Columbia Medical Center v. Bush ex rel. Bush

Citation122 S.W.3d 835
Decision Date20 November 2003
Docket NumberNo. 2-02-331-CV.,2-02-331-CV.
PartiesCOLUMBIA MEDICAL CENTER OF LAS COLINAS d/b/a Las Colinas Medical Center and Lisa Crain, R.N., Appellants, v. Norma BUSH, As Next Friend and As Guardian of Scott BUSH, Appellee.
CourtCourt of Appeals of Texas

Cooper & Scully, P.C., R. Brent Cooper, Diana L. Faust, Michelle E. Robberson, Devon J. Fultz, Dallas, for appellants.

Hill Gilstrap, P.C., Frank Gilstrap, Arlington, Law Office of Steven C. Laird, Steven C. Laird, Fort Worth, for appellee.

PANEL B: LIVINGSTON and WALKER, JJ.; and SAM J. DAY, J. (Retired, Sitting by Assignment).

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

Appellants Columbia Medical Center of Las Colinas d/b/a Las Colinas Medical Center and Lisa Crain, R.N. appeal the judgment rendered against them and in favor of Scott Bush following a fourteen-day jury trial. Appellants raise four issues1 challenging the legal and factual sufficiency of the evidence to support various jury findings, one jury charge issue based on Casteel,2 one issue complaining of allegedly conflicting jury findings, one issue claiming the Medical Center was entitled to an offset from Scott's past medical expenses, and one issue complaining of improper jury argument. We will affirm the trial court's judgment.

II. BACKGROUND FACTS

Scott, a forty-six-year-old optometrist, suffered from ventricular tachycardia, or rapid heartbeat. Scott's doctor diagnosed him with this condition in 1998 and prescribed Tambocor, a drug to depress the electrical activity of Scott's heart. On January 19, 2000, Scott's heart "started feeling funny." He took a Tambocor tablet and tried to relax. When his heartbeat did not return to normal, at around 11:00 p.m., a friend took Scott to the emergency room at Las Colinas Medical Center.

Nurse Crain, an emergency room nurse at the Medical Center, took Scott's initial information. Scott told Nurse Crain that he was suffering from ventricular tachycardia. He explained that although he had taken Tambocor earlier that evening, his heartbeat would not return to normal. Nurse Crain wrote this information on the emergency room intake form. Emergency room personnel performed an EKG on Scott and confirmed that he was experiencing ventricular tachycardia.

Scott indicated when he arrived at the Medical Center that he did not want to be "shocked," that is, cardioverted. Scott was conscious, stable, and in no pain. So, Dr. Kimberly Zeh, the emergency room doctor, ordered two different injections for Scott and one intravenous drip, but Scott's accelerated heartbeat continued. Dr. Zeh contacted the on-call cardiologist, Dr. John Osborne, and as a result of her conversation with Dr. Osborne, she ordered that five milligrams of Verapamil be administered to Scott. Eric Johansen, a paramedic working in the Medical Center's emergency room as an employee, administered the drug to Scott. Within two minutes, Scott's blood pressure "crashed," he had a convulsion, and he went into cardiac arrest.

Scott suffered brain damage from the lack of adequate oxygenation of his brain during his cardiac arrest. He resides in a nursing home, and although he breathes on his own, he lacks any independent motor function and is unable to speak.

III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In their first issue, Appellants contend that legally and factually insufficient evidence exists to support the jury's finding in special question 1 that their negligence proximately caused Scott's injuries. Specifically, Appellants challenge the evidence supporting the jury's finding of proximate cause.3 In their third issue, Appellants contend that the jury's malice finding is not supported by legally and factually sufficient evidence.

A. Standards of Review
1. Legal Sufficiency

In determining a "no-evidence" issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

2. Factual Sufficiency

An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

3. Legal and Factual Sufficiency Challenges in Light of Clear and Convincing Evidence Burden of Proof on Malice

The Texas Supreme Court recently clarified the appellate standards of review to be applied to legal and factual sufficiency of the evidence challenges in light of the clear and convincing burden of proof. Accord In re J.F.C., 96 S.W.3d 256, 264-68 (Tex.2002) (discussing legal sufficiency review in termination of parental rights appeal); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review in termination of parental rights appeal). Both legal and factual sufficiency reviews of a finding required to be based on clear and convincing evidence must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter required to be established by clear and convincing evidence. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25; see also Kroger Tex. Ltd. P'ship v. Suberu, 113 S.W.3d 588, 601 (Tex.App.-Dallas 2003, pet. filed) (applying standards of review enunciated in J.F.C. and C.H. to legal and factual sufficiency challenges to evidence of malice).

With respect to a legal sufficiency point, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." J.F.C., 96 S.W.3d at 266. In determining a factual sufficiency point, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief of the matter required to be proved by clear and convincing evidence. C.H., 89 S.W.3d at 25. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not have reasonably formed a firm conviction or belief, then the evidence is factually insufficient. Id.; Kroger, 113 S.W.3d at 601.

B. Evidence of Proximate Cause and Malice

Verapamil is a drug that is contraindicated for treatment of ventricular tachycardia. Given to patients with ventricular tachycardia, it can lead to "disastrous consequences," including death. Verapamil may be effective to slow rapid heartbeat caused by supraventricular tachycardia—tachycardia originating superior to or above the heart's ventricals. However, distinguishing supraventricular tachycardia from ventricular tachycardia is difficult, and ventricular tachycardia is more common than supraventricular tachycardia. Therefore, the medical literature, including the Advanced Cardiac Life Support ("ACLS") manual, warns all medical personnel to simply assume that "wide-complex" tachycardia and "wide-QRS," that is tachycardia that may be ventricular or supraventricular, is in fact ventricular tachycardia.

The ACLS manual repeatedly warns against giving Verapamil to patients experiencing ventricular tachycardia:

Wide QRS tachycardia of uncertain origin should be considered VT [ventricular tachycardia] and treated as such until proven otherwise.... If the patient is stable in the presence of rapid, wide-QRS tachycardia, do not treat with [V]erapamil but consider such agents as procainamide.

In summary, emergency care providers should remember:

Rule No. 1: Wide QRS tachycardia is VT until proven otherwise.

Rule No. 2: Always remember rule No. 1. Under "Critical Points to Remember," the ACLS manual again warns:

Administration of [V]erapamil to a patient with VT can be a lethal error. Verapamil can accelerate the heart rate and decrease the blood pressure.... Authors have reported numerous examples of adverse effects, including death. Do not give Verapamil to patients with a wide-complex tachycardia unless the tachycardia is known with certainty to be supraventricular in origin.

The ACLS tachycardia algorithm4 again warns, "Verapamil is not effective for the treatment of most types of ventricular tachycardia" because "[i]t may induce severe hypotension and predispose the patient to the development of ventricular fibrillation." Finally, the ACLS manual states, "The tachycardia algorithm was carefully constructed to restrict the use of Verapamil to only patients with narrow-complex PSVT with normal or elevated blood pressures." The package insert for Verapamil likewise specifically warns that Verapamil is contraindicated for ventricular tachycardia and explains that "administration of intravenous Verapamil to patients with wide-complex ventricular-tachycardia can result in marked hemodynamic deterioration and ventricular fibrillation."

On the evening of January 19, 2000, when Dr. Zeh ordered that Verapamil be given to Scott, the following individuals were in...

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