holding in a nursing home malpractice claim that trial court did not err in limiting nurse to testimony concerning deficiencies in care of the decedent instead of standard of care of nursing home generally because, despite her experience in nursing home investigations, knowledge of nursing home regulations, and clinical training, she was not qualified to testify to specific standard of care of a nursing home or defendant nursing home’s breach of such a standard
How later courts described this case
- holding in a nursing home malpractice claim that trial court did not err in limiting nurse to testimony concerning deficiencies in care of the decedent instead of standard of care of nursing home generally because, despite her experience in nursing home investigations, knowledge of nursing home regulations, and clinical training, she was not qualified to testify to specific standard of care of a nursing home or defendant nursing home’s breach of such a standard
- holding trial court did not err by refusing to submit issue on survival act damages for injuries that did not cause death where same allegations gave rise to both survival and wrongful death claims and evidence did not support verdict on survival claim
- holding that trial court had properly rejected claim of negligence per se premised on administrative regulation pertaining to nursing homes on grounds that penalties were civil and not criminal in nature
- holding that breach of statute cannot be used as basis for negligence per se claim in a medical malpractice case because expert testimony is required to prove a cause of action for medical malpractice
Written by the judges who cited it.
The opinion
DAUPHINOT, Justice,
dissenting.
I agree with Chief Justice Cayce’s reasoning in his concurring opinion and respectfully dissent to Justice Day’s holding that the photographs of Watson were not discoverable. I further respectfully dissent from the majority’s holding that the trial court did not err in failing to submit a jury question asking whether Watson Memorial’s negligence proximately caused injury to James Watson. As the majority points out, broad form submission is encouraged. 2 The liability question submit *517 ted, however, was narrowly, rather than broadly, posed.
Appellants’ petition included both a wrongful death action and a survival action. Appellants presented evidence in support of both claims. Appellants were, therefore, entitled to have both theories of recovery submitted to the jury. 3 The trial judge, however, limited the liability question to those injuries resulting in death. I do not understand, and the majority does not explain, how this question allowed the jury to return a verdict addressing Watson Memorial’s liability for injuries that did not lead to death. We cannot determine whether the jury found there was no injury, no negligence, or no causation. We can only ascertain that the jury did not find the evidence sufficient to support the Appellants’ wrongful death claim.
It is well established that wrongful death and survival claims are independent of each other and that no election between the two causes of action is required. 4 Nor, on the other hand, are they mutually exclusive. The majority, however, dismisses Appellants’ complaint by saying that even if the trial court erred in refusing to give the requested instruction on the survival action, “from our previous discussion concerning the factual sufficiency of Appellants’ evidence [to show wrongful death] we hold that the evidence of causation was insufficient to support a verdict in favor of Appellants on a survival claim.” I respectfully disagree with the majority’s reasoning.
As the majority correctly points out, our standard of review for determining the factual sufficiency of the evidence to support the jury’s verdict on the wrongful death action is whether the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. 5 The majority does not contend that there was insufficient evidence to support submission of the survival action issue. Indeed, there was ample evidence to support such submission. Additionally, in its discussion of the factual sufficiency of the evidence on the wrongful death action, the majority concedes that the outcome turned on the credibility of the witnesses, and not on lack of evidence. The majority upholds the jury’s verdict on this issue, not because there was no evidence to support a contrary verdict, but because “the jury could have believed from the evidence that Watson Memorial did not cause Watson’s injuries.” It is equally likely, however, that the jury found that although some, most, or all of Watson’s injuries were caused by the negligence of Watson Memorial, those specific injuries did not lead to Watson’s death.
Accordingly, I would hold that the trial court abused its discretion in refusing to submit a jury question on Appellants’ survival action. Because there was ample evidence to support submission of such a question and because no finding by the jury explicitly or implicitly held against Appellants on any issue essential to their survival claim, I would reverse the trial court’s judgment and remand this case to the trial court on the survival action.
. Tex.R. Civ. P. 277; Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. *517 1990).
. Tex.R. Civ. P. 278; Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995).
. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 924 (Tex.1993).
. Watson v. Prewitt, 159 Tex. 305 , 320 S.W.2d 815, 816 (1959); In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660, 661 (1951).