister Mary Theresa Fox, a joint employee of Providence and DePaul, evaluated Lance's condition and determined that he was not "actively suicidal." Dr. Pettit reached the same conclusion. Lance was discharged from the hospital, accompanied by his mother, Carolyn Dowell (Carolyn).
During that same day, Lance went to his mother's home in Waco and bathed, went to Lake Limestone, went to Fairfield with his brother Larry to a rodeo, and visited with friends. On Sunday he and Larry attended a family reunion and made plans to meet at a party that night. On Sunday evening, Lance hung himself.
THE SUIT
Lance's parents, Carolyn and Jimmy Dowell (Jimmy), sued Providence, DePaul, and Dr. Pettit, under the Texas Wrongful Death Act and the Survival Statute, asserting a claim of medical negligence and a claim under the federal "anti-dumping" statute. A jury found that Lance suffered personal harm as a direct result of Providence's failure to provide an appropriate psychiatric screening evaluation. After finding that the negligence of all three defendants proximately caused the injury in question, the jury apportioned the negligence 20% to Dr. Pettit, 40% to Providence, and 40% to DePaul. Damages were assessed as follows: $100,000 each to Carolyn and Jimmy for past mental anguish and loss of society and companionship; $100,000 each for the same elements in the future; and $400,000 for pain, mental anguish, and funeral and burial expenses as compensation for Lance. The court entered a judgment accordingly. Dr. Pettit filed a notice of appeal, which we docketed under cause number 10-01-420-CV. Providence and DePaul also filed a notice of appeal, which we docketed under cause number 10-02-026-CV. The causes were submitted on the same day, and the opinion in the latter cause number is being issued contemporaneously herewith.
ISSUES IN THIS APPEAL
Dr. Pettit asserts in seven issues: (1) the evidence is legally insufficient to support the finding that he breached the applicable standard of care; (2) the evidence is legally insufficient to support an award of damages for pain and mental anguish; (3) Jimmy and Carolyn, individually, are not entitled to recover damages under the survival statute; (4) a potential statutory beneficiary under the Wrongful Death Act is unaccounted for; (5) the evidence of causation is factually insufficient to support the finding; (6) the court erred in failing to ask the jury about Lance's negligence; and (7) the award of survival damages is excessive.
We will address the issues in the same order.
STANDARD OF REVIEW
We begin by considering the traditional no-evidence review standards, then add the requirements peculiar to medical negligence cases.
traditional review standards
When reviewing a no-evidence challenge, we "view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary." Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge must fail. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). Generally, if the court of appeals finds "no evidence," it is the court's duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986) (quoting Nat'l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969)).
A no-evidence issue must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-63 (1960)).
When we review an "insufficient-evidence" issue challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App. 2000, pet. denied). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX. L.REV. 515, 519 n. 11 (1991)).
medical negligence requirement
In a medical-negligence case, the plaintiff is required to show evidence of a "reasonable medical probability" that the injury was proximately caused by the negligence of the defendant. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). There are four elements to be proved: (1) a duty by the physician/nurse/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. Cruz v. Paso Del Norte Medical Found., 44 S.W.3d 622, 629-30 (Tex.App. 2001, pet. denied).
WAS DR. PETTIT'S NEGLIGENCE A CAUSE?
Dr. Pettit's first issue attacks the legal sufficiency of the evidence of causation, focusing on the cause-in-fact element of proximate cause. He correctly cites Duff v. Yelin, where the Texas Supreme Court upheld an instructed verdict in favor of a hospital in the absence of medical testimony establishing "reasonable medical probability" as to proximate cause of injury. Duff, 751 S.W.2d at 176. However, the Dowells point to the testimony of Dr. Thomas Donica, a teacher and practitioner of psychiatry, who testified as an expert that Dr. Pettit's negligence was a cause-in-fact of Lance's suicide. Dr. Pettit did not object to this testimony when offered, but objected to the submission of the causation issue and moved for judgment n.o.v.
Those objections preserve the "no-evidence" point, but do not address the admissibility of the evidence. In Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998), the Texas Supreme Court held that the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered. In Coastal Transport Co. v. Crown Cent. Petroleum Corp, 2004 WL 1091423, at * 4 (Tex. 2004), the Court noted the distinction in Maritime Overseas between challenges to an expert's scientific methodology and "no evidence challenges where, on the face of the record, the evidence lacked probative value." Challenges restricted to the face of the record do not require an objection to the admissibility of the evidence. Id.
Citing Schaefer v. Texas Employers' Ins. Ass'n, Dr. Pettit says that Dr. Donica's testimony is "no evidence" because his opinion is not reliable. Schaefer v. Texas Employer's Ins. Ass'n, 612 S.W.2d 199, 202-05 (Tex. 1980). The Supreme Court said recently in Kerr-McGee Corp. v. Helton:
In determining whether an expert's testimony constitutes some evidence, however, "an expert's bare opinion will not suffice" and "[t]he substance of the testimony must be considered." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Further, "[t]he underlying data should be independently evaluated in determining if the opinion itself is reliable." Id. at 713; Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 808 (Tex. 2002). The proponent of the evidence bears the burden of demonstrating that the expert's opinion is reliable. E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). If the expert's testimony is not reliable, it is not evidence. Havner, 953 S.W.2d at 713.
The reliability requirement focuses on the principles, research, and methodology underlying an expert's conclusions. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). Under this requirement, expert testimony is unreliable if it is not grounded "`in the methods and procedures of science' and is no more than `subjective belief or unsupported speculation.'" Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Expert testimony is also unreliable if the court concludes that "`there is simply too great an analytical gap between the data and the opinion proffered.'" Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). In reviewing the reliability of expert testimony, the court is not to determine whether the expert's conclusions are correct; rather, the court should determine only whether the analysis used to reach those conclusions is reliable. Zwahr, 88 S.W.3d at 629 (citing Gammill, 972 S.W.2d at 728).
Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004). We have made a careful analysis of Dr. Donica's testimony to come to the conclusion that the principles, research, and methodology underlying his conclusions demonstrate the reliability of his expert testimony and that it is not his "subjective belief or unsupported speculation." We overrule issue one.
CAN THE PARENTS RECOVER SURVIVAL DAMAGES?
The award of survival-statute damages is attacked in two issues.
No Evidence of Pain or Mental Anguish
In question 5, which asked about the amount of damages that would compensate Lance for (a) pain and mental anguish and (b) funeral and burial expenses, the jury's answer was $400,000. Dr. Pettit's second issue asserts that there is no evidence to support an award of survival damages "in the amount found by the jury." He reasons that the funeral and burial expenses were $6,815, so the jury must have found $393,185 for pain and mental anguish. Although he acknowledges that such damages may be proven by circumstantial evidence, he says there is no evidence of conscious pain and suffering before Lance's death.
His complaint that the damages are "excessive" is the subject of issue seven.
This argument was rejected by the Corpus Christi Court of Appeals in Spohn Hospital v. Mayer, 72 S.W.3d 52, 68 (Tex.App. 2002), rev'd on other grounds, 104 S.W.3d 878 (Tex. 2003). There, the court found that the medical examiner's certificate of death that stated "asphyxia by hanging" was some evidence of probative value that would support the jury's finding of damages for pain and mental anguish suffered by the deceased prior to his death. Id. As the Dowells point out, Lance's death certificate is almost identical to the certificate in Mayer. We overrule issue two.
Standing to Sue
Dr. Pettit's third issue asserts that the Dowells have no standing to recover survival damages. He points to the fact that he denied their legal capacity to sue in a verified pleading, that no personal representative of Lance's estate had been appointed when the suit began, and that Lance was survived by a minor son, Alec, who is not a party to the suit.
Carolyn Dowell was appointed as Administratrix of the Estate of Jonathan Lance Dowell by the County Court of Freestone County on September 24, 2001, by an order which authorized her to act on behalf of the estate in this suit. The judgment dated September 28, 2001, awards $80,000 (20% of $400,000) to "Jimmy Dowell and Carolyn Dowell, on behalf of the Estate of Jonathan Lance Dowell . . ., calculated as reflected in Exhibit `1' to this judgment. . . ." Exhibit "1" reflects three sections: (1) damages awarded to the Estate, (2) damages awarded to Jimmy Dowell, and (3) damages awarded to Carolyn Dowell. The $80,000 award is listed in the section awarded to the Estate.
The Dowells pled in their third amended petition that they were Lance's only known heirs at law, that no administration was pending or necessary, and that Carolyn had applied to be appointed "solely for purposes of this lawsuit," anticipating that she would be so appointed prior to the time of trial.
Carolyn's subsequent appointment as administratrix relates back to the filing date of the original petition; therefore, there is no statute of limitations issue and she had standing to sue. See Lovato v. Austin Nursing Ctr., Inc., 113 S.W.3d 45, 52-56 (Tex.App. 2003, pet. granted). Although we believe that the text of the judgment could be more specific to reflect the amounts of the awards shown on the Exhibit, we believe that the court correctly awarded the damages in question to the Estate. See id. We overrule issue three.
THE WRONGFUL DEATH CLAIM
Dr. Pettit's fourth issue asks whether the trial court erred in entering judgment because the Dowells failed to prosecute the wrongful death action on behalf of Lance's son, Alec, whom he says is a necessary party. He says that he also pointed out this defect in a verified pleading. If Alec attacks the judgment in the future, he says, it will not be a bar to further proceedings.
The Dowells say that Dr. Pettit's argument is a throwback to the former "indispensable party" rule, in which the absence of such a party was deemed "fundamental error" requiring reversal of the judgment. They point out that each wrongful death beneficiary can recover only damages specific to that individual and that Dr. Pettit will not be subjected to double liability if Alec were to bring a suit because there is no evidence of any relationship between Lance and Alec and therefore no damages suffered by Alec.
The jury charge specifically asked about damages to Jimmy and Carolyn by name. Alec was not mentioned. Without evidence of any interaction or familial relationship between Alec and Lance and without evidence that Lance ever supported or was capable of financially supporting Alec, it would not be improper to proceed without Alec because he would not be entitled to any benefits. See Henwood v. Richardson, 163 S.W.2d 256, 258 (Tex.Civ.App. — Texarkana 1942, writ ref'd w.o.m.). Based on Plaintiff's Third Amended Petition, the record also contains some evidence that the suit was brought on behalf of all parties entitled to bring a wrongful death suit. Texas Health Enter., Inc. v. Geisler, 9 S.W.3d 163, 169-70 (Tex.App.-Fort Worth 1999, pet. dism'd).
In addition, the Wrongful Death Act provides a three month window for any statutory beneficiary to file an action "for the benefit of all." TEX. CIV. PRAC. REM. CODE ANN. § 71.004(b), (c) (Vernon 1997). If none of the statutory beneficiaries bring an action within the three months, the executor or administrator must bring the action unless requested not to do so by any of the statutory beneficiaries. Id. As parents, Jimmy and Carolyn were entitled to bring the action individually. As the administratrix, Carolyn was also entitled to bring the action on behalf of the estate. Since Alec, or his next friend, did not bring a suit within three months, did not object to Carolyn filing as administratrix, and declined an invitation to join the Dowell's case, there is support for the trial court not abating the wrongful death suit. See Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 664 (Tex.App. 1999, pet. dism'd). We overrule issue four.
FACTUAL SUFFICIENCY OF CAUSATION
The fifth issue is factual sufficiency. Dr. Pettit essentially asserts that because the evidence that Lance was not actively suicidal when he was discharged from the emergency room is so overwhelming, the evidence is factually insufficient to support the proximate cause finding. We use the standard of review set out above.
Causation is a matter that is a particularly apt question for a jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The factfinder may believe one witness and disbelieve another, and resolve inconsistencies in testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Where enough evidence is before the factfinder that reasonable minds could differ on the meaning of the evidence or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the factfinder. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
We apply these rules to conflicting expert testimony. Having reviewed all of the evidence in a neutral light, we cannot say that the evidence supporting the jury's finding of causation in question one was either weak or overwhelmed by Dr. Pettit's contrary proof. Checker Bag, 27 S.W.3d at 633. We overrule issue five.
LANCE DOWELL'S NEGLIGENCE
Dr. Pettit's sixth issue is that the trial court erred in refusing to submit questions to the jury inquiring whether Lance was negligent and, if so, his percentage of responsibility for his own death. The Dowells point to section 93.001(a)(2) of the Civil Practice and Remedies Code, which provides that suicide, a defense when it is the sole cause of damage sustained, may not be used as a defense when it was caused in whole or in part by a failure of the defendant to comply with an applicable legal standard. Tex. Civ. Prac. Rem. Code Ann. § 93.001(a)(2) (Vernon Supp. 2004-2005). Dr. Pettit responds that he did not attempt to use Lance's suicide as a defense but wanted to ask the jury to determine if he was negligent and caused his own death.
This issue was decided by the Corpus Christi Court. Alvarado v. City of Brownsville, 865 S.W.2d 148, 153-54 (Tex.App. 1993), rev'd on other grounds, 897 S.W.2d 750 (Tex. 1995); see also Kassen v. Hatley, 887 S.W.2d 4, 12 (Tex. 1994) ("Kalra and Southwestern had no defense under this section if they failed to comply with the standard of care, and their failure was a cause of Johnson's suicide.").
Asking such a question was not necessary to allow the jury to render a verdict upon which the court could enter judgment. TEX. R. CIV. P. 277. If the jury failed to find that Dr. Pettit's negligence proximately caused Lance's suicide, Dr. Pettit was exonerated. If the jury found to the contrary, as it did, section 93.001(a)(2) precludes Lance's suicide from being used as an affirmative defense. We overrule issue five.
ARE THE DAMAGES EXCESSIVE?
In issue seven, Dr. Pettit says that the survival action damages for pain and mental anguish are excessive. He acknowledges that such damages may be proven by circumstantial evidence, and we agree. He also acknowledges that such damages are left to the sound discretion of the jury.
An appellate court may not order a remittitur unless the evidence supporting damages is factually insufficient. Torrington Co. v. Stutzman, 46 S.W.3d 829, 851 (Tex. 2000). Again, we use the standard of review set out above. Based on the record as a whole and the jury's finding of liability, the size of the verdict in this case fails to "leave no room for doubt" that the jury's liability findings resulted from passion or prejudice. See id. We overrule issue seven.
CONCLUSION
We have overruled all of his issues. We affirm the judgment as to Dr. Pettit.
DISSENTING OPINION
This is an appeal of a wrongful death and survival suit. We should reverse and render. Because the majority does not do so, I respectfully dissent.
In Appellant's first issue, he contends that there was no evidence of proximate cause. We should sustain this issue.
Appellees contend that Appellant waived his issue by failing to object to the testimony of one of Appellees' expert witnesses. The cases cited by Appellees, to the extent that they are on point, concern the waiver of objections to the methodological reliability of expert testimony, not the sufficiency of the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); Crown Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex.App. 2001), rev'd, 136 S.W.3d 227 (Tex. 2004); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n. 2 (Tex.App. 1998, pet. denied). By making an objection to the charge, filing a motion to disregard jury questions and for judgment notwithstanding the verdict, and filing a motion for new trial, all on the grounds that there was no evidence of proximate cause, Appellant preserved his no-evidence complaint. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex. 2004); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992).
See also Coastal Transp. Co v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).
Appellees contend that Appellant failed to conduct an appropriate medical examination of Lance Dowell, or failed to admit Lance to a psychiatric hospital, and that that failure caused Lance's death. Appellant treated Lance in a hospital emergency room for shallow self-inflicted cuts to his wrists. The undisputed evidence was that when Appellant treated Lance, Lance was lucid, calm, remorseful, stable, and not actively suicidal. There is no evidence that, if Appellant had recommended admission to a psychiatric hospital, Lance would have agreed or could have been compelled to be admitted. After Lance was released from the hospital to Appellees, and until his death, they saw nothing out of the ordinary about him except that he was "more withdrawn." The day that he was released from the hospital, Lance visited with his family, went to a rodeo, and visited with friends. The next day, he had lunch with his family and helped a friend bale hay. About a day and a half after he left the hospital, Lance hanged himself. Appellees' expert testified, at most, that had Lance been admitted to a hospital the probability that he would commit suicide upon his release would have been reduced.
Under these facts, there is no evidence that Appellant's conduct was a substantial cause of Lance's death. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Ramos, 47 Tex. Sup. Ct. J. 666, 668-69, 2004 Tex. LEXIS 534, at *8-*13 (Tex. June 18, 2004); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex. 2002); Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998). Accordingly, we should sustain Appellant's first issue.
We should, then, after sustaining Appellant's first issue, reverse and render judgment that Appellees take nothing from Appellant. Therefore, we should not consider Appellant's other issues.
Because the disposition of the first issue would be dispositive of the appeal, I will not discuss my disagreements with the remainder of the majority's opinion. I note only in passing that an estate, by that name, is not a proper party to litigation. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n. 2 (Tex. 2000); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975). I also note that two notices of appeal from the same judgment should bear the same docket number on appeal. Tex.R.App.P. 12.2(c). Docketing this cause and Cause No. 10-02-00026-CV, styled Providence Health Ctr. v. Dowell, as two separate appeals was improper.