Columbia Rio Grande Healthcare v. Hawley

• Decision Date: 05 June 2009
• Docket Number: No. 06-0372.,06-0372.
• Citation: 284 S.W.3d 851
• Parties: COLUMBIA RIO GRANDE HEALTHCARE, L.P. d/b/a Rio Grande Regional Hospital, Petitioner, v. Alice H. HAWLEY and James A. Hawley, Respondents.
• Court: Texas Supreme Court

284 S.W.3d 851

COLUMBIA RIO GRANDE HEALTHCARE, L.P. d/b/a Rio Grande Regional Hospital, Petitioner, v. Alice H. HAWLEY and James A. Hawley, Respondents.

No. 06-0372.

Supreme Court of Texas.

Argued January 17, 2008.

Decided June 5, 2009.

R. Brent Cooper, Diana L. Faust, Devon J. Singh, Heather Jean Reynolds Johnson, Cooper & Scully, P.C., Dallas, TX, Raul Javier Guerra, Green, DuBois & Guerra, San Antonio, TX, Mike A. Hatchell and Charles R. Watson Jr., Locke Lord Bissell & Liddell LLP, Austin, TX, for Petitioner.

Darrin M. Walker, Law Office of Darrin Walker, Kingwood, TX, Laura R. Pazin Porter, Clarence V. Lyons, Loan Kim Vo, Lyons & Rhodes, P.C., San Antonio, TX, Roberto J. Yzaguirre, and Jose E. Chapa, Yzaguirre & Chapa, McAllen, TX, for Respondents.

Linda C. Breck, Corpus Christi, TX, for Amicus Curiae.

Justice JOHNSON delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice HECHT, Justice WAINWRIGHT, Justice BRISTER, Justice GREEN and Justice WILLETT joined, and in all but Part II-D 2 of which Justice O'NEILL and Justice MEDINA joined.

In this health care liability case against a hospital we consider whether the trial court erred by refusing to give jury instructions as to new and independent cause, a physician's status as an independent contractor, and lost chance of survival. Concluding the trial court erred by refusing instructions on the physician's independent contractor status and lost chance of survival, we reverse and remand for a new trial.

I. Background

On November 22, 2000, Alice Hawley visited Dr. Armando Arechiga, complaining of cramps, nausea, and vomiting. Dr. Arechiga admitted her to Columbia Rio Grande Regional Hospital ("Columbia" or "the hospital"). The next day Dr. Jesus Rodriguez operated on Alice, performed a colon resection, and sent a tissue specimen to the hospital's pathology laboratory. There, Dr. Jose Valencia, an independent pathologist whose office was located inside the hospital, discovered Alice had cancer. He diagnosed its severity as Stage 3, or what is known as Duke's C cancer.

Because some doctors had complained of not receiving pathology reports, the hospital had adopted a written policy (the policy) in regard to notifying patients' doctors of cancer diagnoses. The policy was in place at the time of Alice's surgery and called for a copy of the pathology report to be placed in the patient's hospital record. It also specified the following:

A. PATHOLOGIST WILL VERBALLY NOTIFY PHYSICIAN(S) OF RECORD.

B. PATHOLOGY SECRETARY WILL FAX REPORT TO PHYSICIAN(S) OF RECORD.

C. REPORTS WILL BE DELIVERED TO PHYSICIAN(S) OF RECORD VIA CERTIFIED MAIL.

The policy identified the "physician(s) of record" as the admitting physician and the surgeon, if the surgeon was not the admitting physician. In this case, the physicians of record were Drs. Arechiga and Rodriguez.

Alice's medical records and the pathology lab records showed the pathology report was placed in her hospital chart one day before she was discharged, although Dr. Arechiga did not see it when he completed his discharge summary. The hospital disputes whether all parts of its written notification policy must be complied with as to each cancer diagnosis, and the parties disagreed as to whether all parts were actually complied with in Alice's particular case. However, there is no dispute that Alice was not told she had cancer and did not receive treatment for cancer until long after the initial diagnosis by Dr. Valencia.

During a routine checkup in the summer of 2001, Dr. Arechiga found Alice's liver enzymes to be elevated. The enzymes were much higher when she returned for another appointment in September, so Dr. Arechiga ordered tests that revealed she had liver cancer. Even though treatment began immediately, the disease was terminal.

Alice and her husband, James Hawley, sued the hospital, Dr. Rodriguez, and Dr. Valencia. They alleged the hospital was negligent in failing to timely and properly convey the cancer diagnosis to Alice and Drs. Rodriguez and Arechiga and in failing to follow its policies and procedures for reporting the pathology results. The Hawleys nonsuited the doctors before trial.

The case was tried to a jury. The jury found that Columbia's negligence was a proximate cause of Alice's injuries. The trial court entered judgment against Columbia based on the jury verdict. The court of appeals affirmed. 188 S.W.3d 838.

Columbia argues that the trial court erred in charging the jury, failing to cap the damages, and applying an improper interest rate to the judgment. It asserts charge error based on the trial court's refusal to give jury instructions as to: (1) new and independent cause, (2) the independent contractor status of Dr. Valencia, and (3) lost chance of survival.

II. The Jury Charge

A. General Law

A trial court must, when feasible, submit a cause to the jury by broad-form questions. TEX. R. CIV. P. 277. It is also required to give "such instructions and definitions as shall be proper to enable the jury to render a verdict." Id. An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). Determining necessary and proper jury instructions is a matter within the trial court's discretion, and appellate review is for abuse of that discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). One way in which a trial court abuses its discretion is by failing to follow guiding rules and principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict or probably prevented the petitioner from properly presenting the case to the appellate courts. TEX.R.APP. P. 61.1. Charge error is generally considered harmful if it relates to a contested, critical issue. See Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex.1996) (per curiam); Sw. Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex.1992).

B. New and Independent Cause

New and independent cause is a component of the proximate cause issue. See Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383-84 (1952) ("The theory of new and independent cause is not an affirmative defense; it is but an element to be considered by the jury in determining the existence or non-existence of proximate cause."). A new and independent cause of an occurrence is the act or omission of a separate and independent agent, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450-51 (Tex.2006); Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 n. 3 (Tex.2005).

Columbia contends the trial court should have instructed the jury on new and independent cause because the doctors' failure to review the pathology report was a new and independent cause that produced injuries which otherwise would not have occurred. It asserts evidence showed the pathology report was sent to Dr. Arechiga, and his failure to review that report, as well as the doctors' failure to review the report in the hospital records for eleven months, was not reasonably foreseeable. Columbia further points out that although the laboratory employees responsible for faxing and mailing the report could not specifically recall mailing and faxing Alice's report to the doctors, the employees testified that they invariably followed laboratory procedures in cancer cases because they recognized the importance of getting reports to the doctors. The hospital had a certified mail return receipt that correlated to Alice's pathology report number and was signed by the receptionist in Dr. Arechiga's office, but the hospital did not have a certified mail return receipt from Dr. Rodriguez's office. Both Drs. Arechiga and Rodriguez denied having seen the report even though each attended to Alice when she was hospitalized after the November 2000 surgery, and Dr. Arechiga's receptionist said she had received and filed the report in his office records on Alice. Both doctors denied having been told of the cancer diagnosis.

The Hawleys argue that the trial court properly refused the instruction because it was not supported by pleadings and because it was foreseeable that the doctors would not learn Alice had cancer unless the hospital ensured they actually received the pathology report or were told about it. The Hawleys also assert that if the trial court erred in refusing the instruction, the error was harmless because the charge permitted Columbia to argue that only the doctors caused Alice's injuries.

We first consider whether Columbia's pleadings supported the instruction. After the Hawleys nonsuited Drs. Rodriguez and Valencia, Columbia pled, in part, new and independent cause. The Hawleys specially excepted to the pleadings because Columbia did not specify what the alleged new and independent causes were. Columbia amended and alleged various specific acts of negligence by Drs. Arechiga, Rodriguez, and Valencia as new and independent causes. The trial court ruled that evidence of the physicians' actions would be admissible, but their actions could not be characterized to the jury as negligence. Later, when Columbia requested the new and independent cause instruction at the charge conference, the Hawleys did not object on the basis that there were no pleadings to support it. We conclude Columbia's pleadings were sufficient to support the instruction if it was otherwise proper.

We next address whether the failure to submit the instruction was error. Columbia contends that even assuming it failed to completely comply with the different parts of its notification policy, it was not foreseeable that Alice's doctors would...