IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0372
════════════
Columbia Rio
Grande Healthcare, L.P. d/b/a Rio Grande Regional Hospital, Petitioner,
v.
Alice H. Hawley and James A.
Hawley, Respondents
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of
Texas
════════════════════════════════════════════════════
Argued January 17,
2008
Justice Johnson delivered
the opinion of the Court, in which Chief
Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice
Green and Justice Willett
joined, and in all but Part II-D 2 of which Justice O’Neill and Justice Medina joined.
In this health care liability case against a hospital we consider whether
the trial court erred by refusing to give jury instructions as to new and
independent cause, a physician’s status as an independent contractor, and lost
chance of survival. Concluding the trial court erred by refusing instructions on
the physician’s independent contractor status and lost chance of survival, we
reverse and remand for a new trial.
I. Background
On November 22, 2000, Alice Hawley visited Dr. Armando Arechiga, complaining of cramps, nausea, and vomiting. Dr.
Arechiga admitted her to Columbia Rio
Grande Regional
Hospital (“Columbia” or “the
hospital”). The next day Dr. Jesus Rodriguez operated on Alice, performed a colon
resection, and sent a tissue specimen to the hospital’s pathology laboratory.
There, Dr. Jose Valencia, an independent pathologist whose office was located
inside the hospital, discovered Alice had cancer. He diagnosed its severity as
Stage 3, or what is known as Duke’s C cancer.
Because some doctors had complained of not receiving pathology reports,
the hospital had adopted a written policy (the policy) in regard to notifying
patients’ doctors of cancer diagnoses. The policy was in place at the time of
Alice’s surgery
and called for a copy of the pathology report to be placed in the patient’s
hospital record. It also specified the following:
A. Pathologist will verbally notify
physician(s) of record.
B. Pathology secretary will fax report to
physician(s) of record.
C. Reports will be delivered to physician(s)
of record via certified mail.
The policy
identified the “physician(s) of record” as the admitting physician and the
surgeon, if the surgeon was not the admitting physician. In this case, the
physicians of record were Drs. Arechiga and
Rodriguez.
Alice’s
medical records and the pathology lab records showed the pathology report was
placed in her hospital chart one day before she was discharged, although Dr.
Arechiga did not see it when he completed his
discharge summary. The hospital disputes whether all parts of its written
notification policy must be complied with as to each cancer diagnosis, and the
parties disagreed as to whether all parts were actually complied with in
Alice’s
particular case. However, there is no dispute that Alice was not told she had cancer and did not receive
treatment for cancer until long after the initial diagnosis by Dr. Valencia.
During a routine checkup in the summer of 2001, Dr. Arechiga found Alice’s liver enzymes to be elevated. The
enzymes were much higher when she returned for another appointment in September,
so Dr. Arechiga ordered tests that revealed she had
liver cancer. Even though treatment began immediately, the disease was
terminal.
Alice and her husband, James Hawley, sued the hospital, Dr. Rodriguez,
and Dr. Valencia. They alleged the hospital
was negligent in failing to timely and properly convey the cancer diagnosis to
Alice and Drs. Rodriguez and Arechiga and in failing
to follow its policies and procedures for reporting the pathology results. The
Hawleys nonsuited the
doctors before trial.
The case was tried to a jury. The jury found that Columbia’s negligence was a proximate cause of Alice’s injuries. The
trial court entered judgment against Columbia based on the jury verdict. The court
of appeals affirmed. 188 S.W.3d 838.
Columbia
argues that the trial court erred in charging the jury, failing to cap the
damages, and applying an improper interest rate to the judgment. It asserts
charge error based on the trial court’s refusal to give jury instructions as to:
(1) new and independent cause, (2) the independent contractor status of Dr.
Valencia, and (3) lost chance of
survival.
II. The Jury Charge
A. General Law
A trial court must, when feasible, submit a cause to the jury by
broad-form questions. Tex. R. Civ.
P. 277. It is also required to give “such instructions and definitions as
shall be proper to enable the jury to render a verdict.” Id. An instruction
is proper if it (1) assists the jury, (2) accurately states the law, and (3)
finds support in the pleadings and evidence. Tex. Workers’ Comp.
Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912
(Tex.
2000). Determining necessary and proper jury instructions is a matter
within the trial court’s discretion, and appellate review is for abuse of that
discretion. Shupe v. Lingafelter, 192 S.W.3d 577,
579 (Tex.
2006). One way in which a trial court abuses its discretion is by failing
to follow guiding rules and principles. Bocquet v. Herring,
972 S.W.2d 19, 21 (Tex. 1998).
A judgment will not be reversed for charge error unless the error was
harmful because it probably caused the rendition of an improper verdict or
probably prevented the petitioner from properly presenting the case to the
appellate courts. Tex. R. App. P.
61.1. Charge error is generally considered harmful if it relates to a contested,
critical issue. See Bel-Ton Elec.
Serv., Inc. v. Pickle, 915 S.W.2d 480, 481
(Tex. 1996) (per curiam); Sw. Bell Tel.
Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992).
B. New and Independent Cause
New and independent cause is a component of the proximate cause issue.
See Dallas Ry. & Terminal Co.
v. Bailey, 250 S.W.2d 379, 383-84 (Tex. 1952) (“The theory of new and independent
cause is not an affirmative defense; it is but an element to be considered by
the jury in determining the existence or non-existence of proximate
cause.”). A new and independent cause of an occurrence is the act or
omission of a separate and independent agent, not reasonably foreseeable, that
destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question.
See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d
448, 450-51 (Tex. 2006); Dillard v. Tex.
Elec. Coop., 157 S.W.3d 429, 432 n.3 (Tex. 2005).
Columbia contends the trial court should have instructed the jury on new
and independent cause because the doctors’ failure to review the pathology
report was a new and independent cause that produced injuries which otherwise
would not have occurred. It asserts evidence showed the pathology report was
sent to Dr. Arechiga, and his failure to review that
report, as well as the doctors’ failure to review the report in the hospital
records for eleven months, was not reasonably foreseeable. Columbia further
points out that although the laboratory employees responsible for faxing and
mailing the report could not specifically recall mailing and faxing Alice’s
report to the doctors, the employees testified that they invariably followed
laboratory procedures in cancer cases because they recognized the importance of
getting reports to the doctors. The hospital had a certified mail return receipt
that correlated to Alice’s pathology report number and was signed
by the receptionist in Dr. Arechiga’s office, but the
hospital did not have a certified mail return receipt from Dr. Rodriguez’s
office. Both Drs. Arechiga and Rodriguez denied having
seen the report even though each attended to Alice when she was hospitalized after the November 2000
surgery, and Dr. Arechiga’s receptionist said she had
received and filed the report in his office records on Alice. Both doctors denied
having been told of the cancer diagnosis.
The Hawleys argue that the trial court properly
refused the instruction because it was not supported by pleadings and because it
was foreseeable that the doctors would not learn Alice had cancer unless the hospital ensured
they actually received the pathology report or were told about it. The Hawleys also assert that if the trial court erred in
refusing the instruction, the error was harmless because the charge permitted
Columbia to argue that only the doctors caused
Alice’s
injuries.
We first consider whether Columbia’s pleadings supported the instruction.
After the Hawleys nonsuited
Drs. Rodriguez and Valencia,
Columbia pled,
in part, new and independent cause. The Hawleys
specially excepted to the pleadings because Columbia did not specify
what the alleged new and independent causes were. Columbia amended and alleged various specific acts of
negligence by Drs. Arechiga, Rodriguez, and
Valencia as new and independent
causes. The trial court ruled that evidence of the physicians’ actions would be
admissible, but their actions could not be characterized to the jury as
negligence. Later, when Columbia requested the new and independent
cause instruction at the charge conference, the Hawleys did not object on the basis that there were no
pleadings to support it. We conclude Columbia’s pleadings were sufficient to support
the instruction if it was otherwise proper.
We next address whether the failure to submit the instruction was error.
Columbia contends that even assuming it failed to completely comply with the
different parts of its notification policy, it was not foreseeable that Alice’s
doctors would be unaware of her cancer because (1) the pathology report was
unquestionably placed in Alice’s hospital records before she was dismissed from
the hospital in November and before Dr. Arechiga
prepared her discharge summary; (2) a certified mail return receipt showed the
report had been timely received by Dr. Arechiga’s
office; (3) Alice was hospitalized for additional surgery by Dr. Rodriguez in
January 2001 to close the colostomy left from the November surgery, and at that
time the pathology report was in her records from the earlier surgery; and (4)
Alice returned to the hospital on several other occasions between November 2000
and October 2001 under the care and treatment of Drs.
Arechiga and Rodriguez and neither doctor requested or
reviewed her complete medical chart that contained the cancer diagnosis.
If the act or omission alleged to have been a new and independent cause
is reasonably foreseeable at the time of the defendant’s alleged negligence, the
new act or omission is a concurring cause as opposed to a superseding or new and
independent cause. Dew, 208 S.W.3d at 451. A new
and independent cause alters the natural sequence of events, produces results
that would not otherwise have occurred, is an act or omission not brought into
operation by the original wrongful act of the defendant, and operates entirely
independently of the defendant’s allegedly negligent act or omission. Id. In analyzing
whether an intervening cause is new and independent, rather than superseding, we
have looked for guidance to factors set out in section 442 of the Restatement
(Second) of Torts:
(a) the
fact that the intervening force brings about harm different in kind from that
which would otherwise have resulted from the actor’s negligence;
(b) the
fact that its operation or the consequences thereof appear after the event to be
extraordinary rather than normal in view of the circumstances existing at the
time of its operation;
(c) the fact that the intervening force is operating
independently of any situation created by the actor’s negligence, or, on the
other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due
to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a
third person which is wrongful toward the other and as such subjects the third
person to liability to him;
(f) the degree of culpability of a wrongful act of a third person
which sets the intervening force in motion.
See
Restatement (Second) of Torts §
442 (1965); Phan Son Van v. Pena, 990
S.W.2d 751, 754 (Tex. 1999).
In this case, the alleged intervening forces are the failure of Alice’s
treating doctors to review her hospital records and see the pathology report,
their failure to fulfill their independent duties to inquire about the pathology
results, and the failure of Dr. Arechiga to review his
own office records and see the pathology report filed there by his office staff.
In substance, the alleged intervening forces are the failures of the treating
doctors to make inquiry and find out the results of the pathology laboratory’s
examination. There was evidence the treating doctors had an independent duty to
do so.
The doctors’ failures to independently follow up, analyzed according to
the above factors, respectively, (a) did not implicate a different risk of harm
than the hospital’s failure to ensure the doctors knew of the pathology report
because both failures implicated the risk that Alice’s cancer would go
untreated; (b) did not later appear to yield extraordinary consequences in view
of the circumstances at the time of the cancer diagnosis because the cancer
predictably progressed as a result of both failures; and (c) were not completely
independent from the risk created by the hospital’s negligence – that Alice’s
cancer would go untreated – even though the doctors’ actions and failures to act
were independent of Columbia’s actions. The doctors’ failures to discover the
cancer report were (d) due to their own lack of inquiry about the report and (e)
wrongful toward Alice and could have possibly subjected them to
liability. However, the doctors’ alleged negligent actions and omissions, even
assuming they made the doctors culpable, did not necessarily make their conduct
a superseding cause. The “threshold and controlling” inquiry when determining
whether a cause is new and independent remains “‘whether the intervening cause
and its probable consequences were such as could reasonably have been
anticipated by the original wrongdoer.’” Dew, 208 S.W.3d at 452 (quoting
Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968)); see also Restatement (Second) of Torts § 447
(1965) (“The fact that an intervening act of a third person is negligent in
itself . . . does not make it a superseding cause . . . if the actor at the time
of his negligent conduct should have realized that a third person might so
act.”). The doctors’ alleged culpability in failing to follow up and inquire as
to the pathology report did not change the risk–that Alice’s cancer would go
untreated–created by the hospital’s actions in November 2000.
In regard to whether the hospital should have foreseen the failures of
Drs. Arechiga and Rodriguez to inquire about or review
the report, Dr. Stephen Tucker testified that it was within the scope of a
physician’s responsibility to follow up on a pathology report and that it was
unforeseeable a doctor would not do so. However, his testimony must be
considered in light of uncontroverted evidence that
the hospital was aware doctors did not always follow up on specimens sent to the
pathology lab. According to the laboratory medical director, the hospital
implemented its written notification policy due to complaints from doctors that
for some reason they were not getting pathology reports. The written policy with
redundant notification measures was adopted to ensure appropriate doctors were
aware of cancer diagnoses. Thus, the evidence conclusively established it was
reasonably foreseeable to the hospital that some physicians might be unaware,
and remain unaware, of a cancer diagnosis unless
Columbia ensured
the physicians were aware of it.
Finally, where the risk resulting from the intervening act is the same
risk resulting from the original actor’s negligence, the intervening act cannot
be classified as a superseding cause. Dew, 208 S.W.3d
at 453. Here, the risk of harm from the doctors’ failure to determine the
results of the pathology examination was the same risk
that the hospital’s notification procedures were designed to eliminate: lack of
timely treatment for a patient’s cancer. But while the circumstances surrounding
these doctors’ lack of knowledge as to the cancer diagnosis might be highly
unusual, the risk of harm from the report remaining undetected by the doctors
for eleven months is the same as the risk of harm created by the hospital’s
failure to notify the doctors of the cancer finding in the beginning: Alice’s
cancer was not treated timely.
We conclude that because the doctors’ extended failures to become, or be
made, aware of Dr. Valencia’s cancer diagnosis were reasonably foreseeable to
the hospital, they were concurring, not superseding, causes of the delay in
Alice’s cancer treatments. Thus, the trial court did not abuse its discretion by
refusing to submit a new and independent cause instruction.
C. Loss of Chance
1. Failure to Give the Instruction
The court’s charge in this case defined “proximate cause” as follows:
“Proximate
cause,” when used with respect to the conduct of [the hospital], means that
cause which, in a natural and continuous sequence, produces an event, and
without which cause such event would not have occurred. In order to be a
proximate cause, the act or omission complained of must be such that a hospital
using ordinary care would have foreseen that the event, or some similar event,
might reasonably result therefrom. There may be more
than one proximate cause of any event.
Columbia argues that because the evidence of Alice’s chance of survival at the time of Dr. Valencia’s cancer diagnosis was
conflicting, the court erred in refusing to give the following additional
instruction:
You are
instructed that Alice H. Hawley must have had greater than a fifty percent (50%)
chance of survival on November 28, 2000 for the negligence of Rio Grande Regional Hospital to be a proximate cause of injury
to Alice H. Hawley.
The Hawleys do not assert that Columbia’s requested instruction was an
incorrect statement of the law or that the issue was not raised by the evidence.
Rather, they argue (1) because the court’s proximate cause definition specified
that Columbia’s negligence could not be a proximate cause of Alice’s injuries
unless her injuries would not have occurred absent the negligence, the
definition adequately instructed the jury on the issue of causation and the
requested instruction would have been redundant and would not have further
assisted the jury; and (2) the lawyers argued to the jury that under the law,
the Hawleys had the burden to prove Alice probably
would have survived the cancer if the defendant’s negligence had not resulted in
delayed treatment. Citing Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984), the Hawleys urge the charge was sufficient and should not have
been embellished because it tracked the language of the pattern jury charge.
See id. (“Judicial history teaches that broad issues and accepted
definitions suffice and that a workable jury system demands strict adherence to
simplicity in jury charges.”). We disagree with the Hawleys’ contentions.
Recovery in a medical malpractice case requires proof to a reasonable
medical probability that the injuries complained of were proximately caused by
the negligence of a defendant. Park
Place Hosp. v. Estate
of Milo, 909 S.W.2d 508, 511 (Tex. 1995). Proximate cause includes
two components: cause-in-fact and foreseeability.
LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam). Proof that negligence was a cause-in-fact of
injury requires proof that (1) the negligence was a substantial factor in
causing the injury, and (2) without the act or omission, the harm would not have
occurred. Id. These standards bar recovery by a
patient if a condition preexists the negligence of a
health care provider and at the time of the negligence, the condition resulted
in the patient having a 50% or less chance of cure or survival. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993).
The parties address the loss of chance question as a lost chance of
survival even though Alice was alive at the time of trial. We will
address the issue as the parties have briefed and presented it for two reasons.
First, no one disputed that at the time of trial Alice’s disease was terminal. Second, whatever
injuries she suffered from the alleged negligence of the hospital, the Hawleys’ burden of proof was the same—they had to prove that
the hospital’s actions were a cause-in-fact of injuries above and beyond those
Alice would have suffered even if she had received treatment promptly after Dr.
Valencia’s diagnosis in November 2000. See id. at 398 (“The principal
issue presented in this case is whether Texas permits recovery for lost chance
of survival or cure in medical malpractice cases; that is, whether there
is liability for negligent treatment that decreases a patient’s chance of
avoiding death or other medical conditions in cases where the adverse
result probably would have occurred anyway.”) (emphasis
added).
In Kramer, the Court was faced with the issue of whether to adopt
the loss of chance doctrine as part of Texas common law:
[T]he
Survival Statute does not create a new cause of action. Rather, it simply
provides that “[a] cause of action for personal injury to the health,
reputation, or person of an injured person” survives the death of the injured
party “to and in favor of the heirs, legal representatives, and estate of the
injured person.” Tex. Civ. Prac. & Rem. Code §
71.021. Assuming we were to adopt the loss of chance
doctrine as part of the common law, Ms. Kramer’s cause of action for damages
from her lost chance, if any existed, would survive under this statute.
Therefore, to determine whether the court of appeals erred in refusing to
reverse the trial court’s denial of the Kramers’ proposed special issue 8, we must consider
whether Texas
should adopt the loss of chance doctrine as a part of its common law.
Id. at 404
(emphasis added). The Court held that recovery for a loss of chance required
proof that at the time of the defendant’s alleged negligence, there was less than a 50% chance the claimed
injuries would have occurred without that defendant’s negligence. Id. at
406-07. In reaching its holding, the Court reviewed various approaches
taken by jurisdictions and commentators in valuing and proving a lost chance of
avoiding harm when a condition such as cancer preexisted the defendant’s alleged negligence. Id. at
405-06. It considered and rejected an approach that conceptualizes the
lost chance of survival or improved health as a distinct, compensable injury,
creating a separate cause of action for its recovery. As one commentator
explained:
To
illustrate, consider a patient who suffers a heart attack and dies as a result.
Assume that the defendant-physician negligently misdiagnosed the patient’s
condition, but that the patient would have had only a 40% chance of survival
even with a timely diagnosis and proper care. Regardless of whether it could be
said that the defendant caused the decedent’s death, he caused the loss of a
chance, and that chance interest [would] be completely redressed in its own
right.
Id. at 402
(citations omitted) (quoting Joseph H. King, Jr., Causation, Valuation, and
Chance in Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J.
1353, 1382 (1981)). Under such an approach, damages are awarded based on
valuation of any loss of chance, even if the lost chance was as small as 1%. The
Court rejected that approach as well as similar ones allowing recovery without
proof that the defendant’s negligence caused more than a 50% loss of chance of
avoiding injuries above and beyond those that would have occurred anyway.
Id. at
400-02, 407. Thus, proof that a patient lost some chance of
avoiding a medical condition or of surviving the cancer because of a defendant’s
negligence is not enough for recovery of damages.
The testimony as to Alice’s loss of chance was inconsistent and the Hawleys do not dispute that the parties hotly contested her
probability of a cure or survival had she immediately begun treatment following
Dr. Valencia’s diagnosis in November 2000. For example, Dr. Escudier began treating Alice
for cancer in November 2001, a year after Dr. Valencia’s
diagnosis. She estimated Alice had a 60% five-year survival rate in
November 2000 and based her estimate on the cancer having been at the Duke’s C
stage when it was first diagnosed. Dr. Marek, who began treating Alice in December 2001, testified that Alice would have had a 65% chance of being cured had she
begun treatment immediately following Dr. Valencia’s
diagnosis. However, the hospital’s witnesses, Drs. Eric Raefsky and Thomas Wheeler, testified that even with
immediate treatment in November 2000, Alice’s chance of survival was 50% or
less. Dr. Raefsky testified that her chances for
survival were not greater than 25% to 50% because in his opinion the cancer had
already spread from the colon. Dr. Wheeler was of the opinion that the cancer
had already progressed to Stage 4, or Duke’s D, had spread to her liver, and her
survival rate was about 20% at the time of the diagnosis.
The Hawleys contend the trial court did not
need to instruct the jury that in order for Columbia’s negligence to be a proximate cause of injury to
Alice, she must
have had a greater than 50% chance of surviving the cancer because the lawyers
explained that was the law. But the jurors took oaths to render their verdict
according to “the law as it may be given to you in the Charge of the Court” and
evidence submitted under rulings of the court. See Tex. R. Civ. P. 236. The judge
instructed the jurors that at the conclusion of the evidence, they would receive
a written charge from him on the law. The charge itself instructed the jury that
“in matters of law, you must be governed by the instructions in this charge” and
if the jury “disregarded any of these instructions it will be jury misconduct.”
See Tex. R. Civ. P. 226a.
The jury is presumed to have followed the court’s instructions. See Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003) (noting that
unless the record demonstrates otherwise, appellate courts must presume the jury
followed instructions given in the jury charge). Statements from lawyers as to
the law do not take the place of instructions from the judge as to the law. It
is the trial court’s prerogative and duty to instruct the jury on the applicable
law.
Columbia’s requested instruction would not have
been redundant, as the Hawleys assert. The instruction
would have provided to the jury the standard it was required by law to apply in
making its finding on a hotly-contested issue. The opinion in Kramer
highlights the subtleties among various approaches to valuing a loss of chance,
the difficulty in properly framing the loss of chance issue as a legal matter,
and the reason juries need to be instructed as to the law on loss of chance. As
this Court stated over a century ago when considering alleged charge error,
“[w]e must look at the court’s charge as practical experience teaches that a
jury, untrained in the law, would view it.” Galveston, H. &
S.A. Ry. Co. v. Washington, 63 S.W. 534, 538 (Tex. 1901). It
asks too much of lay jurors, untrained in the law, to distill the correct
Texas legal
standard for loss of chance from the general proximate cause instruction given
by the trial court. Columbia’s requested loss of chance instruction
would have assisted the jury, was an accurate statement of applicable law, and
was supported by the pleadings and evidence. See Mandlbauer, 34 S.W.3d at 912.
The trial court abused its discretion by refusing to give it.
2. Harm
One way in which a trial court’s error in refusing an instruction can be
reversible is if the error probably caused the rendition of an improper
judgment. Tex. R. App.
P. 61.1(a); Union Pac. R.R. Co. v.
Williams, 85 S.W.3d 162, 170 (Tex. 2002). The
instruction Columbia requested related to a contested,
critical issue. See Bel-Ton Elec. Serv., 915 S.W.2d at 481; Sw. Bell Tel. Co., 843 S.W.2d at 472. Under
the evidence, there was little question that because of the negligence as found
by the jury, Alice lost some chance of cure and survival. Unless the jury
applied the law as expressed in Columbia’s proposed instruction, it could have
found that because she lost at least some chance of reduced medical treatment
and survival, even if that chance was much less than 50%, the hospital’s
negligence proximately caused injury to her. Such a result was specifically
rejected in Kramer. 858 S.W.2d at 407.
Considering the pleadings of the parties and the nature of the case, the
evidence presented at trial, and the charge in its entirety, the refusal to give
the requested instruction on loss of chance was reasonably calculated to and
probably did cause the rendition of an improper judgment. See Sterling Trust
Co. v. Adderley, 168 S.W.3d 835, 843 (Tex. 2005); Island Recreational Dev. Corp. v.
Republic of
Tex. Sav. Ass'n, 710 S.W.2d 551, 555
(Tex.
1986).
D. Independent Contractor
1. Failure to Give the Instruction
A hospital ordinarily is not liable for the negligence of an independent
contractor physician. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d
945, 948 (Tex.
1998). Columbia asserts the trial court erred by
refusing to instruct the jury, in accordance with the foregoing principle, that
the jury should not consider the actions or omissions of Dr. Valencia when
determining the hospital’s negligence.
The Hawleys urge that the refusal to give such
an instruction was not erroneous, even though they do not contend the hospital
was liable for the actions or omissions of Dr. Valencia. They
note (1) “[n]o one suggested that Valencia was an agent of the Hospital for
whose conduct the Hospital could be held liable,” (2) it was undisputed and
repeatedly emphasized that Dr. Valencia was not a hospital employee, and (3)
their lawyers did not dispute Columbia’s jury argument that Dr. Valencia did not
work for the hospital. The Hawleys also say the jury
was instructed to consider only the acts of the hospital’s employees. One
problem with this assertion is that the jury instructions and liability question
did not limit the jury’s considerations as the Hawleys
claim. The jury charge stated:
You are
hereby instructed that RIO GRANDE REGIONAL HOSPITAL acts or fails to act only through
its employees, agents, nurses, and servants.
The one
liability question then asked:
Was the
negligence, if any, of RIO GRANDE REGIONAL HOSPITAL, a proximate cause of injuries to
Alice H. Hawley?
Columbia
does not contend the trial court’s instructing the jury that a hospital acts
through its employees, agents, nurses, and servants was improper or a
misstatement of the law. Rather, Columbia
contends the jury should have also been given the following instruction to
prevent the hospital from being found liable because the jury improperly
considered Dr. Valencia as its agent:
In
considering the negligence of Rio
Grande Regional
Hospital, do not consider the acts or
omissions of the pathologist, Dr. Valencia.
The evidence showed Dr. Valencia was an employee of Useda and Associates, pathologists with offices in the
hospital. Dr. Useda, a member of the group, testified
he was the medical director of Columbia’s pathology laboratory. Drs. Useda and Valencia each testified they had
input into the hospital’s policy that specified the pathologist was to verbally
notify doctors of record when cancer was diagnosed. Dr. Valencia
testified he expected the laboratory secretaries to follow the protocol and when
he came to work in the laboratory he usually reviewed the certified mail
receipts from reports the secretaries had sent the day before. He also testified
that only around one-fifth of physicians called about a cancer report would call
the laboratory back, so many times he would not personally tell physicians of
record about cancer diagnoses. Dr. Valencia could not recall specifically telling
either Dr. Arechiga or Dr. Rodriguez that Alice had cancer. Both
Drs. Arechiga and Rodriguez denied having been told of
the diagnosis.
When considered in light of the evidence and the instruction given, the
liability question allowed the jury to consider actions or omissions of any
hospital “agent” when determining the hospital’s negligence. The court
instructed the jury that:
When words
are used in this charge in a sense which varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to
accept in place of any other meaning.
There was no
definition given for “agent.” Thus, the jury could have considered Dr.
Valencia as the hospital’s agent.
See Webster’s New Universal
Unabridged Dictionary 38 (1996) (defining an agent, in part, as “a person
or business authorized to act on another’s behalf”). The hospital’s request was
designed to prevent that from happening. The instruction was effectively a
limiting and proper definition of the term under the evidence. The requested
instruction would have assisted the jury, was an accurate statement of
applicable law, and was supported by the pleadings and the evidence. See
Mandlbauer, 34 S.W.3d at
912. The Hawleys do not complain that the
instruction would have “tilted” the jury against them in some manner; indeed,
one reason they say the failure to give the instruction was not error is because
it was undisputed that Dr. Valencia was not an employee of the hospital through
whose actions the hospital acted.
In refusing to give the instruction, the trial court failed to follow
guiding principles and therefore abused its discretion. We next consider whether
the error was harmful.
2. Harm
Columbia
asserts that failing to submit the instruction was harmful because the error
prevents it from properly presenting the case on appeal. See Tex. R. App. P. 61.1(b) (“No judgment
may be reversed on appeal on the ground that the trial court made an error of
law unless the Supreme Court concludes that the error complained of . . . (b)
probably prevented the petitioner from properly presenting the case to the
appellate courts.”); see also Tex. R. App. P. 44.1(a)(2). Columbia’s position is that under the charge and record
there is no way to tell if the jury found it liable because of acts of
employees, agents, and servants—for whom it could properly be held liable—or
because of acts and omissions of Dr. Valencia—for whom it could not. Columbia relies on the harm analysis of Rule 61.1(b) as we
applied it in Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 388
(Tex. 2000).
There, we held that when a trial court submits a single broad-form liability
question commingling valid and invalid theories of liability, the error is
presumed harmful if an appellate court cannot determine whether the jury based
its answer on an invalid theory. See Tex. R. App. P. 61.1(b). Columbia claims the
charge in this case effectively mixed valid and invalid theories of
negligence—negligence committed by hospital agents as opposed to negligence
committed by Dr. Valencia, an independent contractor.
In support of their position that Casteel is inapplicable here,
the Hawleys cite Columbia Medical Center of Los
Colinas v. Bush ex rel. Bush, 122 S.W.3d 835,
858-59 (Tex. App.—Fort Worth 2003, pet. denied). In Bush, the defendant
hospital urged that the trial court erred by refusing to instruct the jury not
to consider certain specific acts alleged in the pleadings to have been
negligence. Id. at
857-58. The appeals court determined that because the only theory of
liability submitted was negligence, there was not a mixing of valid and invalid
theories of liability even if there was no evidence the specific acts in
question were negligent. Id. at
858-59.
Here, as in Bush, negligence was the only theory of liability
submitted. But here, Columbia is not complaining of the failure to
instruct the jury that it should not consider specific acts as negligence.
Columbia is complaining because the charge
affirmatively told the jury that the hospital acted through its employees,
agents, nurses, and servants and allowed the jury to speculate whether Dr.
Valencia was an agent of the
hospital.
When considered along with the instruction that the hospital acted
through its employees, agents, nurses, and servants, the liability question
effectively submitted four negligence questions: (1) were the hospital’s
employees negligent, (2) were the hospital’s agents negligent, (3) were the
hospital’s nurses negligent, and (4) were the hospital’s servants negligent.
Among other possible bases for its finding that the hospital was negligent, the
jury may have found the employee laboratory assistants were negligent; it may
have found the hospital’s employee laboratory operations supervisor was
negligent; or it may have found Dr. Valencia was negligent and determined he was
an agent of the hospital. But we agree with the Hawleys that the harm question presented in Casteel
is different from that presented here because here the charge did not submit an
invalid theory to the jury. Submission of an invalid theory involves “[a] trial
court’s error in instructing a jury to consider erroneous matters.” Harris
County v. Smith, 96 S.W.3d 230, 233 (Tex. 2002) (applying Casteel’s analysis
of an invalid liability theory to an unsupported element of damages). In
Casteel, for example, the jury charge contained a single broad-form
liability question containing instructions on thirteen independent grounds for
liability, four of which were invalid because they required consumer status,
which the plaintiff did not have. Casteel, 22 S.W.3d at
387-88.
Unlike the contentions made in Casteel, Columbia does not contend
that the jury was allowed to consider an improper theory of liability by the
charge that allowed the hospital to be held liable for actions of its agents.
Thus, the presumed harm analysis of Rule 61.1(b) was applied in Casteel
and Harris County to a different jury charge problem than is presented
here. See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex. 2006) (“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.”). And although in most cases where a trial court
errs by refusing to give a proposed instruction the harm analysis will be based
on whether the refusal probably caused the rendition of an improper judgment,
see Union Pacific Railroad Co. v. Williams, 85 S.W.3d 162, 170 (Tex.
2002), the harm analysis of Rule 61.1(b) applies here because the jury could
have found Columbia liable based on Dr. Valencia’s acts or omissions under the
charge as given, and there is no way for Columbia or an appellate court to tell
if it did so. See Harris County, 96 S.W.3d at
234-35. Such an error effectively precludes reviewing courts from
determining whether the jury found liability on an invalid basis, precludes
determination of whether the error probably caused the rendition of an improper
judgment, and is harmful because it prevents proper presentation of the case on
appeal. Tex. R. App.
P. 61.1(b). We sustain
Columbia’s
issue.
III. Limitation of Damages and Interest
Columbia
also asserts that (1) the trial court failed to limit the damages in accordance
with Section 11.02 of former Texas Revised Civil Statute Article 4590i, and (2) the judgment does not reflect
proper pre-judgment and post-judgment interest rates. Because we are remanding
for a new trial and these issues may not recur following that trial, we do not
address them.
IV. Conclusion
The trial court erred in refusing to submit Columbia’s proposed jury instructions as to Dr.
Valencia’s actions as an
independent contractor and as to Alice’s loss of chance. The judgment of the
court of appeals is reversed and the case is remanded to the trial court for a
new trial.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: June 5, 2009