Regent Care Ctr. of San Antonio, L.P. v. Detrick

• Decision Date: 07 November 2018
• Docket Number: No. 04-17-00596-CV,04-17-00596-CV
• Citation: 567 S.W.3d 752
• Parties: REGENT CARE CENTER OF SAN ANTONIO, L.P., Appellant v. Robert H. DETRICK and Carolyn Dart Detrick, Appellees
• Court: Texas Court of Appeals

567 S.W.3d 752

REGENT CARE CENTER OF SAN ANTONIO, L.P., Appellant

v.Robert H. DETRICK and Carolyn Dart Detrick, Appellees

No. 04-17-00596-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: November 7, 2018

APPELLANT ATTORNEY: Angela Olalde, Greer, Herz & Adams LLP, 2525 South Shore Blvd., Ste. 203, League City, TX 77573-2988, Andrew Jan Mytelka, Greer, Herz & Adams, LLP, 1 Moody Plaza, 18th Floor, Galveston, TX 77550, Dennis Jean Drouillard, Dennis J. Drouillard, Atty at Law, Riverview Towers, San Antonio, TX 78205, D. Ann Comerio, The Petroleum Center, 900 NE Loop 410, Suite D 303, San Antonio, TX 78209.

APPELLEE ATTORNEY: Thomas G. Kemmy, Attorney at Law, 322 West Woodlawn Avenue, San Antonio, TX 78212, Daniel Kemmy, Law Offices of Thomas G. Kemmy, 322 W. Woodlawn Avenue, San Antonio, TX 78212.

Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice

Opinion by: Irene Rios, Justice

In this health care liability case, Regent Care Center of San Antonio, L.P. ("Regent Care") appeals a judgment in favor of Robert Detrick and his wife, Carolyn. Detrick alleged, and the jury found, that Regent Care’s nurses were negligent in failing to promptly notify Detrick’s treating physicians of a significant change in his condition, resulting in delay in diagnosing and treating a spinal tumor

that ultimately caused Detrick to suffer permanent paralysis and incontinence.

Regent Care raises several issues on appeal, including challenges to (1) the admission of expert testimony; (2) the sufficiency of the evidence of causation; (3) the sufficiency of the evidence of certain components of damages; (4) the sufficiency of the evidence to support the jury’s allocation of responsibility; (5) the trial court’s application of a settlement credit in relation to its application of a statutory cap on noneconomic damages; and (6) the trial court’s order that a portion of Detrick’s future medical expenses be paid in periodic payments. We reverse the judgment insofar as it awards damages for loss of household services and otherwise affirm.

Facts

Robert Detrick, a man in his late 70’s, was scheduled to undergo a right hip replacement on December 2, 2013. Instead, he was admitted to Regent Care, a skilled nursing facility, on November 26, 2013, to receive care for a groin rash that was preventing his hip surgery

. He left Regent Care on December 9, 2013, suffering from permanent paraplegia and incontinence. The undisputed cause of these conditions was a tumor on his thoracic spine that caused a compression fracture resulting in his neurological injury. It is also undisputed that, if the tumor and compression fracture had been diagnosed, even as late as December 6, 2013, Detrick would not have suffered these permanent injuries.

This case presents a tragic series of missed opportunities to discover and treat the tumor on, and compression fracture

of, Detrick’s thoracic spine. For example, Detrick was scheduled to have an MRI of his thoracic spine on November 23, 2013, but that test was canceled because Detrick did not have transportation to the facility. The night before he was to have had that MRI, Detrick fell and was admitted to Methodist Hospital, but he did not inform anyone at the hospital that he had been scheduled for an MRI.

Detrick was seen by Dr. Rohan Coutinho on November 27, 2013, the day after he was admitted to Regent Care. Dr. Coutinho failed to perform a neurological exam. Also on that day, a Regent Care nurse noted by a checkmark on Detrick’s chart that he was incontinent of bladder

. Checkmarks on his chart for the following day indicate that Detrick was at that time incontinent of bladder and bowel. The fact that this incontinence was a change in Detrick’s condition¹ was not brought to the attention of his treating physicians, Dr. Coutinho and Dr. Nora Cubillos. Neither Dr. Coutinho nor Dr. Cubillos correctly diagnosed Detrick’s condition. Both testified that knowing of Detrick’s new onset incontinence would have caused them to immediately send Detrick back to the hospital for an MRI.

On December 1, 2013, an x-ray technician for MobilexUSA took two x-rays of Detrick’s thoracic spine. One view was medically insufficient but the technician forwarded it to Dr. Elliott Wagner without retaking it. Dr. Wagner then misread Detrick’s x-rays and erroneously reported that there was no fracture.

Detrick sued Regent Care, Dr. Coutinho, Dr. Cubillos, Dr. Wagner, and MobilexUSA. The doctors and MobilexUSA settled before trial for a total sum of $1,850,000. The jury was asked to determine negligence as to each of the settling defendants, as well as Regent Care. Having found each defendant to have negligently caused Detrick’s injury, the jury apportioned 55% of the responsibility for that injury to Regent Care. It determined Detrick’s damages to be a total of $11,940,000, including $390,000 for past medical expenses and $3,000,000 for future medical expenses. The jury also awarded damages to Carolyn Detrick in the sum of $1,945,000, including $245,000 for loss of household services.

The trial court entered judgment on the verdict, after first applying a dollar-for-dollar settlement credit and then applying a statutory cap of $250,000 on non-economic damages. The court initially declined to order that any portion of future medical expenses be paid in installments. It later signed a modified judgment ordering that $256,358 of the award for Detrick’s future medical expenses be paid in periodic payments.

Discussion

Sufficiency of the evidence—causation

We first address Regent Care’s second issue, which challenges the legal and factual sufficiency of the evidence to support a finding that Regent Care’s negligence was a proximate cause of Detrick’s injury.

To determine the legal sufficiency of the evidence, a court must "independently consider whether the evidence at trial would enable reasonable and fair-minded jurors to reach the verdict." Gharda USA, Inc. v. Control Solutions, Inc. , 464 S.W.3d 338, 348 (Tex. 2015) (quoting Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 638 (Tex. 2009) ). A court will conclude that there is no evidence to support a finding if:

(a) [there is] a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.

Gharda , 464 S.W.3d at 347 (quoting City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005) ).

A jury’s finding is not supported by factually sufficient evidence if it "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cotter & Sons, Inc. v. BJ Corp. , 549 S.W.3d 715, 722 (Tex. App.—San Antonio 2017, pet. dism'd). The court considers and weighs "all of the evidence presented at trial in a neutral light, setting aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust." In re C.Z.B. , 151 S.W.3d 627, 630 (Tex. App.—San Antonio 2004, no pet.).

Regent Care contends that the evidence is legally and factually insufficient to support the jury’s finding that its negligence—the failure of its nurses to promptly alert Detrick’s treating physicians of a significant change in his condition—was a proximate cause of Detrick’s injury. Specifically, Regent Care challenges the sufficiency of the evidence to support a finding of cause-in-fact. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 246 (Tex. 2008) (proximate cause includes both cause-in-fact and foreseeability).

"[C]ause in fact requires that the allegedly negligent act or omission constitute a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id. (internal quotation marks omitted). It cannot be established by mere conjecture, guess, or speculation. Id. Further, in a health care liability case, "plaintiffs are required to adduce evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm or condition resulted from such negligence." Jelinek v. Casas , 328 S.W.3d 526, 532-33 (Tex. 2010) (quoting Kramer v. Lewisville Mem'l Hosp. , 858 S.W.2d 397, 399-400 (Tex. 1993) ). "Reasonable probability," however, "does not turn on semantics or on the use of a particular term or phrase." Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 500 (Tex. 1995).

Finally, it is well-established that "a defendant’s act or omission need not be the sole cause of an injury, as long as it is a substantial factor in bringing about the injury." Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017). "There may be more than one proximate cause of an injury." Id.

Regent Care argues that Dr. Coutinho and Dr. Cubillos had all of the information they needed to reach the correct diagnosis and simply failed to do so. In support of this argument, it first contends that the doctors admitted at trial that Detrick’s chart reflected new onset incontinence.² This contention does not accurately reflect the doctors' testimony. Rather, the doctors acknowledged that Detrick’s chart, read in light of information they learned in the course of litigation, shows that the incontinence he experienced while at Regent Care was new onset. Both clearly testified that, at the time they were treating Detrick, they were not aware that he had new onset incontinence, i.e. , that there was a significant change in his condition.

Regent Care next relies on expert testimony opining that Dr. Coutinho and Dr. Cubillos would not have correctly diagnosed Detrick’s condition even if they had been aware of his new onset incontinence. But this testimony, being at odds with the doctors' testimony that knowing about...