Mariner Health Care Of Nashville Inc. D v. Robins

• Citation: 321 S.W.3d 193
• Decision Date: 01 July 2010
• Docket Number: No. 01-08-00830-CV.,01-08-00830-CV.
• Parties: MARINER HEALTH CARE OF NASHVILLE, INC. d/b/a Mariner Health of Southwest Houston, Appellant, v. Gladys ROBINS, Individually and on Behalf of the Estate of Betty Battle, Deceased, Appellee.
• Court: Court of Appeals of Texas

321 S.W.3d 193

MARINER HEALTH CARE OF NASHVILLE, INC. d/b/a Mariner Health of Southwest Houston, Appellant,

v.Gladys ROBINS, Individually and on Behalf of the Estate of Betty Battle, Deceased, Appellee.

No. 01-08-00830-CV.

Court of Appeals of Texas,Houston (1st Dist.).

July 1, 2010.

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Brian P. Johnson, Tamara M. Madden, Johnson, Trent, West & Taylor, LLP, Lauren B. Harris, Porter & Hedges LLP, Houston, TX, for Appellant.

Scot G. Dollinger, Dollinger Law, Houston, TX, for Appellee.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

Appellee Gladys Robins sued appellant Mariner Health Care of Nashville, Inc. Robins asserted claims for medical malpractice under the Texas Wrongful Death Act and the Texas Survival Statute, alleging that her mother, Betty Battle, suffered injuries and died due to negligent nursing home care. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.001-.012 (Vernon 2008) (wrongful death action); id. § 71.021 (survival action).

A jury found in favor of Robins only on the survival action, and the jury awarded her $750,000, which the trial court reduced to $250,000. See Tex. Civ. Prac. & Rem.Code Ann. § 74.301(b) (Vernon 2005) (capping noneconomic damages at $250,000). Although other wrongful death beneficiaries were plaintiffs at trial, Robins is the sole appellee in this appeal, which pertains only to the survival action.

Mariner brings four issues on appeal: (1) Robins lacks standing or capacity to pursue claims on behalf of Battle's estate, and therefore the claims are barred by the statute of limitations; (2) the trial court abused its discretion by sustaining two challenges to peremptory strikes; (3) the evidence was legally and factually insufficient to support the jury's findings on negligence, proximate cause, and damages; and (4) the trial court improperly submitted to the jury a broad form question pertaining to damages.

We affirm.

BACKGROUND

Betty Battle lived in southwest Houston with her adult sons Robert Charles Robin and Dexter Leon Battle. In addition, her adult daughters Gladys Robins, Sandra Jean McGowan, and Lucille Marie Brown lived nearby and visited frequently. Battle smoked approximately one to one-and-one-half packs of cigarettes daily.

In March 2004, Battle fell while grocery shopping and broke her hip. After undergoing hip replacement surgery at St. Luke's Hospital, she went to Mariner for rehabilitation. Her primary physician was Dr. Khoa Nguyen, who was not a Mariner employee. Dr. Nguyen testified that when Battle was admitted she did not have any pressure ulcers (also known as bedsores), but the medical records from St. Luke's indicated that she had an excoriation, or the beginning of a pressure ulcer, on her buttocks when she was transferred to Mariner. Dr. Nguyen testified that when Battle entered Mariner, she was confused but in a good mood and presented with poor nutrition and some kidney disease. While at Mariner, Battle developed anemia and stage-3 and stage-4 pressure ulcers, which were worsening. A “stage-3” pressure ulcer exists when “full thickness of skin is lost, exposing the subcutaneous tissues-presents as deep crater with or without undermining adjacent tissue.” A pressure ulcer is classified as “stage 4” when “full thickness of skin and subcutaneous tissue is lost, exposing muscle or bone.”

Dr. Nguyen sent Battle to Park Plaza Hospital for a blood transfusion, and from there Battle went to Select Specialty Hospital to receive care for her pressure ulcers . She returned to Mariner, still suffering from stage-4 pressure ulcers. According to Dr. Nguyen these were, in part, the same pressure ulcers she developed during her first stay at Mariner.

Battle died on August 18, 2008 at the age of sixty-six. Dr. Nguyen listed cardiopulmonary arrest as the cause of death on Battle's death certificate, but he testified that it was not possible to determine the cause of death with certainty because no autopsy was performed.

At trial, the medical testimony centered on the pressure ulcers and the multiple other medical conditions from which Battle suffered and their effect on the healing or exacerbation of the wounds. Testimony showed that Battle suffered from hypertension, diabetes, kidney problems, dehydration, malnutrition, possible dementia, and heart problems. Some, but not all, of these conditions were known to Battle's children before her admission to Mariner.

In addition, conflicting testimony was presented about Battle's cooperation with her caregivers. For example, Dr. Nguyen testified that he had no specific memory of Battle's noncompliance, but there were notes in the medical records that she refused to be cleaned after incidents of incontinence, refused to be repositioned or insisted on staying in the same position for lengthy periods of time, refused to eat, declined to participate in physical therapy, and continued to smoke even after being told that it would hamper her healing. Robins explained that her mother's refusal to be repositioned was related to pain and that her mother did not like the food she was served.

Robins and her siblings sued Mariner for medical malpractice under the wrongful death act and survival statute. Although the pleadings stated that Robins sued “on behalf of” her mother's estate, no probate proceedings were ever initiated. Mariner, however, did not file a verified pleading-or any pleading-contesting Robins's capacity to sue.

At trial, Mariner's counsel used four peremptory strikes to exclude four of six prospective African-American jurors. Robins's counsel asked the trial court to examine the strikes of those four veniremembers, alleging that Mariner's strikes were racially motivated. The trial court overruled the challenge as to two prospective jurors who had made statements suggesting they held biases related to the facts of the case, sustained the challenge as to the other two prospective jurors, and seated one of the challenged veniremembers on the jury.

Both Robins and Mariner presented expert testimony regarding Mariner's actions and the applicable standards of care. The evidence centered not only on Battle's pressure ulcers, but also on missing paperwork: no care plan appeared in Mariner's records for Battle's second admission.

The jury found in Mariner's favor on the wrongful-death claim and awarded $750,000 to Robins on the survival action. The trial court reduced the award to $250,000 in accordance with the statutory cap on damages. Mariner appealed.

STANDING, CAPACITY, AND LIMITATIONS

In its first issue, Mariner contends that it is entitled to judgment as a matter of law because Robins never pleaded or proved that she has standing or capacity to assert Battle's survival claims. Mariner argues that although Robins filed suit within two years after Battle's death, her failure to demonstrate standing or capacity in the trial court means that the claims are now time barred. In response, Robins argues that Mariner has confused the issues of standing and capacity. She contends that her trial testimony established her standing to sue on behalf of her mother's estate and that Mariner has waived any complaint as to her capacity to sue.

I. Standard of Review and Applicable Law

A. Standing and Capacity

A plaintiff must have both standing and capacity to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005). “Standing is a necessary component of a court's subject matter jurisdiction.” Alpert v. Riley, 274 S.W.3d 277, 291 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993)). “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ ” Lovato, 171 S.W.3d at 848 (citing 6A Charles Alan Wright et al., Federal Practice and Procedure § 1559, at 441 (2d ed. 1990)). Separate from the issue of a party's standing, a party's capacity implicates its legal authority to file a lawsuit and pursue a particular cause of action. Lovato, 171 S.W.3d at 847-48. “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996) (emphasis in original).

To demonstrate standing, a plaintiff must affirmatively show, through pleadings and other evidence pertinent to the jurisdictional inquiry, a distinct interest in the asserted conflict, such that the defendant's actions have caused the plaintiff some particular injury. Alpert, 274 S.W.3d at 291 (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984)). If a party lacks standing, a trial court lacks subject-matter jurisdiction to hear the case. Lovato, 171 S.W.3d at 849. Thus, standing cannot be waived and can be raised for the first time on appeal. Id. Because a court's subject-matter jurisdiction is a question of law, Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004), whether a plaintiff has standing is a legal question we determine de novo. Alpert, 274 S.W.3d at 291; see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

An alleged defect in capacity must be raised by a verified denial in the trial court. Lovato, 171 S.W.3d at 849. The failure to raise the issue of capacity through a verified plea results in waiver of that issue both at trial and on appeal. Tex.R. Civ. P. 93; see Pledger v. Schoellkopf, 762 S.W.2d 145, 145-46 (Tex.1988) (“When capacity is contested, Rule 93(2) requires that a verified...