Opinion

NUMBER 13-04-00485-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTUS SPOHN HEALTH SYSTEM

CORPORATION, INDIVIDUALLY AND

D/B/A SPOHN HOSPITAL SOUTH AND

SPOHN HOSPITAL SOUTH, INDIVIDUALLY , Appellants,

v.

LISA MARIE DE LA FUENTE AND REYES

DE LA FUENTE, INDIVIDUALLY AND AS

NATURAL GUARDIANS AND NEXT

FRIENDS OF GIOVANI SETH

DE LA FUENTE, A MINOR, Appellees.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa (1) and Garza

Memorandum Opinion by Chief Justice Valdez

Christus Spohn Health System Corporation, Individually and d/b/a Spohn Hospital

South, and Spohn Hospital South, Individually (collectively "Spohn"), appeal a judgment

resulting from an adverse jury verdict in a medical malpractice case. Plaintiffs below and

appellees and cross-appellants herein, Lisa Marie De La Fuente and Reyes De La Fuente,

individually and as natural guardians of Giovani Seth De La Fuente, a minor, bring a cross

appeal regarding the trial court's application of a settlement credit. We modify the trial

court's judgment to vacate the award of mental anguish damages and, as modified, affirm

the judgment.

I. Background

Lisa De La Fuente delivered her first child by cesarean section and delivered her

second child vaginally. Lisa anticipated delivering Giovani, her third child, vaginally. Lisa

was admitted to Spohn and treated by Dr. Juan Caceres during her labor with Giovani.

Lisa's labor was augmented with the drug Pitocin. During labor, Giovani began suffering

variable decelerations in his heartbeat, and Lisa complained of pain and began vomiting.

After Giovani began experiencing bradycardia, a low heart rate, Dr. Caceres called for an

emergency cesarean section. In the operating room, the nurses could no longer hear

Giovani's heartbeat. Upon performing the cesarean, Dr. Caceres discovered that Lisa had

suffered a ruptured uterus and placental abruption. Giovani was stillborn but was

resuscitated. Giovani suffered profound brain damage from the loss of oxygen caused by

the uterine rupture and placental abruption. At the time of trial, Giovani had cerebral palsy,

could not swallow, suck, or gag, and was being fed through a stomach tube.

The appellees brought suit against Spohn and Dr. Caceres. Before trial, appellees

entered a high-low settlement with Dr. Caceres. At trial, appellees contended that Spohn

was negligent in, inter alia , (1) over-administering Pitocin to Lisa, resulting in

hyperstimulation of the uterus, resulting in the uterine rupture, (2) caring for Lisa during her

labor, and (3) delaying the cesarean section. The jury found that Spohn was negligent and

Dr. Caceres was not.

II. Spohn's Appeal

Spohn raises eight issues on appeal: (1) the trial court erred in entering judgment

on the verdict when there is legally and factually insufficient evidence to support the jury's

finding that Spohn was negligent or that said negligence proximately caused the injuries

in question, (2) the trial court abused its discretion in denying Spohn's motion to exclude

testimony that Pitocin causes uterine rupture, (3) the trial court erred in entering judgment

on the jury's award of $2,000,000 in mental anguish damages to the De La Fuentes in light

of law barring parents from recovering mental anguish damages for the negligent infliction

of non-fatal injuries to their children, (4) the trial court erred in entering judgment on the

jury's award of $5,000,000 in future medical expenses to the De La Fuentes where there

is legally and factually insufficient evidence to support such damages, (5) the trial court

abused its discretion in denying Spohn's motion to exclude Dr. Alex Willingham's testimony

regarding Giovani's projected life expectancy, (6) the trial court erred in entering judgment

on the jury's award of $675,000 in past medical expenses to the De La Fuentes when there

is legally and factually insufficient evidence to support such damages, (7) the trial court

erred in submitting a broad-form question on liability in the jury charge where the question

improperly allowed the jury to find Spohn liable based on theories of negligence for which

there are legally insufficient evidence, and (8) the trial court improperly applied Spohn's

settlement credit to the jury's award of damages in light of the Texas Supreme Court's

decision in Battaglia v. Alexander requiring settlement credits to be applied to an award of

past damages first.

A. Negligence and Proximate Cause

In its first issue, Spohn contends that the trial court erred in entering judgment on

the verdict because there is legally and factually insufficient evidence to support the jury's

finding that Spohn was negligent or that such negligence proximately caused the injuries

in question.

In reviewing a legal sufficiency challenge, we determine whether the evidence as

a whole rises to a level that would enable reasonable and fair-minded people to differ in

their conclusions. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). Anything

more than a scintilla of evidence is legally sufficient to support the finding. Leitch v.

Hornsby , 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the

evidence furnishes some reasonable basis for differing conclusions by reasonable minds

about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co. , 77 S.W.3d

253, 262 (Tex. 2002).

We view the evidence in the light favorable to the verdict, crediting favorable

evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. City of Keller , 168 S.W.3d at 827 . Evidence is legally insufficient when

the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law 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; or (4) the

evidence establishes conclusively the opposite of a vital fact. Id. at 810 .

In reviewing a factual sufficiency challenge, we consider and weigh all of the

evidence in support of and contrary to the finding, and will set aside a finding only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly

unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). In making this review, we do not

substitute our judgment for that of the jury, even if a different answer could be reached on

the evidence. See City of Keller , 168 S.W.3d at 821 . It is well established that jurors are

the sole judges of the credibility of the witnesses and the weight to be given to their

testimony. Id. at 819 . Therefore, a jury confronted with conflicting evidence may choose

to believe one witness and disbelieve others; it may resolve inconsistencies in the

testimony of any witness; or it may accept lay testimony over that of experts. Id.

Plaintiffs in medical negligence cases are required to prove by a preponderance of

the evidence that the allegedly negligent act or omission was a proximate cause of the

harm alleged. See Kramer v. Lewisville Mem'l Hosp ., 858 S.W.2d 397, 400 (Tex. 1993).

To establish proximate cause, the plaintiff must prove (1) foreseeability and (2)

cause-in-fact. Leitch , 935 S.W.2d at 118-19 . 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. v. Estate of Milo , 909 S.W.2d 508,

511 (Tex. 1995); see also Arguelles v. U.T. Family Med. Ctr ., 941 S.W.2d 255, 258 (Tex.

App.-Corpus Christi 1996, no writ). The precise words of "reasonable medical probability"

are not essential, but evidence of causation must still rise above mere conjecture or

possibility. See Duff v. Yelin , 751 S.W.2d 175, 176 (Tex. 1988); Brownsville Pediatric

Ass'n v. Reyes , 68 S.W.3d 184, 189 (Tex. App.-Corpus Christi 2002, no pet.). The trier of

fact may decide the issue of proximate cause in medical malpractice cases based upon:

(1) general experience and common sense from which reasonable persons can determine

causation; (2) scientific principles provided by expert testimony allowing the fact finder to

establish a traceable chain of causation from the condition back to the event; or (3) a

probable causal relationship as articulated by expert testimony. Columbia Med. Ctr. of Las

Colinas v. Bush , 122 S.W.3d 835, 852-853 (Tex. App.-Fort Worth 2003, pet. denied);

Marvelli v. Alston , 100 S.W.3d 460, 470 (Tex. App.-Fort Worth 2003, pet. denied).

Spohn asserts that appellees failed to present legally or factually sufficient evidence

that it (1) negligently administered Pitocin and such negligence caused Lisa's uterus to

rupture, or (2) negligently delayed Giovani's delivery and the delay caused his injuries. We

first examine the evidence regarding the alleged delay in Giovani's delivery.

1. Delay

According to Spohn, Nurse Monica Jarzmik timely called Dr. Caceres to the labor

room at 5:08 p.m., Dr. Caceres had the sole authority to call an emergency cesarean

section, and there was no delay in executing the call for an emergency cesarean. In

contrast, the jury had ample evidence from which it could have found several periods of

delay attributable to Spohn. First, there was some evidence from which the jury could have

concluded that Spohn delayed in failing to identify signs of uterine rupture and failing to

institute the chain of command to institute a cesarean section in a timely manner. Second,

the jury might have concluded that once Dr. Caceres called for an emergency caesarean

section, Spohn delayed both in removing Lisa from the hospital room to the emergency

operating room and in failing to have the emergency operating room prepared for the

surgery.

The parties presented detailed evidence from multiple witnesses regarding the

events prior to Dr. Caceres's call for the emergency cesarean section. All witnesses

agreed that there is a higher risk for uterine rupture in patients, such as Lisa, who attempt

vaginal births following a birth by cesarean section. In this context, appellees presented

expert testimony that Spohn's nurses over-administered Pitocin to Lisa, failed to recognize

the signs of hyperstimulation in Lisa's uterus, were unaware that Pitocin was associated

with an increased risk of a ruptured uterus in women who were having a vaginal birth after

a cesarean, and failed to identify the signs and symptoms of a ruptured uterus. Further,

Elizabeth Hill-Karbowski, a nurse expert testifying for appellees, testified that a charge

nurse can obtain assistance for a patient if the attending doctor is not available or treating

the patient. Spohn's experts, and nurses, vigorously denied these allegations, but the

testimony for Spohn's witnesses was not uniformly consistent from one witness to the next.

With regard to this issue, we would note that the record contains testimony from

which the jury may have inferred that Spohn's records regarding its actions during the labor

process were incorrect, or had been modified after the birth. Specifically, actions detailed

in the nursing notes, such as the application of oxygen and positioning of the patient, are

not substantiated by a videotape taken by a family member during labor. A witness

present during labor testified that she never saw a nurse make annotations on the paper

strip evidencing the fetal heart rate; however, such annotations were later found to be

present. There were discrepancies between events noted on the nursing flow chart and

the fetal monitor strip, particularly with regard to when the Pitocin was turned off. Given

these issues, we would note that the jury is the sole judge of the credibility of witnesses

and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson , 116

S.W.3d 757, 761 (Tex. 2003).

Dr. Caceres arrived in the labor room at 5:16 and attempted a vaginal birth. He

called for an emergency cesarean at 5:38. Within two to three minutes, Dr. Caceres was

in the operating room prepared to begin the operation. He testified that he waited ten to

fifteen minutes before Lisa arrived and the preparations were complete so that he could

begin the caesarean. It took Spohn seven minutes to move Lisa out of the labor and

delivery room, and she did not arrive in the operating room until 5:49, eleven minutes after

Dr. Caceres called for the emergency cesarean. The surgery did not begin until 5:57, eight

minutes after Lisa's arrival in the operating room. Giovani was delivered at 6:00.

Dr. Joseph Pasternak, a pediatric neurologist, testified Giovani suffered brain

damage due to a severe hypoxic ischemic insult caused by uterine rupture. He testified

that Giovani had a sustained bradycardia that started at approximately 5:35 and permanent

brain damage began to occur ten to fifteen minutes after the onset of bradycardia. He

testified that the threshold for insult is crossed at approximately eighteen minutes after

onset. He testified that Giovani's injuries started occurring no earlier than 5:45 and

probably at 5:50.

Charlotte Young, a nurse mid-wife testifying for Spohn, asserted that, under a

standard promulgated by the American College of Obstetricians and Gynecologists, a

hospital is allowed thirty minutes to perform a cesarean section, and that the nineteen

minute interval in this case fell well within that range. She testified that the failure to have

necessary personnel or instrumentation available could possibly constitute negligence, but

her review of the evidence indicated that the witnesses testified that the operating room

was ready when needed. In contrast, Nurse Jarzmik testified that Spohn was capable of

performing a cesarean in ten minutes. Dr. McBride, Spohn's expert, testified that if you

have anesthesia and a scalpel, you should be able to have a patient delivered in ten

minutes or less. Dr. Caceres stated that he had performed emergency cesareans in eight

to ten minutes.

Nurse Lydia Soto testified that she assisted other personnel in moving Lisa from the

labor and delivery room to the operating room. While she testified that Spohn's personnel

were moving as fast as they could getting Lisa out of the labor and delivery room and into

the operating room, she later admitted that she was unaware that Lisa's cesarean was a

"stat" cesarean. Similarly, the hospital's records failed to indicate that this was an

emergency cesarean section. According to Soto, the operating room was ready and set

up, including all required instruments, when she arrived with Lisa, but as discussed in more

detail below, this testimony was contradicted by Dr. Caceres's testimony and Lisa's

discharge summary. She testified that the only remaining task at that point was opening

the sterile packs of instruments. She testified that a scrub tech, Elva Garcia, had trouble

putting her surgical glove on, but this difficulty did not delay the surgery.

Nurse Judy Zurawski testified that it took her less than five minutes to prepare the

operating room for surgery.

The appellees' obstetrics and nursing experts both testified that it was below the

standard of care to take seven minutes to move Lisa out of the labor and delivery room.

Hill-Karbowski testified that this was an unacceptable period of delay. She testified that

the standard of care on how quickly a c-section needs to be performed is "as soon as

possible." Based on her expertise, based on a reasonable degree of nursing probability,

the standard of care would provide a reasonable amount of time of approximately ten to

twelve minutes. That is, the caesarean should be performed as quickly as possible, or ten

to twelve minutes from decision to delivery at the outside limit. Dr. Schifrin testified that it

should not have taken seven minutes to move Lisa from labor and delivery and eleven

minutes to the operating room. He testified that, under the circumstances, eleven minutes

was an "eternity."

Lisa testified that, after Dr. Caceres called for a cesarean section, there were some

nurses present in the labor and delivery room, but they were talking and laughing and

things were moving at a slow pace. Lisa's mother testified that she was in the waiting room

when nurses informed her that Lisa would be having a cesarean. She went in to see Lisa,

and saw two female nurses and one male standing in Lisa's room; they were talking and

laughing. One of the nurses was attempting to untangle wires behind the bed, but dropped

them and said laughingly, "I give up." Lisa's mother testified that she was in the room with

Lisa for "at least" five minutes before Lisa was taken to the operating room.

The discharge summary prepared by Dr. Caceres states that:

Due to the severity of the decelerations and due to the fact that the patient

was complaining of some discomfort in the abdominal wall, we decided to

proceed with emergency cesarean section and due to nonreassuring fetal

heart tones and with the possibility of a ruptured uterus, although there was

no evidence of any external bleeding at this point. Since this moment, we

moved the patient immediately to the c-section room. There was delay in the

c-section due to the fact that the technicians did not have the instruments on

the table like they usually do, ready for the emergency cesarean section, so

we had problems with the technicians trying to get all of the instruments and

the electrocoagulation and all the drapes ready for the caesarean section,

although we were already waiting to proceed with the emergency cesarean

section. Finally, at 6 o'clock we were able to proceed with the emergency

cesarean section, and we delivered the baby.

The discharge summary thus evidences a period of delay caused by the failure to have the

operating room prepared for surgery.

As stated previously, the jury is the sole judge of the credibility of witnesses and the

weight to be given to their testimony. Golden Eagle Archery, Inc. , 116 S.W.3d at 761 .

Spohn's nurses generally denied the existence of any delay; however, such testimony

stands in stark contrast to the testimony of Dr. Caceres, appellees' experts, Lisa, and her

mother. Moreover, and saliently, the nineteen minute interval between when the cesarean

was called and executed greatly exceeds the ten minute interval suggested by Spohn's

own witnesses as the duration in which Spohn was capable of performing a cesarean, and

certainly fails to meet the "as quickly as possible" standard suggested at trial. Finally, while

Dr. Caceres indicated at trial that he thought the staff was moving as quickly as possible

in preparing Lisa for surgery, this testimony is contradicted by his own discharge summary

and also by his own testimony that he waited ten to fifteen minutes in the operating room

before he could begin the surgery. Given the foregoing, we conclude that the evidence is

legally and factually sufficient that Spohn's delay proximately caused Giovani's injuries.

Although this evidence alone is sufficient to support the jury's verdict, we will further

examine the evidence pertaining to Spohn's administration of Pitocin.

2. Pitocin

Spohn also contends that there is legally and factually insufficient evidence that

Spohn's allegedly negligent administration of Pitocin proximately caused the injuries in

question because, as stated in Spohn's second issue, the trial court erred in admitting

evidence that Pitocin causes uterine rupture. In connection with this allegation, Spohn

contends that: (1) there is no scientific support for the claim that Pitocin causes uterine

rupture, (2) the medical literature and other evidence conclusively establishes that Pitocin

does not cause uterine rupture, and (3) the trial court's failure to exclude testimony that

Pitocin causes uterine rupture probably resulted in the rendition of an improper judgment.

Evidentiary rulings are committed to the trial court's sound discretion. Bay Area

Healthcare , Ltd. v. McShane , No. 05-1069, 2007 Tex. LEXIS 527, *5 , 50 Tex. Sup. J. 866

(Tex. June 8, 2007); Interstate Northborough P'ship v. State , 66 S.W.3d 213, 220 (Tex.

2001); City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995). Even if a trial

court errs by improperly admitting evidence, reversal is warranted only if the error probably

caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); Nissan Motor Co.

Ltd. v. Armstrong , 145 S.W.3d 131, 144 (Tex. 2004). We review the entire record and

require the complaining party to demonstrate that the judgment turns on the particular

evidence admitted. Nissan Motor , 145 S.W.3d at 144 .

As an initial matter, we would note that Spohn's argument focuses on whether or

not Pitocin causes uterine rupture. The record in this case contained ample evidence,

including medical literature, the package insert for Pitocin, and testimony from multiple

expert witnesses, that the improper administration of Pitocin causes hyperstimulation of

the uterus, which can increase the incidence of uterine rupture, particularly in vaginal births

following c-sections. The record includes no less than fourteen professional articles on this

subject. Even an expert for the defense, Dr. James McBride, testified that, while he does

not agree with the literature and testimony that Pitocin increases the likelihood of uterine

rupture in a vaginal birth after c-section, the injudicious use of Pitocin can perhaps increase

the likelihood of a rupture.

Dr. Barry Schifrin testified that the more liberal use of Pitocin, the greater the likely

risk of uterine rupture. Schifrin testified that if you exceed the normal limits or if you have

excessive contractions, there is an increased risk of rupture. He testified that it is well

understood that excessive use of Pitocin predisposes uterine rupture, especially in patients

who have had previous c-sections. He opined that the negligent use of Pitocin was a

proximate cause of the injury to Giovani, and that the prolonged, sustained, and excessive

use of Pitocin predisposed the mother to uterine rupture.

Dr. Juan Caceres testified that the nursing staff should have known that

hyperstimulation increases the risk of rupture in a uterus that has a previous scar. Dr.

Richard Munoz, Jr., an expert for Dr. Caceres, testified that a ruptured uterus is associated

with Pitocin and that where there is a previous surgical scar in the uterus, the patient would

be at an increased risk for rupture.

Other witnesses, such as nurses Charlotte Young and Monica Jarzmik, disagreed

with the proposition that Pitocin is associated with uterine rupture. It was apparent at trial

that Spohn's nursing staff was largely unfamiliar with this concept.

The package insert for Pitocin states that "Overstimulation of the uterus by improper

administration can be hazardous to both mother and fetus. Even with proper

administration and adequate supervision, hypertonic contractions can occur in patients

whose uteri are hypersensitive to oxtyocin." The insert notes that oxtyocin should not be

administered "in any condition in which there is a predisposition for uterine rupture , such

as previous major surgery on the cervix or uterus including cesarean section . . . ." The

insert notes that maternal deaths due to rupture of the uterus have been reported

associated with usage in induction of labor or augmentation of labor. Over dosage

depends on uterine hyperactivity, whether or not due to hypersensitivity to Pitocin, and

notes that hyperstimulation with strong (hypertonic) or prolonged (tetanic) contractions can

lead to, among other things, uterine rupture.

We conclude that the trial testimony, and evidence utilized by expert witnesses for

the plaintiffs, was relevant and reliable and was based on reliable foundation evidence.

The trial court did not abuse its discretion in admitting this evidence.

Based on the foregoing, we overrule Spohn's first and second issues.

B. Mental Anguish Damages

In its third issue, Spohn argues that the trial court erred in entering judgment on the

jury's award of $2,000,000 in mental anguish damages to the De La Fuentes in light of law

barring parents from recovering mental anguish damages for the negligent infliction of non-fatal injuries to their children. The jury awarded Lisa Marie De La Fuente $750,000 for past

mental anguish and $375,000 for mental anguish, that in reasonable probability, would be

sustained in the future. The jury awarded Reyes De La Fuente $500,000 for past mental

anguish and $375,000 for mental anguish, that, in reasonable probability, would be

sustained in the future.

The Da La Fuentes family relies on Birchfield v. Texarkana Memorial Hospital , 747

S.W.2d 361, 364-65 (Tex. 1987), arguing that the supreme court in that case recognized

a parent's entitlement to mental anguish resulting from serious permanent injury to a child

by letting stand the jury's award of that element of damages. Spohn contends that the

supreme court directly addressed and rejected a bystander claim for mental anguish

damages in Edinburg Hospital Authority v. Trevino , 941 S.W.2d 76, 81 (Tex. 1997) (holding

that "Texas's bystander cause of action precludes bystander recovery in medical

malpractice cases"). We agree with Spohn that the appellees' claim is controlled by

Edinburg , which precludes recovery of bystander mental anguish damages in a medical

malpractice case as a matter of law. See id. ; Morrell v. Finke , 184 S.W.3d 257, 270 (Tex.

App.-Fort Worth 2005, pet. abated); Denton Regional Med. Ctr. v. LaCroix , 947 S.W.2d

941, 957 (Tex. App.-Fort Worth 1997, writ dism'd by agr.). Accordingly, we sustain

Spohn's third issue.

C. Future Medical Expenses

In its fourth issue, Spohn contends that the trial court erred in entering judgment on

the jury's award of $5,000,000 in future medical expenses to the De La Fuentes where

there is no or factually insufficient evidence to support such damages. In its fifth issue,

Spohn contends that the trial court abused its discretion in denying Spohn's motion to

exclude Dr. Alex Willingham's testimony regarding Giovani's projected life expectancy.

The jury awarded $5,000,000 for "[r]easonable expenses of necessary medical care,

facility care, nursing/attendant care, rehabilitation, therapy, hospitalization, equipment and

pharmacy expenses, if any, that in reasonable probability, will be sustained by Giovani

Seth De La Fuente until he reaches the age of 18 years."

Texas follows the "reasonable probability" rule for future damages for personal

injuries. Fisher v. Coastal Transp. Co. , 230 S.W.2d 522, 525 (Tex. 1950); Antonov v.

Walters , 168 S.W.3d 901, 908 (Tex. App.-Fort Worth 2005, pet. denied); Sanmina-SCI

Corp. v. Ogburn , 153 S.W.3d 639, 643 (Tex. App.-Dallas 2004, pet. denied); Columbia

Med. Ctr. of Las Colinas v. Bush , 122 S.W.3d 835, 862-63 (Tex. App.-Fort Worth 2003,

pet. denied); Brownsville Pediatric Ass. v. Reyes , 68 S.W.3d 184, 191 (Tex. App.-Corpus

Christi 2002, no pet.); Rosenboom Mach. & Tool, Inc. v. Machala , 995 S.W.2d 817, 828

(Tex. App.-Houston [1st Dist.] 1999, pet. denied); City of San Antonio v. Vela , 762 S.W.2d

314, 321 (Tex. App.-San Antonio 1988, writ denied). In order to recover for future medical

expenses, the plaintiff must show there is a reasonable probability that such medical

expenses will be incurred in the future. Antonov , 168 S.W.3d at 908 ; Columbia , 122

S.W.3d at 862-63 ; Whole Foods Mkt. Southwest v. Tijerina , 979 S.W.2d 768, 781 (Tex.

App.-Houston [14th Dist.] 1998, pet. denied).

No precise evidence is required to support an award for future medical costs.

Tijerina , 979 S.W.2d at 781 ; Pipgras v. Hart , 832 S.W.2d 360, 366 (Tex. App.-Fort Worth

1992, writ denied). Although the preferred practice for establishing future medical costs

is through expert medical testimony, there is no requirement that the plaintiff establish such

costs through expert testimony. Antonov , 168 S.W.3d at 908 ; Tijerina , 979 S.W.2d at 781 .

The reasonable value of future medical care may be established by evidence of the

reasonable value of past medical treatment. Tijerina , 979 S.W.2d at 781 ; see Harvey v.

Culpepper , 801 S.W.2d 596, 599 (Tex. App.-Corpus Christi 1990, no writ); City of

Rosenberg v. Renken , 616 S.W.2d 292, 293 (Tex. Civ. App.-Houston [14th Dist.] 1981,

no writ); Thate v. Tex. & Pac. Ry. Co. , 595 S.W.2d 591, 601 (Tex. Civ. App.-Dallas 1980,

writ dism'd w.o.j.). The nature of the injury and the plaintiff's condition at the time of trial

are also relevant to determining an award for future medical costs. Tijerina , 979 S.W.2d

at 781 ; Pipgras , 832 S.W.2d at 366 . The jury can make its determination regarding the

amount of future medical expenses based on the injuries suffered, the medical care

rendered before trial, the progress toward recovery under the treatment received, and the

condition of the injured party at the time of trial. Antonov , 168 S.W.3d at 908 ; Tagle v.

Galvan , 155 S.W.3d 510, 519 (Tex. App.-San Antonio 2004, no pet.); Rosenboom Mach.

& Tool, Inc. , 995 S.W.2d at 828 ; Vela , 762 S.W.2d at 321 . To sustain an award of future

medical expenses, the plaintiff must present evidence to establish that in all reasonable

probability, future medical care will be required and the reasonable cost of that care.

Rosenboom Mach. & Tool, Inc. , 995 S.W.2d at 828 . It is within the jury's sound discretion

to determine what amount, if any, to award in future medical expenses. Antonov , 168

S.W.3d at 908 ; Sanmina , 153 S.W.3d at 643 ; Colulmbia , 122 S.W.3d at 862-63 ;

Rosenboom Mach. & Tool, Inc. , 995 S.W.2d at 828 ; Tijerina , 979 S.W.2d at 781 . Because

issues such as life expectancy, medical advances, and the future costs of products and

services are, by their very nature, uncertain, appellate courts are particularly reluctant to

disturb a jury's award of these damages. Antonov , 168 S.W.3d at 908 ; Sanmina , 153

S.W.3d at 643 ; Brownsville Pediatric Ass'n. , 68 S.W.3d at 191 . However, this standard of

review is "not so nebulous that a reviewing court will uphold a jury award for future medical

expenses when there is no evidence." Harvey v. Culpepper , 801 S.W.2d 596, 599 (Tex.

App.-Corpus Christi 1990, no writ).

Citing Harvey v. Culpepper , 801 S.W.3d 596 (Tex. App.-Corpus Christi 1990, no

writ), Spohn argues that the plaintiff is required to prove future medical expenses based

on "reasonable medical probability" rather than "reasonable probability." Spohn references

the following language in Harvey : "No evidence showed future medical expenses to a

reasonable medical probability." See id. at 599. Spohn contends that this language is

"controlling." We disagree. Reviewing Harvey as a whole, it is clear that Harvey applies

the reasonable probability standard for future damages:

The award of future medical expenses is within the discretion of the jury

provided there is a reasonable probability that the expenses will be incurred.

City of San Antonio v. Vela , 762 S.W.2d 314, 321 (Tex. App.-San Antonio

1988, writ denied); Armellini Exp. Lines v. Ansley , 605 S.W.2d 297, 311

(Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.). The jury may make its

award based on the nature of the injuries, the medical care rendered prior to

trial, and appellee's condition at trial. Vela , 762 S.W.2d at 321 .

Id. Other cases from this Court also apply the "reasonable probability" standard. See

Brownsville , 68 S.W.3d at 191 ; Volkswagen of Am., Inc. v. Ramirez , 79 S.W.3d 113, 128

(Tex. App.-Corpus Christi 2002, rev'd on other grounds , 159 S.W.3d 897 (Tex. 2004); see

also Reliance Steel & Aluminum Co. v. Sevcik , No. 13-03-00407-CV, 2006 Tex. App.

LEXIS 1839 , *5 (Tex. App.-Corpus Christi Mar. 9, 2006, pet. filed) (mem. op.). Further,

several of our sister courts have considered and rejected the exact contention that Spohn

is making here, that future medical expenses must be proved by a reasonable medical

probability rather than a reasonable probability. We join those courts in concluding that the

plaintiff is not required to prove future medical expenses based on "reasonable medical

probability." See Antonov , 168 S.W.3d at 908 ; Columbia , 122 S.W.3d at 864 ; Furr's Inc.

v. Logan , 893 S.W.2d 187, 194 (Tex. App.-El Paso 1995, no writ).

Spohn contends that there is no or factually insufficient evidence that: (1) Giovani's

projected life expectancy would support an award of $5,000,000 in future medical

expenses; and (2) even assuming Giovani lived up to 18 years of age, Giovani would have

incurred $5,000,000 in medical expenses.

Spohn first asserts that there is no or factually insufficient evidence that Giovani

would have lived beyond five to six years of age. Spohn's experts, Dr. Carol De Line and

Dr. Jerry Tomasovic, testified at trial variously that Giovani's life expectancy would range

from five to six years of age. In deposition testimony, Dr. Tomasovic had originally

estimated that Giovani's life expectancy was seven to ten years of age, but he revised that

estimate following Giovani's hospitalizations the summer prior to trial.

In contrast, appellees' expert, Dr. Willingham, testified that Giovani's life expectancy

was an additional thirty-seven years at the time of trial. Spohn contends that Dr.

Willingham's testimony was unreliable and should have been excluded because it was

based on data for persons with spinal cord injuries, rather than individuals in Giovani's

circumstances. Dr. Willingham testified, essentially, that there was not a life expectancy

table for those individuals with the precise brain injury suffered by Giovani, so he utilized

data referable to a "parallel population," that is, individuals with spinal cord injuries, who

have similar medical issues. Willingham's opinion regarding Giovani's life expectancy was

based on the data referable to a parallel population, as well as other criteria.

We reject Spohn's contention. First, expert testimony regarding future medical costs

is not required to establish future medical expenses. Second, life expectancy tables are

based upon averages and are not binding upon the jury. Armellini Express Lines, Inc. v.

Ansley , 605 S.W.2d 297, 311 (Tex. App.-Corpus Christi 1980, writ ref'd n.r.e.); Roberts v.

Tatum , 575 S.W.2d 138, 142 (Tex. Civ. App.-Corpus Christi 1978, writ ref'd n. r. e.).

Moreover, appellees were not required to prove Giovani's life expectancy by a reasonable

medical probability. Columbia , 122 S.W.3d at 864 . In fact, such a burden of proof is

impossible because life expectancy, by its very nature is uncertain. See id. ; Pipgras , 832

S.W.2d at 365 . Accordingly, we reject Spohn's argument. Moreover, given that Giovani

had incurred $500,000 in medical expenses per year for his first two years of life, the jury

may well have concluded that he would incur that same amount annually for a period of

ten years, a duration of time that one of Spohn's own experts testified that Giovani could

survive.

In a subissue, Spohn contends that Giovani would not have incurred $5,000,000

in future medical expenses even if he had lived until his eighteenth birthday. According to

Spohn, assuming the testimony of the appellees' experts are taken at face value, their

economics expert testified that Giovani's future medical expenses up to 18 years of age,

adjusted for inflation, would be only $4,300,038.

Based on our review of the jury's findings and the record evidence, it appears

evident that the jury rejected both Spohn and appellees' arguments regarding future

medical expenses. Spohn estimated that Giovani would incur only $1,733,712 in future

medical expenses until the age of 15, with each additional year thereafter costing only

$176,135. Spohn also presented evidence that an annuity to fund Spohn's life care plan

to 10 years of age would cost $1,700,000, or $1,966,000 with inflation. But significantly,

Spohn's life care plan excluded any expenses for hospitalizations and also excluded

nursing services for Giovani estimated to cost $162,000 per year. Spohn's life care plan

also failed to include hyperbaric treatment, stem cell treatment, or colostrum.

Dr. Willingham testified regarding two different possibilities for Giovani's future care.

In the first scenario, Giovani would receive care at home until his mother turned 60 years

of age, then he would move to a care center. This scenario would cost $8,973,807.90.

Under the second scenario, Giovani would receive care at home until he reached 18 years

of age, then he would move to a residential treatment center. This scenario would cost

$9,728,582.68. Dr. McCoin testified that the present day cost of either option to age 18

was $3,979,708, unadjusted for inflation that had occurred since the report was done. The

additional cost past age 18 was either $3,889,582 for the first scenario, or $4,458,165 for

the second.

It was undisputed that Giovani suffered severe brain damage causing permanent

and wholly disabling injuries. He required full-time care and his condition rendered him

subject to repeated hospitalizations, even at the time of trial. At the age of two and one-half, Giovani had already incurred over $1,000,000 in medical expenses. Accordingly, the

jury had before it evidence to establish that in all reasonable probability, Giovani would

require future medical care and the reasonable cost of that care. Rosenboom Mach. &

Tool, Inc. , 995 S.W.2d at 828 .

Viewing only the evidence and inferences tending to support the jury's future

medical expenses award and disregarding all evidence and inferences to the contrary, we

hold that the evidence is legally sufficient to support the jury's award of future medical

expenses. See Columbia , 122 S.W.3d at 864 ; Bradford , 48 S.W.3d at 754; Brownsville

Pediatric Ass'n , 68 S.W.3d at 192 ; Furr's, Inc ., 893 S.W.2d at 194 ; Pipgras , 832 S.W.2d

at 366 . Further, considering all of the evidence, the evidence supporting the jury's future

medical expense award is not so weak, nor is the evidence to the contrary so

overwhelming, that the answer should be set aside and a new trial ordered. See Columbia ,

122 S.W.3d at 864 ; Garz a, 395 S.W.2d at 823; Brownsville Pediatric Ass'n , 68 S.W.3d at

192 ; Furr's, Inc ., 893 S.W.2d at 194 ; Pipgras , 832 S.W.2d at 366 . We overrule appellant's

fourth and fifth issues.

D. Past Medical Expenses

In its sixth issue, Spohn asserts that the trial court erred in entering judgment on the

jury's award of $675,000 in past medical expenses to the De La Fuentes when there is no

or factually insufficient evidence to support such damages. Specifically, Spohn contends

that Dr. Willingham's testimony that the past expenses were reasonable, necessary, and

resulted from Spohn's conduct was not competent or sufficient evidence because Dr.

Willingham's opinion was based on his review of summaries of the medical bills rather than

his review of all of the actual medical bills.

We disagree with Spohn's assertion. Under the rules of evidence, the "facts or data

in the particular case upon which an expert bases an opinion . . . may be those perceived

by, reviewed by, or made known to the expert . . . ." Tex. R. Evid. 703. Facts or data need

not be admissible in evidence if "of a type reasonably relied upon by experts" in that

particular field. See id. This Court has previously allowed expert testimony based on

summaries of records even where the summaries themselves were not admissible. See

Welder v. Welder , 794 S.W.2d 420, 429-30 (Tex. App.-Corpus Christi 1990, no writ); see

also Rio Grande Valley Gas Co. v. City of Edinburg , 59 S.W.3d 199, 222-23 (Tex.

App.-Corpus Christi 2000) (rejecting argument that expert's opinion constituted "no

evidence" because it was based on summaries of records), rev'd on other grounds , 129

S.W.3d 74 (Tex. 2003).

In the instant case, the De La Fuentes incurred more than $1 million in past medical

expenses. The record contains these medical bills. Dr. Willingham testified that these

costs and expenses were reasonable and necessary and were the result and consequence

of Giovani's brain injury. The jury awarded $675,000 for past medical expenses, less than

the amount actually incurred by appellees.

We overrule this issue.

E. Charge Error

In its seventh issue, Spohn argues that the trial court erred in submitting a broad-form question on liability in the jury charge where the question improperly allowed the jury

to find Spohn liable based on theories of negligence for which there was legally insufficient

evidence.

"In all jury cases the court shall, whenever feasible, submit the cause upon

broad-form questions." Tex. R. Civ. P. 277. "It is implicit in this mandate that the jury be

able to base its verdict on legally valid questions and instructions." Crown Life Ins. Co. v.

Casteel , 22 S.W.3d 378, 390 (Tex. 2000). The court's charge must be drafted in order to

enable us "to determine whether properly submitted theories constituted the basis of the

jury's verdict." Id. at 389 . Accordingly, when a jury bases a finding of liability on a single

broad-form question that commingles legally invalid theories of liability with legally valid

theories, we are sometimes, but not always, unable to determine the effect of this error.

Id. at 388 .

Under this rule from Casteel , when the jury charge is drafted in a manner such that

the jury may have based its finding of "liability solely on one or more . . . erroneously

submitted theories . . . it is impossible for us to conclude that the jury's answer was not

based on one of the improperly submitted theories." Id. at 389 (emphasis added).

"However, when questions are submitted in a manner that allows the appellate court to

determine that the jury's verdict was actually based on a valid liability theory, the error may

be harmless." Id. (citing City of Brownsville v. Alvarado , 897 S.W.2d 750, 752 (Tex. 1995)

("Submission of an improper jury question can be harmless error if the jury's answers to

other questions render the improper question immaterial."); Boatland of Houston, Inc. v.

Bailey , 609 S.W.2d 743, 749-50 (Tex.1980) (holding that the potentially improper

submission of defensive issues was harmless error when the jury also found for the

defendant on independent grounds)).

The Texas Supreme Court recently considered expanding this rule from Casteel but

declined to expand the rule:

Under Casteel and Harris County , we presume that the error was harmful

and reversible and a new trial required when we cannot determine whether

the jury based its verdict solely on the improperly submitted invalid theory or

damage element. Id. ; Casteel , 22 S.W.3d at 388 . . . . We specifically limited

our holdings in Casteel and Harris County to submission of a broad-form

question incorporating multiple theories of liability or multiple damage

elements. Harris County , 96 S.W.3d at 235; Casteel , 22 S.W.3d at 388 . . .

. When, as here, the broad-form questions submitted a single liability theory

(negligence) to the jury, Casteel 's multiple-liability-theory analysis does not

apply.

Bed, Bath & Beyond, Inc. v. Urista , 211 S.W.3d 753, 756-57 (Tex. 2006). In the instant

case, the broad-form questions submitted a single liability theory, negligence, to the jury,

and, accordingly, Casteel 's multiple-liability-theory analysis does not apply. See id.

In addition to the Texas Supreme Court's recent conclusion that " Casteel 's

multiple-liability-theory analysis does not apply" when the charge includes a broad-form

submission on a single liability theory, our sister Court of Appeals in El Paso has also

correctly noted that " Casteel does not apply until or unless the party seeking reversal and

remand for charge error makes a 'timely and specific' objection to the inclusion of the

contested question." El Paso Refining, Inc. v. Scurlock Permian Corp. , 77 S.W.3d 374,

386 (Tex. App.-El Paso 2002, pet. denied) (op. on reh'g) (citing Casteel , 22 S.W.3d at

389-90 ). "Under Casteel , remand is only required when a theory should never have been

presented to the jury because there was no valid legal , as opposed to factual , basis for

such submission." El Paso Refining , 77 S.W.3d at 386 (citing Casteel , 22 S.W.3d at 388 ).

Accordingly, to preserve any alleged error under Casteel , the objection must "inform the

trial court that this issue was a question of law for the court to resolve." El Paso Refining ,

77 S.W.3d at 386 . Specifically, when the "only trial objections were that the evidence was

insufficient to permit their submission to the jury, not that the issues were legally barred

from the case," such objections are insufficient to preserve a Casteel complaint. El Paso

Refining , 77 S.W.3d at 386 .

In the instant case, Spohn's objection to the liability question in the jury charge failed

to preserve error on the alleged applicability of Casteel . Spohn objected as follows:

The only other objection I would have would be to the general submission

simply because the format permits the plaintiffs to argue acts of negligence

on which there is no expert testimony regarding causation. To that extent it

could lead to rendition of [an] improper verdict based on evidence of

negligence on which there is no expert testimony on proximate cause. That

would be our objection to that.

Spohn's objection that there was no evidence regarding causation was not an objection

that the issue was legally barred, and accordingly, was insufficient to preserve a Casteel

complaint. El Paso Refining , 77 S.W.3d at 386 .

Even if we were to conclude that Spohn's no evidence objection preserved its

current Casteel complaint, we still could not accept Spohn's argument that the broad-form

negligence question submitted in this case presents a Casteel error. In Casteel , the

court's charge submitted five distinct DTPA-based theories of liability, along with eight other

theories of liability, in a single broad-form question. Id. at 388 . Because the plaintiff in

Casteel lacked standing to assert four of the five DTPA theories, the trial court erred by

submitting those legally invalid theories to the jury. Id. The supreme court held that this

error was harmful because the court of appeals could not determine whether the jury

based its verdict on an improperly submitted invalid theory or on a properly submitted valid

theory. Id .

Casteel applies to multiple theories of liability; by contrast, the instant situation

involves only one. Here, appellees pleaded one theory of liability against Spohn and one

theory of liability against Dr. Caceres: negligence. Within appellees' pleading, appellees

pleaded specific negligent acts by Spohn. But these acts are not separate theories of

liability and do not constitute the assertion of any additional basis for recovery. Id. ;

Formosa Plastics Corp., USA v. Kajima Int'l, Inc ., No. 13-02-385-CV, 2006 Tex. App.

LEXIS 11098, 36-38 (Tex. App.-Corpus Christi Dec. 28, 2006, no pet. h.); Columbia , 122

S.W.3d at 859 .

Moreover, Spohn's reliance on Romero v. KPH Consol., Inc. , 166 S.W.3d 212 (Tex.

2005), is also inapposite. Spohn contends that Romero stands for the proposition that

submitting a broad-form jury question that would allow a jury to find liability or damages

based on legally or factually invalid theories is an abuse of discretion. However, the

situation in Romero is distinguishable from the instant situation. The mistake in Romer o

was the inclusion of a specific liability question as to malicious credentialing, for which

there was no evidentiary support, coupled with a broad-form apportionment question. See

id. at 214-15 . In the instant case, there was one liability question, that of negligence, and

the jury did not apportion responsibility between Spohn and Dr. Caceres. Moreover,

Romero stands for the proposition that the significant benefits of broad-form submission

neither necessitate nor justify misleading the jury with legally or factually invalid claims, and

there is no indication that the jury was misled by this charge. See id. at 215 . Accordingly,

Romero does not control our analysis in the instant case.

Finally, the error of including a factually unsupported claim in a broad-form jury

question is not always reversible. See id . at 227. To be reversible, the erroneous

instruction must have "probably prevented the appellant from properly presenting the case

to the court of appeals." See Tex. R. App. p. 44.1(a)(2); Romero , 166 S.W.3d at 227 . On

this record, no issue was erroneously submitted to the jury and, moreover, we are

"reasonably certain that the jury was not significantly influenced by issues erroneously

submitted to it." See Romero , 166 S.W.3d at 227-28 . Consequently, even if Casteel

applied in the instant analysis, we would have found that any error in the jury instruction

was harmless.

We overrule this issue.

F. Settlement Credit

In its eighth issue, Spohn asserts that the trial court improperly applied Spohn's

settlement credit to the jury's award of damages in light of the Texas Supreme Court's

decision in Battaglia v. Alexander requiring settlement credits to be applied to an award of

past damages first. Battaglia v. Alexander , 177 S.W.3d 893, 911-12 (Tex. 2005). Under

Battaglia , decided approximately one year after the judgment in this case was signed,

settlement credits should be applied to past damages first, then to future damages. See

id. ; Taveau v. Brenden , 174 S.W.3d 873, 882 (Tex. App.-Eastland 2005, pet. denied).

Appellees, in contrast, argue that Spohn has failed to preserve this issue for review.

In the instant case, Spohn proposed that the trial court apply the settlement credit

proportionally to the award of past and future damages. The trial court followed Spohn's

recommendation. A party cannot complain on appeal that the trial court took a specific

action that the complaining party requested. Tittizer v. Union Gas Corp ., 171 S.W.3d 857,

862 (Tex. 2005). Moreover, the fact that Battaglia had not been decided did not relieve

Spohn of its obligation to timely object to the allocation of settlement credits. St. Paul

Surplus Lines Ins. Co. v. Dal-Worth Tank Co. , 974 S.W.2d 51, 53 (Tex. 1998). Even

though Battaglia was not yet the law, Spohn was obliged to lodge a timely objection to

preserve error. See id.

We overrule this issue.

III. De La Fuentes's Appeal

The De La Fuentes raise one issue on appeal: the trial court erred in approving their

settlement agreement with Dr. Caceres and reducing the damages awarded against

Spohn.

On December 8, 2003, the De la Fuentes and Dr. Caceres entered into a settlement

agreement. Under the pertinent terms of that agreement, if the jury found Dr. Caceres

negligent at trial, he would pay the De la Fuentes $200,000 plus his share of taxable costs,

but if the jury failed to find him negligent, he would pay $100,000 without taxable costs.

Dr. Caceres informed the trial court of the settlement both prior to trial and at the start of

the trial. Appellees did not object on either occasion. According to the record, counsel for

appellees expressly told Spohn that approval of the settlement by a guardian ad litem was

not necessary.

The jury did not find Dr. Caceres negligent, and, accordingly, the settlement was for

the amount of $100,000. Spohn had elected a sliding scale settlement credit and this

$100,000 settlement resulted in a $1,825,000 settlement credit.

Following the verdict, the De La Fuentes argued that the settlement was invalid

because the terms of the settlement had not been approved by a guardian ad litem. The

trial court subsequently appointed an ad litem on March 31, 2004, well after the jury's

verdict. The ad litem concluded that the settlement agreement was not in Giovani's best

interests and would not recommend approval of the settlement. The trial court

nevertheless concluded that the settlement agreement was in the best interests of the

minor at the time it was made, and, accordingly, enforced the settlement.

The De La Fuentes assert that the trial court should have examined whether the

settlement was in the best interest of the minor at the time it was presented to the court for

approval rather than at the time the settlement was made. They assert no authority for this

proposition.

Public policy favors agreements to resolve legal disputes through voluntary

settlement procedures. Jack B. Anglin Co. v. Tipps , 842 S.W.2d 266, 267 (Tex. 1992).

The law favors settlement of disputes and the prevention of litigation, and therefore

"compromise of doubtful and conflicting rights and claims is not only good and sufficient

consideration to uphold an agreement, but it is highly favored in law." Citgo Ref. & Mktg.

v. Garza , 187 S.W.3d 45, 61 (Tex. App.-Corpus Christi 2005, pet. abated) (quoting

McDonough v. First Nat'l Bank, 34 Tex. 309, 320 (1871)). The determination of whether

a settlement agreement is in a minor's best interests is reviewed for abuse of discretion.

See Texas Employers Ins. Ass'n v. Grimes , 269 S.W.2d 332 , 335 (Tex. 1954).

Based on the circumstances herein, we cannot conclude that the trial court abused

its discretion in enforcing the settlement agreement. We overrule this issue.

IV. Conclusion

We overrule Spohn's first, second, fourth, fifth, sixth, seventh and eighth issues.

We sustain Spohn's third issue and modify the trial court's judgment to vacate the award

of mental anguish damages. We overrule the sole issue presented by appellees in their

cross-appeal. As modified, we affirm the judgment.

______________________

ROGELIO VALDEZ,

Chief Justice

Memorandum Opinion delivered and filed

this the 16th day of August, 2007.

1. Justice Federico G. Hinojosa, Jr., whose term ended on December 31, 2006, not participating.