COLUMBIA RIO GRANDE REGIONAL HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY AND JAMES A. HAWLEY--Appeal from 93rd District Court of Hidalgo County

NUMBER 13-03-427-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

COLUMBIA RIO GRANDE REGIONAL HEALTHCARE,

L.P, D/B/A RIO GRANDE REGIONAL HOSPITAL, Appellant,

v.

ALICE H. HAWLEY AND JAMES A. HAWLEY, Appellees

On appeal from the 93rd District Court

of Hidalgo County, Texas.

DISSENTING OPINION

Before Justices Rodriguez, Castillo and Garza

Dissenting Opinion by Justice Castillo

Appellant, Columbia Rio Grande Healthcare, L.P., d/b/a Rio Grande Regional Hospital, challenges a final judgment entered subsequent to a jury verdict in favor of appellees, James A. Hawley and the estate of Alice H. Hawley. By its fourth issue, the Hospital asserts that the trial court erred in denying its request to instruct the jury on "new and independent cause." Because I would hold that the hospital has shown reversible error, I would reverse the judgment and remand. Thus, I respectfully dissent because my analysis of this dispositive issue reaches a different result. See Tex. R. App. P. 47.1.

I. Background

Mrs. Hawley presented to her regular physician of many years with symptoms of diverticulitis. He referred her for screening and, because of the results, she was hospitalized the same day. Stabilized overnight, Mrs. Hawley underwent surgery the following morning. The surgeon removed a part of her digestive tract. The specimen was tested by a pathology group, which is an independent contractor of the hospital. A cancer diagnosis was included in the pathology report. The pathology report was completed and filed in Mrs. Hawley's chart the day before her release from the hospital. After two subsequent short hospital stays over a period of months, Mrs. Hawley's general health and well-being deteriorated. One hospital stay involved a routine surgical procedure stemming from her initial surgery and was performed by the same surgeon. The subsequent stay involved a diagnosis of a circulatory system condition, with a follow-up clinical visit with her regular physician. After screening showed elevated enzymes in her liver, her regular physician recommended additional diagnostics. After a delay stemming from the Hawleys' pre-arranged family vacation plans, additional screening showed a dramatic increase in the liver-enzyme level and a soft-ball sized mass on her liver. A biopsy showed that the mass was malignant. After seeking a second opinion from a physician who obtained and reviewed her medical records, Mrs. Hawley learned for the first time from him that, eleven months before, she was diagnosed with intestinal cancer.[1] Both Mrs. Hawley's treating physician and surgeon denied receipt of the pathology report that contained the intestinal cancer diagnosis. No reference to the report was made in discharge summaries dictated post-surgery and post-hospital stays.

Mr. and Mrs. Hawley sued the hospital for negligence. At the heart of their claim was a policy the hospital had in place for transmitting cancer-diagnosis pathology reports to treating physicians and surgeons. The distribution policy includes the distribution of the original pathology report "to the medical record." For a report "positive for cancer," the distribution policy states, in part:

A. Pathologist will verbally notify physician(s) of record

B. Pathology secretary will fax report to physician(s) of record

C. Reports will be delivered to physician(s) of record via certified mail

The jury heard that it was the custom and practice of the pathology department employees to transmit cancer reports by fax and certified mail to the physicians involved, "without exceptions." The jury also heard that pathologists would attempt verbal notification, with success dependent on immediate contact with the physician or a return telephone call. At the time in question, no logs to document the distribution were in place. Evidence showed that a return receipt confirmed delivery of the pathology report to Mrs. Hawley's treating physician. The jury heard from numerous witnesses qualified to testify as experts. From those witnesses the jury heard that the original pathology report was in Mrs. Hawley's chart prior to her release and the discharge summary did not reference the report, indicating the report was not read. Therefore, according to those witnesses, irrespective of the distribution policy, a responsibility existed, at a minimum, that the treating physician or surgeon secure the report to determine (1) what was removed from the patient during surgery, (2) the diagnosis, and (3) the post-surgical treatment.

At the close of evidence, the hospital requested, among other things, the pattern jury charge instruction on new and independent cause. The trial court denied the instruction. The jury charge contains the following instruction:

"Proximate cause," when used with respect to the conduct of RIO GRANDE REGIONAL HOSPITAL, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a hospital using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of any event.

The jury answered "yes" to jury Question No. 1 which states, "Was the negligence, if any, of RIO GRANDE REGIONAL HOSPITAL, a proximate cause of injuries to ALICE H. HAWLEY?" The jury awarded damages. The trial court entered the judgment from which the hospital appeals.

II. Jury Charge Error

 A. Standard of ReviewBJury Charge Error

The standard of review for error in the jury charge is abuse of discretion, R & R Contractors v. Torres, 88 S.W.3d 685, 696 (Tex. App.BCorpus Christi 2002, no pet.), which occurs only when the trial court acts without reference to any guiding principles. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). A trial court abuses its discretion by acting arbitrarily, unreasonably, or without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985);Kajima Int'l v. Formosa Plastics Corp., 15 S.W.3d 289, 291 (Tex. App.BCorpus Christi 2000, pet. denied). The trial court has considerable discretion to determine necessary and proper jury instructions. In re V.L.K., 24 S.W.3d at 341. When the trial court refuses to submit a requested instruction, the question on appeal is whether the requested instruction was reasonably necessary to enable the jury to render a proper verdict. Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) (per curiam);see Tex. R. Civ. P. 277. A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Tex. R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). This is a substantive, non discretionary directive to trial courts, requiring them to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). To determine if the failure to submit a requested instruction is error, the reviewing court must consider the pleadings, trial evidence, and the entire charge. See Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986) (op. on reh'g); see also Tex. R. App. P. 44.1(a)(1). An incorrect jury instruction is only grounds for reversal if it probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); Louisiana Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 76 (Tex. 1998) (per curiam).

 B. "New and Independent Cause" Instruction[2]

When defendants blame an occurrence on someone or something other than themselves, the Texas Pattern Jury Charges provide multiple alternatives. Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005). The purpose of these instructions is to advise the jurors, in the appropriate case, that they do not have to place blame on a party to the suit if the evidence shows that the conduct of some person not a party to the litigation caused the occurrence in question. See id. (citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)). One of the alternatives involves a new and independent cause instruction if the occurrence is later caused by someone else. See id. (citing State Bar Of Texas, Texas Pattern Jury Charges PJC 3.1 (1987)). "'New and independent cause' means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of the occurrence." Dillard, 157 S.W.3d at 432 n.3; Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999) (adopting the factors to determine whether an act is a concurring or new and independent cause);[3]Taylor v. Carley, 158 S.W.3d 1, 9 (Tex. App.BHouston [14th Dist.] 2004, pet. filed). Texas courts distinguish between a new and independent cause and a concurrent act. Taylor, 158 S.W.3d at 9 (citing Benitz v. Gould Group, 27 S.W.3d 109, 116 (Tex. App.BSan Antonio 2000, no pet.)) A concurrent act cooperates with the original act in bringing about the injury and does not cut off the liability of the original actor. Id. A "new and independent cause," sometimes referred to as a superseding cause, however, is an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. Id. The issue of new and independent cause is a component of the ultimate issue of proximate cause and not an affirmative defense. Id. (citing Rodriguez v. Moerbe, 963 S.W.2d 808, 821 n.12 (Tex. App.BSan Antonio 1998, pet. denied)).

The instructions on new and independent cause and sole proximate cause can cover much of the same territory. Dillard, 157 S.W.3d at 434. However, such redundancy is contrary to the spirit of broad form submission. Id. (citing Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984)). The supreme court's adoption of broad form jury submissions was intended to simplify jury charges for the benefit of the jury, the parties, and the trial court. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 230 (Tex. 2005). It was certainly never intended to permit, and therefore encourage, more error in a jury charge. Id. When properly utilized, broad form submission can simplify charge conferences and provide more comprehensible questions for the jury. See id. at 50-51. However, it is not always practicable to submit every issue in a case broadly, and broad form submission cannot be used to broaden the harmless error rule to deny a party the correct charge to which it would otherwise be entitled. Id.

C. Refusal to Instruct

I first address whether the failure to instruct is error. See Romero, 166 S.W.3d at 227; Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex. App.BCorpus Christi 1990, no writ). When evaluating whether a party is entitled to a jury instruction, the reviewing court must examine the record for evidence supporting submission of the instruction and ignore evidence to the contrary. See Elbaor, 845 S.W.2d at 243. The Hospital asserts that Mrs. Hawley's treating physician and surgeon failed to timely access the pathology report in her hospital chart, and, thus, their failure operated independently of any situation allegedly created by the hospital. The Hawleys counter that an instruction was properly denied because a superseding cause requires that an event must be unforeseeable and that the effect of the hospital's negligence must have ceased, but the evidence supports neither element. The Hawleys further state that, at most, the evidence shows a concurring cause.

Prior to her discharge from the hospital after surgery, Mrs. Hawley's chart contained the pathology report. Her treating physician compiled the discharge summary and did not reference the report in her chart which, testimony showed, reflected the report was not read. Testimony established that both the treating physician and the surgeon had access to Mrs. Hawley's chart for purposes of post-operative diagnosis and treatment. A return receipt establishes that the pathology report was mailed to and received by the treating physician's office. No independent recollection of notice to the surgeon is evident; however, testimony showed that the custom, habit, and practice was that the distribution policy for positive cancer pathology reports was followed "without exceptions." By its plain terms, the distribution policy does not require that notice be provided orally, and by fax, and by certified mail. Without question, however, all pathology reports must be filed in the patient's chart. The evidence unequivocally places the pathology report in Mrs. Hawley's chart prior to her release from the hospital post-surgery.

The crux of the Hospital's argument is that, even if the Hospital complied with the notice/distribution policy for a positive cancer pathology report, it is unforeseeable that compliance itself would result in lack of notice to the afflicted patient of the cancer diagnosis. Ample testimony established that two secretaries received twenty to thirty requests daily from physicians' and surgeons' offices requesting duplicate copies of pathology reports, after documented, full compliance with the distribution policy. Testimony showed that it was often easier to request a new copy from the pathology department than to locate the reports in a medical office. In Mrs. Hawley's case, documentation showed that the pathology report was sent to and received by the treating physician's office by certified mail, return receipt requested. The notice is consistent with one of the transmittal methods provided for in the distribution policy made the basis of the negligence claim. Notice by placement in Mrs. Hawley's chart is also consistent with the distribution policy. Even so, Mrs. Hawley was not treated for cancer until approximately eleven months after it was initially discovered by a pathologist.

The discretion afforded during the submission of instructions is not absolute. See Tex. R. Civ. P. 277. The substantive, non discretionary directive to trial courts requires them to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor, 845 S.W.2d at 243. After examining the pleadings, the entire charge, and the evidence, I would hold that the evidence of new and independent cause was fairly raised by the pleadings and the evidence and, thus, was a fact issue for the jury to decide. See Tex. R. Civ. P. 278 ("The court shall submit the questions, instructions and definitions in the form provided by Rule 277 which are raised by the written pleadings and the evidence."). A litigant is entitled to have controlling questions of fact submitted to the jury if they are supported by "some evidence."[4] Tex. R. Civ. P. 278; Wright Way Constr., 799 S.W.2d at 422 (citing Moore v. Lillebo, 722 S.W.2d 683, 686 87 (Tex. 1986) (reversing for new trial because trial court failed to submit requested issues that were supported by some evidence)). The pleadings and, importantly, some evidence supported this issue. See Wright Way Constr., 799 S.W.2d at 422. Because the Hospital was entitled to a requested jury instruction on new and independent cause, I would hold that denial of the requested instruction is without regard to guiding principles. See Downer, 701 S.W.2d at 241 42.

D. Harmful Error

I next address whether the denial of the requested instruction is reversible error. Tex. R. App. P. 44.1(a); Romero , 166 S.W3d at 230; Wright Way Constr., 799 S.W.2d at 422. Rule 44.1(a) provides that error in the trial court properly complained of requires reversal of the judgment on appeal if it "(1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals." Tex. R. App. P. 44.1(a). For an instruction to be proper, it must (1) assist the jury, (2) accurately state the law, and (3) be supported by the pleadings and evidence. Tex. R. Civ. P. 277, 278. The court's charge contains an instruction on proximate cause that includes, in part, "There may be more than one proximate cause of any event." The issue of new and independent cause is a component of the ultimate issue of proximate cause and not an affirmative defense. Taylor, 158 S.W.3d at 9. It is not always practicable to submit every issue in a case broadly, in broad form submission. Romero, 166 S.W.3d at 230. The evidence in this case supported the inclusion of the requested instruction. The trial court's refusal to instruct on this matter effectively directed a verdict upon it. See Wright Way Constr., 799 S.W.2d at 424. Based on the evidence, the jury could have found superseding cause. The jury verdict was against the proponent of the issue. Thus, the error was harmful. Accordingly, I would hold that the failure of the trial court to instruct on new and independent cause was such a denial of the rights of the Hospital as was reasonably calculated to and probably did cause the rendition of an improper verdict. See id. Harmful error almost certainly occurs if a defendant who has properly requested an appropriate instruction on a controlling defensive issue does not have that issue submitted to the jury. Id. That is precisely what occurred at trial. Id. Accordingly, I would sustain the Hospital's fourth issue. I would also reverse the judgment and remand for a new trial. See Tex. R. App. P. 43.2(d).

E. Rendition or Remand

I am mindful that a reversal and remand of the trial court's judgment does not dispose of the issues in which appellant requests rendition of judgment. See Wright Way Constr., 799 S.W.2d at 424. Ordinarily, I would next consider whether the judgment for the Hawleys can rest on the jury's finding of negligence. See Romero, 166 S.W.3d at 230. Although I would find reversible error entitling the Hospital to a remand, I nonetheless pause to briefly consider the seventh issue raised, because if the evidence presented was legally insufficient, then the Hospital is entitled to a rendition in its favor.[5] See R & R Contractors, 88 S.W.3d at 706.

By its seventh issue, the Hospital asserts that the evidence is legally insufficient to support the jury's finding of negligence in Question Number 1 as a matter of law. The statement of the issue must be treated as covering every subsidiary question that is fairly included. See Tex. R. App. P. 38.1(e). In a sub-issue of the same issue, the Hospital asserts that recovery is barred when a defendant's negligence deprived the patient of only a fifty-percent or less chance of survival. The Hawleys counter that, by its sub-issue, the Hospital concedes negligence and challenges the finding of proximate cause on the matter of probability of survival. Importantly, by its fifth issue, the Hospital asserts the trial court reversibly erred by denying its requested instruction on lost chance of survival because "some evidence existed that a less than 50% chance of survival existed at the time of the alleged negligence."[6] The crux of the Hospital's argument regarding lost chance of survival on legal sufficiency and charge error grounds rests on the trial court's proximate cause instruction, which I would hold necessitated a further instruction. The seventh issue is the sole issue determinative of whether rendition is appropriate and is, by force, somewhat negated by the conditional concession that "some evidence existed" of lost chance of survival maintained in the Hospital's related fifth issue.[7] Based on the collateral legal sufficiency challenges, coupled with finding reversible charge error, I would hold that the erroneous jury charge prevents the Hospital from properly presenting the case to this Court.[8] See Tex. R. App. P. 44.1(a). Thus, I would reverse and remand. See Tex. R. App. P. 43.2(d), 43.3(b). Because the Hospital's remaining issues are not dispositive, I need not address them. Tex. R. App. P. 47.1.

III. Conclusion

I would sustain the Hospital's fourth issue. Because the jury charge used in this case contained an error that probably caused the rendition of an improper judgment, I would reverse the judgment and remand the cause to the lower court for a new trial.

ERRLINDA CASTILLO

Justice

Dissenting Opinion delivered and filed

this 23rd day of March, 2006.

[1] The physician reviewed the pathology report contained in her medical records.

[2] The Hawleys acknowledge that the hospital's live (unstruck) pleading provided general notice of new and independent cause.

[3] Testimony showed that the time differential from notice to treatment is critical in cancer cases. Thus, it follows that the timing of notice would correlate with the question of a different harm in the first factor in Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999). Further, a trial court may not properly refuse to submit a question merely because the evidence is factually insufficient to support an affirmative finding. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965).

[4] A controlling or ultimate issue is one that presents to the jury a complete ground of recovery or defense. Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex. App.BCorpus Christi 1990, no writ).

[5] By its ninth issue, the Hospital asserts that it is entitled to rendition on the question of medical expenses because the evidence does not show the expenses were reasonable and necessary. Under a proper measure of damages instruction, a fact finder has the discretion to find damages within the range of evidence presented at trial. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002). The trial court modified the jury's damage award. Even so, I would hold that this issue is not dispositive of whether to remand or render.

[6] Texas does not recognize a common law cause of action for lost chance of survival in a medical malpractice case. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995) (citing Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397, 407 (Tex. 1993). There is no liability for negligent medical treatment "that decreases a patient's chance of avoiding death or other medical conditions in cases where the adverse result probably would have occurred anyway." Id. (citing Kramer, 858 S.W.2d at 398).

[7] An appellate court addresses legal-sufficiency challenges as either "no-evidence" or "matter-of-law" issues. Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App.BFort Worth 1995, no writ). We analyze the issue as a "no-evidence" challenge when the party complaining on appeal did not bear the burden of proof at trial. Id. When reviewing facts, the "final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review. Whether a reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will review the evidence "in the light most favorable to the verdict, disregarding all contrary evidence that a reasonable jury could have disbelieved." Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 916 (Tex. 2005) (per curiam). If the evidence presented at trial would permit reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Keller, 168 S.W.3d at 822. "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.

[8] The ultimate standard of proof on the causation issue "is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred." Park Place Hosp., 909 S.W.2d at 511 (citing Kramer, 858 S.W.2d at 400). Thus, recovery is barred when the defendants' negligence deprived the patient of only a fifty percent or less chance of survival. Id.