Rose v. Doctors Hosp.

• Decision Date: 19 December 1990
• Docket Number: No. C-6535,C-6535
• Citation: 801 S.W.2d 841
• Parties: Lisa Beth ROSE et al., Petitioners, v. DOCTORS HOSPITAL et al., Respondents.
• Court: Texas Supreme Court

Page 841

801 S.W.2d 841

Lisa Beth ROSE et al., Petitioners, v. DOCTORS HOSPITAL et al., Respondents.

No. C-6535.

Supreme Court of Texas.

Dec. 19, 1990.

Dissenting Opinions of Chief Justice Phillips and Justice

Doggett from Original Opinion Filed Sept. 6, 1990.

Douglas D. Mulder, John H. Hagler, Ronald D. Krist, W. James Kronzer, Houston, for petitioners.

R. Brent Cooper, Robert A. Gwinn, Kenneth C. Stone, Michael W. Huddleston, Dallas, C.J. Francisco, Austin, for respondents.

OPINION ON MOTION FOR REHEARING

COOK, Justice.

The motions for rehearing are granted in part and overruled in part. This court's opinion and judgment of September 6, 1990, are withdrawn, and the following is substituted in its place.

In this case, we once again consider the constitutionality of the damages provisions of the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i, §§ 11.02 and 11.03 (Vernon Supp.1991) ("Medical Liability Act"), this time in the context of a wrongful death action. The court of appeals decided that the statutory damages limitations provisions are constitutional. 735 S.W.2d 244. ¹ We decided subsequently to the court of appeals opinion that statutory damages limitations are unconstitutional when applied to damages in common law medical malpractice actions. Lucas v. United States, 757 S.W.2d 687, 692 (Tex.1988). Our holding in Lucas, however, did not extend to wrongful death actions. We now hold that the legislature may, through the Medical Liability Act, constitutionally curtail damages in wrongful death actions.

The case also presents procedural issues. We are asked to decide whether a remittitur becomes fatally defective when the party filing it in the court of appeals reserves the right to complain of the standard used in arriving at the remittitur. If such a remittitur is not defective, we must consider whether, in this particular case, the court of appeals did apply the wrong standard in arriving at the remittitur. We hold that a remittitur filed in the court of appeals is unaffected by a reservation of the right to appeal the standard used in arriving at the remittitur. We further hold that the court of appeals applied the correct standard in arriving at the remittiturs in this case.

I. FACTS

The convoluted history of this case is partly explained in the original opinion of the court of appeals and in our opinion on application for writ of mandamus. 735 S.W.2d 244; 750 S.W.2d 177. For purposes of this opinion, we confine ourselves to a summary of the circumstances which brought to this court the issues we must decide today.

Rex Rose was admitted to Doctors Hospital and died there the next day. His widow, Lisa Beth, and his parents, Alton and Frances, brought a wrongful death action against the hospital, contending that Rex Rose had received a fatal dose of morphine while a patient at the hospital. The jury awarded $2,825,000 to Lisa Beth Rose and $815,000 each to Alton and Frances Rose, but the trial court rendered judgment notwithstanding the verdict.

The court of appeals reversed, holding that there was some evidence that the hospital caused Rex Rose's death. The court did, however, suggest remittiturs to reduce the damages awarded by the jury. Lisa Beth Rose's damages were reduced in accordance with § 11.02 of the Medical Liability Act. The court suggested a remittitur reducing Alton and Frances Rose's damages to the amount supported by the evidence.

The Roses responded by filing remittiturs within the time period prescribed by the court of appeals. However, the Roses expressly reserved the right to complain of the ruling requiring the remittiturs.

The Roses argue that the court of appeals was prohibited by the Texas Constitution and our decision in Lucas from reducing the damages awarded to Lisa Beth Rose. They also contend that the court of appeals applied an erroneous standard in reviewing the evidence to arrive at the remittitur. Doctors Hospital complains that the Roses filed a "conditional" remittitur, one which was defective because it amounted to a non-acceptance of the judgment of the court of appeals. We address each issue in turn.

II. STATUTORY VALIDITY

In Lucas, the United States Court of Appeals for the Fifth Circuit asked this court to decide whether the limitation on medical malpractice damages in the Medical Liability Act is consistent with the Texas Constitution. We looked to the open courts provision of our constitution to determine whether that provision thwarted application of the damages limitations. The provision states:

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

TEX. CONST. art. I, § 13.

We noted that, in analyzing the litigant's right to redress under this provision, the litigant must satisfy two criteria. First, the litigant must have a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Lucas, 757 S.W.2d at 690; Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983).

The court initially acknowledged that victims of medical negligence have a well-defined common law cause of action to sue for injuries. Lucas, 757 S.W.2d at 690. The court then concluded that the statutory damages limitations provisions at issue met the second criterion, that is, they were unreasonable and arbitrary when balanced against the purpose and basis of the statute. Id. at 690-92. Having reached these conclusions, the court decided that the damages limitations provisions were unconstitutional "as applied to catastrophically damaged malpractice victims seeking a 'remedy by due course of law.' " Id. at 690.

Notwithstanding the specific application of the Lucas holding to catastrophically damaged malpractice victims, the Roses argue that the holding voids the statute in all respects and for all applications. We disagree.

We note initially that Lucas was a certified question. We were authorized by TEX. CONST. art. V § 3-c and the implementing rules of appellate procedure to answer the question, which was in part "[w]hether the limitation on medical malpractice damages in TEX.REV.CIV.STAT.ANN. art. 4590i, §§ 11.02 and 11.03 (Vernon Supp.1991) is consistent with the Texas Constitution." Lucas, 757 S.W.2d at 687. Any response other than that necessary to answer the question authorized by the Constitution or the enabling rules would be dicta. Rule 114 makes clear that answers to certified questions are allowed only as long as "there are involved in the proceedings before the certifying court questions of law of this state which may be determinative of the cause then pending." Tex.R.App.P. 114(a). Under that rule, we did not decide, as the Roses contend we did decide, that the limitation on wrongful death--rather than medical malpractice--damages--is inconsistent with the Texas Constitution. To do so would have been to decide a "cause not then pending before the certifying court," a cause involving wrongful death rather than common law medical malpractice.

For further support for the proposition that the statute is not void, we turn to the statute's severability clause. It states in part that if the application of the statute to any person or circumstance is held unconstitutional, then the effect of the invalidation shall be confined to the portion of the statute adjudged to be unconstitutional. Act of Aug. 29, 1977, ch. 817, § 41.04. In Lucas, it was the "application" of the statute to the "circumstance" of a common law medical malpractice claim which was held to be unconstitutional. The "effect" of that holding is the inapplicability of §§ 11.02 and 11.03 to common law medical malpractice claims. According to the severability clause, this effect--and this effect only--is confined to §§ 11.02 and 11.03.

The goal of this severability clause, to retain valid portions and applications of the statute whenever possible, reflects the case law's reminder that "[i]n the construction of statutes, if it can be lawfully done, it is the duty of the court to construe a statute so as to render it valid." Sharber v. Florence, 131 Tex. 341, 345, 115 S.W.2d 604, 606 (1938). In Western Union Telegraph Co. v. State, 62 Tex. 630 (1884), we acknowledged that some statutes are severable while others are not and stated the test for determining when a finding of unconstitutionality of one portion of a statute invalidates the whole statute:

When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand.

Id. at 634.

When we consider the Western Union test in the context of §§ 11.02 and 11.03 we recognize the statute's validity. These sections cover "health care liability claims." The statutory definition of such claims expressly mentions both common law personal injury and wrongful death claims. TEX.REV.CIV.STAT.ANN. art. 4590i, § 1.03(4) (Vernon Supp.1991). According to the Western Union test, if, when ...