Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0575

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Columbia Medical Center of Las

Colinas, Inc. d/b/a Las Colinas Medical Center, Petitioner,

v.

Athena Hogue, Individually

and as Executrix of the Estate of Robert Hogue, Jr., Deceased, Christopher

Hogue, and Robert Hogue, III, Respondents

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On Petition for Review from the

Court of Appeals for the Fifth District of

Texas

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Argued April 12,

2005

Justice Wainwright

delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O’Neill,

Justice Brister, Justice Medina, Justice Johnson , and Justice Willett joined, and in Parts

II-A, II-C, and II-D of which Justice

Hecht and Justice Green joined.

Justice Brister filed a

concurring opinion, in which Justice

Medina joined.

Justice Green filed an opinion concurring in part

and dissenting in part, in which

Justice Hecht joined.

This is a medical malpractice case. In this appeal, it is undisputed that the

hospital caused Bob Hogue’s death. The jury made that finding at trial, the

hospital does not challenge it in this Court, and the dissenting justices

acknowledge that the evidence supports that finding. The primary issue presented

to this Court is whether sufficient evidence was admitted at trial to support

the jury’s finding that the hospital was also grossly negligent in causing

Hogue’s death.

On Monday, March 2, 1998, a seemingly healthy Bob Hogue had dinner with his

college-aged sons in Texas before traveling to Albuquerque, New Mexico

for business. One week later, doctors struggled unsuccessfully to save his

life as his organ systems failed. His widow and sons brought this medical

malpractice action against the hospital to which Bob Hogue was initially

admitted. The jury found the hospital negligent and grossly negligent and

awarded over $30 million in actual and exemplary damages. The trial court

reduced the exemplary damage award per chapter 41 of the Texas Civil Practice

and Remedies Code. The court of appeals affirmed the trial court’s judgment on

exemplary damages but concluded that the Medical Liability and Insurance

Improvement Act capped actual damages and reduced the total damages award to

under $5 million. 132 S.W.3d 671 .

The hospital petitioned this Court for review, challenging (1) the trial court’s

submission of the patient’s contributory negligence in an unusual third phase of

the trial separate from the general liability question, (2) the legal

sufficiency of the evidence of the defendant’s gross negligence, (3) the legal

sufficiency of the evidence to support loss of inheritance damages, and (4) the

application of the pre-2003 version of the pre- and postjudgment interest

statutes to this case. Because the hospital did not present legally sufficient

evidence of contributory negligence, we do not decide whether the unusual

submission of the contributory negligence question was error. We hold that the

Hogues presented clear and convincing evidence on which a jury could reasonably

conclude that the hospital was grossly negligent. We also hold that there is no

evidence of loss of inheritance damages, and we conclude that the 2003

amendments to the Texas Finance Code, concerning interest on judgments, do not

govern this case. Therefore, we reverse the loss of inheritance damages, and

affirm the remainder of the judgment.

I. Factual and Procedural Background

After dinner with his wife on Thursday, March 5, 1998, Bob Hogue complained that

he had an upset stomach and felt a little dizzy. The next morning, he felt

tired. Thinking he might have caught the flu and may not recover in time for

scheduled business travel on Monday, Hogue’s wife Athena suggested he see a

doctor. Dr. Jay Story, who had never before examined Hogue, examined him around

noon that day. Dr. Story diagnosed Hogue with pneumonia and prescribed some

medicine. Dr. Story also asked Hogue to schedule a follow-up appointment for

Monday morning before Hogue left town.

Hogue took the medication Dr. Story prescribed, but his symptoms continued

through the weekend. On Sunday evening, Hogue’s wife called Dr. Story’s office,

concerned because Hogue coughed up pink-tinged phlegm. The on-call doctor

instructed her to take her husband to the emergency room if his condition

worsened, but otherwise just to return to Dr. Story’s office in the morning. By

Monday morning, Hogue’s condition had worsened. The Hogues traveled to Dr.

Story’s office early and requested to see a doctor immediately. Dr. Story

x-rayed Hogue’s chest, advised him that his lungs were infiltrated with fluid,

and dispatched him to Columbia Medical Center of Las Colinas by ambulance. Dr.

Story then called Columbia Medical and alerted the emergency room (ER) doctor,

Dr. Gregory Blomquist, that he was sending over a patient he had diagnosed with

pneumonia. Dr. Story advised Dr. Blomquist that he did not have a medical

history for the patient.

Shortly after 9:00 a.m., Dr. Blomquist met the Hogues at the emergency entrance.

Hogue was conscious but was in severe respiratory distress, breathing

approximately once every second. Dr. Blomquist recognized that Hogue was

seriously ill. While beginning his physical exam of Hogue, Dr. Blomquist asked

Hogue basic questions about his symptoms and medical history. Hogue replied in

the negative to questions about chest pain, family history, and risk factors for

heart disease, such as smoking, high cholesterol, or high blood pressure. Hogue

also “denie[d] any symptoms except shortness of breath [for the preceding] three

days, and a slight cough.” In response to a question about having previously

experienced similar symptoms, Hogue answered, “I’ve always been healthy.” No one

told the health care providers that Hogue had been previously diagnosed with a

heart murmur, even though in September 1996 Hogue reported a history of a heart

murmur during a routine physical exam. His family doctor, Dr. Richard Honaker,

had confirmed the existence of a heart murmur and recommended a follow-up with a

cardiologist, which never occurred.

While questioning Hogue, Dr. Blomquist also evaluated his physical condition.

Hogue was sweating and struggling to breathe. He had a blue tint around his

mouth, his fingernails, and his other extremities, indicating that Hogue was not

exchanging oxygen well. Dr. Blomquist’s physical exam revealed a tachycardic

(fast) heart rate, occasional skipped heartbeats, and an abnormal, extra heart

sound in each heartbeat, but Dr. Blomquist detected no heart murmur. Dr.

Blomquist ordered an electrocardiogram (EKG) and blood tests designed to

identify acute heart injury markers. The results from these tests were

negative.

Within minutes of Hogue’s arrival, Dr. Blomquist called Dr. Timothy Schroeder, a

critical care pulmonary specialist and director of the intensive care unit (ICU)

at Columbia Medical. Dr. Schroeder was not at Columbia Medical because he was

seeing patients at another hospital. During the conversation, Drs. Blomquist and

Schroeder agreed that Dr. Blomquist would “stabilize [Hogue] and make sure he

was on a breathing machine, make sure we tried to get his oxygenation up, make

sure we got labs set up, those types of things.” Dr. Blomquist then intubated

Hogue and placed him on a ventilator.

By approximately 11:10 a.m., Dr. Blomquist had stabilized Hogue for transfer to

the ICU and paged Dr. Schroeder to inform him. Within a half hour, Dr. Schroeder

returned the page and agreed that Hogue would be admitted to the ICU under Dr.

Schroeder’s care. Around 12:30 p.m., Dr. Blomquist transferred Hogue to the ICU.

Dr. Schroeder arrived in the ICU between 1:10 and 1:30 p.m. and began his

evaluation and examination of Hogue. Dr. Schroeder conducted a number of tests,

including one that identified abnormal chest pressures in Hogue’s pulmonary

arteries. Dr. Schroeder contacted cardiologist Dr. John Lawson for help

interpreting some of this data. By the end of the telephone conversation, the

doctors decided that a consult was necessary. Although Dr. Lawson was also not

on-call at Columbia Medical that day, he agreed to evaluate Hogue after he

attended to his patients at other hospitals. He did not specify a time. After

conferring by phone with Dr. Lawson, around 3:35 p.m., Dr. Schroeder ordered an

echocardiogram (echo) of Hogue’s heart “now,” which he testified is equivalent

to “stat.” Columbia Medical’s list of medical abbreviations defined “stat” as

immediately. An echocardiogram, which is a cardiac ultrasound that produces

images of the heart, is different from an EKG, which graphically records the

electrical activity of the heart. Cecil

Essentials of Medicine 47, 55 (Thomas E. Andreoli, M.D. et al. eds., 6th

ed. 2004).

The hospital also played a prominent role in Hogue’s treatment. Although

Columbia Medical did not have in-house echo services, the hospital had

contracted for those services from a third-party vendor, but declined to

exercise an option to guarantee an expedited response time for echocardiographic

studies. Dr. Schroeder ordered the stat echo at 3:35 p.m., but the radiology

department did not page the outsourcing echo service until approximately 4:10

p.m. The echo technician returned the page within twenty minutes and discussed

the doctor’s order with an ICU nurse. The technician was informed that a stat

echo had been ordered, but he testified that he was not given the impression

that Hogue needed urgent attention; rather, the ICU nurse stated that Hogue was

stabilized on a ventilator and that his condition was not heart-related. The

technician arrived shortly after 6:00 p.m., set up the echo equipment, and began

the study. He immediately identified a severe leakage of Hogue’s mitral valve

and interrupted the study to alert a nurse. He finished the study around 6:30

p.m., approximately three hours after the stat echo was ordered. The technician

observed that at least

class=Section2>

one

leaflet of the mitral valve was almost completely unhinged and what we call

flailed, meaning that it’s just flopping around in a breeze with nothing to hold

it in place . . . . And also, the size of some of the chambers on [Hogue’s]

heart in proportion to his body size suggested to [the tech] that this was an

acute event and not something that had been around a long time.

class=Section3>

Based on the

technician’s findings, cardiologist Dr. Phillip Hecht, one of Dr. Lawson’s

partners, was called. Dr. Hecht determined that Hogue required emergency surgery

to repair his mitral valve and needed to be transferred immediately to Baylor

Irving Hospital. After Dr. Hecht ordered the transfer at approximately 7:45

p.m., it took Columbia Medical an additional 20–25 minutes to arrange for the

ambulance transfer to Baylor Irving. Shortly after arriving at Baylor Irving at

8:46 p.m., more than two hours after the echo study was completed, Hogue coded,

and efforts to resuscitate him failed. Dr. Lawson arrived at Columbia Medical

after Hogue’s transfer to Baylor Irving.

Hogue’s wife and their two sons sued Columbia Medical, asserting survival and

wrongful-death claims, [1] and the case proceeded to trial in

three phases. The first phase consisted of approximately two weeks of evidence

and argument, after which the court charged the jury to decide whether Columbia

Medical was negligent in Hogue’s treatment, and if so, whether it was grossly

negligent. The jury returned a finding adverse to Columbia Medical on both

questions and awarded the Hogues $9,196,155 in actual damages.

During the second phase of trial, the jury assessed punitive damages of

$21,000,000 against Columbia Medical based on the gross negligence finding in

the first phase. During the third phase of trial, the jury heard further

argument but no additional evidence, and the trial court instructed the jury to

consider whether Hogue contributed to his injury when he did not inform his

treating physicians that he had been diagnosed with a heart murmur. The jury did

not find that Hogue was contributorily negligent. The trial judge capped the

punitive damages pursuant to chapter 41 of the Civil Practice and Remedies Code,

but did not cap the actual damages pursuant to the Medical Liability and

Insurance Improvement Act (MLIIA).

Columbia Medical appealed. The court of appeals reversed the trial court on the

applicability of the MLIIA to actual damages, capped actual damages at

$1,471,405.20, and affirmed the remainder of the trial court’s judgment,

including exemplary damages of $3,356,296. 132 S.W.3d 671 . Columbia Medical

petitioned this Court for review.

II. Discussion

Columbia Medical asserts that the trial court committed reversible error by

submitting the contributory negligence question in the third phase of trial

instead of with the general liability question. We first consider whether

contributory negligence should have been submitted to the jury.

A. Contributory Negligence

In this case, the jury found Columbia Medical negligent because it failed to

timely provide necessary services to diagnose Hogue. Columbia Medical asserts

that Hogue was contributorily negligent for failing to disclose his previous

heart murmur diagnosis. The Hogues counter that there is no evidence of

causation or evidence that the hospital would have done anything different if it

had known of Hogue’s heart murmur. Therefore, they contend that failure to

submit the contributory negligence question in the first phase of the trial was

not error.

Admittedly, physicians at Columbia Medical began treating Hogue without the

benefit of his complete medical history. The record indicates that Hogue failed

to inform not only the doctors at Columbia Medical of his heart murmur, but also

Dr. Story before Hogue was in acute medical distress. Dr. Story shared his

tentative diagnosis of pneumonia with Dr. Blomquist at Columbia Medical. Failure

to respond fully and accurately to a doctor’s questions could hamper a doctor’s

diagnosis, could delay appropriate treatment, and in the proper case, might

raise a fact issue concerning a patient’s possible contributory negligence.

See Elbaor v. Smith , 845 S.W.2d 240, 245 (Tex. 1992) (recognizing

a patient’s duty of cooperation); see also Jackson v. Axelrad , 221 S.W.3d

650, 654 (Tex. 2007) (discussing the duty of a patient to cooperate in his

health care). But here, we need not identify the parameters of such a duty

between lay patients and treating physicians. Cf. Jackson , 221 S.W.3d at

655-57 (observing that, for purposes of a contributory negligence inquiry in a

medical malpractice case, a physician patient’s specialized knowledge may be

relevant to the ordinary care standard).

Negligence arises when an actor breaches a legal duty in tort, and the breach

proximately causes damages. IHS Cedars Treatment Ctr., Inc. v. Mason , 143

S.W.3d 794 , 798 (Tex. 2004); D. Houston, Inc. v. Love , 92 S.W.3d 450, 454

(Tex. 2002). Assuming, without deciding, that Hogue owed and breached a duty to

disclose his prior heart murmur diagnosis, Columbia Medical must present some

evidence that Hogue’s nondisclosure proximately caused his injury. Proximate

cause includes both cause in fact and foreseeability. Mason , 143 S.W.3d

at 798-99; Love , 92 S.W.3d at 454 . Proximate cause cannot be satisfied by

mere conjecture, guess, or speculation. Mason , 143 S.W.3d at 799; Doe

v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477 (Tex. 1995). In

particular, cause in fact requires that the allegedly negligent act or omission

constitute “a substantial factor in bringing about the injuries, and without it,

the harm would not have occurred.” Mason , 143 S.W.3d at 799. Columbia

Medical’s proof of causation to support its contributory negligence submission

must rise above mere conjecture or possibility. See Mason, 143 S.W.3d at

798-99; Duff v. Yelin , 751 S.W.2d 175, 176 (Tex. 1988). Columbia Medical

claims that Hogue negligently failed to disclose his heart murmur and that

Hogue’s omission delayed proper treatment by the physicians.

There is no evidence that the diagnosing doctors at Columbia Medical would have

acted differently if Hogue had disclosed his heart murmur diagnosis. Dr.

Blomquist, the ER doctor, testified that, if Hogue had disclosed his heart

murmur diagnosis, it “would have perhaps moved a cardiac source higher”

on his differential diagnosis and he “would have searched perhaps more

diligently for a cardiac source” of the illness. (Emphasis added). Dr.

Blomquist’s testimony further suggests that even if a cardiac source had been

higher on his differential diagnosis, he would not necessarily have behaved

differently:

class=Section4>

Q: And if

you would have considered [a] cardiac cause higher on [your differential

diagnosis], would that have meant you would have considered obtaining a

consultation of a cardiologist?

A:

Possibly.

Q: Would

that have meant that you would have considered requesting an echocardiogram?

A:

Possibly. (Emphasis added).

class=Section5>

“Perhaps” and

“possibly” indicate conjecture, speculation or mere possibility rather than

qualified opinions based on reasonable medical probability. See Merrell Dow

Pharm., Inc. v. Havner , 953 S.W.2d 706, 729-30 (Tex. 1997) (stating that

“can” and “could” do not indicate reasonable medical probability); see also

Gen. Motors Corp. v. Sanchez , 997 S.W.2d 584, 591 (Tex. 1999). While the

specific words “reasonable medical probability” need not be used, the testimony

must demonstrate conduct that to a reasonable degree of medical certainty would

have occurred. See Otis Elevator Co. v. Wood , 436 S.W.2d 324, 331-32

(Tex. 1968). The testimony on causation proffered by Columbia Medical is

insufficient to raise a question of fact on proximate cause.

In addition, the testimony of Hogue’s second treating physician also fails to

raise a question on whether Hogue’s nondisclosure of a heart murmur diagnosis

caused his injury. When asked if he would have wanted or needed information

about a prior heart murmur, Dr. Schroeder responded that he did not ask for that

information and that he would not have found that information useful in an

initial history.

class=Section6>

Q: Would

[the information that Hogue had previously been advised that he had a heart

murmur] been the kind of information doctor, that you would have wanted to have

included in or known about in Mr. Hogue’s history?

A: It’s

not something that I routinely ask about.

Q: Okay.

Would . . . history of heart murmur . . . be the kind of symptom that you as a

critical care specialist would want to know about of a patient?

A: . . . I

don’t usually ask about heart murmurs, and that’s not a bit of information that

I would find useful in an initial history.

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class=Section8>

Because the

physicians testified that knowing of Hogue’s heart murmur would not have been

useful or changed their course of treatment, there is no evidence that Hogue’s

nondisclosure of the condition caused his injury.

While the Hogues are correct that the physicians’ opinions constitute no

evidence of causation, they incorrectly imply that those statements are

attributable to Columbia Medical. “A hospital is ordinarily not liable for the

negligence of a physician who is an independent contractor.” Baptist Mem’l

Hosp. Sys. v. Sampson , 969 S.W.2d 945, 948 (Tex. 1998). However, because

Columbia offers no evidence of causation (other than to erroneously rely on the

physicians’ statements), Columbia Medical failed to support its position that

nondisclosure of the heart murmur diagnosis in reasonable medical probability

contributed to Hogue’s injury. Thus, it was not error for the trial court to

refuse to submit the contributory negligence question in the first phase of the

trial. Although we do not approve of submitting contributory negligence to the

jury in the third phase of trial, we need not reach the issue of whether this

unusual approach in submitting the charge would constitute reversible error in a

case warranting a contributory negligence submission.

B. Gross Negligence

On appeal, Columbia Medical next challenges the legal sufficiency of the

evidence supporting gross negligence. Columbia Medical does not, however,

challenge the quantum of exemplary damages. See Tex. R. App. P. 53.2(f) (“The petition

must state concisely all issues or points presented for review.”). The Hogues

argued to the jury that Columbia Medical was grossly negligent in a number of

ways, including Columbia Medical’s failure to provide stat echo availability. [2]

Two elements comprise gross negligence. First, viewed objectively from the

actor’s standpoint, the act or omission complained of must depart from the

ordinary standard of care to such an extent that it creates an extreme degree of

risk of harming others. Lee Lewis Const., Inc. v. Harrison , 70 S.W.3d

778, 784-86 (Tex. 2001); Universal Servs. Co. v. Ung , 904 S.W.2d 638, 641

(Tex. 1995); Transp. Ins. Co. v. Moriel , 879 S.W.2d 10, 21-22 (Tex.

1994); see also Wal-Mart Stores, Inc. v. Alexander , 868 S.W.2d 322, 326

(Tex. 1993) (holding that gross negligence must involve an “objectively higher

risk than ordinary negligence”). “Extreme risk” is not “a remote possibility of

injury or even a high probability of minor harm, but rather the likelihood of

serious injury to the plaintiff.” Moriel , 879 S.W.2d at 22 (quoting

Alexander , 868 S.W.2d at 327 ); see also Harrison , 70 S.W.3d

at 785 . And the risk must be examined prospectively from the perspective of the

actor, not in hindsight. Moriel , 879 S.W.2d at 23 . Second, the actor must

have actual, subjective awareness of the risk involved and choose to proceed in

conscious indifference to the rights, safety, or welfare of others.

Harrison , 70 S.W.3d at 785 ; Ung , 904 S.W.2d at 641 ; Moriel ,

879 S.W.2d at 23 .

Gross negligence must be proven by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code §

41.003(a)(3); see Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 627

(Tex. 2004) (noting that “whenever the standard of proof at trial is elevated,

the standard of appellate review must likewise be elevated”). Because of this

heightened burden of proof, we apply a heightened standard of review:

In a legal sufficiency review, a court should look at all the evidence in the

light most favorable to the finding to determine whether a reasonable trier of

fact could have formed a firm belief or conviction that its finding was true. To

give appropriate deference to the factfinder’s conclusions and the role of a

court conducting a legal sufficiency review, looking at the evidence in the

light most favorable to the judgment means that a reviewing court must assume

that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so. A corollary to this requirement is that a

court should disregard all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible. This does not mean that a court

must disregard all evidence that does not support the finding. Disregarding

undisputed facts that do not support the finding could skew the analysis of

whether there is clear and convincing evidence.

Diamond

Shamrock Ref. Co., L.P. v. Hall , 168 S.W.3d 164, 170 (Tex. 2005) (quoting

In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002)). We review all the evidence

in this case to determine whether the jury could have formed a firm belief or

conviction that Columbia Medical’s conduct deviated so far from the standard of

care as to create an extreme risk and that Columbia Medical was subjectively

aware of, but consciously indifferent to, this risk.

The Hogues argue Columbia Medical was grossly negligent in its decision not to

provide echocardiogram services on a stat basis for its emergency medical

services and in its failure to advise the physicians of the lack of stat echo

capability. Columbia Medical asserts that there is insufficient evidence under

the law that the failure to provide an echocardiogram on a stat basis created an

extreme risk to others. We review all the evidence in the light most favorable

to the jury’s findings to determine whether a reasonable trier of fact could

have formed a firm belief or conviction that its finding was true.

Before its opening in 1997, Columbia Medical determined that it would require

echocardiographic capability to support its emergency department. Because it

believed it would need a low volume of these essential services, however,

Columbia Medical decided to outsource the echo services rather than provide them

in-house. Scott Montgomery, Columbia Medical’s Director of Clinical Outpatient

Services, was responsible for negotiating a contract for these services.

Montgomery testified that it was “obvious” and “elementary” that a hospital

emergency department would need echocardiograms on a stat, or urgent, basis.

However, it is undisputed that Columbia Medical did not obtain stat, or urgent,

echo capability with its outside provider, nor did its contract guarantee a

response time for echocardiographic studies. The contract with Cardiovascular

On-Call Specialists for echo services included a “stat” fee of $85 for any

procedure that was ordered after hours (defined in the contract as after 5:00

p.m. and before 8:00 a.m., on weekends, or on holidays). In addition, the

contract provided Columbia Medical with an option to guarantee a response time

during certain time periods by paying an “on-call” fee of $3 per hour, in

addition to the base fee for services. The contract did not guarantee a response

time during business hours, and Columbia Medical did not exercise the option to

guarantee a response time for echocardiographic studies. As a result, On-Call

Specialists was under no obligation to provide echo services within a specified

time period, and Columbia Medical elected not to ensure the provision of urgent

echo services to its critical care patients, which stands in contrast to

Columbia Medical’s decision to obtain guaranteed response times for vascular

studies from On-Call Specialists. Morton Graham, proprietor of On-Call

Specialists, called Montgomery on a couple of occasions to discuss the

guaranteed response option for echo studies, but Montgomery appeared

uninterested and never engaged those services until after Hogue’s death. In

addition, Graham explained that Montgomery never inquired what response time

could be expected under the contract, and Montgomery acknowledged that he never

consulted any physician concerning what an appropriate response time would

be.

Dr. Ira Korman, Columbia Medical’s expert and professional consultant on

hospital administration, testified that there is no requirement that a hospital

provide echocardiography services, nor a requirement that if a hospital does

provide such services, that the hospital must provide the services within a

certain period of time. He also opined that Columbia Medical acting as a

reasonably prudent hospital would, in the same or similar circumstances, enter

into the contract for the provision of echo services, even though it did not

provide for services on an urgent basis. Dr. Korman’s testimony was contradicted

by the hospital. Montgomery, director of those services for Columbia Medical,

testified that stat echo services were necessary at Columbia Medical. Although

Montgomery testified that the medical staff had reported that they were

satisfied that patient care needs were being met under the contract, he admitted

that he did not know if an echo had been needed on a stat basis from the August

1997 opening of the medical center to the time of Hogue’s treatment in the

emergency department at Columbia Medical.

Peter Bastone, the Hogues’ expert on the hospital’s standard of care and Chief

Executive Officer of a hospital in California, testified that when a hospital

contracts to outsource a patient service, “there should be specific guidelines

in terms of how quickly that contracted service will come in and provide that

service” and that “its staff need[s] to be aware of how to order this

procedure.” Similarly, Montgomery and Pat Sullivan, a registered nurse who was

Columbia’s Chief Operating Officer, testified that it was prudent and necessary

for the hospital to have communicated to the physicians whether they would be

able to get an echo on a stat basis. Furthermore, Montgomery testified that he

did not inform Columbia Medical’s medical staff that an echocardiogram could not

be provided on a stat basis and that he was not aware if anyone communicated

this information to them. In fact, both Drs. Blomquist and Schroeder (director

of the ICU), physicians who treated Hogue, testified that they did not know that

the echo services were outsourced or that there was no effective procedure to

ensure the availability of echo services on a stat basis to treat their

patients, prior to March 9, 1998. This vital information was not even contained

in Columbia Medical’s Health Care Plan, which Sullivan testified is the method

by which the hospital communicates to the medical staff the capabilities the

hospital has to support patient care.

There is some evidence that the nursing staff was informed before March 9, 1998

that echo services were outsourced, and Dr. Schroeder discovered that fact for

the first time when he ordered the stat echo for Hogue on March 9. There is

clear and convincing evidence that Columbia Medical had actual knowledge of the

necessity for emergency echo services in this case, declined to make such

services available, and failed to communicate the limitation on its echo

services to the physicians or nursing staff. This evidence shines a different

light on Montgomery’s statement that the medical staff was satisfied that

patient care needs were being met because the critical deficiency in the

hospital’s provision of necessary emergency medical capabilities did not become

apparent to the treating physicians until it tragically manifested in Hogue’s

case.

When the evidence establishes the necessity for certain urgent services for

critical care, the experts explained that the need may be met by timely

transferring a patient to a nearby facility that provides the service. Bastone

testified that “once the patient’s assessed and hopefully stabilized, and it’s

knowledgeable that you don’t have the technology or the specialist available to

do the kind of intervention that’s necessary, then transferring that patient as

quickly as possible is key.” The Hogues’ causation expert, Dr. Sidney Levitsky,

a cardiothoracic surgeon, Harvard Medical School professor, and senior vice

chairman of the department of surgery at Beth Israel Deaconess Medical Center in

Boston, also testified that, ideally, a patient should be transferred “as

quickly as possible to the best facility able to take care of their illness,

particularly, if the local facility doesn’t have the wherewithal to do it.” In

fact, Dr. Blomquist, one of Hogue’s treating physicians, testified that he had

an “obligation” to transfer a patient if he had determined that the hospital

could not care for that patient. And Montgomery admitted that if a patient

needed a stat echo, the patient should be transferred to another facility with

stat echo capabilities. However, in this case, because the hospital did not

communicate the hospital’s inability to ensure the availability of emergent echo

services, the physicians had no opportunity to adequately assess the risks and

benefits of transferring Hogue to another hospital in lieu of waiting to obtain

echo services.

The dissenting Justices suggest that the doctor who ordered Hogue’s echo, Dr.

Schroeder, was informed about the length of time it would take to get an echo

and chose to wait rather than transfer Hogue or attempt to obtain diagnostic

services elsewhere:

Despite

the echo technician having told Hogue’s nurse that it would probably take up to

two hours for him to get to the hospital, Dr. Schroeder’s echo order remained in

place, and Hogue’s treating physicians chose to wait rather than immediately

transfer Hogue to another hospital, which could have been done under the

hospital’s policies.

___ S.W.3d at

___ (Green, J., concurring and dissenting). The quoted passage implies that Dr.

Schroeder was informed about the extent of the delay and exercised medical

judgment in deciding to wait nearly three hours for the study, but that is

contrary to the evidence at trial. The record shows that Dr. Schroeder

appreciated both the gravity of the situation and that time was of the essence.

When Dr. Schroeder phoned the radiology department to order the echo, he learned

for the first time that echo services were outsourced and that a technician

would have to be called in from another location. Given this information, Dr.

Schroeder testified that he informed the radiology department that he wanted the

echo “now.” He testified unequivocally that he was never told when the echo

could be expected. The evidence does not suggest that Dr. Schroeder was aware

that it would take one hour for the hospital to communicate with the echo

technician and another two hours to get the echo study. In fact, Dr. Schroeder

testified that he expected to get an echo “within 30 to 60 minutes.”

There is considerable other evidence in this case that such a significant delay

was not expected. Indeed, all the evidence offered regarding the appropriate

stat echo response time in this case establishes that Columbia Medical clearly

breached the standard of care. Dr. John Lawson, the cardiologist who recommended

the stat echo for Hogue, testified that, in his opinion, “stat” meant “within an

hour or two.” In addition, Montgomery testified that, as applied to an order for

an echocardiogram, “stat” means that the “procedure needs to be prioritized

higher than . . . routine orders and it needs to be done as soon as possible,”

but that it would not necessarily be possible to perform an echo immediately.

However, Montgomery acknowledged that Columbia Medical’s internal list of

abbreviated terms defines “stat” as “immediately.” Bastone, the Hogues’ expert

on hospital administration, testified that the standard of care for stat echo

response time is a thirty minute response. He opined that Columbia Medical’s

response time in this case fell below that standard. Dr. Levitsky, the Hogues’

causation expert, testified that the emergency rooms and intensive care units he

had been affiliated with had echo response times that ranged from fifteen to

thirty minutes. He testified that the three hours it took to obtain an echo

study for Hogue was too long.

In terms of the degree of risk, experts testified that echocardiograms are

ordered on a stat basis only when necessary, which is uncommon. However, Dr.

Levitsky testified that it is still important to be able to perform an

echocardiogram on a stat basis because “many times a patient’s life is in

immediate danger, or shortly will begin to decompensate if one misses the

diagnosis.” He testified that, in this case, Hogue would have had a

ninety-percent chance of survival if he had been diagnosed and transferred to

Baylor Irving earlier.

Experts for both the plaintiffs and the defendant testified that a health care

facility that provides emergency cardiogenic services must have stat echo

capability, whether provided by staff or on a contract basis. As previously

detailed, several medical experts testified that the response time for a stat

echo was fifteen to sixty minutes. Dr. Schroeder, the physician who primarily

treated Hogue at Columbia Medical that day, testified that an echo on a stat

basis should be obtained in under an hour. Columbia Medical’s Director of

Clinical Outpatient Services confirmed that stat echo ability was necessary for

Columbia Medical’s emergency department, and it was Columbia Medical’s policy

that a “stat” echo should be provided “immediately” or as soon as possible.

Notwithstanding this knowledge, Columbia Medical elected not to secure echo

capability on a stat basis, even after Morton Graham advised the hospital to do

so on more than one occasion. Importantly, Columbia Medical failed to advise the

physicians on staff that it did not provide echo services on an emergency basis.

Because the hospital had not informed its emergency medical staff of the lack of

stat echo capability, Hogue was without a timely, emergency echocardiogram at

Columbia Medical and was not transferred to obtain one.

Furthermore, although the stat echo was ordered at 3:35 p.m., Columbia Medical’s

nurses did not call the echo technician service until 4:10 p.m. Morton Graham

returned the call at 4:30 p.m., but advised the ICU nurse that he would not be

able to arrive until approximately two hours later. After arriving at Columbia

Medical shortly after 6:00 p.m., Graham explained, he had to spend time setting

up the room to perform the echo. The stat echo study was not completed until

6:30 p.m., three hours after the emergency echo was ordered.

Columbia Medical argues that the inability of the on-call service to respond

sooner than the two-hour guaranteed response time option provided in the

contract negates proximate causation. We disagree. Graham affirmed that if

Columbia Medical had wanted stat echo capabilities, he would have been willing

to negotiate terms for an urgent response time, but Columbia Medical was not

interested in guaranteeing a response time. [3] Although Graham provided a two-hour

response option, Columbia Medical did not exercise that option. Nevertheless,

Graham testified that (1) he actually got to the hospital within two hours of

being paged in Hogue’s case, which is all he would have been able to guarantee

under the terms of the contract, and (2) he could not have gotten there any

sooner on that day. Graham made it clear, however, that the terms of the

contract with Columbia Medical did not obligate him to obtain the resources to

be able to respond in less than two hours. Graham testified that he would always

come as quickly as he possibly could, but he was not obligated to do so and,

therefore, could not guarantee that he would be able to do so at any given time.

Tragically for Hogue, Graham was unable to get there any earlier than he did,

but that does not negate proximate cause. To the contrary, it is the lack of an

effective procedure for getting these critical services on a stat basis—in two

hours or less, as all the experts testified was required—that supports the

jury’s gross negligence finding. As Dr. Schroeder stated, if he and Dr. Hecht

had obtained the echo within 30 or 60 minutes, he “would have started the

process to transfer” at that point, increasing the opportunity to save Hogue’s

life.

In sum, there is sufficient evidence to support the jury’s conclusion that

Columbia Medical acted with conscious indifference to an extreme risk of serious

injury when it (1) elected to outsource echo services without a guaranteed

response time while providing emergency services, (2) failed to communicate this

limitation to its medical staff so they could consider other options to treat

critical care patients, and (3) delayed obtaining the echo in spite of the

serious risk to Hogue’s health. Although the jury was presented with some

conflicting evidence, we conclude that the jury could have resolved disputed

facts in favor of the Hogues to form a firm belief or conviction that Columbia

Medical breached the standard of care, that such a departure created an extreme

degree of risk of serious injury, and that Columbia Medical had actual,

subjective awareness but acted in a manner that exhibited conscious indifference

to this risk. Garza , 164 S.W.3d at 621, 627 (holding that an elevated

burden of proof at trial requires a correspondingly elevated standard of

review); In re J.F.C. , 96 S.W.3d at 266 . Because we conclude that the

Hogues presented legally sufficient evidence of gross negligence based on the

hospital’s failure to provide stat echo capability without communicating the

lack of such services to the physicians and nurses, we need not reach the other

bases of gross negligence the Hogues raised. We therefore affirm the court of

appeals’ judgment affirming the award of exemplary damages capped by the

MLIIA.

We do not hold that Texas law requires all hospitals to provide all services to

all patients. Different hospitals may provide some services but not others

without necessarily breaching the standard of care, depending, of course, on the

circumstances. The standards are established under the common law by qualified

experts. In this case, the hospital knew of the “obvious” necessity for

potentially life-saving stat echo capabilities in connection with the emergency

medical services it decided to provide. Notwithstanding that knowledge, the

hospital failed to obtain an appropriate response time for critical support

services, failed to advise the medical staff of that limitation so they could

properly and timely treat patients in acute distress or transfer them to another

facility, and failed to provide an effective procedure to respond appropriately

to Hogue’s life-threatening situation. Under those circumstances, a jury could

properly conclude the hospital acted with conscious indifference.

C. Loss of Inheritance Damages

Columbia Medical next argues that the Hogues presented insufficient evidence to

support the jury’s loss of inheritance damages award. The jury was asked to

award loss of inheritance damages, if any, defined as “the loss of the present

value of the assets that the deceased, in reasonable probability, would have

added to the estate and left at natural death to the [Hogues].” The legal

sufficiency standard for loss of inheritance damages is whether there is more

than a scintilla of evidence to enable a reasonable person to reach a

conclusion. See St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 519-20

(Tex. 2002). We resolve all disputed evidence in favor of the jury’s finding,

but may not disregard undisputed evidence if a reasonable jury could not.

Id . at 519-20. Columbia Medical does not argue that inheritance damages

are unrecoverable or cannot be submitted as a separate item of damages.

Therefore, we review for legal sufficiency only under the charge as submitted to

the jury. See Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000).

We previously held in Yowell v. Piper Aircraft Corp ., 703 S.W.2d 630, 633

(Tex. 1986), and again in C&H Nationwide, Inc. v. Thompson , 903

S.W.2d 315, 322-24 (Tex. 1994) ( superseded by statute and abrogated on other

grounds by Battaglia v. Alexander , 177 S.W.3d 893, 909 (Tex. 2005)), that

loss of inheritance damages may be recovered in appropriate circumstances. When

loss of inheritance damages are recoverable, a plaintiff must prove that the

decedent’s earnings less his expenditures would have left an estate for his

beneficiaries to inherit and that the beneficiaries would have outlived the

decedent. C&H , 903 S.W.2d at 323-24 ; Yowell , 703 S.W.2d at

633 . In Yowell , we held that there was sufficient evidence of loss of

inheritance damages when the plaintiff beneficiaries valued the estate by

introducing evidence as to “the decedents’ salaries, expected raises, expected

promotions and salary increases, earning capacities, enforced savings through

pension plans, spending habits, age, health, and relationship with the wrongful

death beneficiaries.” 703 S.W.2d at 634 . In C&H , we clarified that

although loss of inheritance damages are allowed and are to an extent

indeterminate, “the willingness of the law to accommodate some indeterminacy in

assessing damages does not mean there are no limits.” 903 S.W.2d at 323 . If a

plaintiff proves loss of inheritance damages, the beneficiary is entitled to the

present value of the beneficiary’s share of what the decedent’s estate would

have been if the decedent had died a natural death. Yowell , 703 S.W.2d at

633 .

Columbia Medical challenges the loss of inheritance damages on three grounds.

First, Columbia Medical argues that the evidence did not establish that Hogue’s

wife would have outlived him. Next, Columbia Medical argues that the evidence

did not establish that Hogue’s future earnings would have exceeded his

expenditures. Finally, Columbia Medical challenges the competency of the Hogues’

financial expert, Dr. Allen Self.

The Hogues did not present legally sufficient evidence to support either that

Hogue’s wife would have outlived her husband, if he had died a natural death, or

that he would have had an estate left after his passing to bequeath to his

beneficiaries. To prove that Hogue’s wife would have outlived Hogue, the Hogues

presented evidence that she was three years younger than him, that life

expectancy tables showed her outliving her husband by nearly seven years, and

that the jury observed her appearance and demeanor in court. There was also

testimony regarding her employment. Columbia Medical opines that this evidence

is insufficient and that expert testimony was required to prove her medical

condition. We will not, as Columbia Medical prompts, require proof that Hogue’s

wife would have no health problems in the future, but we do require at least

some evidence of the beneficiary’s health. See Yowell , 703 S.W.2d at 634

(“The plaintiffs also produced evidence of the age and health of the wrongful

death beneficiaries.”). Asking a jury to ascertain Hogue’s wife’s health based

on her age or from simply observing her in court is not sufficient.

There was also insufficient evidence to prove the present value of what Hogue’s

estate would have been at his natural death. The jury awarded Hogue’s wife

$306,393 in loss of inheritance damages, the figure advanced by the Hogues’

expert, Dr. Self. Dr. Self testified that in arriving at the lost inheritance

damages, he considered, inter alia , Hogue’s savings accounts, stock

portfolio, equity in the marital home, and estimated future earnings based on

past earnings and work expectancy tables. While this evidence goes a long way

toward proving loss of inheritance damages, to the extent they are recoverable,

it does not cross the finish line under Yowell and C&H .

Yowell and C&H emphasize that in arriving at the present value

of the decedent’s estate, the figures used in the analysis must be specific to

the decedent. See C&H , 903 S.W.2d at 323 ; Yowell , 703 S.W.2d

at 634 . Some of the data Dr. Self utilized in his economic calculation came from

Hogue’s past work history, earnings, and savings. However, Dr. Self’s work

expectancy age of seventy years old, from which he calculated Hogue’s remaining

years in the workforce, did not account for the additional factors of Hogue’s

health after his operative procedure (had it been successful), post-operative

recuperation time, or likely future medical expenses. Instead, Dr. Self based

his calculations on an “average person,” and he extracted a working expectancy

of seventy years old from the work expectancy table. Thus, Dr. Self’s

calculations improperly failed to account for the health of the decedent. See

Yowell , 703 S.W.2d at 634 .

Moreover, figures used in determining how much of Hogue’s earnings would go

towards family expenses were based on assumptions contrary to undisputed facts.

The value of the remaining estate was based on the assumption that the Hogues’

home mortgage would have been paid off before Hogue’s death, leaving no mortgage

payment and therefore greater discretionary income. However, Dr. Self admitted

that he did not know that Hogue’s wife was still making monthly mortgage

payments on the home or that at Hogue’s passing, the Hogues were building a new

home. Importantly, Dr. Self’s analysis did not consider the impact of a new home

on the family’s finances in terms of equity or cost. For the reasons stated

above, we hold that there was insufficient evidence to support the jury’s award

of loss of inheritance damages.

D. Pre- and Postjudgment Interest

The final issue on appeal is the rate of pre- and postjudgment interest

applicable to the judgment. Pursuant to Texas Finance Code section 304.103,

prejudgment interest is awarded at the same rate as postjudgment interest. For

that reason, we will refer to the pre- and postjudgment interest rates

collectively as “interest rate.”

House Bills 2415 and 4 lowered the floor interest rate to five percent from ten

percent, and the ceiling interest rate to fifteen percent from twenty percent in

subsections (c)(2) and (c)(3), respectively, of Texas Finance Code § 304.003,

effective September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 676,

§ 2(a), 2003 Tex. Gen. Laws 2097 ; Act of June 2, 2003, 78th Leg., R.S., ch.

204, § 6.04, 2003 Tex. Gen. Laws 862 , 899. See also BIC Pen Corp. v.

Carter , 251 S.W.3d 500, 510 (Tex. 2008). The amendments applied to final

judgments that are “signed or subject to appeal on or after the effective date

of this Act.” § 2(a), 2003 Tex. Gen. Laws 2097 ; § 6.04, 2003 Tex. Gen.

Laws 862 . The trial court signed the amended final judgment in this case on

December 3, 2002, before the effective date. However, Columbia Medical argues

that the amendments apply because the case was “subject to appeal” on or after

the amendments’ effective date.

In interpreting section 304.003 of the Texas Finance Code, we “‘determine and

give effect to the Legislature’s intent’” from the plain and common meaning of

the statute. McIntyre v. Ramirez , 109 S.W.3d 741, 745 (Tex. 2003)

(quoting Tex. Dep’t of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex.

2002)). The Court must not interpret the statute in a manner that renders any

part of the statute meaningless or superfluous. City of Marshall v. City of

Uncertain , 206 S.W.3d 97, 105 (Tex. 2006) (citing City of San Antonio v.

City of Boerne , 111 S.W.3d 22, 29 (Tex. 2003)).

Columbia Medical’s plain language argument rests on its assertion that if the

Legislature had wanted to limit applicability of the amendments to judgments

“capable of being appealed,” the Legislature would have used those words. Under

Columbia Medical’s logic, therefore, courts must apply the amended section

304.003 to every case in the trial court or the appellate process as of the

amendments’ effective dates. This interpretation is too broad.

Columbia Medical argues that the phrase “subject to appeal” essentially means

“pending on appeal,” thereby reducing the interest award. Under this position,

the amendments would apply to all cases pending in the trial court and lower

courts of appeals on the amendments’ effective date. The Hogues counter that the

amendments only apply to judgments that became appealable after the effective

date of the amendments.

The plain and ordinary meaning of “subject to appeal,” when modifying a

judgment, is “capable of being appealed,” whether that is a final judgment

disposing of all parties and issues or an interlocutory appeal. Hosts of other

statutes also indicate that the plain and common meaning of “subject to appeal”

is capable of being appealed. See , e.g. , Tex. Bus. & Com. Code § 15.10(j)

(“Any final order is subject to appeal.”); Tex. Civ. Prac. & Rem. Code §

36.002(a) (applying section 36 to a foreign country judgment that is final where

rendered “even though an appeal is pending or the judgment is subject to

appeal”); Tex. Educ. Code §

28.0214(b) (declaring a school district board of trustees’ determination as to

grades not “subject to appeal”); Tex.

Fam. Code § 52.015(c) (making a directive to apprehend a child not

“subject to appeal”); Tex. Human Res.

Code § 36.101(m) (“[A] final order issued by a district court under [the

section dealing with attorney general action investigation of Medicaid fraud] is

subject to appeal to the supreme court.”). Interpreting the plain and common

meaning of “subject to appeal” to mean “on appeal” instead of “capable of being

appealed” renders the above examples absurd. See Tex. Dep’t of Protective

& Regulatory Servs. v. Mega Child Care, Inc ., 145 S.W.3d 170, 177-79

(Tex. 2004).

Therefore, contrary to Columbia Medical’s urging, we interpret the plain

language of House Bills 2415 and 4 to apply section 304.003 to judgments that

became final after their effective dates. In doing so, we apply the plain and

common meaning of the words “subject to appeal.” Because the appeal of the

judgment in this case could not have been initiated after the effective dates of

the amendments, House Bills 2415 and 4 do not apply. We affirm the court of

appeals on this point.

III. Conclusion

Although we have serious reservations about the trial court’s decision to

trifurcate the trial, we affirm the court of appeals’ holding on the

contributory negligence issue because Columbia Medical did not raise a fact

question on causation necessary to support the submission of the question to the

jury. We affirm the award of actual damages and gross negligence damages awarded

to the Hogues because the proffered evidence satisfies the standard for

recovery. We reverse the portion of the judgment awarding loss of inheritance

damages. Finally, we affirm the court of appeals’ holding that the 2003

amendments to Texas Finance Code section 304.003 do not apply to cases that were

either actually appealed or capable of being appealed before the amendments’

effective dates.

______________________________

J. Dale

Wainwright

Justice

OPINION

DELIVERED: August 29, 2008

[1]

The lawsuit originally named several doctors and professional associations, but

these defendants, by way of settlement, nonsuit, or summary judgment, are no

longer parties to the suit.

[2]

The Hogues also argue that Columbia Medical was grossly negligent due to its

failure to have an on-call list by specialty and for misleading advertising. For

the reasons that follow, we need not reach these additional bases.

[3]

Graham testified that, if Columbia Medical had wanted to secure expedited echo

services, even “30 minutes to 45 minutes,” he would have done “everything” to

secure the resources required to service the hospital’s needs. But because

Columbia Medical declined to consider expedited echo services, he lacked the

resources to guarantee expedited response times.