John Robert Whirty v. Joe Grimes and Tyran Compton

• Court: Court of Appeals of Texas
• Decided: April 14, 2009
• Docket: 07-08-00394-CV
• Status: Published

Opinion

NO. 07-08-0394-CV

NO. 07-09-0111-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 14, 2009

______________________________

JOHN ROBERT WHIRTY, APPELLANT

v.

JOE GRIMES AND TAYRN COMPTON, APPELLEES

_________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 96099-D; HON. DON EMERSON, PRESIDING

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant Robert Whirty, appearing pro se and in forma pauperis, is incarcerated in a secure corrections facility operated by the Texas Department of Criminal Justice. Through two issues, he appeals an order of the trial court dismissing his suit against department employees Joe Grimes and Tyran Compton under chapter 14 of the Civil Practice & Remedies Code and denying his motion for post-conviction relief. We will affirm in part and dismiss the appeal in part.

Background

          Whirty filed suit against Grimes and Compton alleging they converted his prison craft shop personal property. Grimes and Compton filed a motion to dismiss under chapter 14. As grounds for dismissal, they alleged Whirty’s suit was frivolous and malicious because it was barred by the doctrine of sovereign immunity. Further, they asserted Whirty did not file a certified copy of his inmate trust account statement and failed to exhaust administrative remedies as required by chapter 14.

          The trial court conducted a hearing attended by Whirty and counsel for appellees. At the hearing, the parties presented their motions which the court took under advisement. It subsequently signed an order granting the chapter 14 motion of Grimes and Compton and dismissing Whirty’s claims against them without prejudice. According to the order, Whirty’s petition did not comply with chapter 14. Otherwise, no reason was given for the ruling. The court also denied Whirty’s motion for relief from his sentence. The order specified no reason for the ruling. This appeal followed.

 

Discussion

          In his first issue, Whirty multifariously argues the trial court abused its discretion by denying his motion to compel discovery, dismissing the case as frivolous, and dismissing the case for failure to exhaust administrative remedies. Whirty engrafts into the argument a complaint that the trial court failed to make findings of fact and conclusions of law on the dismissal grounds.

          We turn first to dismissal under chapter 14 for failure to exhaust administrative remedies because we find resolution of this question dispositive of all complaints Whirty urges through his first issue. We review dismissal of a claim under chapter 14 for abuse of discretion. Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.App.–Fort Worth 2004, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or principles; in other words, we must decide whether the decision of the trial court judge was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

          Chapter 14 was created to “curb the flood of frivolous lawsuits being filed in state courts by inmates, consuming valuable judicial resources with little offsetting benefit.” Leachman v. Dretke, 261 S.W.3d 297, 309 (Tex.App.–Fort Worth 2008, no pet.). Under chapter 14, the trial court may dismiss a claim that is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous or malicious, the trial court may consider whether the claim has no arguable basis in law or in fact. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(2) (Vernon 2002). A claim lacks an arguable basis in law if the inmate fails to exhaust administrative remedies before filing suit. Retzlaff v. Texas Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.–Houston [14th Dist.] 2002, pet. denied); Pedraza v. Tibbs, 826 S.W.2d 695, 699 (Tex.App.–Houston [1st Dist.] 1992, pet. dism’d w.o.j.). Chapter 14 expressly requires exhaustion of administrative remedies. Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002); see Tex. Gov’t Code Ann. § 501.008 (Vernon 2002).

          The legislature mandated that the Texas Department of Criminal Justice develop and maintain an inmate grievance system. Tex. Gov’t Code Ann. § 501.008(a) (Vernon 2004). The administrative grievance process established by the department begins with an informal attempt to resolve the problem. If the informal attempt is unsuccessful, two steps follow. The inmate has fifteen days from the grievable event to forward a step 1 grievance form to the unit grievance investigator. If unsatisfied with the step 1 decision, the inmate may appeal by submitting a step 2 form to the unit grievance investigator within fifteen days of the step 1 response. Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 52 (rev. Nov. 2004), available at http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf (last visited on March 19, 2009).

          Exhaustion of the department’s grievance procedure allows prison officials an opportunity to correct their errors and weeds out inmate suits because some inmates are satisfied with the administrative resolution while others are persuaded by the proceedings not to file suit. See Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006) (discussing exhaustion requirement under 42 U.S.C. § 1997e(a), Prison Litigation Reform Act (PLRA)). See also Pozo v. McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002) (administrative grievance procedure gives prison administration opportunity to “fix problem” or mitigate damages and shed light on factual disputes attending prospective litigation if inmate is not satisfied).

          But efficiency is lost, and the legislative purpose of exhaustion frustrated, if an inmate may exit the administrative process at will and file suit. See Leachman, 261 S.W.3d at 310 (citing Johnson v. Ford, 261 Fed. Appx. 752, 757 (5th Cir. 2008)). See also Pozo, 286 F.3d at 1023-24 (statutory objective of first allowing prison administration opportunity to address problem is defeated by approach allowing prisoner to disregard state rules of form and timeliness of administrative appeal).

          Here, the unit grievance investigator returned Whirty’s step 1 form marked “redundant.” According to Whirty, this was an error as the investigator confused his current grievance with a prior complaint. But instead of resubmitting the step 1 form or initiating a step 2 appeal, Whirty, believing further administrative process futile, filed suit in district court. This denied prison officials an opportunity to consider, and if necessary correct, the allegedly erroneous screening of Whirty’s step 1 complaint. By not following the department’s grievance procedure, Whirty failed to properly exhaust administrative remedies before filing suit. See Leachman, 261 S.W.3d at 310-11 (exhaustion of remedies requirement under Government Code section 501.008 and Civil Practice and Remedies section 14.005 means “proper exhaustion” as applied in Woodford). Cf. Pozo, 286 F.3d at 1023 (for purposes of 42 U.S.C. § 1997e(a), “unless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred”); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004) (citing Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (two-step grievance process of Texas Department of Criminal Justice must be exhausted in case subject to 42 U.S.C. § 1997e(a)).

          Citing only the department’s Offender Orientation Handbook, Whirty also argues he was excused from exhausting administrative remedies because his tort claim for damages falls outside the department’s grievance procedure. He bases this conclusion on language in the department’s Offender Orientation Handbook which provides an inmate may not “grieve” state or federal court decisions, laws, or regulations; matters for which other appeal mechanisms exist; and any other matter beyond the control of the agency to correct. Offender Orientation Handbook at 53 ¶ G.

          The handbook does not except from the grievance process a claim for conversion of personal property. See Offender Orientation Handbook at 53 ¶ G (listing matters not grievable through department’s procedure) and 53 ¶ F (listing matters grievable through department’s procedure). And we do not agree the legislature omitted such claims from the requirement that an inmate exhaust administrative remedies. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) (Vernon 2002) (without exception inmate whose claim is subject to grievance system shall file affidavit or unsworn declaration stating date grievance was filed and date inmate received written decision); Tex. Gov’t Code Ann. § 501.008(d) (Vernon 2004) (conditions precedent to filing suit for claim regarding operative facts for which grievance system provides exclusive administrative remedy). See Spurlock v. Schroedter, 88 S.W.3d 733, 737 (Tex.App.–Corpus Christi 2002, no pet.) (on appeal by inmate of claim for damage to craft shop personal property, court of appeals held “the purpose of sections 501.007 and 501.008 is to ensure that an inmate proceeding in forma pauperis has exhausted his administrative remedies before proceeding to file a claim in state court”). Couching the claim as one in tort for damages does not remove it from the exhaustion requirement of chapter 14.

          We conclude the trial court did not abuse its discretion by dismissing Whirty’s claim without prejudice. We overrule Whirty’s first issue. Our resolution of this issue makes discussion of Whirty’s remaining complaints grouped under his first issue unnecessary for final disposition of the appeal. Tex. R. App. P. 47.1.

          Whirty’s second issue arises in an unusual manner. Whirty appeared for hearing of his civil case pursuant to a bench warrant. During the hearing, he presented the trial court a document entitled “Motion for Release from Void Judgment.” The motion asserted that Whirty’s 1967 judgment of conviction for murder with malice was void and asked the court to release him from restraint under the judgment. Without objection, Whirty discussed with the court his reasons for believing the motion should be granted. The motion was filed and appears in the clerk’s record. In addition to dismissing Whirty’s claims against appellees Grimes and Compton, the trial court’s order denied his motion for release. Its denial is made the subject of Whirty’s second issue on appeal. We find we have no jurisdiction to consider the issue.

          Although the motion for release Whirty filed at the hearing does not use the phrase habeas corpus, his argument on appeal makes clear that habeas relief is what he seeks. See Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 2005) (“[t]he writ of habeas corpus is the remedy to be used when any person is restrained in his liberty”); Ex parte Harris, 495 S.W.2d 231, 232 (Tex.Crim.App. 1973) (relief by habeas corpus is available to a person in custody under a sentence which is void because the punishment is unauthorized). Post-conviction relief from a final felony conviction where the death penalty was not assessed is cognizable on a writ of habeas corpus. See Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).

          Whirty is confined in the Institutional Division of the Texas Department of Criminal Justice as the result of a final felony conviction and seeks relief from that confinement. The habeas corpus procedure set out in article 11.07 of the Code of Criminal Procedure provides the exclusive remedy for felony post-conviction relief in state court. Tex. Code Crim. Proc. Ann. art. 11.07 § 5 (Vernon Supp. 2008); Ex parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App. 1983) (per curiam). If the applicant is held by virtue of a final conviction in a felony case, the writ is returnable to the Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07 § (3)(a) (Vernon Supp. 2008); Brown, 662 S.W.2d at 4. There is no role for the courts of appeals in the procedure under article 11.07. Tex. Code Crim. Proc. Ann. art. 11.07 § 3 (Vernon Supp. 2008); see Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991) (orig. proceeding) (only the Texas Court of Criminal Appeals has jurisdiction over state post-conviction felony proceedings).

Conclusion

          We affirm the judgment of the trial court as to the matters raised by Whirty in his first issue on appeal.

          The complaint of Whirty raised by his second issue on appeal is exclusively a criminal matter. On our own motion we, accordingly, sever the appellate complaint raised by Whirty’s second issue into case number 07-09-0111-CR. As severed, we dismiss case number 07-09-0111-CR for want of jurisdiction.

James T. Campbell

Justice

motion for new trial. In addressing the issue of preservation of error, we note that the first instance of the alleged improper argument occurred very early in the opening of Bramlett's final argument. Counsel stated, "For years, in this very conservative community, juries have been very liberal with the doctors, very liberal. What I mean is: Their verdicts didn't send much of a message at all." Immediately, Phillips's counsel voiced the following objection, "Judge, I object to any testimony about the propriety of other trials and the verdicts reached by other juries in Lubbock." To which, the trial court responded, "This is his argument, and it is not testimony." Subsequently, Bramlett's counsel repeatedly argued that the jury needed to send a message to the doctors of Lubbock. However, on none of these occasions did Phillips object. It is from this record that we must determine whether or not Phillips has preserved error. Texas Rule of Appellate Procedure 33.1(a)(1)(A) requires, to preserve an allegation of error for appellate review, the record must show a timely objection stating the grounds for the requested ruling with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). From the language used in the objection and the response of the trial court, it is apparent that the trial court did not perceive the objection to be directed toward improper jury argument. Rather, the record reflects that the trial court simply clarified that the statement was not evidentiary. Nor can we say that the context of the objection makes the specific grounds now complained of clear. Id. Additionally, the trial court never sustained or overruled the objection. To preserve a complaint for appeal, the complaining party is required to obtain an adverse ruling from the court or object to the trial court's refusal to rule. Tex. R. App. P 33.1(a)(2); See Cherry v. Lee, 899 S.W.2d 329, 331 (Tex.App.- Houston [14^th Dist.] 1995, no writ). We have, therefore, determined that the error alleged was not preserved at trial pursuant to the Texas Rules of Appellate Procedure. See Tex. R. App. P. 33.1(a).

However, this does not end our inquiry. In his motion for new trial, Phillips alleged that Bramlett's jury argument was incurable. As a result, we must determine whether this jury argument was incurable and, therefore, was preserved by Phillips raising the issue in his motion for new trial. Tex. R. Civ. P. 324(b)(5); Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968). Initially, we note that it is a rarity for jury argument to be so inflammatory or prejudicial as to be classified as "incurable." Standard Fire Ins. Co., 584 S.W.2d at 839. To properly determine whether a complained of jury argument is incurable, we must review the entire case from voir dire to the conclusion of final argument. Id. at 840. Ultimately, we are attempting to determine whether the probability that the improper jury argument caused harm is greater than the probability that the verdict was grounded on proper proceedings and evidence. Id. The type of argument that reaches this level is one that is so inflammatory that its harmful nature cannot be cured by an instruction to disregard. Melendez, 998 S.W.2d at 280. After reviewing the various authorities cited by Phillips, it is apparent that cases reversing judgments for incurable jury argument fall into the category of arguments that resort to name calling, epithets, racial slurs, and attacks upon opposing counsel of a personal and extreme nature. See S. Pac. Co. v. Hubbard, 156 Tex. 525, 297 S.W.2d 120, 125 (1956) (plaintiff's attorney argued that the railroad accused anyone who sued it of being a thief and liar); Tex. Employers' Ins. Ass'n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858-89 (1953) (counsel urged jury not to believe two witnesses because they were not white); Sw. Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115, 120 (1951) (counsel accused physician witness of being motivated by a desire "for whittling flesh" and of employing the same care as a fisherman had for "cutting the guts out" of fish); Circle Y of Yoakum v. Blevens, 826 S.W.2d 753, 757 (Tex.App.-Texarkana 1992, writ denied) (counsel accused opposing counsel of manufacturing evidence).

In the instant case, the record reflects that the first mention of the "send a message" theme was made pre-trial during discussions regarding the motions in limine and possible jury questions. Subsequently, during voir dire, there was a general discussion by Bramlett's counsel to the effect that the jury was going to be asked to send a message about what kind of conduct by physicians would and would not be tolerated in Lubbock County. Later, there was one reference to what other juries in Lubbock County had done in other medical malpractice cases. Phillips timely objected, the objection was sustained, and counsel for Bramlett was instructed to rephrase his question, which he did. During opening statements, counsel for Bramlett made references to the fact that Bramlett would be asking the jury to send a message to doctors in Lubbock about what was and was not acceptable conduct. Phillips objected that the opening statement was more in the nature of closing argument, which the court sustained. During presentation of evidence, there was one question regarding sending a message. During final arguments, there were several references to sending a message. However, in each instance, the refrain from Bramlett's counsel was in connection with the evidence and what the community should tolerate as a standard for proper medical care. Thus framed, we cannot say that the argument was one that appealed only to the prejudices of the jury or was so inflammatory as to override the jury's collective ability to review the evidence and base a verdict on the evidence. Standard Fire Ins. Co., 584 S.W.2d at 840. Thus, because we conclude that Bramlett's "send a message" jury argument was not incurable, Phillips waived any error by failing to properly object and obtain a ruling at trial. Tex. R. App. P. 33.1; Standard Fire Ins. Co., 584 S.W.2d at 839. Further, even if the argument had been properly preserved, after reviewing the evidence, we cannot say that the probability that the alleged improper jury argument was harmful is greater than the probability that the verdict was grounded in the evidence adduced at trial. Standard Fire Ins. Co., 584 S.W.2d at 840. Accordingly, Phillips's issue regarding Bramlett's closing argument is overruled.

Factual Sufficiency of Damage Issues

Phillips next contends that the evidence was factually insufficient to support the award of damages for: 1) conscious pain and suffering, 2) pecuniary loss, 3) loss of companionship and society, and 4) mental anguish. As this is an allegation of factual insufficiency regarding an issue upon which Bramlett had the burden of proof, we will review all of the evidence to determine if it is "so weak, or the contrary evidence so overwhelming, as to render the finding clearly wrong or manifestly unjust." Lee Lewis Constr., Inc v. Harrison, 64 S.W.3d 1, 6 (Tex.App.-Amarillo 1999), aff'd 70 S.W.3d 778 (Tex. 2001). In our review for factual sufficiency, it is presumed that the jury considered all of the available evidence. Mo. Pac. R.R. Co. v. Roberson, 25 S.W.3d 251, 257 (Tex.App.-Beaumont 2000, no pet.). We must also remember that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Killion v. Lanehart, 154 S.W.3d 183, 191 (Tex.App.-Amarillo 2004, pet. denied).

Conscious pain and suffering

First, we address the issue of damages for Vicki's pain and suffering. Phillips posits that since he would only have been able to return the phone call regarding Vicki's test results after he left the last surgery, which was at approximately 7:16 p.m., that represents the earliest point at which he would have been able to treat Vicki's deteriorating condition. Further, when Vicki was seen by Phillips's partner, Dr. Richards, at 7:45 p.m., she was incoherent and never regained consciousness. Therefore, Phillips contends that the only applicable time for calculation of Vicki's conscious pain and suffering is approximately 29 minutes.

However, the record reflects that at times during the post-operative period, especially after approximately 5:30 p.m., Vicki was beginning to exhibit symptoms of post-operative bleeding. Specifically, she became agitated and confused, she vomited and began feeling a need to go to the bathroom, and she appeared to be having some difficulty breathing. During this time, however, the nurses reported that Vicki's vital signs were stable. According to Phillips's witness, Dr. Richards, when he saw Vicki at 7:45 p.m., she was suffering from hypovolemic shock, because she had bled most of her blood out into her abdomen or pelvic area. No evidence was presented as to how long it would take for a person to bleed to death, however, the medical evidence adduced from the second surgery revealed that there were no sources for the bleeding consistent with rapid loss of blood. Considering all of this information, it would not be irrational for the jury to infer that Vicki was aware of her impending death. When a decedent is aware of their impending death, it is appropriate for the jury to consider that fact in evaluating mental suffering. Jenkins v. Hennigan, 298 S.W.2d 905, 911 (Tex.Civ.App.-Beaumont 1957, writ ref'd n.r.e.). Additionally, the jury had evidence before them indicating that Vicki took agonal breaths before she lapsed into unconsciousness, clearly indicating that Vicki was suffering pain at the time. There is some conflict in the evidence regarding when Vicki lapsed into unconsciousness, however, it was for the jury to resolve that conflict, see McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986), and we cannot say that the jury's resolution of this conflict against Phillips is one that would be clearly wrong or manifestly unjust. Lee Lewis Constr. Inc., 64 S.W.3d at 6. Further, even if the jury believed Phillips's contention that Vicki was only conscious for a thirty minute period, we find the evidence of the pain that she suffered during this period, together with her awareness of her impending death, sufficient to support the jury's verdict. Accordingly, we find the evidence factually sufficient to sustain the jury's award of $1,000,000 for Vicki's pain and suffering.

Pecuniary loss

Next, we address Phillips's contention that the evidence supporting the award of pecuniary damages was factually insufficient. The jury awarded pecuniary damages to Vicki's husband, Dale, in an amount of $33,000 for past loss and $500,000 for future loss and to each of Vicki's sons, Shane and Michael, in the amount of $33,000 for past loss and $250,000 for future loss.

The elements of pecuniary damages consist of more than just the lost earning capacity of the decedent. See Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 133 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Additionally, pecuniary loss includes the value of the advice, counsel, services, care, maintenance, and support of the deceased. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986). Although the fact finder is not limited to computation of pecuniary loss based upon the projection of the decedent's future earnings, it is the basic and, some would say, primary element of such an award. Moorehead v. Mitsubishi Aircraft Int'l, 828 F.2d 278, 290 (5^th Cir. 1987). Thus, to assess the factual sufficiency of the evidence supporting the jury's award for pecuniary damages, we must consider both the economic and emotional injury suffered by Bramlett as a result of Vicki's death. See generally Lee Lewis Constr., Inc., 64 S.W.3d at 6.

Turning our attention first to the award to Dale, the record reflects that Vicki and Dale were fully engaged as partners within the household. There is testimony about the amount of money that Vicki was making at the time of her death and what her earnings would have been during the balance of her work life. The evidence supports past lost earnings of $64,867 and future lost earnings of $472,499. Moreover, there was considerable testimony about the work that Vicki performed in the home on a day-to-day basis. Evidence shows that Vicki did the cooking, cleaning, purchasing, and laundry for the family. Additionally, the evidence shows that Vicki was the money manager for the family, bookkeeper for Dale's landscaping business, and family tax preparer. The record reflects the approximate value of these services at $19,000 annually. Finally, we must consider the loss of Vicki's advice and counsel. As stated in the testimony, Vicki kept everything together and, without her, the house no longer felt like a home. When this evidence is considered in light of the jury's award to Dale, we cannot say that the award was clearly wrong or manifestly unjust. See id.

Regarding the awards to Shane and Michael, the record reveals that, at the time of Vicki's death, Michael was still a minor, while it appears that Shane may have reached his majority. Both young men were of majority by the time of the trial. On the date of Vicki's death, both of her sons were living at home with her. There was significant testimony about the role she played in their daily lives. Most of this testimony concerned the advice, counsel, services, care, maintenance and support that Vicki provided each of her sons. While both boys were living at home and attending school, it appears that neither worked for anyone outside the home. There was some testimony about Vicki occasionally giving unspecified sums of money to each of the boys. At some unspecified time after the death of Vicki, but before the trial, Shane and Michael moved to Oregon. It is from this record that we must make a determination of the factual sufficiency of the evidence to support the jury's award of past and future pecuniary damages to Shane and Michael.

As to the award for past pecuniary damages, the evidence shows that both of Vicki's sons were still living at home at the time of Vicki's death. The boys had benefitted from the advice and counsel of Vicki, as well as the household services she performed. Additionally, it appears that neither Shane nor Michael were required to work outside of the home prior to Vicki's death. With these facts in mind, we cannot say that the award of past pecuniary damages of $33,000 for each son was clearly wrong or manifestly unjust. See Id.

However, the award of future pecuniary damages of $250,000 appears excessive. Again, there was no evidence that Vicki made substantial or even routine financial contributions to the boys. Further, the record reflects that Vicki's role as advisor and counselor to the boys was decreasing as the boys were moving toward striking out on their own. Without the financial contribution testimony, the award in question appears to be clearly wrong and manifestly unjust and, therefore, factually insufficient. Id. However, the record does support an award of some loss of future pecuniary damages. Accordingly, we recommend that a remittitur is appropriate. We, therefore, suggest a remittitur of $220,000 for the future pecuniary loss award to each son. See Tex. R. App. P. 46.3.

Loss of companionship and society

Phillips next contends that the evidence was factually insufficient to support the jury's award for loss of companionship and society to each of the three beneficiaries. The jury awarded Dale the sum of $1,265,000, apportioned $500,000 for past damages and $765,000 for future damages. Michael and Shane each received an award of $2,250,000, apportioned $500,000 for past damages and $1,750,000 for future damages. A review of the Court's Charge reveals that the trial court properly charged the jury about the elements of loss of companionship and society. The charge admonished the jury that loss of companionship and society is different and distinct from damages for mental anguish and that, when considering one, the jury should not include damages for the other. Lastly, the jury was admonished not to let sympathy play any part in their deliberations. Moreover, Phillips did not object to the charge as given.

Phillips posits, in his brief, that "it seems apparent that the jury improperly considered mental anguish" in making its loss of companionship and society award and he further contends, in the alternative, that the jury based the award on sympathy for Bramlett and to punish Phillips. However, these allegations are just that, for nowhere in the record does Phillips point to anything that substantiates these contentions. He simply opines that the size of the award must mean that the jury was improperly considering other matters. As stated above, the jury was properly charged as to each of the matters complained of. The issue of punishment for Phillips had been discussed since voir dire in the context of punitive damages for gross negligence. The jury, in answers to other jury questions, awarded a large sum to Bramlett for mental anguish and found that Phillips was grossly negligent and made a separate award of punitive damages. Therefore, Phillips's true complaint is that the loss of companionship and society award was large and, therefore, was not supported by factually sufficient evidence.

The record reflects that Dale and Vicki enjoyed a harmonious relationship in which each was a full partner in the marriage. While it is true that the work schedules of each left little time for outside interests, the record demonstrates that Dale and Vicki spent their time raising a family and furthering their collective goals. Vicki's efforts at maintaining a home, despite a significant work schedule, along with providing bookkeeping services for Dale's landscaping business demonstrate that the marriage was a true partnership. Further, Dale testified, since Vicki's death, his life had become empty.

The evidence regarding Michael and Shane was demonstrative of the significant role that Vicki played in the lives of the boys. Although they were either at majority or reaching majority shortly, both testified about what the loss of their mother meant to them. She was their personal mentor in all things.

When we apply this evidence to the charge, it is apparent that the relationship Dale, Michael, and Shane had with Vicki was strong. All the family members were living in the home at the time of Vicki's death, there were no extended absences by anyone from the home, and they shared interests, most significantly, the lives of each other. Moore, 722 S.W.2d at 688. Additionally, we note that loss of companionship is meant to recompense the surviving members of the family for the positive benefits that flowed to the family from the decedent having been an integral part of it. Id. With these factors in mind, we cannot say that the jury's award for loss of companionship and society was clearly wrong or manifestly unjust. See Lee Lewis Constr. Inc., 64 S.W.3d at 6. The mere fact that an award is large is not, in and of itself, indicative that passion, prejudice, or improper motive on the part of the jury resulted in the verdict rendered. Mo. Pac. R.R. Co. v. Roberson, 25 S.W.3d 251, 257 (Tex.App.-Beaumont 2000, no pet.). After considering all of the evidence, we cannot say that this award is so flagrantly outrageous, extravagant, and excessive that it shocks the judicial conscious. Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 228 (Tex.App.-Amarillo 2003, no pet.). Accordingly, we overrule Phillips's factual sufficiency challenge to the jury's award for loss of companionship and society as to each survivor.

Mental anguish

Phillips next contends that the evidence was factually insufficient to sustain the jury's awards of $1,000,000 in mental anguish damages each to Dale, Michael, and Shane. The record reflects that the jury was properly charged about the meaning of mental anguish and the factors that the jury could consider in determining the amount of these damages. The jury was further admonished that mental anguish is separate and distinct from loss of companionship and society and that it should not consider elements of one in the other. Lastly, the jury was given the general admonition about refraining from basing its decisions on bias, prejudice, or sympathy. As with the previous issue, Phillips did not object to the charge as given.

Phillips has cited Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996), for the proposition that mental anguish damages could not be awarded unless there was direct evidence of the nature, duration, or severity of plaintiff's mental anguish, thus establishing a substantial disruption in the plaintiff's daily routine. In Saenz, the Texas Supreme Court noted that there were only two lines of testimony that could be construed as evidence of mental anguish and that this evidence, at best, constituted proof of mere worry, anxiety, vexation, embarrassment, or anger. Id. In the present case, our review of the evidence leads us to conclude that there is direct evidence of the nature, duration, and severity of Dale's, Michael's, and Shane's mental anguish.

It is important to remember the surrounding circumstances that were present at the time of Vicki's death in order to place her death in proper perspective. Vicki entered the hospital for a laproscopic-assisted vaginal hysterectomy. All of the medical professionals who testified, except Phillips, ⁽⁵⁾ stated that they had never heard of a patient bleeding to death after such a procedure. Dale testified that, on October 29^th, the day of the surgery, he expected to have Vicki home shortly. He never considered the possibility that Vicki could die as a result of the surgery. After the second surgery, when it became apparent that nothing else could be done for Vicki, Dale had to get the family together to make the decision about whether to unplug the life support equipment that was sustaining Vicki. As a result of Vicki's death, Dale testified that he does not feel like he has a life and that he is now just trying to survive. When asked how the house feels now, Dale related that it is just empty. Although it had been three years since Vicki's death, Dale testified that the hurt he feels is still the same. At the time of trial, Dale stated that, when he comes home he still thinks he hears Vicki in the house, although he knows that cannot be so.

Michael and Shane testified about the sense of loss they each have. Each testified that when their mother went to the hospital, she told them not to worry and that it was just going to be for a short time. As a result of losing their mother, the boys moved to Oregon, where Vicki's identical twin sister lives. Although the move had helped, it was not the same. Michael and Shane both testified that they still talk about their mother almost every day. Michael stated that he keeps a picture of his mother on his bedroom wall. Each testified that the home was not the same after Vicki died and that this was a big reason that they moved to Oregon.

Mental anguish represents the emotional pain, torment, and suffering experienced as a result of the death of a family member. Moore, 722 S.W.2d at 688. Further, mental anguish is meant to compensate the survivors for "their harrowing experience resulting from the death of a loved one." Id. In determining mental anguish damages, the jury is trying to determine the adverse effect the death has had upon the survivors. Id.

Based upon our review of the evidence, it is apparent that Dale, Michael, and Shane each testified about the day-to-day effect that the death of Vicki has had upon them. It is apparent that the survivors of Vicki have suffered more than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Saenz, 985 S.W.2d at 614. Inasmuch as there is factually sufficient evidence to support the award of mental anguish damages, it was up to the jury to determine the fair and reasonable compensation for the loss involved. Saenz, 925 S.W.2d at 614. We cannot say that the jury's award of $1,000,000 to each of the survivors was clearly wrong or manifestly unjust. See Lee Lewis Constr. Inc., 64 S.W.3d at 6. Accordingly, Phillips's challenge to the factual sufficiency of the mental anguish damages award is overruled.

Having overruled all of Phillips's challenges to the factual sufficiency of the evidence to support the award of the various damage elements, except for the award of future pecuniary damages to Michael and Shane, we affirm the judgment's award of those damages. In the case of the award for future pecuniary damages to Michael and Shane, we suggest a remittitur of $220,000 for the award to both Michael and Shane. If the remittitur is accepted, we overrule all of Phillips's contentions regarding the damages awarded.

Failure to Apply Statutory Damage Caps

Phillips next contends that the trial court committed reversible error by failing to apply the damage caps of article 4590i, section 11.02, to the jury's award of non-economic damages to Bramlett. According to Phillips, the correct application of the damage caps would result in a reduction of the jury award from $9,196,364.50 in actual damages and prejudgment interest to $1,585,365.85. After the return of the jury verdict, Phillips filed a motion for judgment notwithstanding the verdict requesting that the trial court disregard the jury findings and enter judgment consistent with the damage caps. The trial court denied the motion and Phillips subsequently filed a motion to correct, modify, or reform the judgment along with a motion for new trial requesting the same relief. Again, the trial court denied the motions.

The statute at issue in this matter is the Medical Liability and Insurance Improvement Act, as passed by the 65^th Legislature. Specifically, it is the meaning of section 11.02(a) and (c) that this issue concerns. The applicable sections provide:

11.02 Limit on Civil Liability

• In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.

* * *

• This section shall not limit the liability of any insurer where facts exist that would enable a party to invoke the common law theory of recovery commonly known in Texas as the "Stowers Doctrine."

art. 4590i, § 11.02(a),(c).

The "Stowers Doctrine" is a common law doctrine first enunciated in G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm'n App. 1929, holdings approved). The "Stowers Doctrine" permits an insured to maintain a cause of action against his insurer for the negligent failure of the insurer to settle a claim within applicable policy limits. Id. at 547-48. The elements of a "Stowers Doctrine" claim are (1) the claim against the insured was within the scope of coverage, (2) there was a settlement demand within policy limits, and (3) the terms of the demand were such that an ordinary prudent insurer would have accepted, considering the likelihood and degree of the insured's potential exposure to an excess judgment. Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex. 1994).

We review the proper application of the damage caps under a de novo standard of review. This is so because we must construe the statute in question, which constitutes a question of law. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Our goal is to give effect to the legislative intent. See Tex. Gov't Code Ann. §§ 311.021, 311.023, 312.005 (Vernon 2005), ⁽⁶⁾ Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000). In trying to arrive at the legislative intent, we first look to the plain and common meaning of the words used. Sorokolift v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). Further, we must construe the statute as a whole, not its provisions in isolation. Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002). Pursuant to statute, we may also look at other matters, to help us determine the legislature's intent, such as: 1) the objective sought to be obtained by the statute; 2) the circumstances under which the statute was enacted; 3) the legislative history of the statute; 4) common law or former statutory provisions, including laws on the same or similar subjects; 5) the consequences of a particular construction; 6) any administrative constructions of the statute; and 7) the statute's title (caption), preamble, and emergency provision. § 311.023. Finally, in applying the plain and common meaning of the words, we are cautioned not to enlarge, by implication, the meaning of any word beyond its ordinary meaning in a manner that would enlarge the meaning of the statute. Sorokolift, 889 S.W.2d at 241.

Phillips's position regarding the interpretation of the applicable section of the statute is founded upon the opinion of the Second District Court of Appeals in Welch v. McLean, 191 S.W.3d 147 (Tex.App.-Fort Worth 2005, no pet.). The Welch court's opinion focused on what it felt was the plain and common meaning of the phrase "this section shall not limit the liability of any insurer" found in art. 4590i, section 11.02(c). Id. at 168. Under the court's analysis, in its plain and common meaning the term "insurer" does not include a physician. Id. Therefore, the court concluded that to hold that art. 4590i, section 11.02(c), lifted the damage cap on physician liability established by section 11.02(a) would impermissibly enlarge the meaning of the terms of the statute. Additionally, the Welch court determined that the other terms used in art. 4590i, section 11.02(a), indicated that the legislature never intended section 11.02(c) to impact the damage cap. Id. The court's analysis keyed on the phrase, "in an action on a health care liability claim." Art. 4590i, § 11.02(a). The Welch court stated that, since a "health care liability claim" can only be asserted against a physician or health care provider, an insurer can never be liable for a patient's health care liability claim under the statute. Welch, 191 S.W.3d at 168. Therefore, the insurer's "Stowers" liability can only be owed to the insured physician. Id. Finally, the Welch court posits that to allow the construction of the statute urged by the McLeans, appellants therein, would foster the absurd result that the physician would be liable for the total amount of the judgment, without application of the caps, if his "Stowers" action was unsuccessful on the merits. Id. at 171.

Our review of the statute and utilization of the permissible aids to construction lead us to a construction contrary to that reached by the Welch court. Initially, we note that the Welch court did not attempt to construe the words, "This section . . ." at the beginning of art. 4590i, section 11.02(c). To ascertain what the words "This section . . ." mean, we look to the construction aids found in the Government Code. Section 311.006, Internal References, provides:

In a code:

• a reference to a title, chapter, or section without further identification is a reference to a title, chapter, or section of the code; and
• a reference to a subtitle, subchapter, subsection, subdivision, paragraph, or other numbered or lettered unit without further identification is a reference to a unit of the next larger unit of the code in which the reference appears.

§ 311.006. Therefore, the reference to "This section. . ." at the beginning of section 11.02(c) of art. 4590i can only mean that the language that follows applies to the entirety of section 11.02. Thus, we construe section 11.02(c) to preclude any application of section 11.02(a) in a manner that would limit the liability of an insurer in a subsequent "Stowers" claim.

However, as noted above, the Welch court concluded that our construction of section 11.02 of art. 4590i would lead to an absurd result. Welch, 191 S.W.3d at 171. According to Welch, the absurd result would arise in situations where the physician is unsuccessful in his "Stowers" action and would have to bear the entire burden of the uncapped judgment. Id. For this possibility to be considered an absurd result, we must assume that the legislature intended to abrogate the "Stowers" doctrine by enacting art. 4590i. In a typical "Stowers" action, an unsuccessful insured will always bear the entire burden of the underlying judgment. By enacting the damage caps of section 11.02(a), the legislature provided certain statutory protections to physicians and health care providers, but expressly excepted successful health care liability claims "where facts exist that would enable a party to invoke the 'Stowers Doctrine.'" Art. 4590i, § 11.02(c). Thus, before the trial court may enter judgment in a medical liability case, it must determine whether facts exist that would enable a party to invoke the "Stowers Doctrine."

Our construction of section 11.02(c) is consistent with the purposes of the statute. See § 311.023(1). In section 1.02(b) of art. 4590i, the legislature provided that art. 4590i's purpose was to improve and modify the health care liability claims system, but it was to "do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis." Art. 4590i, § 1.02(b)(3).

Additionally, the legislative history of art. 4590i shows that the legislature did not intend to interfere with "Stowers" claims. Beginning with the debate before the House State Affairs Committee, where the original H.B. 1048 ⁽⁷⁾ was being considered, there was discussion of the "Stowers Doctrine" and the use of the doctrine to ensure that a physician's insurance carrier bargained in good faith. During a general discussion of negotiations and bargaining in good faith after the filing of a medical liability claim, Rep. Henderson said:

What she's talking about-members, those of you that are not attorneys, we have an old theory in law that's called the Stowers Doctrine. And what it says is, is that if you do not bargain in good faith-and this is kind of a loose term-a loose definition-but this is the essence of it-if you don't bargain in good faith, you try to hide the ball, then you're-then you have no limits on your liability. So the Stowers Doctrine is in here, and this will be an incentive for all parties to participate in good faith. And this kind of answers, I think, what you're talking about, Mr. Hoestenbach.

Texas Medical Liability & Insurance Improvement Act: Hearings on H.B. 1048 before the House Comm. on State Affairs, 65^th Leg. (March 14, 1977) (statement of Rep. Henderson). Subsequently, during floor debate on the bill, Rep. Powers made the following statements:

Also, in paragraph (b)1, the original committee substitute or bill has a section dealing with the Stowers Doctrine which, as many of you know, is an insurance leverage negotiation device. Frankly, it deals with the demands for settlement within policy limits and that's the name of a San Antonio Furniture Company that invoked the doctrine in that it imposes a certain degree of liability. That liability goes to the insurance company or insuror and not the physician, doctor, health care provider and so, in this amendment, we simply change the language to reflect that. That that is what the Stowers Doctrine does. It runs to the insuror. They are liable if they fail to settle within those policy limits. That is simply a clean-up type of amendment. We didn't alter the committee concept on the Stowers Doctrine.

Debate on H.B. 1048 on the Floor of the House, 65^th Leg. (second reading) (March 22, 1977). The "liability" that Rep. Powers was referring to was the original draft of H.B. 1048 that would have allowed the filing of a "Stowers" claim directly against a doctor or health care provider. In an attempt to remove any ambiguity related to the initial "Stowers" provision, Mr. Ace Pickens, the representative of the Texas Medical Association, testified:

There is one thing that I hope you will consider and that is a section in the bill that relates to the Stowers doctrine of which I am sure you are familiar with. It's always been my understanding that the Stowers doctrine applied to insurers and not to the defendants. I believe that they have perhaps created another cause of action in this bill because they made the so-called Stowers Doctrine apply to insurer, physician, or health care provider, and I would hope that you would take out the word physician or health care provider and just leave the Stowers doctrine applying to the insurance company where it always has been heretofore.

Texas Medical Liability & Insurance Improvement Act: Hearings on H.B. 1048 before the Senate Comm. on Jurisprudence, 65^th Leg. (March 30, 1977). Later, during discussions on the floor of the Senate about limits on liability, ⁽⁸⁾ Sen. Farabee stated:

In addition, there's a provision in here for a Stowers doctrine to apply that if the insurance company is negligent in not settling within that $100,000, then they can be liable for $300,000 if the jury finds that. So, we tried to retain all those things that would contribute to settlement, . . . .

Debate on H.B. 1048 on the Floor of the Senate, 65^th Leg. (April 17, 1977). Ultimately, the bill that was passed removed the "doctor or health care provider" language from section 11.02(c). Art. 4590i, § 11.02(c). However, our review of the legislative history of H.B. 1048 reveals a consistent intent by the legislature to provide liability protection for doctors and health care providers without limiting an insurer's liability in a "Stowers" claim.

From the excerpted portions of the legislative history, we ascertain that the legislature intended for the "Stowers Doctrine" to retain its common law form. This intent is most evident in the discussion of how the "Stowers Doctrine" encourages insurers to bargain in good faith during the negotiation phase of a medical malpractice case. Accordingly, we conclude that the legislative history of art. 4590i supports our construction of section 11.02 as not limiting the liability of an insurer against whom a "Stowers" claim could be invoked.

Next, we are mindful of former Chief Justice Phillips's dissenting opinion in Lucas v. U.S., 757 S.W.2d 687 (Tex. 1988), wherein Chief Justice Phillips discussed why he felt art. 4590i was constitutional. In discussing the criticisms made by the majority that the legislature passed art. 4590i as a speculative experiment, Chief Justice Phillips observed:

Far from engaging in undisciplined speculation, the Legislature attempted in this instance to meet a complex social problem by limiting damages "in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis." Tex. Rev. Civ. Stat. art. 4590i, § 1.02(a)(3). The exclusion of all medical damages from the limits, the inflation adjustment provisions, the limitation on a per defendant rather a per occurrence basis, and the exclusion of Stowers claims from the limits all indicate a legislative solicitude for the injured claimants.

Id. at 720 (emphasis added).

Finally, Phillips contends that, even if this court finds that section 11.02(c) of art. 4590i applies, the proof provided by Bramlett was not sufficient to trigger an invocation of the "Stowers Doctrine." Phillips then admits that the first two elements of a "Stowers" claim were provided to the trial court, but asserts that Bramlett failed to produce evidence on the third element, that the terms of the demand are such that an ordinary and prudent insurer would accept it, considering the likelihood and degree of the insured's potential exposure to an excess judgment. The jury has spoken to the third issue by its verdict and findings that led to the judgment of which Phillips is now complaining. The proof was sufficient to permit the trial court to "find that facts exist that would enable a party to invoke the common law theory of recovery commonly known in Texas as the 'Stowers Doctrine.'" Art. 4590i, § 11.02(c).

Because the trial court found that the present case presented facts which would allow the invocation of a "Stowers" claim and because we construe art. 4590i, section 11.02(c), as making the damages cap of section 11.02(a) inapplicable in that event, we conclude that the trial court did not err in refusing to apply the damage caps to the judgment rendered.

Legal and Factual Sufficiency of Evidence of Gross Negligence

Phillips next contends that the evidence was neither legally nor factually sufficient to support the jury's finding of gross negligence. When both legal and factual insufficiency are alleged, we should address the issue of legal insufficiency first. Glover, 619 S.W.2d at 401.

To recover exemplary damages, Bramlett was required to prove that Phillips acted grossly negligent by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a) (Vernon Supp. 2006). To meet the clear and convincing standard, Bramlett was required to present evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. at § 41.001(2). Because the standard of proof for gross negligence is higher than that for traditional negligence, so too, the standard of review will be heightened. City of Keller, 168 S.W.3d at 817 (citing Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004)). The requirement for a heightened standard of review means that we must review all of the evidence, not just the evidence favorable to the verdict, and may not disregard evidence contrary to the verdict. City of Keller, 168 S.W.3d at 817.

As previously stated, to recover exemplary damages, Bramlett had to prove by clear and convincing evidence that Phillips acted grossly negligent. Gross negligence is defined as "an act or omission: (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others." Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (Vernon Supp. 2006). The two parts of the definition of gross negligence are described as the objective test and the subjective test respectively. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Setting aside the objective test for the moment, we will focus our inquiry on the subjective test.

The second element of gross negligence, the subjective test, requires proof that Phillips had actual awareness of Vicki's peril, but, by his actions, demonstrated that he did not care. Id. at 787. Within the context of the allegations and proof, Bramlett alleged that, when Phillips left the hospital at approximately 7:16 p.m., he had actual awareness of Vicki's condition and, by leaving, demonstrated conscious indifference to her plight. However, the evidence shows only that Phillips had ordered the H&H test and fluid challenge at approximately 5:30 p.m., but had not received the results of these tests. The last time Phillips had received information regarding Vicki's condition, the nurses at the hospital had reported that Vicki's vital signs were stable but that she had low urine output. The cause of Vicki's low urine output was hotly contested during the trial, however, the evidence established that it could have been the result of either dehydration or internal bleeding. Although Phillips testified that a possible concern for internal bleeding along with dehydration lead him to order the H&H test and Fluid Challenge, there is no evidence that suggests that Phillips had actual knowledge that Vicki was bleeding when he left the hospital. Because it is the actual awareness of Phillips that is the test, what he should have known is not the controlling inquiry. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). Bramlett contends that, because Phillips knew internal bleeding was a "significant" risk of the surgery, there was an urgency in finding out what was causing the low urine output. Additionally, Bramlett contends that Vicki displayed "classic symptoms" of internal bleeding that Phillips must have recognized, but chose to ignore. The problem with this analysis is that it assumes that Phillips should have put all of these signs together and concluded that Vicki was actually bleeding to death internally. There is no evidence in the record that proves that Phillips did put these signs together and, as a result, was actually aware that Vicki was bleeding internally. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (Vernon Supp. 2006), Transp. Ins. Co., 879 S.W.2d at 25. Without proving Phillips's actual awareness of the risks involved, there can be no proof that the actions of Phillips were taken in conscious indifference to the welfare of Vicki. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (Vernon Supp. 2006). It is this actual awareness of the risks that demonstrates the state of mind of the actor that separates gross negligence from ordinary negligence. Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 173 (Tex. 2005). ⁽⁹⁾ In the present case, there is not legally sufficient evidence to demonstrate, clearly and convincingly, that Phillips had actual awareness of the danger Vicki was in but chose to consciously disregard the risk by leaving the hospital. Accordingly, we find the evidence legally insufficient to sustain the jury's finding of gross negligence against Phillips. Having disposed of the issue under the subjective test, we need not address the sufficiency of the evidence regarding the objective portion of the test for gross negligence. See Tex. R. App. P. 47.1.

Having determined that the evidence was legally insufficient to support the jury's finding of gross negligence, we reverse that portion of the judgment.

We reverse and render a take-nothing judgment in favor of Phillips on the issue of gross negligence. We suggest a remittitur in the amount of $220,000 as to both Shane and Michael on the issue of future pecuniary loss. If within 30 days of the date of this opinion, Shane and Michael make a remittitur of that amount, our judgment reforming the trial court's judgment to reduce Shane and Michael's damages in the sum of $220,000 will issue. If Shane and Michael do not accept the remittitur, we will reverse the trial court judgment, except that portion herein rendered, and remand the cause for a new trial. Tex. R. App. P. 46.3 If remittitur is made as suggested above, the judgment of the trial court will be reformed to so reflect. In all other respects, we affirm the judgment of the trial court.

Mackey K. Hancock

Campbell, J., dissenting.

Reavis, S.J., concurs in result only.

1. Don H. Reavis, Justice (Ret.), seventh Court of Appeals, sitting by assignment.

2. Act of June 16, 1977, 65^th Leg., R.S., ch. 817, § 11.02, 1977 Tex. Gen. Laws 2039, 2052. Article 4590i was repealed by Act of June 2003, 78^th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. As Bramlett's medical malpractice suit was filed on May 27, 2003, prior to the repeal of article 4590i, we must apply the provisions of that article. Further reference to specific provisions of Tex. Rev. Civ. Stat. Ann. art. 4590i will be by reference to "art. 4590i, § __."

3. These amounts do not equal 75 percent of the jury's findings but rather the calculation of damages after deductions for settlement credit plus prejudgment interest less deduction for settlement offer. The total calculations are not contested by either party.

4. Dr. Hemsell's qualifications and expertise were never challenged by Phillips.

5. Neither party inquired into Phillips's knowledge of whether a patient had bled to death from a laproscopic-assisted vaginal hysterectomy.

6. Further references to Texas Government Code provisions will be by reference to "§ __."

7. H.B. 1048, when enacted, became art. 4590i.

8. At the time of Sen. Farabee's statement, the proposed caps were for an overall cap of $500,000, with a specific non-economic damages cap of $100,000.

9. We note that the experts testified that this was the only case they had ever heard of where a patient bled to death after a laproscopic-assisted vaginal hysterectomy. This evidence further convinces us that the proof of Phillips's actual awareness of Vicki's peril was legally insufficient to show that Phillips acted grossly negligent.