Cunningham v. Haroona, 02–07–00231–CV.

CourtCourt of Appeals of Texas
Writing for the CourtANNE GARDNER
Citation382 S.W.3d 492
PartiesRobert Gene CUNNINGHAM, Individually and as Representative of the Estate of Patricia Maudine Cunningham, Deceased, Robin Lee Cunningham Bishop, and Tracy Jeanne Cunningham Lang, Appellants v. Ladi O.M. HAROONA, M.D., Appellee.
Docket NumberNo. 02–07–00231–CV.,02–07–00231–CV.
Decision Date18 October 2012

382 S.W.3d 492

Robert Gene CUNNINGHAM, Individually and as Representative of the Estate of Patricia Maudine Cunningham, Deceased, Robin Lee Cunningham Bishop, and Tracy Jeanne Cunningham Lang, Appellants
Ladi O.M. HAROONA, M.D., Appellee.

No. 02–07–00231–CV.

Court of Appeals of Texas,
Fort Worth.

Aug. 23, 2012.
Rehearing and En Banc Reconsideration Overruled Oct. 18, 2012.

[382 S.W.3d 495]

Katherine S. Youngblood, Houston, TX, for Appellants.

Stephen W. Johnson and Reuben R. Rios, Johnson Robinson Fifield, P.C., Dallas, TX, for Appellee.



I. Introduction

Patricia Maudine Cunningham (Pat) was hospitalized at Plaza Medical Center on May 24, 2003, for treatment of severe jaw pain. While in the hospital, Pat developed bilateral pneumonia and a progressive cascade of other conditions, including hypoxia, respiratory failure, sepsis, disseminated intravascular coagulation (DIC), strokes, and multi-organ failure and died two weeks later on June 7, 2003. Her surviving spouse, Robert Gene Cunningham (Bob), brought this medical malpractice suit individually and as representative of Pat's estate on August 29, 2003,1 seeking wrongful death and survival damages against seven defendants: Plaza Medical Center of Fort

[382 S.W.3d 496]

Worth; Janet Koch, R.N.; Krishnababu Chunduri, M.D.; Lincoln Chin, M.D.; Noble Ezukanma, M.D.; Ladi O.M. Haroona, M.D.; and HealthFirst Medical Group, P.A.

Beginning on October 30, 2006, trial to a jury spanned almost three months. 2 The jury returned its verdict on January 22, 2007, finding “yes” in answer to a broad-form submission that negligence of Plaza Medical Center, Dr. Chunduri, and Dr. Ezukanma proximately caused Pat's death. The jury found “no” as to any negligence of Dr. Haroona, Dr. Chin, Health First Medical Group, P.A., or Nurse Koch that proximately caused Pat's death. The jury awarded Bob wrongful death damages of $250,000 for loss of society and companionship and $250,000 in mental anguish, and it awarded the daughters $10,000 each for mental anguish. The jury also awarded survival damages of $1.43 million for pain and mental anguish suffered by Pat as the result of her “injuries in question” before her death and $71,140.42 for medical expenses for treatment of her injuries.3

The trial court signed the final judgment on the verdict on April 13, 2007, for damages against Dr. Chunduri, Dr. Ezukanma, HealthFirst Medical Group, P.A., and Plaza Medical Center. Defendants Dr. Chunduri, Dr. Ezukanma, and HealthFirst Medical Group, P.A. appealed from the judgment against them. 4 Dr. Ezukanma and HealthFirst Medical Group, P.A. settled with the Cunninghams during the pendency of this appeal but before submission of the appeal in this court. Dr. Chunduri settled with the Cunninghams after submission. This opinion addresses the only remaining part of this case, the Cunninghams' appeal from the take-nothing judgment as to Dr. Haroona.

II. Issue Presented

In their sole issue, the Cunninghams complain that the trial court erred by refusing to submit their requested separate liability questions (one for Pat's wrongful death and the other for her survival action), by instead combining their wrongful death and survival actions into one liability question for negligence that caused death, and by submitting the questions regarding their survival action for injuries that did not cause death (nonfatal injuries) conditioned on a “no” answer as to all defendants' liability for wrongful death. Because the jury found that three defendants' negligence caused Pat's death, the Cunninghams argue that the jury was not allowed to consider whether any negligence of Dr. Haroona caused nonfatal injuries. The Cunninghams do not challenge the jury's findings in their favor as to wrongful death or survival damages for injuries that caused death, nor do they challenge the take-nothing judgment in favor of Dr. Haroona or the two other defendants on their wrongful death action. They seek a reversal and remand for new trial only on their survival action as to Dr. Haroona and only as to nonfatal injuries.

III. Factual Background

Pat, who was sixty-three years of age at the time of her hospitalization, had been

[382 S.W.3d 497]

diagnosed with multiple sclerosis (MS) many years before.5 She used a cane and sometimes a scooter for mobility around the couple's ranch near Weatherford where Bob raised cattle and maintained his prized cutting horses. Pat was able to care for her personal needs and managed the household with help. Pat also suffered intermittently from trigeminal neuralgia (TN), a condition secondary to her MS that consisted of an irritation of the trigeminal nerve. When active, the TN caused Pat excruciatingly severe pain in her jaw and difficulty chewing food and swallowing.

Dr. Chunduri had been Pat's treating neurologist for eleven years and had treated her for severe bouts of TN on several occasions. Previous flare-ups lasted only a few days, including a short hospitalization, after which Pat was able to resume normal eating and drinking. Numerous pain medications gave her varying degrees of relief from the intermittent TN pain. Specialized treatments for the TN had failed.

A. Admission to the Hospital

In May of 2003, Pat had a flare-up of TN that became unmanageable despite Bob's administration of maximum levels of oral medications prescribed by Dr. Chunduri. For several days, Bob fed Pat by dipping a straw into a can of Ensure and dripping it into her mouth. On Saturday, May 24, Bob carried Pat to the hospital; Pat was in so much pain that she was biting on a towel.

B. Dr. Chin's Care—May 24 to May 26, 2003

On Pat's admission, Dr. Chin performed a physical examination and obtained Pat's history from Bob because Pat was unable to talk. Bob told Dr. Chin that Pat had been unable to eat or drink anything for the past week because of the pain. Dr. Chin noted that Pat was in “extreme distress.” Dr. Chin ordered blood tests; placed Pat on IV fluids; ordered a liquid diet with notations to “advance as tolerated” to limit aggravation of the TN associated with chewing; and placed her on IV pain medication including Cerebyx, a Duragesic patch, and morphine injections.

Although Dr. Chin's order was for a liquid diet, by which he testified that he had meant a “full” liquid diet, nurses' notes in the medical record stated that Pat was served a “clear liquid diet” of approximately 500 calories every day until May 29. On Sunday, May 25, Pat was pain-free and talking. On Monday, May 26, the TN pain returned. Dr. Chin noted that her pain was severe and that she was unable to eat or drink. The hospital's dietician performed a nutritional screening for Pat on that date and rated her status as “Level IV,” the highest level of nutritional risk. The dietician wrote, “[C]onsider PEG for additional nutritional support if patient with long-term pain.” 6

C. Dr. Chunduri's Care—May 27 to June 5, 2003

Dr. Chunduri resumed care of Pat on Tuesday, May 27. He formulated a treatment plan intended to control her TN pain so that she could resume eating. He agreed with Dr. Chin's orders for IV fluids and a liquid diet at that time, and because the pain persisted over the weekend, he

[382 S.W.3d 498]

ordered steroids to assist with the pain. By the evening of May 28, he said Pat was feeling better. However, on that date, another dietitian visited Pat, described her diet as “negligible” for that date, maintained Pat at Level IV, and recommended consideration of a feeding tube.

On May 29, Dr. Chunduri advanced Pat to a regular diet. According to the nurses' notes, Pat ate twenty-five to fifty percent of her food on May 30. By May 30, Pat's pain had largely resolved. However, around noon that day, nurses advised Dr. Chunduri that Pat had a fever of 101 degrees. Even so, Dr. Chunduri told Bob later that afternoon that he thought Pat was doing so well she could be discharged by the weekend.

D. Dr. Ezukanma's Care—May 31 to June 2

On May 30, Dr. Chunduri ordered a chest x-ray to investigate the possibility of pneumonia. Pat's oxygen saturation levels were lower on May 31, and her serum albumin levels had dropped. Dr. Chunduri consulted with Dr. Ezukanma, a pulmonologist, who diagnosed Pat with bilateral pneumonia.

Dr. Ezukanma examined Pat on the evening of May 31, reviewed the laboratory data, and ordered additional x-rays along with a complete blood count and blood, sputum, and urine cultures for bacteria. He determined that Pat was in mild to moderate respiratory distress with impending respiratory failure; transferred Pat to the cardiovascular ICU for closer monitoring; placed her on 100 percent supplemental oxygen with a “venti-mask”; and ordered breathing treatments, bronchodilators, and a broad spectrum of antibiotics pending returns from the cultures. Dr. Ezukanma noted that Pat might need intubation if her condition did not improve. He discussed with her that she needed to be on a ventilator to rest and that without it, she could get worse and possibly stop breathing. Pat refused intubation at that time but agreed to allow it if her condition worsened.

On May 31 and June 1, Pat was not in pain, but she ate almost nothing. At 10:00 a.m. on June 1, Pat's oxygen level dropped below ninety percent for the first time, eighty-eight percent being the lowest range of a normal level of oxygen saturation. On June 2, nurses' notes indicated Pat's pain returned, and she was struggling to breathe. The chart reflected that she ate no breakfast or dinner and only five percent of her lunch. Dr. Chunduri still thought, based on his experience with TN and past treatment of episodes suffered by Pat, that the pain would be gone in a couple more days so that a nasogastric (NG) or other feeding tube would not be necessary. He increased her pain medication. Pat again refused intubation, informing Dr. Ezukanma that she did not want a tube down her throat. From additional x-rays...

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