James C. Pettit, D.O. v. Jimmy and Carolyn Dowell, Individually and on behalf of the Estate of Jonathan Lance Dowell, Deceased--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

 

No. 10-01-00420-CV

James C. Pettit, D.O.,

Appellant

v.

Jimmy and Carolyn Dowell,

Individually and on behalf

of the Estate of

Jonathan Lance Dowell, Deceased,

Appellees

 

 

From the 170th District Court

McLennan County, Texas

Trial Court No. 99-2717-4

MEMORANDUM Opinion

 

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

 

THE EVENTS

Early on a Saturday, twenty-one-year-old Lance Dowell was taken by Freestone County Sheriff=s 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 (DePaul), 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 Aactively 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 (Jimmy), sued Providence, DePaul, 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 Aanti-dumping@statute. A jury found that Lance suffered personal harm as a direct result of Providence=s 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 Carolyn and Jimmy 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 10-01-00420-CV. Providence and DePaul also filed a notice of appeal, which we docketed under cause number 10-02-00026-CV. The causes were submitted on the same day.

The appeal was abated twice thereafter and finally reinstated on April 20, 2005, after the bankruptcy court granted limited relief from the automatic stay.

ISSUES IN THIS APPEAL

Dr. Pettit asserts in seven issues: (1) the evidence is legally insufficient to support the finding that the alleged breach of the applicable standard of care proximately cause the injury; (2) the evidence is legally insufficient to support an award of damages for pain and mental anguish; (3) Jimmy and Carolyn, individually, are not entitled to recover damages under the survival statute; (4) a potential statutory beneficiary under the Wrongful Death Act is unaccounted for; (5) the evidence of causation is factually insufficient to support the finding; (6) the court erred in failing to ask the jury about Lance=s negligence; and (7) the award of survival damages is excessive.[1] We will address the issues in the same order.

STANDARD OF REVIEW

We begin by considering the most recent articulation of the no-evidence review standards, address the factual sufficiency standards, then add the requirements peculiar to medical negligence cases.

legally-insufficient-evidence review standard

A no-evidence issue 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 conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, ___ S.W.3d ___, 2005 WL 1366509, at *2 (Tex. June 10, 2005) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362 63 (1960)).

After a lengthy review of the applicability of the standard in each of the four instances, the Court went on to say: If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id. at *10.

factually-insufficient-evidence review standard

 

When we review an "insufficient-evidence" issue 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.CWaco 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)).

  

medical negligence requirement

In a medical-negligence case, the plaintiff is required to show evidence of a reasonable medical probability that the injury was proximately caused by the negligence of the defendant. Park PlaceHosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). There are four elements to be proved: (1) a duty by the physician/nurse/hospital to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Cruz v. Paso Del Norte Medical Found., 44 S.W.3d 622, 629-30 (Tex. App.CEl Paso 2001, pet. denied).

ISSUE ONE

LEGAL SUFFICIENCY OF THE EVIDENCE OF CAUSATION

Dr. Pettit s first issue attacks the legal sufficiency of the evidence of causation, focusing on the cause-in-fact element of proximate cause. He correctly cites Duff v. Yelin, where the Texas Supreme Court upheld an instructed verdict in favor of a hospital in the absence of medical testimony establishing reasonable medical probability as to proximate cause of injury. Duff, 751 S.W.2d at 176. The Dowells, on the other hand, point to the testimony of Dr. Thomas Donica, a teacher and practitioner of psychiatry, who testified as an expert that Dr. Pettit s negligence was a cause-in-fact of Lance s suicide. Dr. Pettit did not object to this testimony when offered, but objected to the submission of the causation issue and moved for judgment n.o.v.[2]

Citing Coastal Transport Co., Inc. v. Crown Central Petroleum Corp., Dr. Pettit says that Dr. Donica s testimony is no evidence because his opinion is not reliable. Coastal Transport Co., Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 229 (Tex. 2004). We have made a careful analysis of Dr. Donica s testimony and have come to the conclusion that his expert testimony cannot be said to be non-probative on its face because it is conclusory or speculative, but his testimony was probative on the question of causation and the jury was entitled to rely on it in reaching a verdict. We find the evidence legally sufficient to support the jury s finding of causation. See City of Keller, 2005 WL 1366509, at *2, *10. We overrule issue one.

ISSUES TWO AND THREE

CAN THE PARENTS RECOVER SURVIVAL DAMAGES?

The award of survival-statute damages is attacked in two issues.

No Evidence of Pain or Mental Anguish

In question 5, which asked about the amount of damages that would compensate Lance for (a) pain and mental anguish and (b) funeral and burial expenses, the jury s answer was $400,000. Dr. Pettit s second issue asserts that there is no evidence[3] to support an award of survival damages in the amount found by the jury. He reasons that the funeral and burial expenses were $6,815, so the jury must have found $393,185 for pain and mental anguish. Although he acknowledges that such damages may be proven by circumstantial evidence, he says there is no evidence of conscious pain and suffering before Lance s death.

This argument was rejected by the Corpus Christi Court of Appeals in Spohn Hospital v. Mayer, 72 S.W.3d 52, 68 (Tex. App. Corpus Christi 2002), rev d on other grounds, 104 S.W.3d 878 (Tex. 2003). There, the court found that the medical examiner s certificate of death that stated asphyxia by hanging was some evidence of probative value that would support the jury's finding of damages for pain and mental anguish suffered by the deceased prior to his death. Id. As the Dowells point out, Lance s death certificate is almost identical to the certificate in Mayer. We overrule issue two.

Standing to Sue

Dr. Pettit s third issue asserts that the Dowells have no standing to recover survival damages. He points to the fact that he denied their legal capacity to sue in a verified pleading, that no personal representative of Lance s estate had been appointed when the suit began, and that Lance was survived by a minor son, Alec, who is not a party to the suit.[4]

Carolyn Dowell was appointed as Administratrix of the Estate of Jonathan Lance Dowell by the County Court of Freestone County on September 24, 2001, by an order which authorized her to act on behalf of the estate in this suit. The judgment dated September 28, 2001, awards $80,000 (20% of $400,000) to Jimmy Dowell and Carolyn Dowell, on behalf of the Estate of Jonathan Lance Dowell . . . , calculated as reflected in Exhibit 1 to this judgment. . . . Exhibit 1 reflects three sections: (1) damages awarded to the Estate, (2) damages awarded to Jimmy Dowell, and (3) damages awarded to Carolyn Dowell. The $80,000 award is listed in the section awarded to the Estate.

The Dowells pled in their third amended petition that they were Lance s only known heirs at law, that no administration was pending or necessary, and that Carolyn had applied to be appointed solely for purposes of this lawsuit, anticipating that she would be so appointed prior to the time of trial.

The question concerning the Dowells right to maintain this suit is one of capacity, not standing. See Austin Nursing Ctr., Inc. v. Lovato, 2005 WL 1124764, at *3 (Tex. May 13, 2005); Lorentz v. Dunn, 2005 WL 1124768, at *2 (Tex. May 13, 2005). Carolyn ultimately qualified as administratrix of Lance s estate. Although the text of the judgment could be more specific to reflect the amounts of the awards shown on the Exhibit, we believe that the court correctly awarded the survival damages in question to the Dowells on behalf of the Estate. See Lovato, 2005 WL 1124764, at *3; Lorentz, 2005 WL 1124768, at *2. Furthermore, based on the relation-back doctrine, no limitations issue is present. See Lovato, 2005 WL 1124764, at *6. We overrule issue three.

ISSUE FOUR

 THE WRONGFUL DEATH CLAIM

Dr. Pettit s fourth issue asks whether the trial court erred in entering judgment because the Dowells failed to prosecute the wrongful death action on behalf of Lance s son, Alec, whom he says is a necessary party. He says that he also pointed out this defect in a verified pleading. If Alec attacks the judgment in the future, he says, it will not be a bar to further proceedings.

The Dowells say that Dr. Pettit s argument is a throwback to the former indispensable party rule, in which the absence of such a party was deemed fundamental error requiring reversal of the judgment. They point out that each wrongful death beneficiary can recover only damages specific to that individual and that Dr. Pettit will not be subjected to double liability if Alec were to bring a suit because there is no evidence of any relationship between Lance and Alec and therefore no damages suffered by Alec.

The jury charge specifically asked about damages to Jimmy and Carolyn by name. Alec was not mentioned. Without evidence of any interaction or familial relationship between Alec and Lance and without evidence that Lance ever supported or was capable of financially supporting Alec, it would not be improper to proceed without Alec because he would not be entitled to any benefits. See Henwood v. Richardson, 163 S.W.2d 256, 258 (Tex. Civ. App. Texarkana 1942, writ ref d w.o.m.). Based on Plaintiff s Third Amended Petition, the record reflects that the suit was brought on behalf of all parties entitled to bring a wrongful death suit. Texas Health Enter., Inc. v. Geisler, 9 S.W.3d 163, 169-70 (Tex. App. Fort Worth 1999, pet. dism d).

In addition, the Wrongful Death Act provides a three-month window for any statutory beneficiary to file an action for the benefit of all. Tex. Civ. Prac. & Rem. Code Ann. 71.004(b), (c) (Vernon 1997). If none of the statutory beneficiaries bring an action within the three months, the executor or administrator must bring the action unless requested not to do so by any of the statutory beneficiaries. Id. As parents, Jimmy and Carolyn were entitled to bring the action individually. As the administratrix, Carolyn was also entitled to bring the action on behalf of the estate. Since Alec, or his next friend, did not bring a suit within three months, did not object to Carolyn filing as administratrix, and declined an invitation to join the Dowell s case, there is support for the trial courts not abating the wrongful death suit. See Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 664 (Tex. App. San Antonio 1999, pet. dism d). We overrule issue four.

ISSUE FIVE

 

FACTUAL SUFFICIENCY OF CAUSATION

The fifth issue is factual sufficiency of the evidence of causation. Dr. Pettit essentially asserts that because the evidence that Lance was not actively suicidal when he was discharged from the emergency room is so overwhelming, the evidence is factually insufficient to support the proximate cause finding. We use the standard of review set out above.

Causation is a matter that is a particularly apt question for a jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The factfinder may believe one witness and disbelieve another, and resolve inconsistencies in testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Where enough evidence is before the factfinder that reasonable minds could differ on the meaning of the evidence or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the factfinder. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

We apply these rules to conflicting expert testimony. Having reviewed all of the evidence in a neutral light, we cannot say that the evidence supporting the jury s finding of causation in question one was either weak or overwhelmed by Dr. Pettit s contrary proof. Checker Bag, 27 S.W.3d at 633. We overrule issue five.

ISSUE SIX

LANCE DOWELL S NEGLIGENCE

Dr. Pettit s sixth issue is that the trial court erred in refusing to submit questions to the jury inquiring whether Lance was negligent and, if so, his percentage of responsibility for his own death. The Dowells point to section 93.001(a)(2) of the Civil Practice and Remedies Code, which provides that suicide, a defense when it is the sole cause of damage sustained, may not be used as a defense when it was caused in whole or in part by a failure of the defendant to comply with an applicable legal standard. Tex. Civ. Prac. & Rem. Code Ann. 93.001(a)(2) (Vernon Supp. 2004-05). Dr. Pettit responds that he did not attempt to use Lance s suicide as a defense but wanted to ask the jury to determine if he was negligent and caused his own death.

This issue was decided by the Corpus Christi Court. Alvarado v. City of Brownsville, 865 S.W.2d 148, 153-54 (Tex. App. Corpus Christi 1993), rev'd on other grounds, 897 S.W.2d 750 (Tex. 1995); see also Kassen v. Hatley, 887 S.W.2d 4, 12 (Tex. 1994) ( Kalra and Southwestern had no defense under this section if they failed to comply with the standard of care, and their failure was a cause of Johnson's suicide. ).

Asking such a question was not necessary to allow the jury to render a verdict upon which the court could enter judgment. Tex. R. Civ. P. 277. If the jury failed to find that Dr. Pettit s negligence proximately caused Lance=s suicide, Dr. Pettit was exonerated. If the jury found to the contrary, as it did, section 93.001(a)(2) precludes Lance=s suicide from being used as an affirmative defense. We overrule issue six.

ISSUE SEVEN

 

ARE THE DAMAGES EXCESSIVE?

In issue seven, Dr. Pettit says that the survival-action damages for pain and mental anguish are excessive. He acknowledges that such damages may be proven by circumstantial evidence, and we agree. He also acknowledges that such damages are left to the sound discretion of the jury.

An appellate court may not order a remittitur unless the evidence supporting damages is factually insufficient. Torrington Co. v. Stutzman, 46 S.W.3d 829, 851 (Tex. 2000). Again, we use the standard of review set out above. Based on the record as a whole and the jury s finding of liability, the amount of the award in this case fails to "leave no room for doubt" that the jury's liability findings resulted from passion or prejudice. See id. We overrule issue seven.

CONCLUSION

We have overruled all of his issues; thus, we affirm the judgment as to Dr. Pettit.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed August 10, 2005

[CV06]

 

[1] In the companion appeal, we affirmed the judgment against Providence and DePaul, then severed those claims from the claims in this appeal. See Providence Health Center v. Dowell, 2005 WL 762942, at *9 (Tex. App. Waco 2005, pet. filed). The issues in Providence s appeal were similar to, but not the same as, the issues in this appeal. For example, Providence asserted only that there was no evidence of causation. Id. at *2. Dr. Pettit asserts both legal and factual challenges against the finding of causation.

[2] Those objections preserve the no-evidence point, but do not address the admissibility of the evidence. In Maritime Overseas Corp. v. Ellis, the Texas Supreme Court held that the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). In Coastal Transport, the Court noted the distinction in Maritime Overseas between challenges to the underlying methodology, technique, or foundational data used by an expert, which require an objection, and no-evidence challenges asserting that on the face of the record the evidence lacks probative value, which may be raised on appeal when perfected as a no-evidence challenge. Coastal Transport Co., Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 229, 233 (Tex. 2004); see also Volkswagen of America, Inc. v. Ramirez, 2004 WL 3019227, at *10 (Tex. 2004).

[3] His complaint that the damages are excessive is the subject of issue seven.

[4] Issues concerning Alec were also presented in Providence s appeal. See Providence Health Center v. Dowell, 2005 WL 762942 (Tex. App. Waco 2005, pet. filed).