McShane v. Bay Area Healthcare Group, Ltd.

174 S.W.3d 908, 2005 WL 2461814
CourtCourt of Appeals of Texas
DecidedNovember 10, 2005
Docket13-04-174-CV
StatusPublished
Cited by14 cases

This text of 174 S.W.3d 908 (McShane v. Bay Area Healthcare Group, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McShane v. Bay Area Healthcare Group, Ltd., 174 S.W.3d 908, 2005 WL 2461814 (Tex. Ct. App. 2005).

Opinions

OPINION

Opinion by

Justice GARZA.

Appellants, Deborah Sue McShane and James Patrick McShane, individually and as next friends of Maggie Yvonne McShane, a minor, sued appellees, Bay Area Healthcare Group, Ltd., individually and d/b/a Corpus Christi Medical Center-Bay Area; and Columbia Hospital Corporation of Bay Area, individually and as a partner of Bay Area Healthcare Group, Ltd. Appellants sought to recover for injuries sustained during Deborah McShane’s labor and delivery of her daughter, Maggie, who is severely brain damaged and suffers from cerebral palsy, developmental disability, and mental retardation. Appellants alleged that the negligence of appel-lees, either directly or vicariously through the negligence of their nursing staff, caused Maggie’s injuries. The case was tried to a jury, which returned a 10-2 verdict against appellants. The trial court entered a take-nothing judgment against appellants and denied their motion for new trial. Appellants now raise seven issues on appeal. We conclude that the trial court erred by admitting evidence of appellants’ superseded pleadings, which show that, at one time, appellants had sued not only appellees but also two physicians involved in Maggie’s delivery. Having reviewed the entire record, we further conclude that the error probably led to the rendition of an improper verdict. We therefore reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

I. Attorney Misconduct

In their first issue, appellants contend that the trial court erred by failing to order a new trial because of the misconduct of appellees’ counsel during trial. Appellants complain that counsel for appellees “engaged in misrepresentation and mischaracterization,” produced a “constant barrage of improper objections meant to interrupt the flow of the examination [of witnesses] and to coach the witnesses,” engaged in “sidebars meant to prejudice the jury,” and made an “improper reference to attorney’s fees.” With the exception of counsel’s reference to attorney’s fees, which will be addressed below, appellants have provided this Court with no authority, other than the Texas Lawyer’s Creed and the preamble to the state [913]*913bar rules, to establish that counsel’s behavior amounted to attorney misconduct. See Tex.R.App. P. 38.1(h). Appellants have also failed to provide this Court with any case law regarding attorney misconduct as a basis for new trial. See id. Although we agree with appellants that an attorney must “not knowingly misrepresent, mis-characterize, misquote, or miscite facts to gain an advantage,” we must acknowledge that the trial court has broad discretion in deciding whether to grant a new trial. Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (orig.proceeding) (per curiam). We are also fully aware of the trial court’s discretion to grant a new trial “in the interest of justice,” as well as the court’s decision not to do so in this case. See id.

To successfully challenge the trial court’s denial of a motion for new trial, appellants must demonstrate that the trial court acted unreasonably, arbitrarily, or without reference to guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); GJR Mgmt. Holdings, L.P. v. Raus, 126 S.W.3d 257, 260 (Tex.App.-San Antonio 2003, pet. denied). In reviewing a trial court’s order denying a motion for new trial, we make every reasonable presumption in favor of the trial court’s ruling. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex.1983); Raus, 126 S.W.3d at 260. Without appropriate citations to any controlling authorities regarding attorney misconduct as a basis for new trial, we cannot conclude that appellants have carried the burden of showing an abuse of discretion. See Tex.R.App. P. 38.1(h). It would be injudicious and patently unfair for this Court to conclude, without the benefit of any relevant law, that the “trial court acted unreasonably, arbitrarily, or without reference to guiding rules and principles.”

In overruling appellants’ issue for failure to present authority to establish an abuse of discretion, we also find it significant that appellants’ counsel failed to request a mistrial based on any of the alleged instances of attorney misconduct until after the jury’s verdict was returned. For instance, at one point in the trial, appellants’ counsel objected “to the continual sidebar remarks” from opposing counsel. The objection was sustained by the trial court, which instructed counsel “not to do that again” or “there will be fines assessed.” See Tex.R. Civ. P. 269(f) (directing the trial court to rigidly suppress any sidebar remarks). Appellants contend that counsel’s remarks tainted the entire trial, but counsel for appellants did not ask the trial court to declare a mistrial at the time of the objection or at any time before the jury’s verdict was returned.

As mentioned above, appellants also complain that opposing counsel made an improper reference to attorney’s fees during his cross-examination of appellants’ expert on damages. As with the improper sidebar remarks, appellants’ counsel lodged a timely objection, which was sustained by the trial court. The jury was instructed to disregard the reference to attorney’s fees, and counsel for appellants seemed content with this remedial action. Counsel did not request a mistrial. On appeal, appellants complain that the remark probably caused the rendition of an improper judgment, but they have failed to show how the instruction to disregard counsel’s reference to attorney’s fees was inadequate to cure the harm created by the reference. Therefore, we cannot conclude that the trial court abused its discretion by denying appellants’ motion for new trial on this basis.

Appellants’ first issue is overruled.

[914]*914II. Exclusion of Expert Testimony

In their second issue, appellants contend that the trial court erred by excluding the testimony of Arthur Shaw, their proposed expert on the hospital’s standard of care. There is a clear mandate in Texas that medical decisions are to be made by attending physicians. Boney v. Mother Frances Hosp., 880 S.W.2d 140, 144 (Tex.App.-Tyler 1994, writ denied). A hospital cannot practice medicine and therefore cannot be held directly liable for any acts or omissions that constitute medical functions. Spinks v. Brown, 103 S.W.3d 452, 456 n. 4 (Tex.App.-San Antonio 2002, pet. denied). Nevertheless, a hospital may be directly hable for injuries arising from its negligent performance of a duty that it owes directly to a patient. 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 non-physician personnel. Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 409 (Tex.App.-Fort Worth 2003, no pet.).

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174 S.W.3d 908, 2005 WL 2461814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcshane-v-bay-area-healthcare-group-ltd-texapp-2005.