Williams v. Hardrick & Associates
| Decision Date | 18 March 2004 |
| Docket Number | No. 01-03-00074-CV,01-03-00074-CV |
| Citation | 137 S.W.3d 120 |
| Parties | DENNIS AND MICHELLE WILLIAMS, Appellants v. ANNIE BRISCOE AND LINDA HARDRICK D/B/A HARDRICK & ASSOCIATES, Appellees. |
| Court | Texas Supreme Court |
On Appeal from the 55th District Court Harris County, Texas, Trial Court Cause No. 2000-60122.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
This is an appeal of a judgment notwithstanding the verdict (JNOV) rendered in favor of defendants/appellees, Annie Briscoe and Linda Hardrick d/b/a Hardrick & Associates, after a jury awarded plaintiffs/appellants, Dennis and Michelle Williams, $265,000 in damages for legal malpractice based on the alleged mishandling of an underlying negligence suit against a dialysis clinic.
In four issues, appellants contend that the trial court erred in rendering the JNOV because there was more than a scintilla of evidence demonstrating that (1) a judgment in the underlying case would have been recoverable and collectible; (2) the dialysis clinic was negligent; (3) damages resulted from the negligence; and (4) the evidence justified the award of exemplary damages.
Because appellants failed to establish that they would have prevailed in the underlying medical negligence cause of action—a necessary prerequisite to prevailing in the legal malpractice suit—we affirm.
Before his death in 2001 during the pendency of this suit, Dennis Williams was morbidly obese, partially blind, and in end-stage renal failure resulting from insulin-dependent diabetes. Three times a week, he underwent dialysis at the Gambro North dialysis clinic in Houston. In September 1995, Williams stepped on a piece of glass that punctured his foot. It appears from the record that the clinic disinfected the wound, bandaged it, and instructed Williams to apply bacitracin, a topical antibiotic. Michelle Williams testified that the dialysis clinic personnel periodically asked about the condition of the wound over the next few weeks, but apparently did not re-treat Williams's foot, inject him with antibiotics, or supply a prescription for oral antibiotics.1
On October 11, 1995, Williams consulted with his podiatrist, Dr. Gary Lepow. Lepow's notes from his examination indicate that Williams was suffering from a "grade 1 approaching grade 2 ulceration" on his left foot. Williams informed Lepow that the dialysis clinic was recommending an unspecified "invasive procedure" to treat the foot wound. Lepow ordered home health wound care and indicated he intended to discuss administration of antibiotics with Williams' dialysis physician. Although Williams was instructed to return to see Lepow in a week, he did not keep the appointment. Approximately 10 days later, Williams was admitted to Hermann Hospital for emergency treatment of the wound. Because the foot was gangrenous, the doctors determined that it was necessary to amputate most of Williams's left leg. Williams also underwent hyperbaric treatment that was intended to speed healing of the surgical wound, but that had the side-effect of seriously impairing Williams's hearing.
In 1997, appellants hired Briscoe to sue for damages. Briscoe brought a medical malpractice action against Hermann Hospital under article 4590i of the former Texas Medical Liability and Insurance Improvement Act.2 In adherence to the prerequisites of article 4590i, Briscoe provided the hospital records to Dr. Robert Hodgell to obtain his expert evaluation. In his report, Hodgell essentially cleared Hermann Hospital and its physicians of any medical error. Hodgell did not have records to review from the dialysis clinic or other treating doctors/nurses/home health aides, but noted in pertinent part as follows:
I do have some serious concerns about the instructions given him, regarding the proper care of injuries in an insulin dependent diabetic. Therefore, I would recommend looking at the management of the patient prior to hospitalization . . . . Furthermore, the treatment at 1.5 weeks prior to hospitalization, which consisted of only a topical bacterial ointment, is totally inadequate therapy in an insulin dependent diabetic. In addition, at that time, the patient may have already shown signs of cellulitis and probably should have been referred to a surgeon. Furthermore, the hemodialysis unit caring for the patient during the 3 months prior to hospitalization, may also have ignored symptoms of the foot injury which probably would have been evident during his 3 times a week hemodialysis. The left foot was probably bandaged and was apparently not properly examined or evaluated by hemodialysis personnel. Therefore, if anyone is responsible for the events that resulted in the ultimate loss of hearing, it is the medical personnel who cared for the patient prior to admission to the hospital.
Briscoe also obtained a second expert report in 1999 from Dr. Jeffrey Stone of Wound Care Consultants. It is not clear from the letter (or elsewhere in the record) precisely what documents Stone reviewed, and the letter is very brief, but Stone informed Briscoe, "I have reviewed the case at length and have found that they [sic] met the standard of care in their treatment and concern."3
These expert reports notwithstanding, Briscoe filed an article 4590i suit against Hermann Hospital and some of its in-house physicians, but she did not name the dialysis clinic or any of its personnel in the suit. Briscoe did not file a medical negligence suit against any of the parties. This fact was significant because the article 4590i medical malpractice suit was dismissed for want of an adequate expert report. Providing an expert report in advance of litigation is not a procedural step required in a medical negligence action; therefore, lack of an adequate expert report would not have been a reason to dismiss such an action.
In the instant case, Katherine Youngblood, an attorney who specializes in health care claims defense, testified that, because a dialysis clinic is not enumerated in the statute, a medical negligence cause of action should have been brought against the clinic rather than an article 4590i cause of action.4 Accordingly, appellants' suit for legal malpractice was based on Briscoe's failure to file a negligence action against the dialysis clinic, not on the dismissal of the article 4590i suit.
Before charging the jury, the trial court dismissed the article 4590i claims against Hermann Hospital and its staff, and it dismissed Hardrick from this suit.5 The only issue remaining for the jury to determine was whether Briscoe committed legal malpractice by not pursuing a medical negligence claim against the dialysis clinic. The jury determined that Williams would have recovered on the original claim against the dialysis clinic had the claim been properly prosecuted and awarded him $50,000 in damages. The jury also awarded Michelle Williams $15,000 in damages and $200,000 in exemplary damages.
Briscoe's motions for summary judgment, directed verdict, and JNOV were all based on the same grounds—appellants would have been successful in the underlying medical negligence suit against the dialysis clinic because there was no evidence of negligence, no evidence of recoverable, collectible damages, and no evidence of malice. The trial court granted the JNOV without specifying the basis for its ruling.
A trial court may disregard a jury's verdict and render a JNOV if there is no evidence to support the jury's findings or if a directed verdict would have been proper. Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex. 1998). To determine whether the trial court erred in rendering a JNOV, we consider only the evidence and reasonable inferences that support the jury's answers. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990). In other words, we view the evidence in the light most favorable to the verdict. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If there is more than a scintilla of competent evidence to support the jury's findings, this Court should reverse the JNOV. Old Republic Ins. Co. v. EX-IM Services Corp., 920 S.W.2d 393, 396 (Tex. App.—Houston [1st Dist.] 1996, no writ). When the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions, the evidence comprises more than a scintilla. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
To recover on a claim for legal malpractice, a plaintiff must prove that the attorney (1) owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused plaintiff's injuries; and (4) the plaintiff was damaged. Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). When a legal malpractice claim arises from earlier litigation, the plaintiff also bears the burden to prove he would have prevailed on the underlying cause of action. Id.; Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref'd n.r.e.). In addition, a plaintiff must prove the amount of damages he would have recovered and collected in the underlying case if it had been properly prosecuted. Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989). Evidence that damages could have been collected is required because, even if an attorney's negligence prevented the entry of a judgment in the client's favor, the client suffered no damage unless he could have collected some part of that judgment. Vanasek v. Underkofler, 50 S.W.3d 1, 8 (Tex. App.—Dallas 1999) rev'd in part on other grounds, 53 S.W.3d 343 (Tex. 2001). This aspect of plaintiff's burden is commonly referred to as the "suit within a suit" requirement. Greathouse, 982 S.W.2d at 173. Thus, to prove that Briscoe committed legal malpractice, appellants had to prove...
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Williams v. Briscoe
...137 S.W.3d 120 ... Dennis and Michelle WILLIAMS, Appellants, ... Annie BRISCOE and Linda Hardrick d/b/a Hardrick & Associates, Appellees ... No. 01-03-00074-CV ... Court of Appeals of Texas, Houston (1st Dist.) ... March 18, 2004 ... [137 ... ...