Curtis Chesser, Individually, and Through His Spouse and Power of Attorney, Ava Chesser v. LifeCare Management Services, L.L.C. and LifeCare Hospitals of North Texas, L.P. D/B/A LifeCare Hospital of Fort Worth

• Court: Court of Appeals of Texas
• Decided: August 31, 2011
• Docket: 02-10-00291-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00291-CV

CURTIS CHESSER, APPELLANT INDIVIDUALLY, AND THROUGH AND APPELLEE HIS SPOUSE AND POWER OF ATTORNEY, AVA CHESSER

V.

LIFECARE MANAGEMENT APPELLEES SERVICES, L.L.C. AND LIFECARE AND APPELLANTS HOSPITALS OF NORTH TEXAS, L.P. D/B/A LIFECARE HOSPITAL OF FORT WORTH

----------

FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

OPINION ----------

I. INTRODUCTION

A jury returned a verdict for Appellant Curtis Chesser, individually, and

through his spouse and power of attorney, Ava Chesser, in his health care

liability suit against Appellees LifeCare Management Services, L.L.C. (LMS) and LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospital of Fort Worth

(Hospital). After applying the statutory caps to the noneconomic damages

awarded by the jury, the trial court signed a judgment on the jury’s verdict.

Chesser perfected an appeal, raising one issue: the trial court erred by

submitting the negligence of three settling doctors to the jury because no

evidence of their negligence exists. Appellees perfected a cross appeal, raising

eight issues: two charge error issues, two sufficiency of the evidence issues, and

four issues alleging computation errors in the judgment.1 For the reasons set

forth below, we will sustain Chesser’s sole issue and will modify the trial court’s

judgment to delete the percentage-of-responsibility settlement credit given to

Appellees; we will apply a dollar-for-dollar settlement credit. We will sustain

Appellees’ fourth issue challenging the legal sufficiency of the evidence to

support the jury’s joint enterprise finding and will accordingly modify the trial

court’s judgment to delete the imposition of joint and several liability on LMS. We

will also sustain subpart B of Appellees’ fifth issue challenging LMS’s joint and

several liability with Hospital for Hospital’s $250,000 noneconomic damages civil

liability and challenging Hospital’s joint and several liability with LMS for LMS’s

$250,000 noneconomic damages civil liability. We will modify the judgment to

delete LMS’s joint and several liability for Hospital’s $250,000 noneconomic

damages civil liability and to delete Hospital’s joint and several liability for LMS’s

$250,000 noneconomic damages civil liability and we will render judgment that

Hospital and LMS are each severally liable for $250,000 in noneconomic

1 Although LMS and Hospital raise their issues as cross-appellants, we refer to them throughout this opinion as ―Appellees‖ for clarity and ease of reading.

2 damages plus prejudgment and postjudgment interest on that amount. With

these modifications, we will affirm the trial court’s judgment.

II. FACTUAL OVERVIEW

Fort Worth Police Officer Curtis Chesser suffered a mild stroke that

affected his ability to swallow. He was without pain and was without cognitive

impairment. After spending a few days in Huguley Hospital and Granbury

Hospital, he was transferred to Hospital for rehabilitation and therapy. Hospital is

a long-term acute care hospital; it does not have an operating room, recovery

room, or anesthesia services. At Hospital, Chesser was treated by physicians

Dr. Ade Adedokun, Dr. Edward Ferree, and Dr. Burke DeLange. A few days

after Chesser’s admission to Hospital, in an examination room at Hospital, Dr.

DeLange; Carol Smith, R.N.; and Cindy Barnett, R.N. surgically inserted a

percutaneous endoscopic gastrostomy (PEG) tube through Chesser’s abdominal

wall into his stomach. An hour after insertion of the PEG tube, at 10:20 a.m.,

Chesser’s medical chart indicated that he reported pain in his abdomen of 10 on

a scale of 1–10.

The bolster or bumper placed around the PEG tube to keep it from moving

was too tight, resulting in severe pain to Chesser and prolonged ischemia of the

gastric tissue under the tube, which led to necrosis with erosion of the PEG tube

through the stomach wall as well as erosion of and hemorrhage of the superior

epigastric artery. As Chesser’s condition deteriorated over the next four days,

his complaints, signs, symptoms, and their cause were not assessed or

investigated by Hospital nurses or reported to the doctors. Realizing that

something was seriously wrong, Chesser requested a transfer to a full-service

hospital. After Chesser’s wife observed Chesser excrete a large amount of bright

3 red blood through his rectum, and after Chesser’s blood pressure became

dangerously low, Chesser was transferred to Harris Hospital. Chesser had spent

eight days at Hospital.

At Harris Hospital, an endoscopy was performed. The gastroenterologist

performing the procedure discovered a large ulcer on Chesser’s stomach lining,

significant amounts of blood in Chesser’s stomach, and active bleeding from the

epigastric artery. During the endoscopy, Chesser ―coded‖ and was resuscitated;

Chesser had suffered a cardiopulmonary arrest, cardiac injury, and cerebral

injury and had sustained permanent cognitive deficits. Chesser remained in

Harris Hospital for several months; he then received outpatient brain injury

transitional services through May 2005 and continues to require a variety of

health care treatments and services.

III. STANDARDS OF REVIEW

We utilize the following standards of review in our analysis of the various

issues presented and in our analysis of the effect that the sustaining of various

issues has upon the trial court’s judgment. A. Legal Sufficiency of the Evidence

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

4 “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

B. Factual Sufficiency of the Evidence

When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

C. Submission of Jury Questions, Definitions, and Instructions

A trial court has wide discretion in submitting instructions and jury

questions. Howell Crude Oil Co. v. Donna Ref. Partners, Ltd., 928 S.W.2d 100,

110 (Tex. App.––Houston [14th Dist.] 1996, writ denied). A trial court must

submit only ―such instructions and definitions as shall be proper to enable the

jury to render a verdict.‖ Tex. R. Civ. P. 277. A proper jury instruction is one that

assists the jury and is legally correct. Town of Flower Mound v. Teague, 111

5 S.W.3d 742, 759 (Tex. App.––Fort Worth 2003, pet. denied). We review the trial

court’s legally correct definitions, instructions, and questions for an abuse of

discretion. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2003); Tex.

Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000);

Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).

When an appellant challenges the legal sufficiency of the evidence to

support the submission of a question to the jury, we review de novo the

sufficiency of the evidence applying the legal sufficiency standard of review.

See, e.g., T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.

1992) (recognizing that objection to submission of question as based on no-

evidence preserves no-evidence challenge for appeal); Cont’l Cas. Co. v. Street,

379 S.W.2d 648, 658 (Tex. 1964).

D. Rules of Statutory Construction

Issues of statutory construction present questions of law that we review de

novo applying well-established rules of construction. First Am. Title Ins. Co. v.

Combs, 258 S.W.3d 627, 631 (Tex. 2008), cert. denied, 129 S. Ct. 2157 (2009).

Our primary objective in statutory construction is to give effect to the legislature’s

intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). To achieve this,

―we look first and foremost to the words of the statute.‖ Lexington Ins. Co. v.

Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We construe the statute’s words

according to their plain and common meaning, unless a contrary intention is

apparent from the context or unless such a construction leads to absurd results.

6 City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008); see also Tex.

Gov’t Code Ann. § 311.011(a) (West 2005) (―Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.‖).

We also use definitions prescribed by the legislature and any technical or

particular meaning the words have acquired. See Tex. Gov’t Code Ann.

§ 311.011(b).

Further, we must read the statute as a whole and not just isolated portions.

Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004);

Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 253 (Tex. App.––Dallas 2005,

no pet.) (―We determine legislative intent from the entire act and not just its

isolated portions.‖). It is a well-settled rule of statutory construction that every

word of a statute must be presumed to have been used for a purpose. Gray v.

Nash, 259 S.W.3d 286, 291 (Tex. App.––Fort Worth 2008, pet. denied).

Likewise, every word excluded from a statute must also be presumed to have

been excluded for a purpose. Id. We are required to reconcile and harmonize

apparently conflicting statutory provisions, if it is reasonably possible, so that

every enactment may be given effect. Barfield v. City of La Porte, 849 S.W.2d

842, 845 (Tex. App.––Texarkana 1993), aff’d, 898 S.W.2d 288 (Tex. 1995). We

also consider the objective the law seeks to obtain and the consequences of a

particular construction. Tex. Gov’t Code Ann. § 311.023(1), (5) (West 2005). In

enacting a statute, it is presumed that a just and reasonable result is intended.

Id. § 311.021(3) (West 2005).

7 When a general statutory provision conflicts with a special statutory

provision, both provisions shall be construed, if possible, to give effect to both;

but, if the conflict is irreconcilable, the special provision prevails absent certain

exceptions. Id. § 311.026 (West 2005). Also when applying rules of statutory

construction, the more recent enactment prevails. Id. § 311.025(a) (West 2005);

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000);

Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000).

E. Abuse of Discretion

To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d

835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court

abused its discretion merely because the appellate court would have ruled

differently in the same circumstances. E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

An abuse of discretion does not occur when the trial court bases its

decision on conflicting evidence and some evidence of substantive and probative

character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92,

97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

IV. SUFFICIENCY OF THE EVIDENCE CHALLENGES

In his sole issue, Chesser contends that no evidence exists supporting the

8 submission of the negligence of the settling defendants––Dr. Adedokun, Dr.

Ferree, and Dr. DeLange––to the jury in question 2 of the court’s charge and,

correspondingly, that no evidence exists to support the submission of the settling

defendants’ percentage of responsibility in question 3. Specifically, Chesser

argues that there is no expert testimony of a standard of care applicable to these

three doctors, no evidence of any breach of any standard of care, and no

evidence that any breach of any standard of care by these three doctors was a

proximate cause of Chesser’s damages; in short, Chesser contends that no

evidence exists supporting the submission of these doctors’ negligence to the

jury.

In their second and fourth issues, respectively, Appellees argue that legally

and factually insufficient evidence exists to support the jury’s finding in question 1

that Hospital was negligent and in question 6 that LMS and Hospital were

engaged in a joint enterprise.

A. No Evidence to Support Submission of Negligence of Settling Doctors

In addressing Chesser’s challenge to the legal sufficiency of the evidence

to support submission to the jury of the settling defendants’ negligence in

question 2 and of the settling defendants’ percentage of responsibility in question

3,2 we first examine the comparative responsibility statute. Texas Civil Practice

2 Appellees requested questions 2 and 3, submitting the settling defendants’ negligence and percentage of responsibility. Chesser objected to the submissions and subsequently filed a motion to disregard the jury’s finding

9 and Remedies Code3 section 33.003 provides:

(a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these:

(1) each claimant;

(2) each defendant;

(3) each settling person; and

(4) each responsible third party who has been designated under Section 33.004.

(b) This section does not allow a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission.

Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (West 2008) (emphasis added).

Thus, if legally sufficient evidence does not exist of the negligence of a settling

physician, his percentage of responsibility should not be submitted. See id.

§ 33.003(b) (expressly prohibiting submission to jury of any person’s percentage

of responsibility absent legally sufficient evidence); Rehab. Facility at Austin, Inc.

v. Cooper, 962 S.W.2d 151, 154 (Tex. App.––Austin 1998, no pet.) (interpreting

that the settling defendants were negligent and the finding apportioning a percentage of responsibility to them. 3 This appeal involves the application of various sections of the civil practice and remedies code. All references herein are to that code unless specified otherwise.

10 predecessor statute and holding that trial court properly refused to submit settling

defendant’s negligence to jury); see also Tex. R. Civ. P. 278 (authorizing trial

court to submit to jury only questions raised by pleadings and evidence); Kroger

Co. v. Betancourt, 996 S.W.2d 353, 358 (Tex. App.––Houston [14th Dist.] 1999,

pet. denied) (holding submission of question on comparative responsibility of

settling defendant is required only if evidence exists supporting liability on part of

settling defendant). That is, section 33.003, the comparative responsibility

statute, does not provide any independent basis for submitting to the jury the

percentage of responsibility of a settling defendant absent evidence supporting

the submission.

In order to submit to the jury a defendant’s negligence in a health care

liability claim, there must be legally sufficient evidence of a duty to act according

to the applicable standard of care, of a breach of the standard of care, and of a

causal connection between the breach and the injury. Morrell v. Finke, 184

S.W.3d 257, 271 (Tex. App.––Fort Worth 2005, pet. ref’d). Expert testimony is

required to establish the governing standard of care and whether that standard

has been breached. Rehab. Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234

(Tex. 2002). Likewise, expert testimony based on reasonable medical probability

is required to establish proximate cause. Jelinek v. Casas, 328 S.W.3d 526, 532

(Tex. 2010); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.

1995).

We have thoroughly reviewed the record and have looked specifically at

11 every record reference cited in Appellees’ brief as containing expert testimony or

evidence of the settling defendants’ negligence; Chesser is correct. No expert

testimony exists in the record before us of a standard of care applicable to these

three doctors, no evidence exists of any breach of any standard of care, and no

evidence exists that any breach of any standard of care by these three doctors

was a proximate cause of Chesser’s damages. Although Chesser called each of

the settling defendants to testify at trial, no testimony was elicited from them

concerning their respective standards of care, their breach of any standard of

care, or proximate cause. The only expert testimony in the record concerning the

standards of care applicable to the settling defendants, any breach of those

standards of care, or any proximate cause is, as pointed out by Chesser, wholly

conclusory4 and constitutes no evidence. See, e.g., Coastal Transp. Co., 136

S.W.3d at 232;5 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711–12

4 Because Chesser contends that this testimony is conclusory on its face, no objection at trial was required. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). 5 The supreme court in Coastal explained:

[A]lthough expert opinion testimony often provides valuable evidence in a case, ―it is the basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.‖ Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ―more probable or less probable.‖ See Tex. R. Evid. 401.

12 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998).

For example, Dr. Stephen Koch, one of Chesser’s experts whose

testimony Appellees point to as providing evidence of the settling defendants’

standard of care, breach, and causation, simply testified:

Q. You render opinions as an–as an expert witness in this case that Dr. Daddyo–Adedokun was negligent in his care and treatment of Mr. Chesser, didn’t you?

A. In my deposition, yes.

Q. And you rendered opinions that that care and treatment was a proximate case [sic] of his injury, didn’t you?

A. That was one of the–one of the factors, yes.

Q. Okay. So you’re–you’ve been a–an expert against–with respect to the care and treatment of Dr. Adedokyn. You also rendered opinions that Dr. Ferree was negligent in his care and treatment of Mr. Chesser at LifeCare, didn’t you?

A. During the treatment at LifeCare, yes.

Q. And you rendered the opinion that care and treatment was a proximate cause of his injury, didn’t you?

A. Yes.6

Case law uniformly holds that such conclusory testimony constitutes ―no

evidence.‖ See, e.g., Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839

136 S.W.3d at 232. 6 At another point in his testimony, Dr. Koch specifically testified that an ordinary prudent physician not informed by nurses of the level of pain reported by Chesser related to the insertion of the PEG tube on November 16, 17, or 18 would not be able to figure out what problem Chesser was experiencing.

13 (Tex. 2010) (holding evidence legally insufficient to support causation because

―Dr. Beyler may be qualified in fire research, but his testimony in this case lacks

objective, evidence-based support for its conclusions‖); City of San Antonio v.

Pollock, 284 S.W.3d 809, 820 (Tex. 2009) (holding evidence legally insufficient to

support causation because ―Patel’s opinions were conclusory and provided no

evidence‖); Coastal Transp. Co., 136 S.W.3d at 232; Havner, 953 S.W.2d at

711–12. Expert testimony utilizing the ―magic words‖ of ―negligence‖ and

―proximate cause‖ constitutes no evidence if the testimony is simply the expert’s

bare opinion; it is the substance of the testimony that must be considered.

Havner, 953 S.W.2d at 711–12; see also McIntyre v. Ramirez, 109 S.W.3d 741,

749 (Tex. 2003) (―A conclusory statement of an expert witness is insufficient to

create a question of fact.‖). Here, there is no substantive testimony regarding the

standard of care, breach, and causation concerning the alleged medical

negligence of Drs. Adedokun, Ferree, and DeLange in their care and treatment of

Chesser. At most, the record contains only a bare recitation of an expert’s prior

opinion using the magic words of negligence and proximate cause. Because the

only evidence concerning the alleged medical negligence of Drs. Adedokun,

Ferree, and DeLange is conclusory expert testimony, no evidence exists

supporting submission of the negligence of these doctors to the jury.7 We

7 Despite Appellees’ request that the negligence and percentage of responsibility of the settling doctors be submitted to the jury, Appellees’ theory of the case was that the settling doctors were not negligent. During closing argument, Appellees’ counsel explained, ―Now, did we bring you evidence that

14 sustain Chesser’s sole issue.

We next address what effect sustaining Chesser’s sole issue has on the

judgment.8 The settling defendants paid a total of $183,000 in damages and

$48,334 in costs to settle Chesser’s claims against them. Prior to trial,

Appellees elected the percentage settlement credit. See Tex. Civ. Prac. & Rem.

Code Ann. § 33.012(c)(2) (West 2008). The percentage of responsibility that the

jury attributed to the settling defendants totaled 10%. Accordingly, to effectuate

the settlement credit elected by the Appellees, the judgment signed by the trial

court applied a settlement credit of $377,383.53.9 The judgment subtracts the

settlement credit of $377,383.53 from the total damages awarded in the

judgment. The judgment also subtracts $48,334 from the court costs recoverable

by Chesser.

The issue of the amount of the settlement credit to be applied to the

judgment is controlled by section 33.012 of the civil practice and remedies code,

titled, ―Amount of Recovery.‖ See id. § 33.012. It provides in pertinent part:

(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar

Dr. Adedokun or Dr. DeLange or Dr. Ferree were negligent? No, we didn’t, because we don’t believe they were.‖ 8 Chesser specifically does not seek a remand on this issue. 9 The parties did not dispute in the trial court and do not challenge on appeal the correctness of this settlement credit amount as a 10% reduction of the amount of damages to be recovered by Chesser.

15 amounts of all settlements.

(c) Notwithstanding Subsection (b), if the claimant in a health care liability claim filed under Chapter 74 has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by an amount equal to one of the following, as elected by the defendant:

(1) the sum of the dollar amounts of all settlements; or

(2) a percentage equal to each settling person’s percentage of responsibility as found by the trier of fact.

(d) An election made under Subsection (c) shall be made by any defendant filing a written election before the issues of the action are submitted to the trier of fact and when made, shall be binding on all defendants. If no defendant makes this election or if conflicting elections are made, all defendants are considered to have elected Subsection (c)(1).

Id.

Because no evidence exists supporting submission of the settling

defendants’ negligence to the jury, their percentage of responsibility should not

have been submitted and no percentage of responsibility should have been

allocated by the jury to the settling defendants; indeed, how could the jury assess

a percentage of responsibility to the settling defendants in the absence of legally

sufficient evidence of their negligence? And because, based on the evidence, no

percentage of responsibility should have been allocated to the settling

defendants, Appellees cannot be entitled to a percentage-of-responsibility

settlement credit. See id. §§ 33.003(b), .012(c)(2).

But, section 33.012(b) provides that when a claimant has settled with a

person, the court shall reduce the claimant’s damages by the dollar amount of all

16 settlements. Id. § 33.012(b). And section 33.012(d) provides that even if a

defendant in a health care liability claim forgets to, or simply fails to, make any

election concerning a settlement credit, then nonetheless the dollar-for-dollar

settlement credit applies. See id. § 33.012(d). So, in this case, under either

subsection (b) or subsection (d), Appellees are entitled to a dollar-for-dollar

settlement credit equal to $183,000—the damages paid in settlement by the

settling defendants.10

In the judgment, after application of the relevant damage cap provisions to

the damages found by the jury, the trial court further reduced the damages by the

percentage settlement credit of $377,383.53. Based on our holding above, the

judgment should not be reduced by the percentage-of-responsibility settlement

credit of $377,383.53, but nonetheless must be reduced pursuant to either

section 33.012, subsection (b) or subsection (d), by the dollar-for-dollar

settlement credit amount of $183,000.11 Accordingly, we reverse the portion of

the trial court’s judgment applying the $377,383.53 percentage settlement credit

10 Chesser contends that Appellees are entitled to no settlement credit at all based on McAllen Kentucky Fried Chicken No. 1, Inc., v. Leal, 627 S.W.2d 480, 485 (Tex. App.––Corpus Christi 1981, writ ref’d n.r.e.). Leal, however, interpreted former Texas Revised Civil Statute article 2212a, which was repealed in 1985; Leal is not applicable to our construction of section 33.012. 11 The final judgment signed by the trial court includes as attachments various charts and computations in essence ―showing the math‖ of how the trial court arrived at the numbers it did. These attachments enable us to calculate exactly the change in the judgment wrought by application of a dollar-for-dollar settlement credit instead of a percentage settlement credit. We do so in our judgment.

17 and render judgment applying the $183,000 dollar-for-dollar settlement credit.

See Tex. R. App. P. 43.2(c), 43.3.

B. Sufficiency of Evidence to Support Joint Enterprise Finding; No Evidence of Community of Pecuniary Interest in the Common Purpose of the Enterprise Between Appellees

In their fourth issue, Appellees assert that legally and factually insufficient

evidence exists to support the jury’s finding in question 6 that a joint enterprise

existed between LMS and Hospital. Specifically, Appellees challenge the

sufficiency of the evidence to support the second two elements of joint

enterprise: (3) a community of pecuniary interest in the common purpose of the

enterprise among the members; and (4) an equal right to a voice in the direction

of the enterprise, which gives an equal right of control.

The Texas Supreme Court has addressed legal sufficiency challenges to

the third element, the community-of-pecuniary-interest-in-the-common-purpose-

of-the-enterprise element, of a jury’s joint enterprise finding in several cases.

See St. Joseph Hosp., 94 S.W.3d at 531–33 (holding evidence legally

insufficient); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 613–14 (Tex. 2000)

(holding evidence legally sufficient); Blount v. Bordens, Inc., 910 S.W.2d 931,

932 (Tex. 1995) (holding evidence legally insufficient); Shoemaker v. Estate of

Clyde Whistler, 513 S.W.2d 10, 15–17 (Tex. 1974) (holding evidence legally

insufficient). A review of these cases makes it clear that to satisfy this element of

a joint enterprise, evidence must exist of a monetary interest in the enterprise

common to each member of the enterprise; the monetary interest of each

18 member of the group in the enterprise must be ―shared without special or

distinguishing characteristics.‖ St. Joseph Hosp., 94 S.W.3d at 531; see also

Able, 35 S.W.3d at 614 (holding legally sufficient evidence of this element existed

when written agreement between members of enterprise specifically mentioned

investment of substantial sums for mass transit purposes); Shoemaker, 513

S.W.2d at 17 (holding that two joint owners of an aircraft had ―no pecuniary

interest in the common purpose of the search‖ that was occurring when the plane

crashed and Shoemaker’s son was killed).

We have carefully reviewed the record as well as nine boxes of original

exhibits filed with this court. The record before us ―discloses a complete absence

of evidence of a vital fact,‖ that being a community of pecuniary interest in the

common purpose of the enterprise that existed between Appellees. See Uniroyal

Goodrich Tire Co., 977 S.W.2d at 334 (requiring appellate court to sustain legal

sufficiency challenge when record discloses a complete absence of evidence of a

vital fact). The evidence establishes that Hospital is managed by LMS and that

LMS manages two other Texas hospitals, one in Plano and one in Dallas. As

evidence supporting the jury’s joint enterprise finding, Chesser points to the

following: the testimony of William R. Fox, who was formerly Senior Vice

President of Operations of LMS; the governing board bylaws governing

Appellees’ relationship with one another; a governing board orientation policy

19 promulgated by LMS;12 the testimony of Elizabeth Higgenbotham, an expert in

12 The governing board orientation policy listed the following as the governing board’s role in facility finance:

a. Hires and defines the total compensation level of the Administrators. The latter directs the daily operation of the facility and manages its financial matters to achieve its stated mission.

b. Develops a sound understanding of the sources of the facility’s revenue and expenses and its economic environment.

c. Approves financial goals that are designed to ensure the long-term financial viability of the facility and the basis upon which achievement of these goals can be measured.

d. Approves short and long range financial policies that are consistent with and will enable the facility to achieve its financial goals.

e. Establishes a code of conduct for board members and management and monitors compliance with this code.

f. Approves short and long-term operating, cash, and capital budgets that are consistent with the facility’s overall financial goals.

g. Assists in planning and provides support for philanthropic activities as desired.

h. Approves methods of financing major capital asset renovations, replacements, and additions.

i. Reviews financial reports and operating statistics on a regular basis to ensure that the facility takes appropriate action in response to operating trends to achieve its financial goals.

j. Works with the facility’s external auditors and evaluates information from the internal and external auditors about the status of financial controls and compliance with government regulations.

k. Evaluates and approves financial plans for new business ventures, programs and services and establishes criteria to measure their ongoing viability.

20 the area of health care management, consultation, medical/legal, risk

management, and health care systems and operations; and the testimony of Dr.

Koch. This evidence unquestionably establishes that LMS was the ―umbrella‖

organization over Hospital; that Hospital was to operate as a for-profit, long-term

acute care specialty hospital; that per the governing board bylaws, LMS was to

―review annual operating and capital budgets‖ of Hospital; and that per the

governing board bylaws, LMS was to oversee Hospital’s budget.

Chesser points to no evidence, however, and we have located none in the

record, showing how the monies generated by Hospital were allocated or shared

between Hospital and LMS. See St. Joseph Hosp., 94 S.W.3d at 531; David L.

Smith & Assocs., L.L.P. v. Stealth Detection, Inc., 327 S.W.3d 873, 878–79 (Tex.

App.––Dallas 2010, no pet.) (holding legally insufficient evidence of joint

enterprise between companies existed despite evidence of shared officers,

directors, employees, business address, logo, and assets when no evidence

existed of how or whether monetary benefits were shared between the two

entities). Similarly, the record contains no evidence of how the monies

generated by LMS were allocated or shared between Hospital and LMS. See St.

Joseph Hosp., 94 S.W.3d at 531; David L. Smith & Assocs., L.L.P., 327 S.W.3d

at 878–79. The mere existence of monetary benefits to both Hospital and LMS

by virtue of their relationship is insufficient to establish the third element of a joint

21 enterprise; there must be evidence that the monetary benefits were shared

among the members of the enterprise without special or distinguishing

characteristics. See St. Joseph Hosp., 94 S.W.3d at 531; David L. Smith &

Assocs., L.L.P., 327 S.W.3d at 878–79; see also Blount, 910 S.W.2d at 933

(explaining that circumstantial evidence that could give rise to any number of

inferences was insufficient to satisfy third element of joint enterprise); Omega

Contracting, Inc. v. Torres, 191 S.W.3d 828, 851 (Tex. App.––Fort Worth 2006,

no pet.) (holding evidence was legally insufficient on third element of joint

enterprise because although both entities of the alleged joint enterprise

―contemplated economic gain,‖ ―that gain was not shared without special or

distinguishing characteristics,‖ but instead one entity passed along revenue

attributable to work of the other and kept for itself revenue attributable to the work

of its own drivers).

Chesser argues that Hospital and LMS (along with the other two hospitals

managed by LMS) utilized shared billing, shared managed care contracting, and

shared financial, legal, administrative, and human resources departments to

make better use of resources for economic gain. Fox testified that there was a

centralized human resource function at the corporate office but that each hospital

had its own human resource representative. The pooling of resources between

members of a joint enterprise to further the economic gain of the enterprise is a

factor the supreme court has looked at in determining whether evidence of a

community of pecuniary interest in the common purpose of the enterprise among

22 the members exists. See Able, 35 S.W.3d at 613–14. In Able, the documents

executed between the parties ―clearly contemplate[d] an economic gain that

could [have been] realized by undertaking the activities in the [pooling] manner.‖

Id. Here, although some centralized functions were undertaken by LMS on

behalf of Hospital, no evidence exists that any financial gain from this pooling

was shared between Appellees without special or distinguishing characteristics.

Unlike in Able, the record here simply does not indicate what the monetary

consequence of the ―pooling‖ of resources pointed to by Chesser is for either

Hospital or LMS.

Considering all of the evidence in the light most favorable to the third

element of the jury’s joint enterprise finding, we hold that no evidence exists of a

community of pecuniary interest in the common purpose of the enterprise

between Hospital and LMS.13 See St. Joseph Hosp., 94 S.W.3d at 531; David L.

Smith & Assocs., L.L.P., 327 S.W.3d at 878–79; Omega Contracting, Inc., 191

S.W.3d at 851. We sustain Appellees’ fourth issue.

We next address what effect sustaining Appellees’ fourth issue has on the

13 Having determined that legally insufficient evidence exists to show a community of pecuniary interest in the common purpose of the enterprise between Hospital and LMS, we need not address Appellees’ factual sufficiency challenge to this element of joint enterprise or Appellees’ contention, also asserted in their fourth issue, that the evidence is also legally and factually insufficient to establish the fourth element of a joint enterprise––an equal right to a voice in the direction of the enterprise, which gives an equal right of control. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary to final disposition of the appeal).

23 judgment. The purpose of the theory of joint enterprise is to make each party to

the enterprise the agent of the other and thereby to hold each responsible for the

negligent act of the other. See, e.g., Able, 35 S.W.3d at 616 (recognizing that

―each party in a joint enterprise is responsible for the negligent act of the other‖);

Shoemaker, 513 S.W.2d at 16 (explaining that ―the negligence of pilot Carroll is

to be imputed to joint owner Whistler, thus establishing the vicarious liability of

Whistler‖). Here, in the percentage of liability question, the jury apportioned 60%

responsibility to Hospital and 30% responsibility to LMS. Based on the jury’s joint

enterprise finding, the final judgment imposes joint and several liability on both

Appellees for the entire judgment. The result of our holding that legally

insufficient evidence exists to support the jury’s joint enterprise finding is that

LMS (because it was found to be 30% responsible and because it cannot be held

vicariously liable for Hospital’s negligence per the joint enterprise finding) is

responsible for only 30% of the total judgment and is not jointly and severally

liable with Hospital for the entire judgment amount. See Tex. Civ. Prac. & Rem.

Code Ann. § 33.013(a), (b)(1) (providing that a liable defendant is responsible for

only the percentage of damages found by the trier of fact equal to the

defendant’s negligence unless the percentage of responsibility is greater than

50%, in which case the defendant is jointly and severally liable for all damages

recoverable by the claimant). Accordingly, we modify the judgment to delete

LMS’s joint and several liability and render judgment that it is liable for only 30%

of the total judgment amount.

24 C. Sufficiency of Evidence to Support Proximate Cause Element of Negligence Finding Against LMS

Chesser alleged negligence against LMS, claiming that, as the manager of

Hospital, LMS was directly responsible for managing, controlling, directing,

operating, supervising, and evaluating the care, services, competence, and

quality of care and services provided at Hospital. Chesser alleged that LMS

created policies, procedures, bylaws, rules, and regulations that governed

Hospital and that LMS was responsible for ensuring that the policies and

procedures it implemented were in fact instituted and evaluated and that Hospital

complied with them. In Appellees’ second issue, LMS argues that legally, or

alternatively factually, insufficient evidence exists to support the jury’s finding of

negligence against it in question 1.14 LMS specifically alleges that the evidence

is insufficient to show that any breach of the standard of care by LMS was in

14 Question 1 asked:

Did the negligence, if any, of those named below, proximately cause the injuries in question?

Answer ―Yes‖ or ―No‖ for each of the following:

LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospitals of Fort Worth: _______

LifeCare Management Services, L.L.C.: _______

In answering Question No. 1, do not consider or otherwise attribute any act or omission of any physician to LifeCare Hospitals of North Texas, L.P. d/b/a LifeCare Hospitals of Fort Worth or LifeCare Management Services, L.L.C.

The jury answered ―yes‖ as to both entities.

25 reasonable medical probability a proximate cause of Chesser’s injuries.15 As set

forth below, the evidence is legally and factually sufficient to support the jury’s

finding that LMS’s negligence––in failing to promulgate policies and procedures

relating to post-PEG procedure patients and job descriptions for nurses in the

procedure room and in failing to ensure or monitor the enforcement of LMS’s

policies and procedures at Hospital––proximately caused Chesser’s injuries.

1. The Definitions of Negligence and Proximate Cause Concerning LMS

In the absence of an objection to a definition, when reviewing the legal and

factual sufficiency of the evidence, we measure the evidence against the charge

given, applying the definitions given. See St. Joseph Hosp., 94 S.W.3d at 530.

The court’s charge defined ―negligence,‖ when used with respect to the conduct

of LMS, to mean

15 Appellees do not challenge the legal or factual sufficiency of the evidence to support the jury’s ―yes‖ finding as to the negligence of Hospital. Consequently, this unchallenged jury finding is binding on appeal. See Solares v. Solares, 232 S.W.3d 873, 880 (Tex. App.––Dallas 2007, no pet.); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 629 (Tex. App.––Fort Worth 1999, no pet.).

Appellees do not brief a sufficiency challenge to any other element of negligence––only proximate cause. See Appellees’ brief of cross-appellants, p. 14. Appellees state in their brief,

Although the jury heard expert opinion regarding alleged breach of the standard of care by LMS (of which Cross-Appellants do not concede), the jury heard from no medical or administrative expert that any of these alleged breaches of the standards of care by LMS, in reasonable medical probability, proximately caused Mr. Chesser’s injuries.

26 failure to use ordinary care, that is, failing to do that which a long- term acute care hospital management company of ordinary prudence would have done under the same or similar circumstances or doing that which a long-term acute care hospital management company of ordinary prudence would not have done under the same or similar circumstances.

The court’s charge defined ―proximate cause‖ when used with respect to the

conduct of LMS to mean

that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a long-term acute care hospital management company using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

2. The Law Concerning Negligence by LMS

A hospital or a corporate health care provider may be liable for injuries

arising from the negligent performance of a duty that the hospital or corporate

health care provider owes directly to a patient. See Reed v. Granbury Hosp.

Corp., 117 S.W.3d 404, 409 (Tex. App.—Fort Worth 2003, no pet.); Denton Reg’l

Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997, pet.

denied). One such duty is the duty to use reasonable care in formulating the

policies and procedures that govern the hospital’s medical staff and nonphysician

personnel. Denton Reg’l Med. Ctr., 947 S.W.2d at 950. In cases involving

alleged administrative negligence arising out of or relating to the provision of

medical services, the trier of fact must be guided by medical expert testimony.

Mills v. Angel, 995 S.W.2d 262, 268 (Tex. App.––Texarkana 1999, no pet.);

27 Denton Reg. Med. Ctr., 947 S.W.2d at 950–51; see Romero v. Baptist/St.

Anthony’s Hosp. Corp., No. 07-00-00341-CV, 2001 WL 946497, at *2 (Tex.

App.—Amarillo Aug. 16, 2001, no pet.) (not designated for publication).

3. The Law Concerning Proximate Cause

Plaintiffs in medical negligence cases are required to prove by a

preponderance of the evidence that the allegedly negligent act or omission was a

proximate cause of the harm alleged. See Kramer v. Lewisville Mem’l Hosp.,

858 S.W.2d 397, 400 (Tex. 1993). The ultimate standard of proof on the

causation issue ―is whether, by a preponderance of the evidence, the negligent

act or omission is shown to be a substantial factor in bringing about the harm and

without which the harm would not have occurred.‖ Park Place Hosp., 909

S.W.2d at 511. The precise words of ―reasonable medical probability‖ are not

essential, but evidence of causation must still rise above mere conjecture or

possibility. See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). The trier of fact

may decide the issue of proximate cause in medical malpractice cases based

upon (1) general experience and common sense from which reasonable persons

can determine causation, (2) scientific principles provided by expert testimony

allowing the factfinder to establish a traceable chain of causation from the

condition back to the event, or (3) a probable causal relationship as articulated by

expert testimony. Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex. App.––Fort

Worth 2003, pet. denied).

4. Evidence Concerning LMS’s Negligence and Proximate Cause

28 Here, although Dr. DeLange was in the procedure room on November 16

during the insertion of Chesser’s PEG tube and was in charge of the procedure,

Carol Smith, R.N. testified that during the PEG procedure, she made the incision,

she helped thread the wire and the tube into Chesser’s stomach, and she

tightened the bolster. She said Chesser’s was the first PEG procedure that she

actually performed. Nurse Smith testified that Cindy Barnett, R.N. provided

sedation to Chesser during the procedure.

According to Chesser’s expert Dr. Koch, after insertion of the PEG tube,

Chesser’s condition steadily declined. He experienced extreme pain for days

and became confused as his mental state deteriorated. On the afternoon of

November 20, Mrs. Chesser reported that Chesser had coughed and that bright

red blood had squirted out of his PEG tube. At 6:30 that evening, Mrs. Chesser

walked Chesser to the restroom and saw him excrete bright red blood from his

rectum, filling the toilet. Throughout November 20, Chesser’s blood pressure

declined and continued to decline despite the administration of 750cc’s of fluid.

Finally, the head of Chesser’s bed was lowered in a maneuver called a

Tendelenburg to preserve the flow of blood to Chesser’s brain, and an

ambulance was called. Chesser was admitted to Harris Hospital, and the next

morning an endoscopy was performed.

During the endoscopy, Chesser suffered a heart attack and ultimately,

although he was successfully revived, sustained serious physical and

neurological injuries. He was placed on a ventilator for an extended period of

29 time and remained hospitalized at Harris Hospital for several months. He

developed a series of infections over the ensuing weeks to months related to the

surgical incision site where the PEG had been resected. He developed

bloodstream infections, lung infections, and pneumonia; a trachestomy was

required.

Dr. Koch explained that the postoperative report of the endoscopy

performed at Harris Hospital and the pathology report from that procedure

document that at the PEG tube site, underneath the PEG bumper (also called a

bolster),

[r]ight about where the PEG was put in, the stomach, the whole length of the way through, the stomach had died. So it had died. That tissue right under the PEG was dead. And it was bleeding. Now that takes a period of time to develop. About 48 hours, 24 to 72 hours, that time frame.

Dr. Koch testified that necrosis does not just appear ―out of the blue‖ but is

preceded by ischemia; Dr. Koch testified that the ischemia that Chesser suffered

at the PEG tube site was caused by the PEG tube bolster or bumper being too

tight, ―starting to cut off the blood flow to the part of the stomach right below

where it was put - - pinching it.‖

The documentary evidence in the record––LMS’s own records––establish

that LMS as the management company for Hospital was responsible for drafting,

implementing, and enforcing compliance with policies and procedures at

Hospital. By virtue of the governing board bylaws, LMS controlled the board, and

the board was expressly ―responsible for the quality of care‖ and ―quality

30 improvement mechanisms‖ at Hospital.16 Expert Elizabeth Higgenbotham

testified that ―the LMS voting members are the majority of the board.‖ She

testified,

[T]he policies and procedures that we’re going to look at in this case go from the very top. They come from LMS, and they go to the hospitals. So the policies and procedures, and when we do a top down analysis, it’s literal. The buck stops and starts with those folks at the top.

Likewise, Nurse Moore, the Director of Nursing at Hospital when Chesser was a

patient there, testified that she worked under policies and procedures that were

promulgated by LMS. Nurse Moore testified that there were no polices or

procedures governing nurses in the procedure room or governing post-PEG tube

insertion patients.

Thus, the record establishes by written documentary evidence as well as

by expert testimony that LMS had a duty to manage, control, direct, supervise,

and evaluate the care, services, competence, and quality of care and services

provided at Hospital; a duty to create policies, procedures, bylaws, rules, and

regulations that govern Hospital; and a duty to ensure that the policies and

procedures it implemented were in fact instituted and evaluated and that

16 The governing board orientation policy introduced as Chesser’s exhibit 64A explains that ―1) The composition of the Governing Board represents corporate leadership by LifeCare Management Services [LMS],‖ that ―2) The Governing Board is responsible for the overall operation of the hospital, the protection of its assets, and the outcomes of all services provided to its patients,‖ and that ―3) This responsibility is both a moral and legal obligation.‖ [Emphasis added.]

31 compliance was enforced by Hospital.

Concerning the specific breach of these duties in this case, Higgenbotham

testified that LMS was negligent because—despite the fact that under the

governing board bylaws, Hospital was only a ―for profit, long-term acute care

specialty hospital‖ that possessed no operating room or anesthesia services––

Hospital permitted nurses to consciously sedate patients like Chesser and

permitted nurses to surgically insert PEG tubes into patients’ stomachs, including

Chesser’s stomach.17 Higgenbotham testified that Hospital kept a log

documenting the PEG procedures that had been performed in examination

rooms at Hospital since 1999. She testified that LMS was aware via Nurse

Moore that PEG procedures were being performed at Hospital; yet, despite

LMS’s knowledge that PEG procedures were being performed at Hospital, LMS

failed to implement policies and procedures relating to a post-PEG insertion care

plan. LMS also failed to implement any job description for a nurse’s function in

the procedure room with regard to insertion of PEG tubes, although LMS was

17 Higgenbotham testified:

[I]n this particular case, there is knowledge of what the risks are with this procedure. We have somebody who’s being consciously sedated by a person who doesn’t have the qualifications to do it. They haven’t been trained. We have nurse who are inserting knives and sharp instruments into a patient’s abdomen, who likewise don’t have the qualifications or credentials to do it. And then there is open awareness, by their own documentation on the transdisciplinary team conference, of what the risks are. And they do no care planning, and they continue to do the procedure anyway.

32 aware nurses were participating in this procedure.

Dr. Koch testified that virtually all of Chesser’s injuries, including his

hemorrhaging, the code, and the consequences of those events, including

Chesser’s cognitive impairment,18 would have been avoided if the bolster around

the PEG tube had not been too tight or had been loosened on November 16, 17,

or 18.19

One of the policies that was implemented by LMS at Hospital required the

nurses to prepare a care plan for each patient. Nurse Moore agreed that every

patient must have a care plan. The care plan is meant to be an interdisciplinary

communication tool enabling any and all medical personnel to look at the care

plan at any given point and ―see what is going on with this patient.‖

Higgenbotham testified that nursing implementation of a care plan for every

patient is not optional; instead, it is statutorily required of all registered nurses in

Texas. The care plan is a ―tool for communication because it is constantly

updated.‖ Higgenbotham explained that if a care plan is not utilized, ―you’re only

doing things like treating the symptoms, we don’t have a goal for the patient, and

nobody understands what the problem is.‖

18 Chesser also suffered from depression, anxiety, debilitation, and short- term memory loss; Dr. Koch testified, ―[T]hese patients require, and he does specifically, somebody kind of being there all the time. He’s like a - -he’s like a toddler in a big adult’s body.‖ 19 Nurse Smith agreed that at any time during Chesser’s stay at Hospital, she could have checked Chesser’s PEG tube bolster and loosened it.

33 Higgenbotham testified, and Nurses Smith and Moore conceded, that the

nurses at Hospital failed to institute a care plan for Chesser. Nurse Smith agreed

that care plans are an essential tool for communication between the team of

doctors, nurses, and other health care professionals caring for a patient. Nurse

Smith also conceded that her job description mandated that she create a care

plan for all patients for collection of relevant data and to ensure that a care plan

exists; she conceded that she did not do so for Chesser. Higgenbotham opined

that LMS was negligent in failing to ensure that care plans were utilized at

Hospital and were specifically utilized for Chesser.20 Higgenbotham said, ―I don’t

really think there was a plan of care. I think there was an attempt to pencil-whip

this document to make it look like there was a plan of care.‖21

Higgenbotham and Dr. Koch testified that had a care plan been utilized for

Chesser, the severe pain he was suffering would have been documented and

20 Chesser’s exhibit 67A—LMS’s and Hospital’s ―Standards for Acute and Critical Care Nursing Practice‖—provides in part that ―THE NURSE CARING FOR ACUTE AND CRITICALLY ILL PATIENTS DEVELOPS A PLAN OF CARE THAT PRESCRIBES INTERVENTIONS TO ATTAIN EXPECTED OUTCOMES.‖ [Emphasis in original.] The policy explains that the plan is individualized to reflect the patient’s characteristics and needs, is developed collaboratively with the team, reflects current acute and critical care nursing practice, provides for continuity of care, establishes priorities for care, and is ―documented to promote continuity of care.‖ [Emphasis added.] 21 Nurse Smith testified that there were several care plans in Chesser’s medical records generated by a physical therapist, a dietician, and an occupational therapist, but she agreed that Chesser’s medical records contain no care plan for the nursing department after Chesser’s admission on November 12, 2004. She agreed that her job description required her to ―[d]evelop a care plan that prescribes intervention to attain expected outcomes.‖

34 would have been apparent to all nurses and doctors caring for him. Additionally,

the total amount of pain medication administered by different nurses and ordered

by different doctors would have been apparent. Dr. Koch testified that he treated

post-PEG insertion patients about once a week and that the amount of pain

medication prescribed to Chesser ―is substantially more than what I - - I have

ever seen.‖ Chesser’s medical records demonstrated that he received a

Duragesic patch and continued to receive repeated doses of morphine. Nurse

Moore conceded that Chesser’s medical chart reflected inconsistent pain

assessments recorded at different places in Chesser’s medical chart.22 Nurse

Moore testified that as the Director of Nursing, she was satisfied with this

documentation.23 Higgenbotham and Dr. Koch testified that had a nursing care

plan been implemented for Chesser, doctors then would have had enough

information to know to investigate an underlying cause of Chesser’s pain. They

explained that as reflected in LMS’s policies, the main purpose of a care plan is

to document care, to provide for continuity of care, and to establish priorities for

care.

Higgenbotham testified repeatedly that although LMS was responsible for

22 For example, in Chesser’s medical records for November 20, 2004, one page shows that he reported his pain as a 10 at 12:30 p.m., another page shows that he reported his pain as a 1 at 12:10 p.m., and yet another page shows that he reported his pain as a 4 at 12:30 p.m. 23 Moore also conceded that Chesser’s medical records documented that he received physical therapy and safety awareness on November 22 when in fact Chesser was transferred to Harris Hospital on the evening of November 20.

35 formulating the policies and procedures for Hospital, LMS wholly failed to institute

any mechanism to ensure that the policies and procedures it implemented were

actually followed at and utilized by Hospital. Finally, Higgenbotham explained,

―And again, in LMS’s policies and procedures, they mimic what’s in the Nurse

Practice Act and the rules and regulations and what’s in the Federal regulations.

But then when you go and examine the records, they’re not doing it.‖

LMS’s controverting evidence concerning its negligence and proximate

cause included the following: Nurse Smith’s testimony that a care plan was not

necessary in order for a doctor or a nurse to give appropriate care; Nurse Smith’s

testimony that she was qualified and had taken a test establishing her

competency to assist in the performance of PEG procedures prior to Chesser’s

procedure; Nurse Moore’s testimony that nurses follow orders given by doctors

and that the nurses did that in caring for Chesser; expert Dorothy Ellford, R.N.’s

testimony that LMS was not negligent; and Nurse Moore’s testimony that

Chesser’s records adequately showed that the nurses addressed all problems he

experienced as they arose.

5. Application of Legal Sufficiency Standard of Review

Crediting the evidence favorable to the jury’s finding that LMS’s negligence

proximately caused Chesser’s injuries, disregarding evidence contrary to the

finding because a reasonable factfinder assessing the credibility of the witnesses

could, and applying the definitions provided in the court’s charge, the evidence is

legally sufficient to establish that LMS’s negligence was a proximate cause of

36 Chesser’s injuries. See City of Keller, 168 S.W.3d at 827. That is, the evidence

is legally sufficient to support the jury’s finding that LMS failed to use ordinary

care by failing to do that which a long-term acute care hospital management

company of ordinary prudence would have done under the same or similar

circumstances. LMS, a management company ―morally and legally‖ responsible

by virtue of written governing board bylaws for ―outcomes of all service provided

to its patients,‖ failed to generate policies and procedures governing the care of

patients post-PEG tube insertion, failed to draft or implement job descriptions for

nurses working in the procedure room and performing or assisting in PEG tube

procedures or any other procedures, and failed to check or monitor that Hospital

in fact used or implemented any of the policies and procedures generated by

LMS.

Dr. Koch testified that all of Chesser’s injuries were attributable to the too-

tight bolster around his PEG tube and that all of Chesser’s injuries could have

been avoided if only the bolster had been loosened on November 16, 17, or 18.

Higgenbotham and Dr. Koch testified, and Nurse Smith conceded, that despite

policies requiring a care plan for every patient and despite Nurse Smith’s job

description requiring a care plan for every patient, no nursing care plan existed

for Chesser after the PEG tube was inserted. Higgenbotham and Dr. Koch

testified that a care plan for Chesser would have documented and alerted

doctors to his severe pain. Dr. Koch explained that the doctors took appropriate

action on Chesser’s behalf based on what was discernable from his medical

37 records and in the absence of a care plan. This evidence is sufficient to enable

reasonable and fair-minded people to reach the conclusion that it was more likely

than not that LMS’s failure to generate policies and procedures governing care of

patients post-PEG tube insertion, failure to draft or implement a job description

for nurses working in the procedure room and performing or assisting in PEG

tube procedures, and failure to check or monitor that Hospital in fact used or

implemented any of the policies and procedures generated by LMS, including the

policies requiring a nursing care plan for every patient, caused the tightness of

Chesser’s PEG bolster to go unexamined and unaddressed, leading in a

continuous sequence to all of his injuries.24 The jury could reasonably have

concluded that LMS’s negligence was shown by a preponderance of the

evidence to be a substantial factor in bringing about Chesser’s injuries stemming

from the too-tight bolster and that if LMS had not been negligent, the bolster’s

tightness either would not have occurred or would have been checked and

discovered either via a post-PEG tube insertion patient care policy, via a policy

24 We have addressed Chesser’s three primary theories of negligence by LMS, and the evidence is legally sufficient to support the jury’s proximate cause finding concerning all three theories of negligence. We note, however, that we are required to affirm the judgment on the jury’s verdict on this issue if the evidence is legally sufficient concerning any one of these theories of negligence that LMS proximately caused Chesser’s injuries. Accord Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 434 (Tex. 2005) (explaining that jurors could unanimously find negligence even if they based their finding on different negligent acts); Wackenhut Corr. Corp. v. de la Rosa, 305 S.W.3d 594, 622 (Tex. App.––Corpus Christi 2009, no pet.) (explaining that evidence is sufficient to support yes answer to broad-form negligence submission if any of the alleged negligent acts is supported by sufficient evidence).

38 concerning the role and supervision of nurses in the procedure room, or via a

properly instituted and maintained care plan documenting Chesser’s continued

post-PEG tube insertion pain.25 See Park Place Hosp., 909 S.W.2d at 511; see

also Marvelli, 100 S.W.3d at 470.

6. Application of Factual Sufficiency Standard of Review

Likewise, viewing all of the evidence, the evidence supporting the jury’s

finding in question 1 that LMS’s negligence was a proximate cause of Chesser’s

injuries is not so weak, nor is the evidence to the contrary so overwhelming, that

the jury’s answer should be set aside and a new trial ordered. See Garza, 395

S.W.2d at 823. Indeed, Appellees do not point to specific evidence as

constituting overwhelming contrary evidence concerning proximate cause.

Instead, without a factual sufficiency analysis, in one sentence Appellees assert

alternatively that not only does less than a scintilla of evidence support the jury’s

finding that LMS was negligent, but also that the evidence and inferences

supporting the finding are so weak or that some unidentified evidence to the

contrary is so overwhelming that this court should reverse and remand for a new

trial. We have carefully reviewed the entire record in detail, and we hold that the

evidence supporting the jury’s answer to question 1 finding LMS negligent is not

25 The jury was also instructed that there can be more than one proximate cause of an event, and the jury found more than one proximate cause because they also found Hospital’s negligence proximately caused Chesser’s injuries.

39 so weak nor the contrary evidence so overwhelming that a new trial is required.

We overrule Appellees’ second issue.

V. CHARGE ERROR

In their first and third issues, respectively, Appellees argue that the trial court

erred by refusing to submit a charge instruction on unavoidable accident and by

submitting an erroneous definition of joint enterprise.

A. No Error in Refusing to Submit Unavoidable Accident Instruction

In their first issue, Appellees argue that the trial court abused its discretion

by refusing to submit an unavoidable accident instruction. Appellees contend

that ―the complications Mr. Chesser suffered (including infection, hemorrhage,

migration or dislodgement of the tube, erosion and injury to organs) are

recognized complications of the PEG tube procedure and are complications that

may occur without anyone’s negligence.‖ [Internal record citations omitted.]

Appellees also contend that Chesser’s pre-existing conditions––diabetic

neuropathy and cerebrovascular disease––could have been a cause of his

injuries, entitling Appellees to an unavoidable accident instruction.

An unavoidable accident ―is an event not proximately caused by the

negligence of any party to it.‖ Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.

1995) (quoting Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379, 385 (Tex.

1952)); Young v. Thota, 271 S.W.3d 822, 836–37 (Tex. App.––Fort Worth 2008,

pet. denied). The purpose of an unavoidable-accident instruction is to

advise the jurors, in the appropriate case, that they do not have to

40 place blame on a party to the suit if the evidence shows that conditions beyond the party’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it.

Dillard, 157 S.W.3d at 432 (citing Reinhart, 906 S.W.2d at 472). An unavoidable

accident instruction thus submits a defendant’s inferential rebuttal defense—a

defense that operates to rebut an essential element of the plaintiff’s case by

proof of other facts. Id. The instruction is most often used to inquire about the

causal effect of some physical condition or circumstance such as fog, snow,

sleet, wet or slick pavement, or obstruction of view or to resolve a case involving

a very young child who is legally incapable of negligence. Reinhart, 906 S.W.2d

at 472. It is within the trial court’s discretion to submit an unavoidable accident

instruction when the evidence supports the conclusion that no one was negligent.

Accord In re V.L.K., 24 S.W.3d 338, 340 (Tex. 2000) (explaining that trial court’s

decision to submit or to refuse a particular jury instruction is reviewed under an

abuse of discretion standard); La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676

(Tex. 1998) (recognizing that trial courts have great latitude and considerable

discretion to determine necessary and proper jury instructions).

Here, although the trial court did not submit an unavoidable accident

instruction, a ―bad result‖ instruction was submitted. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.303(e)(2) (West 2011) (requiring this instruction in all health care

liability claims filed after September 1, 2003 and tried to a jury); see also Comm.

on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges:

41 Malpractice, Premises, Products PJC 50.7 (2006). The bad result instruction

informed the jury that ―[a] finding of negligence may not be based solely on

evidence of a bad result to Curtis Paul Chesser, but a bad result may be

considered by you, along with other evidence, in determining the issue of

negligence. You are the sole judges of the weight, if any, to be given to this kind

of evidence.‖ Tex. Civ. Prac. & Rem. Code Ann. § 74.303(e)(2). The bad result

instruction, by telling the jury that it could not base a finding of negligence solely

on evidence of a bad result, adequately submitted Appellees’ theories that the

complications Chesser suffered (including infection, hemorrhage, migration or

dislodgement of the tube, and erosion and injury to organs) are recognized

complications of the PEG tube procedure and are complications that may occur

without anyone’s negligence and that Chesser’s injuries could have been caused

by his pre-existing conditions. Accord Dillard, 157 S.W.3d at 432 (explaining that

instead of examining whether evidence existed to support submission of multiple

instructions, ―we think it more appropriate to examine the adequacy of the charge

that was given‖). That is, the bad result instruction sufficiently informed the jury

that it could believe that Chesser simply had a bad result with the PEG tube or

that the bad result could have been caused by his pre-existing conditions and

instructed the jury that a bad result alone would not support a negligence finding

against Appellees. See id. at 430 (explaining that unavoidable accident

instruction sufficiently informed jury of and submitted defendant’s sole proximate

cause inferential rebuttal defense that fatal auto accident was not caused by

42 defendant’s negligence but by presence of cattle on the roadway); Williams v.

Viswanathan, 64 S.W.3d 624, 628–29 (Tex. App.––Amarillo 2001, no pet.)

(holding that evidence existed to support bad result instruction when doctor

admitted that patient’s care worsened under his care but denied that he was

negligent). Looking to the adequacy of the charge given, because the bad result

instruction sufficiently informed the jury that it could not find Appellees negligent

solely based on a bad result suffered by Chesser from the PEG tube or from his

pre-existing conditions, the trial court did not abuse its discretion by refusing to

also submit an unavoidable accident instruction. See Dillard, 157 S.W.3d at 434

(explaining that redundancy created by submission of multiple inferential rebuttal

instructions is contrary to the spirit of broad-form submission); V.L.K., 24 S.W.3d

at 341 (recognizing that trial court possesses considerable discretion to

determine necessary and proper jury instructions). The bad result instruction

submitted in this case, based on these facts, adequately informed the jury about

Appellees’ theories that the complications Chesser suffered (including infection,

hemorrhage, migration or dislodgement of the tube, and erosion and injury to

organs) are recognized complications of the PEG tube procedure and are

complications that may occur without anyone’s negligence and that Chesser’s

injuries could have been caused by his pre-existing conditions, which were not

the fault of anyone; Appellees were entitled to nothing more. See Dillard, 157

S.W.3d at 434.

We overrule Appellees’ first issue.

43 B. Alleged Error in Definition of Joint Enterprise Submitted in Question 6

In their third issue, Appellees argue that the trial court erred by submitting,

over Appellees’ objection and timely tender of a requested definition, a legally

incorrect definition of joint enterprise in connection with question 6 in the court’s

charge. The court’s charge contained the following definition of joint enterprise:

A ―joint enterprise‖ exists if the persons concerned have (1) an agreement, either express or implied, with respect to the enterprise or endeavor; (2) a common purpose; (3) a community of pecuniary interest in the common purpose of the enterprise among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Appellees requested, tendered, and objected to the trial court’s refusal to submit

the following definition of joint enterprise:

A ―joint enterprise‖ exists if (1) individuals or entities are parties to an agreement, either express or implied, (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in the common purpose of the enterprise among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. [Emphasis added.]

Appellees complain on appeal that the exclusion of the language italicized

above––―to be carried out by the group‖––from the definition of joint enterprise

constituted error and harmed Appellees.

Because, as set forth above, we have sustained Appellees’ fourth issue

challenging the legal sufficiency of the evidence to support the third element of a

joint enterprise––the community-of-pecuniary-interest-in-the-common-purpose-

of-the-enterprise element––we need not address whether the failure to include

the ―to be carried out by the group‖ language in the second element of the joint

44 enterprise definition submitted to the jury constituted error. The definition

requested and the definition submitted are identical with respect to the third

element of a joint enterprise, and therefore, under either definition, the evidence

is legally insufficient to support the jury’s affirmative finding as to this third

element. Accordingly, we need not and do not address Appellees’ third issue.

See Tex. R. App. P. 47.1 (requiring appellate court to address only issues

necessary to final disposition of the appeal).

VI. ALLEGED ERRORS IN JUDGMENT

In their fifth issue, Appellees allege in four subparts that four specific errors

exist in the trial court’s judgment: three subparts assert erroneous application of

statutory provisions, and one subpart asserts an abuse of discretion by the trial

court. We address these contentions individually below applying the rules of

statutory construction and the abuse of discretion standard of review, as dictated

by the error alleged.

A. Noneconomic Damages

In their fifth issue, subpart A, Appellees argue that they are entitled to limit

their combined civil liability for noneconomic damages to $250,000 pursuant to

civil practice and remedies code section 74.301(b). See Tex. Civ. Prac. & Rem.

Code Ann. § 74.301(b) (West 2011). Section 74.301 provides, in its entirety:

§ 74.301. Limitation on Noneconomic Damages

(a) In an action on a health care liability claim where final judgment is rendered against a physician or health care provider other than a health care institution, the limit of civil liability for noneconomic

45 damages of the physician or health care provider other than a health care institution, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers other than a health care institution against whom the claim is asserted or the number of separate causes of action on which the claim is based.

(b) In an action on a health care liability claim where final judgment is rendered against a single health care institution, the limit of civil liability for noneconomic damages inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant.

(c) In an action on a health care liability claim where final judgment is rendered against more than one health care institution, the limit of civil liability for noneconomic damages for each health care institution, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $250,000 for each claimant and the limit of civil liability for noneconomic damages for all health care institutions, inclusive of all persons and entities for which vicarious liability theories may apply, shall be limited to an amount not to exceed $500,000 for each claimant.

Id. § 74.301. Under chapter 74 of the civil practice and remedies code, the

definition of a ―health care institution‖ specifically includes a ―hospital.‖

Id. § 74.001(a)(11)(G) (West 2011). And a health care institution is specifically

included within the definition of a ―health care provider.‖ Id.

§ 74.001(a)(12)(A)(vii). Finally, a manager of a health care provider is also

defined as a health care provider. Id. § 74.001(a)(12)(B)(i).

Utilizing these definitions prescribed by the legislature in section 74.001,

because Hospital is a hospital, it is a health care institution. See

id. § 74.001(a)(11)(G). As a healthcare institution, Hospital is also a health care

46 provider. Id. § 74.001(a)(12)(A)(vii). And LMS, as the manager of health care

provider Hospital is itself a health care provider. Id. § 74.001(a)(12)(B)(i). The

judgment in this case was entered against Hospital and LMS. Thus, the

judgment here was entered against a health care institution (Hospital) and

against a health care provider (LMS).

Given these prescribed definitions and their application to Appellees, and

inserting those applications into the plain language of section 74.301’s limitation

on noneconomic damages provisions, it is clear that both subsection (a) and

subsection (b) apply to this judgment, triggering the two separate damage caps

set forth individually in subsection (a) and subsection (b), and that subsection (c)

does not apply to this judgment. Subsection (a) applies when a final judgment is

rendered against a health care provider other than a health care institution; that

is, subsection (a) applies to health-care-provider LMS but not to health-care-

institution Hospital. Subsection (b) applies when a final judgment is rendered

against a single health care institution; so subsection (b) applies here because

Hospital is the only, the single, health care institution against which the judgment

here was entered. Subsection (c) applies only when final judgment is rendered

against more than one health care institution; subsection (c) does not apply here

because the judgment does not render judgment against more than one health

care institution––Appellee Hospital is the sole health care institution against

whom judgment was rendered.

Having determined that section 74.301, subsections (a) and (b) are both

47 applicable to the present judgment, we next examine the limitation on

noneconomic damages contained in each subsection. Subsection (a) limits the

noneconomic damages liability of a health care provider, other than a health care

institution, ―inclusive of all persons and entities for which vicarious liability

theories may apply,‖ to $250,000 for each claimant regardless of the number of

defendant health care providers, other than a health care institution, against

whom the claim is asserted or the number of separate causes of action on which

the claim is based. Id. § 74.301(a). Thus, here, subsection (a) limits the

noneconomic damages liability of health-care-provider LMS (but does not apply

to health-care-institution Hospital) to $250,000. See id. Subsection (b) limits the

noneconomic damages liability of a health care institution that is the only health

care institution against whom final judgment is rendered to an amount not to

exceed $250,000 for each claimant inclusive of all persons and entities for which

vicarious liability theories may apply. Id. § 74.301(b). Thus, here, subsection (b)

limits the noneconomic damages liability of health-care-institution Hospital (as

the single health care institution against whom judgment was rendered) to

$250,000. See id. Both subsections (a) and (b) apply to the judgment at issue

here, limiting separately the noneconomic damages civil liability of both LMS and

Hospital to $250,000 each.

Appellees nonetheless contend that because––in addition to the direct

liability theories of recovery that Chesser pleaded against LMS––Chesser

pleaded that LMS was vicariously liable for Hospital’s negligence and that a joint

48 enterprise existed between LMS and Hospital, the vicarious liability limitation of

subsection (a) applies. That is, Appellees contend that because Chesser

pleaded that LMS was vicariously liable for Hospital’s negligence and pleaded

that a joint enterprise existed between Appellees, and because subsection (a)

provides that health-care-provider LMS’s limit of liability for nonecomomic

damages is ―inclusive of all persons and entities for which vicarious liability

theories may apply,‖ including Hospital’s here, only subsection (a) applies to the

judgment here. We could hypothesize about various fact patterns and scenarios

under which Appellees’ argument might have some traction. This situation,

however, is not one of them.

First, here, as set forth above, the evidence is legally insufficient to support

the jury’s joint enterprise finding. Subsection (a)’s vicarious liability language

therefore cannot apply to Hospital based on a joint enterprise theory of vicarious

liability. Second, also as set forth above, the instructions and definitions given to

the jury in connection with the negligence question, question 2, submitted to the

jury only the issue of LMS’s and Hospital’s direct liability.26 The jury did not make

any other fact finding that would support the imposition of vicarious liability on

26 Recall that negligence as to LMS was defined as the

failure to use ordinary care, that is, failing to do that which a long- term acute care hospital management company of ordinary prudence would have done under the same or similar circumstances or doing that which a long-term acute care hospital management company of ordinary prudence would not have done under the same or similar circumstances.

49 LMS for Hospital’s breach of its direct duties to Chesser. See, e.g., St. Joseph

Hosp., 94 S.W.3d at 537–38 (discussing various theories of vicarious liability);

accord Obstetrical & Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 105

(Tex. App.––Houston [14th Dist.] 2009, pet. denied) (recognizing that purely

vicarious liability claim against entity, as opposed to direct liability claim, did not

require expert report in addition to report filed regarding doctor employed by

entity). Thus, absent some fact finding that would support imposition of vicarious

liability on LMS for Hospital’s direct liability to Chesser, the plain language of

section 74.301(a)’s ―inclusive of all persons and entities for which vicarious

liability theories may apply‖ provision cannot be applicable to impose vicarious

liability on LMS for Hospital’s direct liability to Chesser.

We overrule subpart A of Appellees’ fifth issue.

B. Prejudgment Interest

In subpart C of their fifth issue, Appellees contend that the trial court erred

by awarding prejudgment interest on past noneconomic damages. Appellees do

not challenge any aspect of the computation of prejudgment interest; their sole

argument is that because the noneconomic damages awarded by the jury

exceeded the statutory noneconomic damages limit of $250,000 set forth in

section 74.301, prejudgment interest is not available. That is, Appellees contend

that section 74.301’s $250,000 limit on their civil liability for noneconomic

damages is inclusive of prejudgment interest on past noneconomic damages.

As authority for their position, Appellees cite section 74.002 of the civil

50 practice and remedies code and Molinet v. Kimbrell, No. 09-0544, 2011 WL

182230 (Tex. Jan. 21, 2011). Section 74.002 states that, and Molinet stands for

the proposition that, in the event of a conflict between a provision of chapter 74 of

the civil practice and remedies code and any other statute, rule of procedure, or

rule of evidence, chapter 74 trumps. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.002(a) (―In the event of a conflict between this chapter and another

law, including a rule of procedure or evidence, or court rule, this chapter controls

to the extent of the conflict.‖); Molinet, 2011 WL 182230, at *5–6 (holding that the

limitations provisions of section 74.251(a) and section 33.004(e) conflict and that

section 74.251(a) prevails). Appellees claim that section 74.301’s $250,000

limitations on civil liability for noneconomic damages conflicts with finance code

sections 304.102 and 304.1045 authorizing prejudgment interest on past

damages in a personal injury action.27 See Tex. Fin. Code Ann. §§ 304.102,

.1045 (West 2006) (providing that a judgment in a personal injury case earns

prejudgment interest on past damages).

Section 74.301 limits civil liability for noneconomic damages. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.301. ―Noneconomic damages‖ is defined in

chapter 74 as having ―the meaning assigned by section 41.001.‖

27 Appellees contend that ―Mr. Chesser is entitled to recover prejudgment interest on past damages, pursuant to section 304.102 and 304.1045 of the Texas Finance Code. However, prejudgment interest on the award of past noneconomic damages should be included within the $250,000 cap contained in section 74.301 of the Civil Practice & Remedies Code.‖

51 Id. § 74.001(a)(20). Section 41.001 defines noneconomic damages as

damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.

Id. § 41.001(12) (West 2008). Section 41.001 also defines economic damages

as ―compensatory damages intended to compensate a claimant for actual

economic or pecuniary loss; the term does not include exemplary damages or

noneconomic damages.‖ Id. § 41.001(4).

Prejudgment interest is a form of damages recognized in Texas law to

compensate a claimant for economic or pecuniary loss: for lost use of money.

Columbia Hosp. Corp. of Houston v. Moore, 92 S.W.3d 470, 472 (Tex. 2002);

Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex. 1985),

abrogated on other grounds by Johnson & Higgins of Tex., Inc. v. Kenneco

Energy, Inc., 962 S.W.2d 507, 533 (Tex. 1998); Shook v. Walden, 304 S.W.3d

910, 927 (Tex. App.––Austin 2010, no pet.) (explaining that the award of

prejudgment interest as damages derived from the concept that a judgment

debtor wrongfully deprives the judgment creditor of the amount of damages

ultimately awarded in the judgment between the time the damages accrue and

the date of judgment). Thus, prejudgment interest does not and cannot fall within

section 41.001’s definition of noneconomic damages; instead, prejudgment

interest falls within section 41.001’s definition of economic damages because it is

52 a form of damages recognized in Texas law and intended to compensate for

economic or pecuniary loss suffered by a claimant for loss of use of money. See

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(4). Because, as economic

damages, prejudgment interest is specifically excluded from section 41.001’s

definition of noneconomic damages, it likewise does not fall within chapter 74’s

definition of noneconomic damages. See §§ 41.001(4), .001(12), 74.001(a)(20).

Giving chapter 74 supremacy over the finance code, looking first and

foremost to the words of section 74.301 and utilizing the definitions prescribed by

the legislature in section 74.001, prejudgment interest does not fall within the

statutory definition of noneconomic damages—which are the only damages

limited by section 74.301. See Tex. Gov’t Code Ann. § 311.011(b) (requiring us

in statutory construction to apply definitions provided by the legislature);

Lexington Ins. Co., 209 S.W.3d at 85 (instructing that to give effect to

legislature’s intent ―we look first and foremost to the words of the statute‖).

Because prejudgment interest is pecuniary in nature, because it does not fall

within the definition of noneconomic damages provided by the legislature in

chapter 74, and because section 74.301’s plain language limits only civil liability

for noneconomic damages, we hold that prejudgment interest is not included in

section 74.301’s limit on civil liability for noneconomic damages and that section

74.301 in no way conflicts with finance code sections 304.102 or 304.1045. And

because Appellees make no complaint concerning the amount or computation of

prejudgment interest, we overrule subpart C of Appellees’ fifth issue.

53 C. Joint and Several Liability

In subpart B of their fifth issue, Appellees alternatively contend that, to the

extent the noneconomic damage caps of both section 74.301(a) and (b) apply to

the judgment here, nonetheless Appellees cannot be jointly and severally liable

for imposition of the two $250,000 noneconomic damage awards.28 A defendant

is liable to a claimant only for the percentage of the damages found by the trier of

fact equal to that defendant’s percentage of responsibility unless the percentage

of responsibility attributed to the defendant is greater than 50% or the defendant

engaged in particular conduct listed in the penal code. See Tex. Civ. Prac. &

Rem. Code Ann. § 33.013(a), (b) (West 2008). Here, the jury found LMS 30%

responsible and found Hospital 60% responsible. Based on our above holding

that legally insufficient evidence exists to support the jury’s joint enterprise finding

and the fact that the jury assessed only 30% responsibility against LMS, LMS

cannot be jointly and severally liable with Hospital for the entire judgment. See

id.; Able, 35 S.W.3d at 616 (recognizing that ―each party in a joint enterprise is

responsible for the negligent act of the other‖); Shoemaker, 513 S.W.2d at 14

(same). Consequently, we sustain subpart B of Appellees’ fifth issue to the

extent that it complains of LMS’s joint and several liability with Hospital for the

28 Our discussion and analysis is limited in applicability to only cases, like this one, in which the total noneconomic damages awarded by the jury were in excess of both of the $250,000 caps and in excess of the $500,000 combined total of both applicable caps; the jury here awarded $1,725,000 in noneconomic damages.

54 $250,000 statutorily-limited noneconomic damages award against Hospital under

section 74.301(b).

We next address whether Hospital (as a 60% responsible, jointly and

severally liable defendant under section 33.013(b)(1)) can be liable (by virtue of

joint and several liability) for the $250,000 noneconomic damages awarded

pursuant to section 74.301(a) against LMS in the judgment. We hold that it

cannot. The plain language of section 74.301(a) and (b) is to limit the civil liability

of the entities described in those subsections to $250,000 for noneconomic

damages. See Tex. Civ. Prac. & Rem. Code Ann. § 74.301(a), (b). Although we

found Appellees’ reliance on section 74.002 of the civil practice and remedies

code and Molinet v. Kimbrell inapplicable to our statutory analysis concerning the

statutory language and definitions concerning prejudgment interest, these

authorities do apply here to our analysis of whether the imposition of joint and

several liability on Hospital for the $250,000 noneconomic damages awarded

against LMS is prohibited by section 74.301(b).

As we previously mentioned, section 74.002 states that, and Molinet

stands for the proposition that, in the event of a conflict between a provision of

chapter 74 of the civil practice and remedies code and any other statute, rule of

procedure, or rule of evidence, chapter 74 trumps. See id. § 74.002(a); Molinet,

2011 WL 182230, at *5–6. Here, Texas Civil Practice and Remedies Code

section 33.013(b)(1)’s imposition of joint and several liability on all defendants

found to be greater than 50% responsible for capped noneconomic damages

55 attributable to another defendant conflicts with section 74.301’s limitation of civil

liability for noneconomic damages owed by a health care institution like Hospital.

Section 33.013(b)(1) provides that each liable defendant is, in addition to being

responsible for the percentage of damages in accordance with the percentage of

responsibility assessed against that defendant by the jury, also ―jointly and

severally liable for the damages recoverable by the claimant‖ if ―the percentage

of responsibility attributed to the defendant with respect to a cause of action is

greater than 50 percent.‖ Tex. Civ. Prac. & Rem. Code Ann. § 33.013(b)(1). On

the other hand, section 74.301(b) provides that ―[i]n an action on a health care

liability claim where final judgment is rendered against a single health care

institution, the limit of civil liability for noneconomic damages . . . shall be limited

to an amount not to exceed $250,000.‖ Id. § 74.301(b). Thus, to the extent that

section 33.013(b)(1) may statutorily make a health care liability defendant ―jointly

and severally [civilly] liable‖ for noneconomic damages in excess of the $250,000

cap on ―civil liability‖ for noneconomic damages applicable to that health care

liability defendant under either section 74.301(a) or 74.301(b), the two statutes

conflict. When another statute conflicts with a provision of chapter 74, chapter

74’s provision trumps. See id. § 74.002(a); Molinet, 2011 WL 182230, at *5–6.29

29 Chesser argues that because a jointly and severally liable defendant possesses a right of contribution, the statutory provisions at issue do not conflict. A right of contribution, however, presupposes that the defendant has actually paid the damages––that is, has already been civilly liable––for noneconomic damages in excess of the $250,000 cap applicable to that defendant, in violation of the express language of section 74.301(b). See Tex. Civ. Prac. & Rem. Code

56 Section 74.301(b) also prevails over section 33.013(b)(1) to the extent of any

conflict between the two in a particular case because section 74.301 is more

recently enacted than section 33.013(b)(1) and is also more specific than section

33.013(b)(1). See Tex. Gov’t Code Ann. §§ 311.025(a), .026; Horizon/CMS

Healthcare Corp., 34 S.W.3d at 901. We hold that section 74.301(b) prevails

over section 33.013(b)(1) when, as in this case, the statutes conflict. We sustain

this portion of subpart B of Appellees’ fifth issue. We modify the judgment to

delete Hospital’s joint and several liability for the $250,000 noneconomic

damages awarded against LMS.30

D. Specific Annuity Ordered

In subpart D of their fifth issue, Appellees argue that the trial court abused

its discretion by ordering a specific annuity to fund periodic payments for

Chesser’s future medical expenses. Prior to trial, Appellees filed a ―Conditional

Request for Periodic Payments of Future Damages of LifeCare Defendants.‖

Appellees requested that in the event either or both of them were found liable for

future damages, including future loss of earnings, that the trial court order such

damages be paid in whole or in part by periodic payments rather than by a lump

Ann. § 33.015(a), (b) (West 2008) (recognizing in both subsections a right of contribution when a defendant has paid a percentage of damages greater than his percentage of responsibility). 30 Appellees concede that Hospital remains jointly and severally liable for the entire judgment, excluding the $250,000 noneconomic damages attributable to LMS pursuant to section 74.301(a).

57 sum payment. See Tex. Civ. Prac. & Rem. Code Ann. § 74.503(b) (West 2011)

(providing that on motion of defendant or claimant the trial court may order future

damages other than medical, health care, or custodial services to be paid in

whole or in part in periodic payments).

Appellees did not limit their request that future damages be funded by

periodic payments to funding utilizing a particular entity. Instead, after the jury

returned its verdict, Chesser and Appellees began investigating annuity options

for periodic payment of future damages. At a hearing before the court, Chesser

proposed various options funded through American General Life Insurance

Company. Appellees likewise proposed various periodic payment options funded

through American General Life Insurance Company. Ultimately, the final

judgment signed by the trial court requires Appellees to

assign their obligations for the period payments to American General Annuity Service Corporation, which will be funded through the purchase of an annuity policy from American General Life Insurance Company, funded with $550,000, payments to Plaintiff monthly, tax free, guaranteed for the life of Curtis Paul Chesser with 119 months installment refund period.

Section 74.505(b) of the civil practice and remedies code provides:

(b) The judgment must provide for payments to be funded by:

(1) an annuity contract issued by a company licensed to do business as an insurance company, including an assignment within the meaning of Section 130, Internal Revenue Code of 1986, as amended;

(2) an obligation of the United States;

(3) applicable and collectible liability insurance from one or

58 more qualified insurers; or

(4) any other satisfactory form of funding approved by the court.

Id. § 74.505(b) (West 2011); see also id. § 74.503(d) (setting forth other

information that must be included in the judgment when periodic payments of

future damages are ordered).

On appeal, Appellees claim that the entirety of section 74.505, titled

―Financial Responsibility,‖ is inapplicable to the judgment here; they claim that

section 74.505 applies only when a defendant requesting periodic payments of

future damages is not adequately insured. Consequently, Appellees argue on

appeal that the trial court abused its discretion by including the information

required by section 74.505(b) in the judgment. But in the trial court, Appellees

argued that section 74.505(c), requiring that ―on termination of periodic payment

of future damages, the court shall order the return of the security, or as much as

remains, to the defendant‖ was applicable to the judgment here; Appellees

requested that language to this effect be included in the judgment, and the

judgment includes the requested language.31 Id. § 74.505(c). Because

31 At the hearing held on Appellees’ motion requesting periodic payment of future damages, Appellees’ counsel argued,

[Appellees’ counsel]: There is also 74.505(c) that the periodic payment money must be returned to the defendants. I think the judgment has to - - to provide for that upon the death of the plaintiff.

THE COURT: Where are you - -

59 Appellees asserted in the trial court that section 74.505 applied to the judgment

and requested that language from section 74.505(c) be included in the judgment,

and because such language was included in the judgment, Appellees cannot

now claim on appeal that section 74.505 does not apply to the judgment or that

the trial court abused its discretion by applying section 74.505 to the judgment.

See, e.g., In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex.

2009) (explaining that the invited error doctrine applies to situations in which a

party requests the court to make a specific ruling, then complains of that ruling on

appeal); Ne. Tex. Motor Lines v. Hodges, 138 Tex. 280, 283, 158 S.W.2d 487,

488 (1942) (explaining that a party cannot complain on appeal that the trial court

took a specific action that the complaining party requested).

In any event, the trial court did not abuse its discretion by including

language in the judgment that required Appellees to

assign their obligations for the period payments to American General Annuity Service Corporation, which will be funded through the purchase of an annuity policy from American General Life Insurance

[Appellees’ counsel]: I’m - - I’m citing section - -

THE COURT: No. I understand. I’m just wondering where - -

[Appellees’ counsel]: Somewhere in the judgment I think there needs to be a provision there that provides for that.

[Chesser’s counsel]: 74. - -

[Appellees’ counsel]: –505(c).

60 Company, funded with $550,000, payments to Plaintiff monthly, tax free, guaranteed for the life of Curtis Paul Chesser with 119 months installment refund period.

See Low, 221 S.W.3d at 614 (explaining that a trial court abuses its discretion if it

acts arbitrarily and unreasonably without reference to guiding principles). The

trial court was authorized by section 74.505(b) and section 74.503(c) and (d) to

include such language in the judgment. We hold that the trial court did not abuse

its discretion by including the above quoted language in the judgment. Moreover,

we hold that Appellees waived any complaint about the application of section

74.505 to the judgment because they requested the application of section

74.505(c) to the judgment in the trial court.

We overrule subpart D of Appellees’ fifth issue.

VII. CONCLUSION

Having sustained Chesser’s sole issue, we reverse that portion of the trial

court’s judgment applying a 10% percentage-of-responsibility settlement credit of

$377,383.50. We modify the trial court’s judgment by changing the settlement

credit amount from a 10% percentage-of-responsibility settlement credit of

$377,383.50 to a dollar-for-dollar settlement credit of $183,000. We render

judgment accordingly.

Having sustained Subpart B of the fifth issue of Appellees LifeCare

Management Services, L.L.C. (LMS) and LifeCare Hospitals of North Texas, L.P.

d/b/a LifeCare Hospital of Fort Worth (Hospital), we reverse that portion of the

trial court’s judgment subjecting both Hospital and LMS to civil liability for the two

61 capped $250,000 noneconomic damage awards. We modify the judgment by

imposing several liability on Hospital and LMS for the capped $250,000

noneconomic damages award attributable to each.

Having sustained Hospital and LMS’s sixth issue, we reverse the portion of

the trial court’s judgment imposing joint and several liability upon LMS for the

entire judgment. We modify the trial court’s judgment so that in addition to being

severally liable for $250,000 in noneconomic damages plus prejudgment and

postjudgment interest on that amount, LifeCare Management Services is

severally liable for only 30% of the judgment (excluding Hospital’s $250,000

noneconomic damage civil liability). We render judgment against LMS

accordingly.

Having addressed all of the issues necessary to the disposition of this

appeal that were raised in Chesser’s appeal and in Hospital and LMS’s cross

appeal, and having, pursuant to Texas Rule of Appellate Procedure 43.2(a),(b)

and (c), reversed the trial court’s judgment in part, rendered the trial court’s

judgment in part, and modified the trial court’s judgment in part, we affirm the

remainder of the trial court’s judgment as modified.

SUE WALKER JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: August 31, 2011