Columbia Rio Grande Healthcare v. Hawley

• Decision Date: 23 March 2006
• Docket Number: No. 13-03-427-CV.,13-03-427-CV.
• Citation: 188 S.W.3d 838
• Parties: COLUMBIA RIO GRANDE REGIONAL HEALTHCARE, L.P., d/b/a Rio Grande Regional Hospital, Appellant, v. Alice H. HAWLEY and James A. Hawley, Appellees.
• Court: Texas Court of Appeals

188 S.W.3d 838

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

No. 13-03-427-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 23, 2006.

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Brad M. LaMorgese, R. Brent Cooper, Diana L. Faust, Cooper & Scully, Dallas, for appellant.

Clem V. Lyons, LoAn K. Vo, Laura R. Pazin, Lyons & Rhodes, San Antonio, Darrin Walker, Law Office of Darrin Walker, for appellees.

Before Justices RODRIGUEZ, CASTILLO, and GARZA.

OPINION

Opinion by Justice GARZA.

Columbia Rio Grande Healthcare, L.P., d/b/a Rio Grande Regional Hospital, appeals from a judgment entered against it on a jury verdict. Ten issues are raised in this appeal. These fall into four general categories: (1) challenges to the sufficiency of the evidence, (2) issues related to the admissibility of certain expert testimony, (3) jury charge issues, and (4) issues related to damages and to the pre- and post-judgment interest rates.¹ To ensure that all issues necessary for final disposition of the appeal are decided, we address the issues in a different order than how they are presented by appellant. See TEX. R.App. P. 47.1. Specifically, we begin with errors that would require the rendition of judgment in appellant's favor and then discuss errors that would require a new trial. Errors that would require modification of the judgment will be discussed last. We overrule all issues and affirm the judgment of the trial court.

Background

On November 22, 2000, Alice H. Hawley presented to Armando Arechiga, M.D., her primary care physician, complaining of cramps, nausea, and vomiting. Dr. Arechiga referred Mrs. Hawley for a Doppler exam. Upon learning the results of the exam, Dr. Arechiga sent Mrs. Hawley directly to Rio Grande Regional Hospital (the "Hospital") for treatment of a perforated diverticuli. On November 23, 2000, Jesus Rodriguez, M.D., performed a resection of Mrs. Hawley's colon because of the ruptured diverticuli. During the surgery, Dr. Rodriguez examined Mrs. Hawley's liver and detected no abnormalities. Mrs. Hawley was discharged from the Hospital on November 29, 2000.

The excised portion of Mrs. Hawley's colon was sent to Jose Valencia, M.D., a pathologist whose office is located within the Hospital. Dr. Valencia's examination of the tissue specimen revealed that Mrs. Hawley had cancer. Dr. Valencia diagnosed Mrs. Hawley as having adenocarcinoma of the colon with four of five lymph nodes being positive. Dr. Valencia staged the cancer, in terms of severity, as Stage 3 or what is known as "Duke's C" cancer.

Mrs. Hawley did not learn that she had cancer until October 2001, almost a full year after she was diagnosed by Dr. Valencia. By that time, she had an inoperable tumor in her liver that was roughly the size of a softball. Mrs. Hawley was treated with chemotherapy by Susan Escudier, M.D. and Billie Marek, M.D. Although her initial response to the chemotherapy was excellent, the cancer was too far advanced to be cured. The treating physicians continued treatment in the hope of prolonging Mrs. Hawley's life for as long as possible.

On February 26, 2002, Mrs. Hawley and her husband, James A. Hawley, sued the Hospital. Their live petition alleged that the Hospital was negligent in failing to timely and properly convey the cancer diagnosis to Mrs. Hawley, her surgeon, Dr. Rodriguez, and her admitting physician, Dr. Arechiga. The Hawleys also complained that the Hospital had failed to follow its own polices and procedures in the reporting of surgical pathology results.

The case was tried to a jury, which returned a unanimous verdict that the Hospital's negligence was a proximate cause of the injuries and damages sustained by the Hawleys. The trial court entered a judgment on the verdict, and the Hospital subsequently appealed the judgment to this Court.

At the time of trial in February 2003, Mrs. Hawley's life expectancy was approximately six months. While the instant appeal was pending before this Court, Mrs. Hawley succumbed to complications caused by her cancer. Her husband continues in this matter as sole appellee.

I. Challenges to the Sufficiency of the Evidence

In its sixth and eighth issues, the Hospital contends that the evidence is insufficient to support the jury's findings. The standards of review for legal and factual sufficiency challenges are settled and will not be restated here.²

A. The Jury's Answer to Question One

In its sixth issue, the Hospital contends that the evidence is legally insufficient to support the jury's affirmative answer to Question One, which asked, "Was the negligence, if any, of . . . the Hospital a proximate cause of injuries to Alice H. Hawley?" The Hospital argues that there was no competent evidence that Mrs. Hawley had more than a 50 percent chance of survival in November 2000 and that the evidence is therefore legally insufficient to prove that the Hospital's negligence was a proximate cause of Mrs. Hawley's injuries.

The Texas Supreme Court has explained that, in cases such as this, the ultimate standard of proof on the issue of causation is whether, by a preponderance of the evidence, a negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). Put simply, it must be "more likely than not" that the ultimate harm or condition resulted from the defendant's negligence. Kramer, 858 S.W.2d at 400. Thus, recovery is barred if the defendant's negligence deprived the patient of only a 50 percent or less chance of survival. Milo, 909 S.W.2d at 511; Kramer, 858 S.W.2d at 400.

Much of the trial focused on Mrs. Hawley's chances of survival in November 2000, when Dr. Valencia initially diagnosed her with cancer. Both sides produced expert medical testimony to explain how colon cancer is staged and what the various rates of survival are for the different stages.³ The uncontradicted testimony established that, if Mrs. Hawley had been fully evaluated following her initial diagnosis, her cancer would have been staged at either "Duke's C" or "Duke's D."

Patients afflicted with cancer staged at Duke's C and Duke's D have markedly different rates of survival. Dr. Escudier testified that the survival rate for Duke's C patients who are properly treated is between 40 and 60 percent. She believes that the rate is actually closer to 60 percent, but she acknowledges the existence of older studies that place the rate below 50 percent. Dr. Escudier attributes the discrepancy between the old and new studies, in part, to improvements in imaging technology. With better imaging, patients are staged more accurately, meaning fewer patients with Duke's D are incorrectly staged at Duke's C. Thus, in Dr. Escudier's opinion, the actual survival rate has not necessarily improved for Duke's C patients. The survival rate has improved statistically, in part, because fewer patients with more advanced cancer are mistakenly staged at Duke's C, which has led to an overall increase in the survival rate for Duke's C patients.

Dr. Escudier's estimate of the survival rate was supported by the opinions of the other oncologists who testified at trial. For instance, Dr. Marek estimated the survival rate for Duke's C to be approximately 65 percent. Even Eric Raefsky, M.D., an oncologist from Nashville, Tennessee, who was called as an expert witness by the Hospital, agreed with Dr. Escudier: "[I]f you look at groups of patients as a whole prospectively, an average Duke's C colon cancer patient treated with adjuvant chemotherapy, a five-year survival or overall survival of 60 percent seems reasonable to me."

There was also very little disagreement about the survival rate of patients suffering from Duke's D cancer. Their prognoses range from zero to 30 percent.

The main dispute at trial was whether Mrs. Hawley had Duke's C or Duke's D cancer in November 2000. The Hawleys maintained that the cancer was Duke's C, but the Hospital attempted to prove that Mrs. Hawley had already developed the more advanced and less treatable Duke's D. In attempting to prove their respective cases, both sides were frustrated by a common problem: Mrs. Hawley did not undergo a full evaluation at the time of her initial diagnosis. Instead, nearly 11 months elapsed before any imaging was performed. The uncontradicted expert testimony produced at trial established that radiographic imaging is a critical factor in accurately staging cancer. Without confirming the existence of a new tumor, a patient cannot be properly staged at Duke's D. That is, a Duke's D diagnosis requires confirmation that the cancer has spread to a new location and formed a new growth area or tumor, which can be identified visually and can be measured. In other words, the tumor must be clinically demonstrable. Thus, in Mrs. Hawley's case, the cancer could be properly staged at Duke's D only if there was evidence of a tumor in her liver. At trial, the Hospital did not offer any direct evidence to establish that a tumor was present in Mrs Hawley's liver on or before November 2000.

Instead, the Hospital presented expert opinion testimony that, given the large size of Mrs. Hawley's tumor 11 months after her initial diagnosis, the tumor must have been present in her liver when she was initially diagnosed back in November 2000. The Hawleys countered with expert testimony explaining that the presence of some cancerous cells in a secondary location does not necessarily warrant a Duke's D diagnosis. In fact, all the oncologists who testified at trial recognized a distinction between "micrometastatic" disease and "macrometastatic" disease. Micrometastatic disease...