All Saints Episcopal Hosp. v. M.S.
| Decision Date | 06 June 1990 |
| Docket Number | No. 2-88-265-CV,2-88-265-CV |
| Parties | ALL SAINTS EPISCOPAL HOSPITAL, Appellant, v. M.S. and T.S., Individually and as Next Friend of their Minor Daughter, K.S., Appellees. |
| Court | Texas Court of Appeals |
Cantey & Hanger, and Stephen L. Tatum, Larry B. Hayes, and M. Beth Krugler, Fort Worth, for appellant.
Priddy & Chovanec and Timothy G. Chovanec, Fort Worth, for appellees.
Before HILL, FARRIS and MEYERS, JJ.
Appellees, M.S. and T.S., individually, and on behalf of their daughter, K.S., sued appellant, All Saints Episcopal Hospital, alleging an All Saints' employee sexually abused K.S. The jury found that K.S. was sexually abused by the employee (D.R.), that All Saints did not adequately supervise or respond to complaints regarding that employee, that All Saints' failures amounted to gross negligence, and the jury awarded $1,100,000 to the appellees. We sustain appellant's first point of error and reverse the judgment of the trial court because we find the trial court erred in admitting documents containing multiple hearsay that did not fit into any exception to the hearsay rule, and which more than likely caused the rendition of an improper judgment.
All Saints provides a child care center for the children of its employees. On the night of February 11, 1984, T.S., who was an LVN working at All Saints Hospital, picked up her children, K.S. and J.S. (her son), from the All Saints Child Care Center at the end of her shift. Within minutes after arriving home, K.S. told her mother that she needed to go to the bathroom. K.S. then began to cry and scream and ran into the living room jumping up and down, yelling "it burns, it hurts." T.S. testified that K.S.'s genital area was very red and swollen.
T.S. and M.S. contacted the police after which they were contacted by a social worker, Mary Taniguchi, who was with the Department of Human Resources. At her direction, they took K.S. to Northeast Community Hospital for an examination.
At the hospital, the first physician to examine K.S. was Dr. Waggener. Dr. Waggener testified he noticed a slight redness in the vagina area but there were no discharges or other abnormalities or any other evidence that he could find of forced entry or lacerations.
In addition to the testimony of Dr. Waggener, there was also contradicting testimony by Pat Yancey, a nurse who was on duty that night at Northeast Community Hospital, that there were no signs of bruising or abrasions. She did testify that she remembered there was a slight redness in the vaginal area.
Following the examination at Northeast Community Hospital, K.S. was taken the next day to see their family physician, David Law. Dr. Law testified he did not find any signs of physical abuse but he could not say whether K.S. had been physically abused or not. All he could say was there was no anatomical evidence of trauma, such as inflammation, redness, bruises or blood.
In its first point of error, All Saints contends the trial court erred in admitting into evidence exhibits and testimony which were hearsay.
Among the exhibits complained of by appellant was plaintiff's exhibit 5, which was a report prepared in part by Beth McAllister, a social worker with the Department of Human Resources, and in part by persons whose identities are unknown detailing the investigation of the child care facility and the alleged abuse of K.S. All Saints contends the DHR report contains hearsay and specifically points to accounts of conversations with other children at the All Saints Child Care Center and conversations with parents of children about what the children had told them concerning instances in which D.R. may have abused other children. The report was offered by M.S. and T.S. during the direct examination of Beth McAllister. However, the court at that time withheld its ruling. M.S. and T.S. contend it was after All Saints elicited information on twelve separate occasions from the report that the court determined the entire document should be admitted into evidence. After reviewing the record, we can find no mention by All Saints regarding the other instances in which D.R. may have abused other children and therefore, it cannot be said that All Saints invited the admission of the entire report.
Appellees further contend the report was admissible under TEX.R.CIV.EVID. 803, which provides in part:
The following are not excluded by the hearsay rule ...
....
(8) Records, reports, statements or data compilations, in any form, of public offices or...
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