Malone & Hyde, Inc. v. Hobrecht

Decision Date16 January 1985
Docket NumberNo. 04-83-00086-CV,04-83-00086-CV
Citation685 S.W.2d 739
PartiesMALONE & HYDE, INC., Appellant, v. John HOBRECHT, et al., Appellees. John HOBRECHT, et al., Appellants, v. MALONE & HYDE, INC., Appellee.
CourtTexas Court of Appeals

Clem Lyons, Stephen Dittlinger, Southers & Lyons, D. Hull Youngblood, Jr., San Antonio, for appellant.

Richard Johnson, San Antonio, for appellees.

Before CADENA, C.J., and CANTU and REEVES, JJ.


CANTU, Justice.

Separate appeals are taken from a judgment entered in a wrongful death and survivor's action brought by the Estate of Roland A. Hobrecht, his wife and three adult children, against Malone & Hyde, Inc. (Malone), the owner of a Sommer's Drug Store in San Antonio, for the alleged malpractice of its employee in misfilling a prescription for syringes.

Malone joined Dr. Bernard Pomerantz as a third party defendant alleging that the acts of Dr. Pomerantz in failing to properly instruct the Hobrechts in how to administer and verify a dosage of insulin required constituted malpractice. Malone further alleged that the Hobrechts were negligent in failing to adhere to the instructions of Dr. Pomerantz and that certain employees of Park North General Hospital were negligent in failing to properly instruct the Hobrechts in the proper administration of insulin.

The plaintiffs (Hobrechts) did not join in the action against Dr. Pomerantz or against the hospital employees.

The jury answered seventeen special issues finding Malone exclusively at fault, exonerating the Hobrechts of contributory negligence and Dr. Pomerantz of primary negligence. No special issues were submitted with regard to the negligence of the Park North General Hospital employees and their alleged negligence passed out of the case.

The jury's verdict included an award of $250,000 to Mrs. Hobrecht for pecuniary loss, $25,000 for loss of consortium before the death of her husband, Roland Hobrecht and $250,000 for loss of consortium which Mrs. Hobrecht would sustain after the death of her husband.

Also included in the jury verdict was an award of $50,000 to John Hobrecht, the adult son of the decedent as pecuniary loss, an award of $30,000 to Richard Barry Hobrecht, another adult son of the decedent, as pecuniary loss and an award of $60,000 as pecuniary loss to Pamela Goodlett, the adult daughter of the decedent.

The jury further awarded the estate $250,000 for damages incurred by decedent individually for his conscious physical pain and mental anguish as well as $20,243 as reasonable medical expenses and $2,678.01 as reasonable funeral and burial expenses.

At a hearing on the Hobrechts' motion to enter judgment on the verdict, the trial court disregarded the jury's answer awarding Mrs. Hobrecht $250,000 as damages for the loss of consortium after death and entered judgment in the amount of $667,921.49. The trial court, however, denied Malone's prayer to limit the judgment to $500,000 plus reasonable medical expenses pursuant to TEX.REV.CIV.STAT.ANN. art. 4590i and further refused to suggest a remittitur. Malone appeals from the judgment entered and the Hobrechts prosecute a separate appeal solely on the trial court's act in disregarding the jury's answer to the special issue awarding Mrs. Hobrecht $250,000 for loss of consortium after the date of the decedent's death.

The decedent, Roland Hobrecht, was a sixty-six year old advertising executive associated with the firm of Wyatt Advertising Company. At the time of his death, he had been married to his only wife, Antonia, for thirty-nine years. The Hobrechts had three children, Richard Barry, John and Pamela.

In August of 1980, the decedent was on a short vacation in Ruidoso, New Mexico, when he developed an infection inside his lip and was hospitalized in a Ruidoso hospital for a few days.

After his condition stabilized, the decedent and his wife returned to San Antonio where he was seen by Dr. Pomerantz, his treating physician for his long term bout with diabetes. On August 27, 1980, the decedent was admitted to the Park North General Hospital for aggravation of his diabetes. Although the decedent's diabetes had previously been controlled by oral medication, Dr. Pomerantz decided to start him on injectable insulin. Dr. Pomerantz filled out a prescription for NPA insulin, insulin syringes, 5/8 X 26 gauge needle and for other medication.

In order to save time, Dr. Pomerantz telephoned the prescription to the pharmacist on duty at the Sommer's Drug Store where the Hobrechts routinely filled prescriptions. The pharmacist on duty, however, filled the prescription with a non-insulin syringe.

These syringes were 25 gauge, 5/8 inch syringes with a total capacity of 3cc's and do not have the "units" marked on the barrel for insulin. An insulin syringe has demarcations for "units" of insulin and usually has a maximum volume of 1cc (100 units).

Decedent's prescription directions required him to inject himself with twenty-five units of NPH insulin each day. As a result of the misfilling of the prescription, the decedent injected himself with approximately six times his prescribed dosage of insulin on two consecutive days, that is to say, he injected himself with 150 units of insulin each time. The decedent was readmitted to Park North General Hospital the day following the final injection and was subsequently transferred to Santa Rosa Medical Center where he died approximately thirty days later.

Malone brings forth eighteen points of error for review. Essentially they fall into seven categories. The first contention complains of the trial court's entry of a judgment in excess of $500,000 plus reasonable medical expenses found by the jury and court costs.

The second alleges factual as well as legal insufficiency of evidence to support the jury finding of $250,000 as damages for physical pain and mental anguish suffered by the decedent for a period of thirty days.

The third contention alleges factual and legal insufficiency of evidence to support the jury's finding of $250,000 in pecuniary loss by the decedent's wife.

The fourth contention alleges factual and legal insufficiency of evidence to support the jury's finding of damages for pecuniary loss suffered by each of decedent's adult children.

The fifth contention alleges factual and legal insufficiency of evidence to support the jury's finding of $25,000 as damages for loss of consortium suffered by decedent's wife prior to the death of decedent.

The sixth contention alleges that the trial court erred in failing to suggest a remittitur.

The seventh and final contention alleges trial court error in failing to properly align the parties and to equalize the peremptory jury challenges.

Mrs. Hobrecht and her adult children in their separate appeal complain of the trial court's action in disregarding the jury's answer on the issue of loss of consortium following the death of decedent and in reducing the jury's verdict by $250,000.

We address Malone's contentions first although not in the order presented.

$250,000 as damages for physical pain and mental anguish suffered by decedent for a thirty-day period.

Malone's points four and five categorized above as its second contention urge that the jury answer to Special Issue No. 15 awarding the sum of $250,000 as damages for physical pain and mental anguish suffered by the decedent during a thirty-day period is unsupported by evidence, by insufficient evidence and alternatively that the finding is against the great weight and preponderance of the evidence as to be manifestly unjust.

In determining a "no evidence" point, which is a question of law, we consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we reject all evidence and inferences which are contrary to the finding. Garza v. Alviar, 395 S.W.2d 821, 826 (Tex.1965).

In determining an "insufficient evidence" point which is a question of fact, we consider and weigh all the evidence in the case to determine whether the evidence is factually insufficient to support a finding of a vital fact or whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust that the finding should be set aside and a new trial ordered. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

In response to Special Issue No. 15, the jury found that $250,000 would fairly and reasonably compensate the decedent for his conscious pain and mental anguish suffered before his death. The compensation covered a period of thirty-two days beginning on September 8, 1980, the date of the first insulin overdose, and running through October 10, 1980, the day the deceased expired from what one witness described as "almost total organ failure."

From the date of the first overdose until his death, the decedent's condition worsened continuously. After being transferred to the Santa Rosa Medical Center from the Park North General Hospital, the decedent developed congestive heart failure, shortness of breath and water in his lungs. His appetite lapsed and his bladder lost its ability to void normally. He eventually developed acute tubular necrosis of the kidneys which eventually led to dialysis.

Although the blood sugar was restored to a level compatible with life, the injury caused by overdose of insulin damaged the kidneys to the point where they could no longer rid the body of toxic substances. This led to a buildup of digitalis and quinidine levels in the blood which resulted in increased strain and stress on an already compromised heart.

Malone advances the untenable notion that the decedent suffered no physical pain and experienced no mental anguish during this period of rapid health deterioration because there is no evidence that he ever told anyone that he was experiencing pain or that he recognized his impending death.

Malone's own...

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