Sunbridge Healthcare Corp. v. Penny

• Court: Texas Supreme Court
• Writing for the Court: Carter
• Citation: Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230 (Tex. 2005)
• Decision Date: 11 March 2005
• Docket Number: No. 06-03-00124-CV.,06-03-00124-CV.
• Parties: SUNBRIDGE HEALTHCARE CORPORATION d/b/a Sunbridge Care and Rehabilitation for Linden, and Sun Healthcare Group, Inc., Appellants, v. Bruce Elliott PENNY, Independent Administrator of The Estate of Pauline E. Penny, Deceased, Appellee.

160 S.W.3d 230

SUNBRIDGE HEALTHCARE CORPORATION d/b/a Sunbridge Care and Rehabilitation for Linden, and Sun Healthcare Group, Inc., Appellants, v. Bruce Elliott PENNY, Independent Administrator of The Estate of Pauline E. Penny, Deceased, Appellee.

No. 06-03-00124-CV.

Court of Appeals of Texas, Texarkana.

Submitted December 8, 2004.

Decided March 11, 2005.

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Diana L. Faust, R. Brent Cooper, Cooper & Scully, PC, Dallas, for appellants.

Anthony Bruster, M. Chad Trammell, Nix, Patterson & Roach, LLP, Texarkana, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Bruce Elliott Penny, independent administrator of the estate of Pauline E. Penny, deceased, sued Brenda Patterson claiming negligence and gross negligence.¹ At the same time, he also sued SunBridge Healthcare Corporation d/b/a SunBridge Care and Rehabilitation for Linden ("SunBridge") and Sun Healthcare Group, Inc. ("Sun") claiming vicarious liability, negligence, gross negligence, violation of resident's rights, and injury to the elderly.² Penny sought recovery of actual and exemplary damages based on negligent treatment and care³ of his grandmother, Mrs. Penny.

The jury returned a verdict in favor of Penny: $1,000,000.00 in pain and suffering and mental anguish, $496,934.00 for disfigurement, $496,934.00 for physical impairment, and $6,132.00 in funeral and burial expenses.

Judgment in accordance with the jury's verdict was signed June 13, 2003. Appellee filed a motion for new trial or, alternatively, a motion for remittitur or to modify. This motion was overruled by operation of law. Appellee also moved for judgment notwithstanding the verdict (JNOV), and the trial court overruled this motion.

I. FACTUAL SUMMARY

Mrs. Penny was a resident of the nursing home in Linden, Texas, operated by Sunbridge. Between November 2000 and February 12, 2001, she fell fourteen times at the nursing home. On March 27, 2001, she and another resident were taken to a physician by one staff member of the nursing home. Upon arriving at the physician's office, both residents were placed in wheelchairs. Mrs. Penny was left unattended in her wheelchair when the staff member went back to assist the other resident. Mrs. Penny's wheelchair began rolling down the sidewalk at a rapid speed. A witness saw that Mrs. Penny had a "real scared expression on her face." When the wheelchair veered off the sidewalk, Mrs. Penny was thrown onto the concrete parking lot and suffered serious injuries. Four days later, she died from those injuries.

II. EXPERT TESTIMONY

In their first point of error, Appellants contend that the admission of the testimony of Glenda Joiner-Rogers, R.N., Ph.D., constituted harmful error that probably resulted in an improper judgment. They argue that Joiner-Rogers was not qualified to render any opinion regarding the standard of care applicable to Appellants, and further, that Joiner-Rogers' expert report failed to disclose any opinion regarding the issue of the staffing of the facility at any time before or including March 27, 2001.

A. Admission/Exclusion of Evidence

1. Standard of Review

The admission or exclusion of evidence is a matter committed to the trial court's discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The appellate court examines the entire record to determine whether the trial court committed error and whether that error probably caused the rendition of an improper judgment. See TEX.R.APP. P. 44.1(a); Alvarado, 897 S.W.2d at 754; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).

2. Preservation of Error

Appellants filed their pretrial motion to exclude expert testimony in which they argued that Penny's testifying expert, Joiner-Rogers, was not qualified as an expert because she lacked the necessary knowledge, skill, experience, training, or education regarding standards of care for nursing homes or the transportation of patients. The trial court heard this motion before Joiner-Rogers' testimony. At this hearing, Appellants reurged their argument regarding Joiner-Rogers' qualifications and also argued that her opinions regarding alleged understaffing should be excluded because those opinions were not disclosed before trial.

The grounds for Appellants' second argument, regarding Joiner-Rogers' testimony on understaffing, appear to be two-fold. Initially, Appellants challenged the reliability of her testimony on the staffing issue because she did not provide a basis for her opinion on such an issue: "[W]e don't think she has a legal basis for some of her testimony, especially as it relates to the staffing issue." Then, after the trial court's ruling on Appellants' motion to exclude, Appellants raised the inadequacy of Appellee's discovery response: "[W]e don't want her testifying to anything beyond what they've disclosed to us so far in discovery."

The trial court overruled Appellants' motion to exclude and allowed Joiner-Rogers to testify on the standards of care applicable to Appellants and alleged breaches of those standards, including the issue of understaffing.

3. Applicable Law: Expert Qualification

In a medical malpractice context, negligence and causation must be established through expert testimony, not on mere conjecture, speculation, or possibility. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965).

Rule 702 of the Texas Rules of Evidence governs the qualification of expert witnesses. A witness offering expert testimony must be qualified by "knowledge, skill, experience, training, or education." TEX.R. EVID. 702. The proponent of the expert testimony bears the burden of proving that the witness is qualified under TEX.R. EVID. 702 and that the expert's testimony is relevant to the issues in the case and is based on a reliable foundation. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

The trial court must make certain "that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996). A medical degree or license alone is not enough to qualify a person as an expert as to every medical question. Id. Generally, experience in a specialized field does not qualify a witness as an expert; the witness must possess "special knowledge as to the very matter on which he proposes to give an opinion." Id. at 152-53. The offering party must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Id. at 153.

In order to evaluate Appellants' contention, we must measure the expert's expertise against the particular opinion the expert is offering. See id. The same standards for qualification of a physician expert also apply to a nurse testifying as an expert. Pack v. Crossroads, Inc., 53 S.W.3d 492, 505-07 (Tex.App.-Fort Worth 2001, pet. denied).

In Pack, the plaintiffs sued a nursing home for negligence. In support of their claims, the plaintiffs offered the testimony of nurse Alford on the issue of alleged deficiencies in care by a nursing home. Id. at 505. Alford had experience in nursing home investigations, knowledge of nursing home regulations, and academic and clinical training. Id. at 506. However, despite those qualifications, the trial court excluded Alford's testimony, holding that she was not qualified to testify as to the specific standard of care of a nursing home or the nursing home's breach of that standard of care. Id. at 506-07.

The Fort Worth Court of Appeals outlined Alford's qualifications: she received both a nursing diploma and a Ph.D.; she had been a staff nurse and a clinical instructor in a licensed vocational nursing program, the education director of a nursing school, and an assistant professor of nursing at a university; she was a consultant with the Department of Justice to determine why troubled government-operated nursing homes were unable to meet regulations; and she received a fellowship in the American Academy of Nursing and the Honorary Nurse Practice Award from the American Nurses Association. Id. at 506.

Alford testified that her experience in nursing home practice included taking students to two nursing homes under a geriatric practitioner program in 1978 in which students would provide the total resident care, filling in for a registered nurse consultant for three weeks at a nursing home in the late 1970s, consulting nursing homes on resident problems, and teaching aides in nursing homes. Id. at 506-07. Alford's work with the Department of Justice and Texas Department of Human Services concerned nursing homes specifically and exclusively. Id. at 507. She had also written many published works about nursing care in general and care within nursing home settings specifically. Id. She testified that she worked with nurses in nursing homes to assess the conditions of residents and develop a care plan to meet residents' needs. Id.

Despite these credentials, the court of appeals pointed out that Alford had never worked as a staff nurse or a charge nurse in a nursing home, that she had never been an administrator of a nursing home, that she had never performed nursing functions or routine shift work in a nursing home on a daily basis, and that she had not delivered healthcare for someone other than a relative since 1991. Id. Therefore, the court of appeals concluded, the plaintiffs failed to establish that Alford had particular expertise in the field of nursing home standards of care. Id. On that basis, the trial court did not abuse its discretion in excluding Alford's testimony about standards of care for a nursing home or ...