Roberts v. Williamson

• Citation: 111 S.W.3d 113
• Decision Date: 03 July 2003
• Docket Number: No. 01-0765.,No. 01-0766.,01-0765.,01-0766.
• Parties: Dr. Karen ROBERTS, Petitioner, v. Lainie and Casey WILLIAMSON, individually and as next friends of Courtnie Williamson, Respondents. Dr. Karen Roberts, Petitioner, v. Lainie and Casey Williamson, individually and as next friend of Courtnie Williamson, Respondents.
• Court: Texas Supreme Court

111 S.W.3d 113

Dr. Karen ROBERTS, Petitioner, v. Lainie and Casey WILLIAMSON, individually and as next friends of Courtnie Williamson, Respondents.

Dr. Karen Roberts, Petitioner, v. Lainie and Casey Williamson, individually and as next friend of Courtnie Williamson, Respondents.

No. 01-0765.

No. 01-0766.

Supreme Court of Texas.

Argued April 17, 2002.

Decided July 3, 2003.

Robert Lee Galloway, Mary Olga Ferguson and Richard W. Bass, Thompson & Knight, Houston, for Petitioner.

Rex A. Nichols, Jr., Rex A. Nichols, Nichols & Nichols, Longview, Karen Debiasse Bishop, Bishop & Bishop, P.C., Gilmer, for Respondent.

Chief Justice PHILLIPS delivered the opinion of the Court, joined by Justice HECHT, Justice ENOCH, Justice OWEN, Justice SMITH and Justice WAINWRIGHT, and joined by Justice O'NEILL, Justice JEFFERSON, and Justice SCHNEIDER in all Parts except Part II.

In these consolidated cases involving two separate appeals in a medical malpractice action, we must decide an issue of first impression: whether Texas recognizes a common law cause of action for a parent's loss of consortium resulting from a non-fatal injury to a child. In addition, we consider whether the court of appeals erred in affirming the trial court's decision to admit certain expert testimony or in failing to apply prior settlements to reduce the damages award. We also consider whether the court of appeals erred in reversing the trial court's allocation of the ad litem's fee between the parties. In one opinion, the court of appeals concluded that the common law recognizes a parent's claim for loss of filial consortium and that the trial court had not erred in admitting certain expert testimony or in refusing to apply a settlement credit when calculating the defendant physician's percentage of responsibility. 52 S.W.3d 343. In a separate opinion, the court of appeals concluded that the trial court had erred in taxing the guardian ad litem's fee as costs evenly between the parents and the defendant physician, holding that the physician should pay all these costs. 52 S.W.3d 354. Both judgments have been consolidated in this appeal. While we disagree that parents may recover for the loss of filial consortium, we agree with the remainder of the court of appeals' judgments. We therefore render judgment, affirming in part and reversing in part.

I

The day after her birth, Courtnie Williamson began suffering from severe acidosis, a condition with a number of serious complications, including damage to the heart and brain. Dr. Roger Fowler, the attending physician, called Dr. Karen Roberts, the only consulting pediatrician at Laird Memorial Hospital in Kilgore, Texas, and advised her that Courtnie was in respiratory distress. Dr. Roberts arrived from Longview approximately forty-five minutes later and began treating Courtnie. Shortly thereafter, Dr. Roberts and Dr. Fowler placed Courtnie on a pediatric ventilator. The ventilator was not functioning properly, however, and Courtnie did not receive needed oxygen for several minutes.

About one hour after Dr. Roberts' arrival, a colleague suggested that sodium bicarbonate should be administered to counteract Courtnie's worsening acidosis. Two hours later, after consulting with a neonatologist in Shreveport, Dr. Roberts followed this advice, and Courtnie began to improve. Not long thereafter, Courtnie was transported to Schumpert Medical Center in Shreveport. Courtnie now has a permanent shunt implanted in her skull to drain fluids to her abdomen. She suffers from a weakened left side, requires braces to walk, has significant scarring, and is developmentally delayed.

Courtnie's parents, Lainie and Casey Williamson, individually and on behalf of their daughter, sued Dr. Roberts, Laird Memorial Hospital, Dr. Mark Miller (the on-call physician), and Dr. Fowler. They contend that the malfunctioning ventilator, the delay in administering sodium bicarbonate, and the failure to immediately transfer Courtnie to a better-equipped hospital, combined to proximately cause Courtnie's injuries. The trial judge appointed a guardian ad litem to represent Courtnie's interests.

The Williamsons' claims against the hospital, Dr. Fowler, and a treating physician who was not named as a defendant were settled for $468,750. The claims against Dr. Roberts and Dr. Miller proceeded to trial. At trial, Dr. Frank McGehee, a board-certified pediatrician, testified that Dr. Roberts was negligent in delaying Courtnie's transfer to a hospital equipped to treat her condition and in failing to administer sodium bicarbonate sooner. Dr. McGehee testified that Dr. Roberts' negligence proximately caused Courtnie to suffer from mental retardation, anti-social behavior, and hemiplegia, a partial paralysis of one side of body caused by an injury to the brain.

The jury apportioned responsibility for Courtnie's injuries as follows: 85 percent to the settling parties, 15 percent to Dr. Roberts, and zero percent to Dr. Miller. The jury awarded $3,010,001 in damages including $75,000 to the parents for past loss of filial consortium and one dollar for future loss thereof. The trial court rendered judgment on the verdict, ordering Dr. Roberts to pay $451,500.15, or 15 percent of the entire award, with no deduction for the settlements. The trial court also awarded the ad litem¹ a fee of $21,405.69, which it divided equally between Dr. Roberts and the Williamsons.

Dr. Roberts and the Williamsons filed separate appeals. Dr. Roberts urged that (1) Texas law does not permit a parent to recover for loss of consortium for non-fatal injuries to a child, (2) Dr. McGehee was not qualified to testify as an expert on the cause and effect of Courtnie's neurological injuries, (3) no evidence supported the jury's award of past and future medical expenses, and (4) the trial court erred in not applying a settlement credit before apportioning damages. The Williamsons complained only about having been taxed with one-half of the ad litem's fee. The court of appeals rejected Dr. Roberts' appeal and affirmed the trial court's award of damages against her. 52 S.W.3d at 354. However, the court of appeals agreed with the Williamsons' separate appeal, reversing the trial court and rendering judgment that Dr. Roberts pay the full amount of the ad litem's fee. Id. at 357.

In this Court, Dr. Roberts has filed two separate appeals, complaining about both judgments. We granted both petitions for review and consolidated the two appeals to decide four issues: (1) whether Texas common law recognizes a parent's claim for loss of consortium when a child is seriously, but not fatally, injured; (2) whether a medical expert, who is not a neurologist, is nevertheless qualified to testify about the cause and effect of a child's neurological injuries; (3) whether a defendant, who is not jointly and severally liable, is entitled to a settlement credit before the application of her percentage of responsibility; and (4) whether there is evidence of good cause sufficient to tax the prevailing party with part of the ad litem's fee as costs.

II

In Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex.1990), we held that a child is entitled to seek damages for loss of consortium when a parent suffers a serious, permanent, and disabling injury. We equated the child's relationship to the parent to that of one spouse to another, a relationship for which we had previously recognized consortium rights. Id. at 465-66 (citing Whittlesey v. Miller, 572 S.W.2d 665, 667-68 (Tex.1978)). We further noted the vulnerable and dependent role of the child in this relationship and the profound harm that might befall a child who has been deprived of a parent's love, care, companionship, and guidance. Id. at 466 (citing Villareal v. State, 160 Ariz. 474, 774 P.2d 213, 217 (1989)).

The court of appeals concluded that because of our emphasis in Reagan that the parent-child relationship deserved special protection, we must have intended for parents to have consortium rights in the relationship as well. 52 S.W.3d at 352. The court suggests that the parent-child relationship is a reciprocal one, like husband and wife, and that all parties deserve the same protection. 52 S.W.3d at 352. Dr. Roberts counters that Reagan does not extend so far, and that the loss to a child caused by a serious injury to the parent is uniquely different from that to a parent of a seriously injured child.

We have not previously considered whether parents have a claim for loss of consortium in non-fatal injury cases, but some courts of appeals have assumed that such a claim is viable. See Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 414 (Tex.App.-Houston [14th Dist.] 2001, pet. filed); Enochs v. Brown, 872 S.W.2d 312, 322 (Tex.App.-Austin 1994, no writ); see also Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580, 590 (Tex.App.-Houston [14th Dist.] 1997, writ denied). We recognize the sympathetic and, on the surface, logical appeal to extending consortium rights to parents as well as children. But several states that have recognized a child's right to loss of consortium have denied the parents any reciprocal right, including two of the first states in the nation to recognize the child's right. See Norman v. Mass. Bay Transp. Auth., 403 Mass. 303, 529 N.E.2d 139, 141-42 (1988);² Sizemore v. Smock, 430 Mich. 283, 422 N.W.2d 666, 667-74 (1988).³ These courts have concluded that the child's interest deserves greater protection because of the child's singular emotional dependency on the parents. The Massachusetts Supreme Court explained this distinction in Norman as follows:

In the ordinary course of things the dependence of spouses on one another for love and support is found to the same degree in no other relationship except, perhaps, in the relationship of a minor child to his or her parents.

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Although parents customarily enjoy the consortium of their children, in the ordinary course of events a parent does not depend on a child's...