Providence Health Center v. Dowell

167 S.W.3d 48, 2005 Tex. App. LEXIS 2602, 2005 WL 762942
CourtCourt of Appeals of Texas
DecidedMarch 30, 2005
Docket10-02-00026-CV
StatusPublished
Cited by14 cases

This text of 167 S.W.3d 48 (Providence Health Center v. Dowell) 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
Providence Health Center v. Dowell, 167 S.W.3d 48, 2005 Tex. App. LEXIS 2602, 2005 WL 762942 (Tex. Ct. App. 2005).

Opinions

OPINION

BILL VANCE, Justice.

This is an appeal from an adverse judgment in a medical malpractice case. Finding no error, we affirm the judgment.

THE EVENTS

Early on a Saturday, twenty-one-year-old Lance Dowell was taken by Freestone County Sheriffs Deputies to Providence Health Center in Waco (Providence) because he had self-inflicted wounds and was talking about committing suicide. He was seen at the emergency room by Dr. James C. Pettit, who requested a psychological assessment from the DePaul Center (De-Paul), which is affiliated with Providence. Sister Mary Theresa Fox, a joint employee of Providence and DePaul, evaluated Lance’s condition and determined that he was not “actively suicidal.” Dr. Pettit reached the same conclusion. Lance was discharged from the hospital, accompanied by his mother, Carolyn Dowell (Carolyn).

During that same day, Lance went to his mother’s home in Waco and bathed, went to Lake Limestone, went to Fairfield with his brother Larry to a rodeo, and visited with friends. On Sunday he and Larry attended a family reunion and made plans to meet at a party that night. On Sunday evening, Lance hung himself.

THE SUIT

Lance’s parents, Carolyn and Jimmy Dowell (hereinafter collectively referred to as “the Dowells”) sued Providence, De-Paul, and Dr. Pettit under the Texas Wrongful Death Act and the Survival Statute, asserting a claim of medical negligence and a claim under the federal “anti-dumping” statute. A jury found that Lance suffered personal harm as a direct result of the failure to provide an appropriate psychiatric screening evaluation. After finding that the negligence of all three defendants proximately caused the injury in question, the jury apportioned the negligence 20% to Dr. Pettit, 40% to Providence, and 40% to DePaul. Damages were assessed as follows: $100,000 each to the Dowells for past mental anguish and loss of society and companionship; $100,000 each for the same elements in the future; and $400,000 for pain, mental anguish, and funeral and burial expenses as compensation for Lance. The court entered a judgment accordingly.

Dr. Pettit filed a notice of appeal, which we docketed under cause number 10-01-420-CV. Providence and DePaul also filed a notice of appeal, which we docketed under cause number 10-02-026-CV. The causes were argued and submitted on the same day, and the opinions were issued together. We then learned from Dr. Pet-tit’s counsel that he had filed a Chapter 7 bankruptcy proceeding prior to the issuance of our opinions. Because it was void, we withdrew our opinion and judgment in Dr. Pettit’s appeal, and, because our two cases resulted from a single trial court judgment, we also withdrew our opinion and judgment in this cause. The Dowells obtained a release from the bankruptcy stay, which allowed us to reinstate Dr. Pettit’s appeal. However, after reinstatement, we were notified that Dr. Pettit had [52]*52filed a new bankruptcy proceeding under Chapter 13.

Providence and DePaul are not entitled to benefit from a bankruptcy filing by Dr. Pettit. See Pustejovsky v. Rapid-American Corp. 35 S.W.3d 643, 645 n. 2 (Tex.2000); Lisanti v. Dixon, 147 S.W.3d 638, 641 (Tex.App.-Dallas 2004, no pet.); see also In re Southwestern Bell Tel. Co., 6 S.W.3d 753, 755 (Tex.App.-Corpus Christi 1999, orig. proceeding). The trial court’s judgment allocates the liability of all defendants and meets the criteria for a severance. Accordingly, we sever the Do-wells’ claims against Providence and De-Paul from those against Dr. Pettit and proceed with the decision in this appeal.1 Tex.R.App. P. 8.3(b).

ISSUES IN THIS APPEAL

Providence and DePaul (hereafter collectively called Providence) assert in five issues: (1) the evidence does not show a sufficient causal connection to hold either of them liable for Lance’s suicide; (2) the court erred in failing to ask the jury whether the Dowells’ negligence in failing to follow the instructions that were given when Lance left the hospital was a proximate cause of his death; (3) because the evidence shows that Lance had a child, the court erred in failing to require the Do-wells to join that child as a party; (4) because no personal representative of Lance’s estate had been appointed, the Dowells had no standing to bring a claim under the survival statute; and (5) no evidence exists to support an award of damages for pain and mental anguish to Lance’s estate.

We will address the issues in this same order.

STANDARD OF REVIEW

We begin by considering the traditional no-evidence review standards, then add the requirements peculiar to medical negligence cases. We note at this point, however, that Providence relies on other pronouncements by the Texas Supreme Court in connection with its attack on causation. We will discuss those decisions in due course.

TRADITIONAL REVIEW STANDARDS

We review no-evidence points by considering only the evidence and all reasonable inferences that support the jury’s finding while disregarding all evidence and inferences to the contrary. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge must fail. Id. If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995). Generally, if the court of appeals sustains a “no evidence” point, it is the court’s duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (quoting Nat’l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)).

A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court 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; and (4) the evidence conclu[53]*53sively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)).

When we review an “insufficient-evidence” point challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent’s proof, although adequate if taken alone, is overwhelmed by the opponent’s contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515, 519 n. 11 (1991)).

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167 S.W.3d 48, 2005 Tex. App. LEXIS 2602, 2005 WL 762942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/providence-health-center-v-dowell-texapp-2005.