Virlar v. Puente

• Decision Date: 14 October 2020
• Docket Number: No. 04-18-00118-CV,04-18-00118-CV
• Citation: 613 S.W.3d 652
• Parties: Jesus VIRLAR, M.D. and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba Medical Group, Appellants v. Jo Ann PUENTE, Appellee
• Court: Texas Court of Appeals

613 S.W.3d 652

Jesus VIRLAR, M.D. and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba Medical Group, Appellants

v.Jo Ann PUENTE, Appellee

No. 04-18-00118-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: October 14, 2020

OPINION ON MOTION FOR REHEARING

Opinion by: Liza A. Rodriguez, Justice

This appeal arises from a medical malpractice action filed by Jo Ann Puente against Dr. Jesus Virlar and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba Medical Group ("Gonzaba"). A jury found Dr. Virlar liable for Puente's injuries, and judgment was rendered in favor of Puente and against Dr. Virlar and his employer, Gonzaba. On appeal, Dr. Virlar and Gonzaba bring five issues:

(1) whether the trial court erred in excluding the expert testimony of Dr. Ralph W. Kuncl; (2) whether the trial court erred in admitting evidence of Dr. Virlar's loss of privileges and alleged extraneous bad acts in treating other patients in violation of Texas Rule of Evidence 403 ;

(3) whether the evidence is legally and factually sufficient to support the jury's award of $888,429.00 in future loss of earning capacity;

(4) whether the trial court erred in refusing to apply a settlement credit in the amount of the hospital's settlement with Puente's minor daughter; and

(5) whether the trial court erred in failing to order that future damages should be paid in whole or in part in periodic payments rather than by lump sum pursuant to section 74.503 of the Texas Civil Practice and Remedies Code.

In our opinion of February 5, 2020, we found no error on the part of the trial court with respect to the first and second issues. See Virlar v. Puente , No. 04-18-00118-CV, 2020 WL 557735, at *8, *12, *15, *17 (Tex. App.—San Antonio Feb. 5, 2020, no pet. h.) (" Virlar I "). With respect to the third issue, we held that the evidence was legally and factually sufficient to support loss of future earning capacity in the amount of $880,429.00, but not in the full amount awarded ($888,429.00), and therefore suggested a remittitur decreasing the award for loss of future earning capacity by $8,000.00. See id. at *20, *33 (citing TEX. R. APP. P. 46.3 ). Regarding the fourth issue, we remanded the cause for the trial court to conduct a benefits analysis pursuant to Utts v. Short , 81 S.W.3d 822 (Tex. 2002). See Virlar I , 2020 WL 557735, at *29. Finally, with regard to the fifth issue, we found no abuse of discretion by the trial court in failing to award periodic payments for future loss of earning capacity under section 74.503(b) of the Texas Civil Practice and Remedies Code ; however, we did find the trial court abused its discretion under section 74.503(a) because it did not order any part of the amount awarded for future medical care expenses to be paid in periodic payments. See Virlar I , 2020 WL 557735, at *32.

Puente then filed two remittiturs with the clerk of this court. See Virlar v. Puente , No. 04-18-00118-CV, 2020 WL 2139313, at *1 (Tex. App.—San Antonio May 6, 2020, no pet. h.) (" Virlar II "). The first was a remittitur in the amount of $8,000.00 as suggested in our original opinion in Virlar I . The second was a voluntary remittitur in the amount of $434,000.00 pursuant to Texas Rule of Appellate Procedure 46.5, which Puente argued would cure any reversible error committed by the trial court with respect to Issue 4 (the settlement credit issue). Puente also filed a motion for rehearing, requesting that this court reconsider its holdings with respect to Issue 4 (the settlement credit issue) and Issue 5 (the periodic payments of future medical expenses issue). We accepted Puente's first remittitur of $8,000.00. See Virlar II , 2020 WL 2139313, at *1. However, we rejected Puente's second remittitur of $434,000.00 and denied her motion for rehearing. See id.

Two days after we issued our opinion on remittitur, the supreme court issued its opinion in Regent Care of San Antonio, L.P. v. Detrick , No. 19-0117, 610 S.W.3d 830, 835–39 (Tex. May 8, 2020), which discussed the issue of periodic payments of future medical expenses. On May 20, 2020, Puente filed a second motion for rehearing based on the Regent Care decision. We reviewed the motion and requested a response from Dr. Virlar and Gonzaba. After considering the motion and responses filed, we grant Puente's second motion for rehearing.

We withdraw our opinions and judgments of February 5, 2020 and May 6, 2020. See Virlar I , 2020 WL 557735, at *33 ; Virlar II , 2020 WL 2139313, at *1 (opinion on remittitur). We substitute this opinion and judgment in their place.

BACKGROUND

On November 28, 2011, Appellee Jo Ann Puente underwent "Roux-en-Y" gastric bypass

surgery, which was performed by Dr. Nilesh Patel. On December 24, 2011, she began having complications from her surgery, including nausea and vomiting. She reported to Dr. Patel that when she attempted to eat solids, she vomited but was able to keep liquids down. On January 11, 2012, Dr. Patel performed an outpatient dilation procedure for a suspected stricture related to the bypass surgery. On January 13, 2012, Puente went to Dr. Patel's clinic in Del Rio, Texas, and was treated for dehydration. The next day, January 14, 2012, Puente went to the emergency room at Metropolitan Methodist Hospital in San Antonio, Texas, where her main complaint was vomiting. She reported she had just had a dilation outpatient procedure and was not better. In the six weeks since her bariatric surgery, Puente had lost 100 pounds. While she was at the emergency room, the results of a CAT scan raised concerns she was suffering from an esophageal rupture. She was admitted to the intensive care unit on the orders of Dr. Manuel Martinez, a hospitalist and employee of Gonzaba, and placed under his care. Dr. Martinez diagnosed Puente with pancreatitis and dehydration. Puente's medical records reflect that she was awake, alert, and able to follow commands. She did not have any "deficit of movement" to her upper or lower extremities.

Because of the possible esophageal rupture, Dr. Martinez ordered Puente to take nothing by mouth and ordered all the medications Puente had been taking since her surgery, including vitamins, to be stopped during her hospitalization. A nutritional assessment was performed by the hospital's nutritional dietician, who noted that Puente was at nutritional risk; the dietician recommended that "alternate support with TPN needs to be considered."²

On January 16, 2012, Appellant Dr. Jesus Virlar, also a hospitalist and Gonzaba employee, assumed Puente's care and treated her until she was discharged on January 26, 2012. On January 16th, medical records indicate Puente was having trouble walking, even with help of the nurses. The nurses noted that Puente complained of dizziness, "tingles" in her fingers, and tight muscles in her shoulder. She was still vomiting. The nurses further noted that Puente had lost control of her bowels; after being helped to the bathroom, Puente did not respond to questions, and her gaze became "fixed." The nurses also noted that Puente needed "additional fall risk elements," including a "tether device," because of an "unsteady gait."

Dr. Virlar noted in Puente's medical records that Puente had "refused" to ambulate and wrote "MAT evaluate for depression?" According to Dr. Virlar, he wrote "MAT," or Mental Assessment TEAM, because he was considering getting a consultation for Puente's mental state. Dr. Virlar testified he thought she might have "a psychological issue" and that she "need[ed] to try harder to walk." Dr. Virlar testified, "Based at the time, under those circumstances, to me, she was depressed and possibly something else [was] going on. I just couldn't put it together." When asked why he did not find significant the nurses' notes that Puente had fixed gaze and was not responding to questions, Dr. Virlar responded, "It was not reported to me." Dr. Virlar admitted that he did not read the nurses' notes. He was asked at trial whether it was true that he never read any of the nurses' notes during the time of Puente's hospitalizations. Dr. Virlar replied, "Not every single one. Maybe I read one or two. I don't recall a specific number, but the majority of the nurses' notes, no, I did not read, sir." Later during his testimony, Dr. Virlar clarified that he "did not look at the nurses' notes." He was then asked if he wished now that he had reviewed them; Dr. Virlar replied, "No, because that's–it's their subjective interpretation. Somebody's weakness of level of 4, to me may be a level of 3, part of that assessment."

On January 20, 2012, a second nutritional assessment was performed. Since her admission, Puente had been without food and had had nothing by the mouth; the only fluid Puente had received intravenously was saline. Puente was also still vomiting, a condition which started before she was hospitalized. The dietician again recommended TPN. That same day, Puente was put on a trial of clear fluids, but was not able to tolerate the fluids by mouth. Dr. Virlar returned her status to nothing by mouth.

On January 21, 2012, Puente's surgeon, Dr. Patel, wrote in her medical records to "start TPN"; however, Puente was not started on TPN that day. Dr. Patel testified he relied on the hospitalist, Dr. Virlar, to write the appropriate orders. That same day, the physical therapist's progress note stated that Puente was feeling nauseated and vomited "clear spital" in the trash. The physical therapist wrote in the medical records that Puente was demonstrating "Trendelenburg gait," which is a gait seen with people who have weakness in the pelvic muscles. On January 23, 2012, nurses' notes reflected that Puente was still complaining of dizziness and that she was exhibiting right eye nystagmus

. On January 24, 2012, Puente said she was having nausea when she opened her eyes.

On January 26, 2012, Puente was discharged with orders for administration of TPN through home health care. Dr. Virlar's discharge diagnosis...