East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors

ACCEPTED
12-15-00014-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/3/2015 10:40:18 AM
CATHY LUSK
CLERK

NO. 12-15-00014-CV
______________________________________________________________________________
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
FOR THE TWELFTH DISTRICT OF TEXAS 7/3/2015 10:40:18 AM
AT TYLER CATHY S. LUSK
Clerk
______________________________________________________________________________

East Texas Medical Center d/b/a East Texas Medical Center
Emergency Medical Services
Appellant

v.

Jody Delaune, Individually and as Personal Representative of the Estate
of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune,
Destiny Delaune and Dee Ann Delaune, Minors

Appellees
______________________________________________________________________________

APPEAL FROM CAUSE NO. 13-0984-A
IN THE DISTRICT COURT OF SMITH COUNTY, TEXAS
7th JUDICIAL DISTRICT
HON. KERRY L. RUSSELL
______________________________________________________________________________

BRIEF OF APPELLEES

______________________________________________________________________________

RYAN KREBS, M.D., J.D.
State Bar No. 00792088
805 W. 10th Street, Ste. 300
Austin, Texas 78701
(512) 478-2072

Counsel for Appellees
Jody Delaune, Individually; and as personal representative of the Estate of Crystal Delaune,
Deceased; and as Next Friend of Dalton Delaune, Destiny Delaune, and Dee Ann Delaune

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

INDEX OF AUTHORITIES …………………………………………………………...ii

REQUEST FOR ORAL ARGUMENT………………………………………………..iv

SUMMARY OF THE ARGUMENT…………………………………………………..2

ARGUMENT……………………………………………………………………………4

I. Whether Judgment in Favor of Appellees Should be Reversed Because There
is Legally Insufficient Evidence of Proximate Cause Against ETMC

II. Whether Judgment In Favor Of Appellees Should Be Reversed Because
There Is Legally Insufficient Evidence Of The Applicable Standard Of Care
And Breach By ETMC

CONCLUSION………………………………………………………………………..31

PRAYER……………………………………………………………………………….32

CERTIFICATE OF COMPLIANCE………………………………………………..34

CERTIFICATE OF SERVICE………………………………………........................33

APPENDIX…………………………………………………………………………....Index Tab

A. December 23, 2014 Final Judgment

B. November 24, 2014 Charge of Court completed by jury

C. July 28, 2014 Order Granting Defendants Moore and Spurgers’ Motions for
Summary Judgment

i
 INDEX OF AUTHORITIES

Case Law

TEXAS SUPREME COURT CASES:

Cash America v. Bennett,
35 S.W.3d 12, 16 (Tex. 2000) …………………………………………………………….7, 11, 12

City of Keller v. Wilson,
168 S.W.3d 802,813 (Tex. 2005) …………………………………………………………25, 26

In Re Merrill Lynch,
235 S.W.3d 185, 188 (Tex. 2007) ………………………………………….......................13

Tanner v. Nationwide Mutual,
289 S.W.3d 828, 830 (Tex. 2009) ………………………………………………………...31

Wansey v. Hole,
379 S.W.3d 246 (Tex. 2012) ……………………………………………….................9, 10, 11, 13

TEXAS COURTS OF APPEALS CASES:

Aguilera-Sanchez,
2003 Tex. App. LEXIS 4846 at *17 ………………………………………………………12

Air Shields, Inc. v. Spears,
590 S.W.2d 574, 581 (Tex. App. – Waco 1979, writ ref, nre) ……………………………7

Carney v. Roberts Investment Co.,
837 S.W.2d 206, 211 (Tex. App. – Tyler 1992, writ denied) ……………………………..9

Chesser v. LifeCare Mgmt. Servs., L.L.C.,
356 S.W.3d 613, 629 (Tex. App. – Fort Worth 2011, pet. denied) ……………………….6, 12

Ching v. Methodist Children’s Hospital,
134 S.W.3d 235, 241 (Tex. App. – Amarillo 2003, pet. denied) ………………………….30, 31

Clark v PFPP Ltd. Partnership,
455 S.W.3d 283, 287 (Tex. App. – Dallas 2015, no pet.) …………………………………10, 13

Columbia North Hills Hospital v. Alvarez,
2011 Tex. App. LEXIS 5908 *12-13 (Tex. App. – Fort Worth 2011, no pet.) ……………30

ii
Denton Reg’l Med. Ctr. V. LaCroix,
947 S.W.2d 941, 950 (Tex. App. – Fort Worth 1997, pet. denied) ……………………7, 8, 9, 13

Doege v. Sid Peterson Memorial Hospital,
2005 Tex. App. LEXIS 4964 *21 (Tex. App. – San Antonio June 29, 2005, pet. denied) ..12

Dunlap v. Young,
187 S.W.3d 828, 836 (ex. App. – Texarkana 2006, no pet.) ……….....................................5

Durham Transportation, Inc. v. Valero,
897 S.W.2d 404, 413 (Tex. App. – Corpus Christi 1995, writ denied) …………………....30, 31

Gonzalez v. Willis,
995 S.W.2d 729, 739 (Tex. App. – San Antonio 1999, no pet.) ………………………10, 11, 12

Greater Houston Transportation v. Zrubek,
850 S.W.2d 579, 591-92 (Tex. App. – Corpus Christi 1993, writ denied) …………………30, 31

Latimer v. Memorial Hermann Hospital System,
2011 Tex. App. LEXIS 423 (Tex. App. – Houston [14th Dist.] Jan. 20, 2011 no pet.) ……..8

Leake v. Half Price Books,
918 S.W.2d 559, 563 (Tex. App. – Dallas, no writ) ………………………………………...10, 13

McCombs v. Children’s Med. Ctr.,
1 S.W.3d 256, 259 (Tex. App. – Texarkana 1999, pet. denied) …………………………….7

The Methodist Hospital v. German,
369 S.W.3d 333, 349-50 (Tex. App. – Houston [1st Dist.] 2011, pet. denied) ……………..10

Mills v. Angel,
995 S.W.2d 262, 269 (Tex. App. – Texarkana 1999, no pet.) ………………........................7, 30

Tenet Health Ltd. V. Zamora,
13 S.W.3d 464, 471 (Tex. App. – Corpus Christi 2000, pet. dism’d w.o.j.) ………………..6, 12

Whitehead v. Tobias,
7 S.W.3d 658, 662 (Tex. App. – Texarkana 1999, no pet.) …………………........................13

CASE LAW FROM OTHER JURISDICTIONS:

Moser v. Heistand,
681 A.2d 1322, 1326 (Pa. 1996) ……………………………………………………………..8

iii
Statutes

Texas Good Samaritan Statute, Tex. Civ. Prac. & Rem. Code §74.152..2, 3, 4, 5, 6, 11, 12, 13, 32

Texas Medical Liability Act, Tex. Civ. Prac. & Rem. Code §74.351 ……….........................23

Other

Dorsaneo, 20 Texas Litigation Guide §321.11[1][a]; ………………………………………..7

Edgar, Sales, Texas Torts & Remedies §4.01[4][d] …………………………………………10

Griffith & Johnson, Texas Hospital Law – Liability And Damages §3.3 (3d ed. 2003); ……7

Penick, Medical Malpractice, 44 Texas Practice Series §1:27 (2010) ……………………….7

Perdue, Direct Corporate Liability Of Hospitals, 24 S. Tex. L.J. 773 (1983) ..........................7

Prosser & Keeton On The Law Of Torts §30, at 165 (5th ed. 1984) ………………………….11

Tottenham, Current Hospital Liability in Texas, 28 S. TEX. L. REV. 1, 10 (1987) …………7, 8

REQUEST FOR ORAL ARGUMENT

The Plaintiffs-Appellees respectfully request oral argument, to assist the Court to more
easily understand the factual and legal issues involved in this case, as described in this Brief.

iv
 NO. 12-15-00014-CV
______________________________________________________________________________

IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
AT TYLER
______________________________________________________________________________

East Texas Medical Center d/b/a East Texas Medical Center
Emergency Medical Services
Appellant

v.

Jody Delaune, Individually and as Personal Representative of the Estate
of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune,
Destiny Delaune and Dee Ann Delaune, Minors

Appellees
______________________________________________________________________________

APPEAL FROM CAUSE NO. 13-0984-A
IN THE DISTRICT COURT OF SMITH COUNTY, TEXAS
7th JUDICIAL DISTRICT
HON. KERRY L. RUSSELL
______________________________________________________________________________

TO THE HONORABLE TWELFTH COURT OF APPEALS:

Plaintiffs-Appellees, Jody Delaune, Individually; and as personal representative of the

Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny Delaune,

and Dee Ann Delaune file this brief requesting that the Trial Court’s judgment against Appellant

East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services

(“ETMC”) be upheld. Appellees would respectfully show:

1
 SUMMARY OF THE ARGUMENT

Ours is a case arising from the death of Crystal Delaune, who was allowed to exit the

back of a moving ambulance operated by ETMC, while Ms. Delaune was under the care of

emergency medical service providers (“EMS Providers”) employed by ETMC. Appellees

originally brought claims against both the EMS Providers and ETMC, but Appellant sought and

was granted partial summary judgment as to the EMS Providers, based on the Trial Court’s

finding that – under the Texas Good Samaritan Statute – the EMS Providers themselves could

not be held personally liable for damages, absent a showing that their actions had been willful

and wanton, and not merely negligent.

Thereafter, Appellees proceeded to trial on the theory that ETMC had violated the duty of

care ETMC itself owed directly to Ms. Delaune, by failing to properly formulate, implement and

enforce policies regarding the restraint of psychotic and/or delusional patients such as Ms.

Delaune. The evidence produced at trial demonstrated that the EMS Providers continually

sought to control Crystal Delaune solely by use of verbal techniques, despite Delaune’s

escalating agitation. Such agitation featured i) being forcibly tackled by a deputy sheriff; ii)

screaming accusations that the attending EMS Provider was Satan, and intended to murder the

ambulance driver; iii) demanding that the attending EMS Provider begin speaking in tongues;

and iv) no less than three attempts by Ms. Delaune to exit the ambulance, including one while in

motion, before the last and fourth exit to her death.

Throughout these cascading events, ETMC’s EMS Providers fully recognized the danger

that Ms. Delaune might attempt to jump out the ambulance’s doors, and at one point stopped the

ambulance to call for backup. Nonetheless, consistent with their training received from ETMC,

the EMS Providers ultimately determined that Ms. Delaune’s situation exhibited no need for

2
physical restraints, right up until the moment she jumped to her death. On the basis of such

evidence, the jury found that EMTC’s negligent implementation and enforcement of its restraint

policies proximately caused Ms. Delaune’s death, and awarded Appellees damages.

Now, Appellant has mounted an insufficient evidence challenge to the Trial Court

verdict, focusing on two issues. First, Appellant asserts that – in granting partial summary

judgment on its motion that the EMS Providers’ behavior had not been willful and wanton

(hence rendering them personally immune to liability, under the Good Samaritan Statute) – the

Trial Court somehow also determined that the EMS Providers were likewise not guilty of merely

ordinary negligence, as a matter of law. This representation is clearly false, as shown both by the

relief requested by Appellant’s own partial summary judgment motion, and the Trial Court’s

Order granting that motion.

Appellant then goes on to argue that, on proximate cause grounds, this supposed “no

negligence” ruling likewise frees ETMC from all liability, citing a line of negligent hiring cases

holding that an employer cannot be held directly liable unless its employee committed an

“actionable tort”. However, Texas case law makes clear that when hospitals like ETMC breach

their policy-making duties, they can be held directly liable, even in the absence of any

negligence by the hospital personnel carrying out such policies. Moreover, Appellees

demonstrate herein that even if such “actionable tort” negligent hiring cases were applicable,

these cases require only that – when a plaintiff sues an employer for the employer’s own actions

– the plaintiff must demonstrate that the employer’s actions caused plaintiff to suffer an injury

recognized in the common law. Such workplace cases do not additionally require the plaintiff

obtain a freestanding jury finding establishing the negligence of the involved employees.

3
 Appellant’s second insufficient evidence challenge asserts that i) the expert testimony

supplied by Appellees’ expert Dr. Marvin Wayne failed to establish the applicable training-

policy standard of care, while ii) other evidence in the Trial Court record established that ETMC

did in fact teach its EMS Providers about other, non-verbal forms of restraint, and otherwise

provided sufficient training regarding patient restraint issues generally. However, as shown by

the testimony set forth herein, the common answer to both these challenges is that the specific

defect plaguing ETMC’s training policies was that they failed to ensure that its EMS Providers

knew when to escalate to the use of physical restraints, as demonstrated by the tragic events of

this case.

ARGUMENT

I. Whether Judgment in Favor of Appellees Should be Reversed Because There is
Legally Insufficient Evidence of Proximate Cause Against ETMC

The first issue presented by Appellant consists of its argument that i) ETMC cannot be

held liable for any failure to train its EMS Providers, unless such employees committed an

“actionable tort”, and ii) the Trial Court granted summary judgment as to Appellees’ claims

against the EMS Providers, such that iii) any failure-to-train by ETMC could not constitute a

proximate cause of Crystal Delaune’s death.

In response, Appellees would begin by pointing out that Appellant’s entire “proximate

cause” argument is premised upon Appellant’s repeated, false assertion to this Court that “the

trial court ruled prior to trial that the EMS Providers were not negligent as a matter of law”. See

pages 16, 23 and 32 of Appellant’s Brief. The Trial Court did nothing of the sort; rather, by the

very act of providing emergency care to Crystal Delaune, the ETMC employees in this case were

found by the Trial Court to qualify for protection under the so-called ‘Good Samaritan Statute’,

4
Tex. Civ. Prac. & Rem. Code §74.152. The relevant text of the Good Samaritan Statute provides

that:

emergency medical service personnel [such as the EMS Providers were found to be] are
not liable for civil damages for an act performed in administering the care unless the act
is willfully or wantonly negligent.

Unsurprisingly, Appellant sought to utilize the Good Samaritan Statute to dispose of

Appellees’ claims against its EMS Providers, by filing a motion explicitly titled “Defendants’

Traditional and No-Evidence Motions for Summary Judgment Regarding Wilful and Wanton

Negligence” (“PSJ Motion”). In its PSJ Motion, Appellant made no claim whatsoever that its

EMS Providers were not guilty of garden-variety “ordinary” negligence, but rather that the Good

Samaritan Statute reflected a public policy decision to impose a “higher liability threshold of

‘wilful and wanton negligence’ rather than the standard threshold of ordinary negligence.” (1

CR 42, 60) Elsewhere, Appellant’s PSJ Motion repeatedly equates the ‘wilful and wanton’

standard to that of “gross negligence” (1 CR 46, 52), and states that such higher statutory

standard reflected a public policy decision aimed at preventing emergency caregivers from being

penalized for ‘judgment calls’ made under the hectic conditions endemic to emergency care. (1

CR 48, 60). Accordingly, Appellant’s PSJ Motion requested – and the Trial Court granted – a

take-nothing judgment as to the EMS Providers, solely on the grounds that they were not

willfully and wantonly negligent as a matter of law. (1 CR 60-61; 2 CR 365).

Yet, Appellant now seeks to argue that its PSJ Motion somehow gave rise to a finding

that the EMS Providers were likewise determined to be not guilty of ordinary negligence as well.

Appellees will not belabor the obvious distinctions between ordinary negligence and ‘wilful and

wanton negligence’, given that Appellant thoroughly addressed such at page 11 of its PSJ

Motion (1 CR 46), citing Dunlap v. Young, 187 SW3d 828, 836 (Tex. App. – Texarkana 2006,

5
no pet.). Appellees would only point out that the Good Samaritan Statute says nothing

whatsoever to the effect that emergency medical service personnel are somehow magically

prevented from acting in a manner constituting ‘ordinary negligence’; rather, the Statute holds

only that such personnel cannot be held liable for damages unless their errors rise to the level of

‘wilful and wanton negligence’.

Thus, the Trial Court record contains no finding whatsoever that the EMS Providers

employed by Appellant were not guilty of ordinary negligence in their care of Crystal Delaune.

Instead, the Trial Court found only that the EMS Providers did not exhibit the conscious

indifference that is the hallmark of the higher, gross negligence standard. The record likewise

shows no effort on the part of Appellant to require a jury finding as to the express issue of

whether the EMS Providers were guilty of ordinary negligence. Finally, at no time did Appellant

argue that ETMC-as-entity was likewise a beneficiary of the Good Samaritan Statute, or that

ETMC’s policies themselves were formulated, implemented or enforced under emergency

conditions.

To repeat, then, at p.16 of its Brief, Appellant explicitly premised its entire proximate

cause argument on the Trial Court’s supposed finding that “the EMS Providers were not

negligent”. Given that such canard has been conclusively shown to be untrue, exactly what

remains of Appellant’s ‘proximate cause’ argument? The short answer is: not much.

To begin with, Texas courts have repeatedly and consistently recognized that corporate

health care entities such as the Appellant ETMC may be held directly liable for injuries arising

from the negligent performance of their duties owed directly to a patient. Chesser v. LifeCare

Mgmt. Servs., L.L.C., 356 S.W.3d 613, 629 (Tex. App. – Fort Worth 2011, pet. denied); Tenet

Health Ltd. v. Zamora, 13 SW3d 464, 471 (Tex. App. – Corpus Christi 2000, pet. dism’d

6
w.o.j.); McCombs v. Children’s Med. Ctr., 1 S.W.3d 256, 259 (Tex. App. – Texarkana 1999, pet.

denied); Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997,

pet. denied); Air Shields, Inc. v. Spears, 590 SW2d 574, 581 (Tex. App. – Waco 1979, writ ref,

nre); and Perdue, Direct Corporate Liability Of Hospitals, 24 S. Tex. L.J. 773 (1983). Such

duties owed by Appellant ETMC directly to its patients include those sued upon by Appellees,

i.e. a duty to use reasonable care in formulating, implementing and enforcing the policies and

procedures which govern its employees, such as the EMS Providers. McCombs, 1 SW3d at 256;

Mills v. Angel, 995 SW2d 262, 269 (Tex. App. – Texarkana 1999, no pet.); Penick, Medical

Malpractice, 44 Texas Practice Series §1:27 (2010).

Given that the common law provides Appellees a direct cause of action to recover from

ETMC, this Court must proceed carefully in reviewing Appellant’s argument that such common

law cause of action is automatically cut-off by the heightened protections which the Good

Samaritan Statute extends only to the EMS Providers. As noted in Cash America v. Bennett, 35

SW3d 12, 16 (Tex. 2000), abrogating a common law cause of action by reason of statutory

enactments is disfavored, and such statutes will not be extended beyond their plain meaning.

Moreover, a necessary corollary to the common law’s imposition of direct corporate

liability upon healthcare entities such as Appellant is the principle that such hospital’s direct

liability is not dependent on a finding of negligence on the part of any other healthcare provider.

LaCroix, 947 SW2d at 950; Tenet, 13 SW3d at 471; Dorsaneo, 20 Texas Litigation Guide

§321.11[1][a]; Griffith & Johnson, Texas Hospital Law – Liability And Damages §3.3 (3d ed.

2003); and Tottenham, Current Hospital Liability in Texas, 28 S. TEX. L. REV. 1, 10 (1987).

Indeed, the oft-cited LaCroix opinion explores this issue at length, in the course of upholding a

jury finding that a hospital had negligently breached its duty to formulate policies regarding the

7
provision of anesthesia, despite the fact that (unlike the present dispute) the jury in LaCroix

expressly found that the involved anesthesiologists and nurse had not been negligent; i.e., did not

cut off causation.

Appellant’s cursory attempts – at pp. 23-24 of its Brief – to distinguish the LaCroix result

fall as flat as its assertion that Appellees somehow sued exclusively upon Appellant’s ‘failure-to-

train’ the EMS Providers specifically, rather upon Appellant’s general failure:

to formulate, implement, and enforce a policy requiring patients like Ms. Delaune, who
are at risk of harming themselves and/or others, to be continuously restrained physically
and/or chemically during transport.

See 9.02 of Appellees’ Second Amended Petition (1 CR 32). Likewise, Appellant’s straight-

faced attempt to argue – at p. 24 of its Brief – that this Court should be guided instead by the

“instructive and persuasive authority” in Latimer v. Memorial Hermann Hospital System, 2011

Tex. App. LEXIS 423 (Tex. App. – Houston [14th Dist.] Jan. 20, 2011, no pet.) is frankly

embarrassing. Latimer is an unpublished two page opinion standing for nothing more than the

proposition that a non-patient who is merely spoken to by a janitor while using a hospital’s

public toilet is not entitled to a million dollars.

As has been shown above, the result in LaCroix – i.e. that a hospital can be held directly

liable for its failure to implement and enforce policy, even in the absence of negligence of any

additional party – is no kind of isolated aberration, but is instead a necessary corollary to Texas’s

unquestioned adoption of the direct corporate liability doctrine, as discussed in the 1987

Tottenham law review article, written an entire decade before LaCroix was issued. 28 S. TEX.

L. REV. at 10. See also Moser v. Heistand, 681 A.2d 1322, 1326 (Pa. 1996):

A cause of action under corporate liability is based on the breach of non-delegable duties
that a hospital owes directly to its patients, and is independent of the negligence of the
hospital’s employees or ostensible agents…The cause of action arises from the policies,

8
 actions or inaction of the institution itself rather than the specific acts of individual
hospital employees.

Nonetheless, Appellant argues at p. 24 of its Brief that the result in LaCroix should be

treated as having been effectively overruled by the Texas Supreme Court’s 2012 opinion in

Wansey v. Hole, 379 SW3d 246 (Tex. 2012), which Appellant interprets as requiring that an

employer cannot be held liable unless its employee is likewise held liable for an “actionable

tort”. We begin by noting that i) Wansey is confined to a negligent hiring context, ii) Wansey

itself makes no mention whatever of LaCroix, iii) the tort alleged in Wansey is not a failure to

formulate and/or enforce policy, much less training policy, iv) Wansey does not involve a

healthcare setting, nor the ‘direct corporate liability’ doctrine applicable to health care entities

such as Appellant; and v) no court has subsequently applied Wansey in any such relevant

manner. For these reasons, Appellees would argue that this Court should resist facile applications

of employer-liability concepts in the healthcare context, where scope-of-duty questions regarding

hospitals routinely involve (literally) life-and-death issues more serious than whether Wansey’s

driving school instructor flirted with a teenage student. See Carney v. Roberts Investment Co.,

837 SW2d 206, 211 (Tex. App. – Tyler 1992, writ denied), recognizing that an employer’s duty

to ensure the proper training of his employees applies with heightened force “where engaged in

an occupation which could be hazardous to life and limb and requires skilled to experienced

servants.”

Caution is especially appropriate in our “failure to implement and enforce policy”

context, where it is hardly difficult to imagine numerous scenarios – such as those involving

policies relating to improper training, or insufficient staffing – which could proximately result in

dire injuries to the patient, even though the actionable negligence lay diffused among the

hospital’s policymakers, and not those undertrained or understaffed hospital workers who

9
actually dealt with the injured patient. If, for example, a hospital seeking to cut costs placed a

novice nurse in sole charge of its neonatal ICU, and an infant died as a result, would a novice

unwillingly thrust into such role be personally liable for negligence and, if not, should the

hospital thereby be allowed to evade all liability for the hazard its own policies created?

Moreover, even assuming this court does sees fit to apply Wansey to the present

healthcare dispute, the court’s careful review will find that Wansey simply does not stand for

what Appellant claims it does. That is, Appellant repeatedly asserts that ETMC cannot be held

liable for any failure to implement and enforce proper policies regarding patient restraint, unless

its EMS Providers committed an “actionable tort” while caring for Ms. Delaune. However, in

reviewing both Wansey and the innumerable cases cited by Appellant at pp. 20-21, it is seen that

in requiring an “actionable tort”, Texas courts have consistently focused not upon the employee’s

culpability, but rather upon requiring a showing that i) the plaintiff suffered a genuine, legally

recognized injury, and ii) that that injury directly resulted from the employer’s failure to take the

action complained of. Wansey, 378 SW3d at 247-48; Gonzalez v. Willis, 995 SW2d 729, 739

(Tex. App. – San Antonio 1999, no pet.); The Methodist Hospital v. German, 369 SW3d 333,

349-50 (Tex. App. – Houston [1st Dist] 2011, pet. denied). Accord, Edgar, Sales, Texas Torts &

Remedies §4.01[4][d], at p. 4-10: “Without an actionable tort, the plaintiff has not been injured

in the eyes of the law. Therefore, the employer’s negligence did not cause a legally compensable

injury” (emphasis added). Indeed, Appellant’s own Clark v. PFPP Ltd. Partnership, 455 SW3d

283, 287 (Tex. App. – Dallas 2015, no pet.) holds that “Negligent hiring, supervision, and

retention claims focus on the employer’s own negligence, not the negligence of the employee”,

citing Leake v. Half Price Books, 918 SW2d 559, 563 (Tex. App. – Dallas, no writ).

10
 In short, the true focus of these “actionable tort” cases is establishing a proximate

causality between the employer’s behavior and the plaintiff’s harm. Had ETMC’s policies

strictly required that its ambulances be painted yellow, for example, yet Ms. Delaune died while

exiting one that was painted red, there would obviously be a fatal disconnect between the

unenforced policy provision, and the harm sued upon. See Prosser & Keeton On The Law Of

Torts §30, at 165 (5th ed. 1984), as cited by the Gonzales court, 995 SW2d at 739. Appellees in

no way question this need for a valid causal link between Appellant’s failure to implement and

enforce a proper restraint policy, and Ms. Delaune’s death. Indeed, in the next section of this

Brief, Appellees extensively highlight the evidence in the Trial Court record which establishes

such causal link.

Appellant, on the other hand, desires Wansey and the accompanying “actionable tort”

cases to say something they do not say, i.e. that ETMC itself cannot be held liable unless the

Appellees secure a specific jury finding that the EMS Providers were themselves negligent, and

is awarded damages against the EMS Providers. More specifically, under the facts our case,

what Appellant appears to be arguing is that ETMC itself cannot be held liable – for the injuries

the jury found its policy implementation and enforcement failures to have inflicted upon Crystal

Delaune – solely because a special Good Samaritan Statute gave Appellant’s employees (but not

Appellant itself) limited immunity protection from damages resulting from those employees’

actions. However, Appellant wholly fails to cite any case law espousing the principle that

statutory damage-immunity prevents an “actionable tort” from occurring, whereas as Cash

America v. Bennett, 35 SW3d at 16, argues directly against such result.

Indeed, Appellants’ own cases repeatedly make clear that the heart of the “actionable

tort” requirement is a showing that, via the instrumentality of the employee’s acts, the plaintiff

11
suffered an injury recognized at common law. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846

at *17; Gonzalez, 995 SW2d at 740. See also Doege v. Sid Peterson Memorial Hospital, 2005

Tex. App. LEXIS 4964 *21 (Tex. App. – San Antonio June 29, 2005, pet. denied). There can be

no serious question that the harm suffered by Crystal Delaune constitutes an injury recognized in

common law, even if a special statutory enactment bars Appellees’ ability to recover damages

for such harm from the EMS Providers themselves. Chesser, 356 S.W.3d at 629; Tenet Health

Ltd., 13 SW3d at 471. As already noted, Texas disfavors any finding that a statutory tightening

of Appellees’ right-to-recover against the EMS Providers (via the Good Samaritan Statute)

should also abrogate its common law right to recover from ETMC. Cash America, 35 SW3d at

16.

Last, conscience requires Appellees to take issue with Appellant’s contention – at p. 23 of

its Brief – that because the Good Samaritan Statute shields ETMC’s EMS Providers from

damages for paramedical ‘judgment calls’ made in extremis, Appellant itself, in implementing

and enforcing its policies at its leisure, should likewise be free to subject its patients to all

degrees of negligence short of the willful and wanton variety, by reason of the lesser “standard

of care” supposedly established by the Good Samaritan Statute; i.e., Appellant argues it can get

away with more. However, Appellant has advanced no rationale as to why ETMC’s policy-

related actions should likewise be protected under the Good Samaritan Statute’s “willful and

wanton” standard, whereas the law is clear that the policy-related duty of care owed by ETMC

directly to its patients is measured under a stricter, ordinary negligence standard. Chesser, 356

S.W.3d at 629; Tenet Health Ltd., 13 SW3d at 471. Thus, as Appellant seeks to clothe itself – by

proxy – in the Good Samaritan immunity extended only to its EMS Providers, Appellees would

again point out that Appellant’s own authorities hold that the courts should properly “focus on

12
the employer’s own negligence, not the negligence of the employee”. Clark, 455 SW3d at 287;

Leake, 918 SW2d at 563.

Ultimately then, ours is a case where Appellant itself submitted the special issue under

which the jury found ETMC guilty of negligence which proximately caused the death of Crystal

Delaune, with the accompanying instructions making clear that the “ordinary care” required of

ETMC referred to the manner in which it implemented and enforced its policies. (2 CR 375)

There can be no question that under Texas law i) a corporate entity such as ETMC can only act

through its human agents, and ii) an event can have more than one proximate cause. In Re

Merrill Lynch, 235 SW3d 185, 188 (Tex. 2007); and Whitehead v. Tobias, 7 SW3d 658, 662

(Tex. App. – Texarkana 1999, no pet.). Accordingly, Appellees are unaware of any need for any

additional, specific findings as to the ordinary negligence of the EMS Providers who treated

Crystal Delaune, in order to establish the ‘proximity’ already found by the jury.

Although the Trial Court did indeed determine on summary judgment that the EMS

Providers were not guilty of ‘wilful and wanton’ conduct, ETMC’s own policy-related duties

owed to Crystal Delaune incorporate an ordinary negligence standard, such that there is no

relevant ‘dissonance’ between the summary judgment findings as to the EMS Providers, and jury

findings as to ETMC. Had the EMS Providers, in fact, been found not guilty of ordinary

negligence, then this Court might have been required to examine more closely the interaction

between the LaCroix and Wansey precedents discussed above. Even then, the proximate cause

of Crystal Delaune’s death was the negligent failure by ETMC to train its EMS Providers when

to use physical restraints. However, the short and definitive answer to Appellant’s opening

“proximate cause” challenge is that the EMS Providers were never deemed absolved of ordinary

negligence, and therefore their protection under the Good Samaritan Statute in no way liberates

13
their employer ETMC from the consequences of the jury’s finding that Appellant negligently

failed to fulfill its own policy-related duties owed directly to Crystal Delaune.

II. Whether Judgment In Favor Of Appellees Should Be Reversed Because There Is
Legally Insufficient Evidence Of The Applicable Standard Of Care And Breach By ETMC

The second issue presented by Appellant consists of its argument that Appellees supplied

legally insufficient evidence that ETMC failed to implement and enforce policies regarding the

use of restraints by its EMS Providers when dealing with psychotic and/or delusional patients

such as Crystal Delaune. In connection with such ‘insufficient evidence’ argument, Appellant

advances three distinct sub-arguments: i) Appellees’ expert Dr. Wayne offered only conclusory

statements; ii) the evidence at trial supposedly established that the EMS Providers knew about

the use of restraint; and iii) the testimony of Appellees’ expert Dr. Wayne supposedly involved

improper ‘inference stacking’. In responding to this issue, it will be helpful to review the

operative sequence of events, the trial testimony of the attending EMS Provider Linda Moore,

and the testimony of Appellees’ expert witness, Dr. Wayne.

OPERATIVE SEQUENCE OF EVENTS

Ours is a case where the EMS Providers intentionally chose not restrain their patient

Crystal Delaune, in favor of relying exclusively on the “talk down” technique, despite an ever-

escalating series of warning signs that Crystal Delaune intended to exit a speeding ambulance.

That is, as regards the eleven minutes between Crystal’s first meeting with Appellant’s EMS

Providers, and her leap that resulted in her death, evidence was presented that:

Prior to arrival, the EMS Providers had already been informed by their dispatcher that
Crystal Delaune was exhibiting abnormal behavior (3 RR 100, 101);

Upon first encountering her, the EMS Providers found Crystal Delaune confined in a
sheriff’s car (3 RR 101);

14
As the EMS Providers attempted to escort her from the sheriff’s car to the ambulance,
Crystal Delaune intentionally fell to the ground (3 RR 107, 192);

Prior to departure, Crystal Delaune twice attempted to escape from the ambulance (3 RR
109, 121; 5 RR 145-46);

In response to one such escape, the sheriff placed a chokehold on Crystal Delaune and
violently threw her to the ground (3 RR 109, 194-95);

The EMS Providers admitted they never succeeded in establishing a “reality base” with
Crystal Delaune (2 RR 240; 3 RR 206);

The EMS Providers believed that Crystal Delaune was confused, delusional and suffering
from psychosis (2 RR 239, 241; 3 RR 97, 108, 119, 188);

The attending EMS Provider thought Crystal Delaune was “out of her head and just
basically didn’t know what she was doing” (3 RR 124);

The attending EMS Provider agreed that Crystal Delaune’s psychosis caused her to
alternate between communicating rationally and spouting “crazy stuff”;
(2 RR 241)

Approximately four miles from the pickup point, Crystal Delaune unbuckled her straps
in the moving ambulance, sat on the edge of the stretcher, and announced that she wanted
to get out of the ambulance (3 RR 114-15, 117, 121, 196-97);

In response to Crystal Delaune’s third attempt to exit the speeding ambulance, the EMS
Providers locked the ambulance’s rear doors to slow any attempted exit by Crystal
Delaune (2 RR 236; 3 RR 117-18, 121);

In response to Crystal Delaune’s third attempt to exit the speeding ambulance, the EMS
Providers stopped the ambulance and called the sheriff for backup, but later chose to
proceed without such help (3 RR 116-17);

Crystal Delaune began loudly accusing the attending EMS Provider of being Satan, of
intending to murder her fellow EMS Provider, and demanded that such attending EMS
Provider begin speaking in tongues (3 RR 97, 118-19, 197-98);

Crystal Delaune began jabbing her hand into the face of the attending EMS Provider, and
screaming that she is going to go to hell (3 RR 118-20);

Having never been restrained, Crystal Delaune got off the stretcher, unlocked the doors
of the speeding ambulance and jumped out to her death (3 RR 121-23).

15
Thus, despite this wealth of indicators that Crystal Delaune intended to forcibly exit the

ambulance, the EMS Providers testified that the actions, or more accurately, inaction taken by

them in not physically restraining Crystal Delaune were entirely consistent with the training they

received from ETMC.

Accordingly, at issue in the trial was the very narrow question of whether ETMC had

properly implemented and enforced policies as to when its EMS Providers should have

abandoned the “talk down” approach used exclusively upon Crystal Delaune, and advanced to

applying physical restraints which would have prevented her death.

RELEVANT EXCERPTED TESTIMONY OF EMS PROVIDER LINDA MOORE

Linda Moore, the EMS Provider who attended Crystal Delaune during the ambulance

ride, testified to the following:

Q How were you trained as to when to use the talk-down technique?

A At all times.

Q So not only at the scene, but when you are transporting, correct?

A Correct.
(2 RR 239)

Q Okay. Do you agree that what you told me in your deposition, when I took it, was
that you are going to keep trying the verbal or talk-down until it completely doesn’t
work; just keep trying – keep trying that, right?

A Yes, sir.

Q And that’s because of the way you were trained?

A Correct.
(3 RR 98)

Q I think you told me in your deposition, “I’ve been taught to use verbal commands
all the way through.” Right?

A Correct.

16
(3 RR 99)

[After Crystal Delaune removed her seat belts, swung to the side of her stretcher in the
moving ambulance and announced she was going to exit the ambulance, the EMS
Providers locked the rear doors to prevent Crystal Delaune’s escape, and made a call for
assistance. Nonetheless, the EMS Providers continued to rely on the talk-down technique
exclusively.]

Q Because that’s the way you’d been trained, isn’t it?

A Yes.

Q You thought that was working?

A Yes.

Q So keep doing it, because that’s the way you were trained?

A Yes sir.
(3 RR 116)

Q In your training, going back to the ‘70s, were you ever taught that there was any
number of times after which you stopped the verbal technique, the talk-down technique
first?

A No, sir.
(3 RR 149-50)

Q What was your training and your understanding as to when and how to restrain
patients?

A It’s been the same. You talk to the patient first. Always.

Q Okay. And then when do you go to restraints?

A When they become physical to you or themselves.
(3 RR 163)

[Appellant’s counsel questioned Linda Moore concerning Crystal Delaune’s condition
after her third attempt to escape the ambulance, and her loud accusations that Linda
Moore was Satan and intended to kill the ambulance driver.]

Q Up to this point in time, based on your training and education, experience from
ETMC and before, can you tell the ladies and gentlemen if, in your opinion, she was
being cooperative with you?

17
 A She was cooperative the whole time with me.

Q And up to this point in time, based on your training and education, experience,
even before ETMC, was she responding to the verbal first technique?

A She responded to verbal commands each time.
(3 RR 200)

Q -- in your opinion, did you attend to Ms. Delaune in a manner that you believe to
be consistent with ETMC’s behavioral disorder’s protocol?

A Yes, sir.
(3 RR 202)

[Appellees’ counsel further questioned Linda Moore as follows]

Q …way back when Mr. Thiebaud asked you about how you were trained by East
Texas Medical Center EMS, you answered – and maybe even slipped a little bit – but you
said, “Talk-down at any cost”. Didn’t you?

A Yes, sir. Probably did.
(3 RR 210)

In short, EMS Provider Linda Moore repeatedly testified that – pursuant to the training

she received from ETMC – her continued reliance solely upon the “talk-down” technique was

fully appropriate. Moore further testified that pursuant to her training, no escalation to physical

restraints was called for, despite i) Crystal Delaune’s psychotic state; ii) her repeated attempts to

exit the ambulance, including while the ambulance was speeding, iii) her declaration that she

would exit the ambulance, and iv) the fact that Linda Moore foresaw that Crystal Delaune could

quickly injure herself by exiting the speeding ambulance. Rather, the testimony supplied by

Linda Moore indicated that she had been trained to continuously rely on the talk-down technique

in essentially “amnesiac” fashion, that is with no regard whatsoever to a psychotic patient’s

immediate history of escalating noncooperation, nor to the dangers presented by a moving

ambulance.

18
 Q Does that mean one time; and then after that you’re off to physical and chemical
restraints?

A Verbal is every time that you can talk with them and get them to calm down.

Q Each time?

A Each time.
(See 3 RR 189)

At 3 RR 204-05, Appellees’ attorney walked EMS Provider Linda Moore through the

entire history of Crystal Delaune’s psychotic and noncooperative behavior on the night of her

death, in an attempt to determine “How many verbal firsts do you get?”, before physical

restraints become necessary. Moore replied that “[t]here were verbal firsts every time that was

appropriate”, until Crystal Delaune made her final, fatal lunge out the ambulance’s backdoor:

“At that time, the verbal was me asking her to stop, and, no, she did not stop”. (3 RR 205)

RELEVANT EXCERPTED TESTIMONY OF APPELLEES’ EXPERT DR. WAYNE

In reading EMS Provider Linda Moore’s earlier deposition testimony, Appellant’s expert

witness Dr. Wayne had been struck by the very same “repetitive focus” on the use of talk-down

technique exclusively, as would be again demonstrated in the EMS Provider’s trial testimony

highlighted above. In his own trial testimony, Dr. Wayne stated the following:

If you read their [EMS Providers] depositions, they repetitively talk about a single
therapy or therapeutic approach – process approach to a behavioral emergency. If that’s
the only basis and understanding they have, then, clearly, their education has failed them.
(3 RR 20-21)

So clearly, in reading their depositions, the only thing that repetitively came up was: We
talk them down. And the question was raised to them: “Well what happens if you talk
them down and they’re not doing” –

“Well we continue to talk them down”

So, to me, the next two steps that should have occurred, they did not possess and were not
clearly tested that they had received and understood that knowledge of the critical next
steps when talking down didn’t work.

19
(3 RR 22)

Q Okay. And when talking-down is not working, what’s the next step.

A Little bit depends. It depends on, if that patient’s going to be transported, who’s
going to transport that patient … assuming that you, as the EMS provider, are going to
transfer the patient, the next step is to place the patient into some form of a restraint.
(3 RR 23)

Q Let me ask you, at this point, if Crystal Delaune had had restraints on during that
ambulance transport, would she be alive today?

A Presuming that no other cause would have harmed her, the answer is yes.
(3 RR 25)

Q In reviewing the testimony of Linda Moore and Lindy Spurgers, did they ever
indicate that they were trained on when restraints are needed or necessary according to
this policy?

A Well, as stated there in the report and in their deposition, they repetitively
mentioned the process of using talk-down. They never described any other technique for
handling the behavioral emergency.

So while this may be presumptuous, I think it’s honest in saying that if they didn’t
discuss any other methodology when they were queried in their deposition, I would
assume that they didn’t have the intrinsic knowledge, the ability to know to go to the next
step.
(3 RR 29)

Q Okay. Now, with respect to the standard of care, did the standard of care yet
require restraints of the time Crystal had tried to get out of the ambulance twice there at
Running Rudy’s parking lot?

A In my interpretation, yes.
(3 RR 33-34)

[Dr. Wayne stated that Crystal Delaune should have been put in four-point restraints
after she got off the stretcher while the ambulance was moving.]

Q And in terms of Linda Moore’s training, why didn’t that happen?

A: Well, I can’t read her mind, but I can only state what she said in her deposition.
She said, “I was taught to talk-down. Keep talking-down and keep talking-down.”
And there’s nowhere in her deposition where she states that she was taught anything
beyond talk-down.

20
Q Was it well below the standard of care for East Texas Medical Center to not train
Linda Moore and Lindy Spurgers to restrain Crystal at this point?

A Well, the answer is “yes”, but it has two facts to it.

Q: What are those –

A: Okay. Fact one is what your pieces of paper say and what you teach. Fact two is
assessing that those people have understood that knowledge. So I don’t doubt that East
Texas Medical Center’s documentation that we all saw is what their documentation is.
My concern is that – and my feeling where the failure of standard of care occurred is that
if the EMS providers only knew to talk-down, they had not been taught. The paper says
that’s why you do, but the education wasn’t there to validate that piece of paper.
(3 RR 35-36)

Q So based on the testimony of Linda Moore and Lindy Spurgers, do you have an
opinion on whether East Texas Medical Center EMS deviated from the standard of care
by not properly training Linda Moore and Lindy Spurgers on when to use restraints on
patients like Crystal Delaune?

A Well, based on the information provided in their depositions and the events that
occurred, I would have to say yes.

Q Okay. So what is your opinion?

A My opinion is – again, we have a paper here saying: This is what we teach. We
had actions and testimony from certainly honest EMS providers, “That’s not what we
knew.”

Q Okay. This is similar, but I need to ask this question. Based on the testimony of
Linda Moore and Lindy Spurgers, do you have an opinion on whether East Texas
Medical Center EMS failed to use ordinary care by not properly training Ms. Moore and
Ms. Spurgers on when to use restraints on patients like Crystal Delaune?

A Well, since I’m not sure the difference is – the answer would still be yes.

Q Okay. And so what is the opinion?

A My opinion is, again, we have the discrepancy between performance and teaching
– or at least paper education. I mean – and I’m not being disrespectful to East Texas
Medical Center. I’m sure they’re good people – good, caring people. The paperwork
says: This is what we teach. The knowledge based by two EMS providers – not one but
two – say, “That’s not what we knew.” So based on those pieces of information, I would
say, yes, they fell below the standard of care.

21
Q All right. And let me ask you, based on the testimony of Linda Moore and Lindy
Spurgers, do you have an opinion on whether East Texas Medical Center EMS was
negligent in failing to properly train Ms. Moore and Ms. Spurgers on when to use to use
restraints on patients like Crystal Delaune?

A I think we’re going to have to get a definition of “negligent”. But I understand
we’re in a court. I understand the terminology –

Q So let me ask you to assume that “negligent” means failure to use ordinary care or
a deviation from the standard of care.

A And the answer there would be yes, with that definition.

Q Okay. So just so we’re clear for the record, what is your opinion?

A My opinion is that if we’re defining negligence in this case as failure to
appropriately educate so they had the predicate knowledge to know what to do beyond
talk-down, the answer is yes.
(3 RR 41-44)

Q Okay. Was it foreseeable to an ordinarily prudent EMS provider, such as East
Texas Medical Center EMS, that if it didn’t properly train its EMTs and paramedics
regarding when to use restraints on its patients, that harm might reasonably come to the
EMTs or paramedics, a patient like Crystal Delaune, or the public?

A I’ve got to walk through that in my mind for a second.

Q Okay.

A I think we’re really saying the same thing again. Education didn’t match
knowledge. And in that case the answer is yes.

Q And with respect to that harm, was it foreseeable to an ordinarily prudent EMS
provider, such as East Texas Medical Center EMS, that if it didn’t properly train its
paramedics, that harm could include something like what happened in this case? Patient
could go out the back of an ambulance?

A Well, let me predicate that by saying that’s why we teach people to follow the
pathways to protect the patients and themselves; so, therefore, the answer is yes.
(3 RR 44-45)

Q Do you have an opinion, in reasonable medical probability, on whether the failure
of East Texas Medical Center EMS to properly train Linda Moore and Lindy Spurgers on
when to use restraints caused Linda Moore and Lindy Spurgers not to restrain Crystal
Delaune?

22
 A Again, here’s what I’m using for the predicate to give my answer: Their
depositions, where they continually only talked about the talk-down approach and never
discussed alternative therapies; and based on that fact, the answer would be yes.

Q Okay. And so then the next step is: Do you have an opinion…in reasonable
medical probability on whether the failure by East Texas Medical Center EMS to
properly train Linda Moore and Lindy Spurgers, that failure then led to Crystal Delaune
to be able to go out the back of the ambulance to her death?

A Yes.

Q And what is that opinion?

A Yes.

Q Okay. Let me ask you then, do you have an opinion on had East Texas Medical
Center EMS properly trained Linda Moore and Lindy Spurgers about when to use
restraints, is it probable Crystal Delaune would not have been able to go out the back of
the ambulance to her death?

A Yes, that is probable.
(3 RR 45-46)

At pp. 26-27 of its Brief, Appellant asserts that the trial testimony supplied by Appellees’ expert

Dr. Wayne supposedly failed to meet the applicable evidentiary burden of demonstrating the

actual, factual specifics of the duty of care ETMC owed to its patient Crystal Delaune, in

implementing and enforcing its policies regarding training its EMS Providers on the use of

restraints when caring for psychotic and/or delusional patients such as Crystal Delaune.

In support of this alleged ‘heightened specificity’ standard, however, Appellant almost

entirely relies upon cases where one litigant sought to dispose of a case prior to trial based solely

upon the contents of a physician’s CPRC §74.351 report, such as when i) a party seeks summary

judgment, or ii) where a court scrutinizes whether the plaintiff’s initial CPRC §74.351 expert

report (statutorily required to be submitted in all healthcare liability cases) satisfies the

requirements of the governing Texas Medical Liability Act, CPRC §74.351. Long story short,

the cases cited in its Brief give no support whatsoever to Appellant’s assertion that an expert

23
witness’s live trial testimony is held to any heightened specificity requirement concerning the

applicable standard of care.

Moreover, even if such a specificity requirement did apply here, the excerpted Wayne

testimony set out immediately above clearly indicates that under the applicable standard of care,

the training policies implemented and enforced by ETMC should have made sure that its EMS

Providers learned when and how to advance to the next step (i.e. physical restraints) after their

initial verbal, “talk-down” technique ceased to be appropriate. (3 RR 22, 29, 44) Dr. Wayne

further testified that – in Crystal Delaune’s case – such talk-down technique ceased to be

appropriate when Delaune twice exited the parked ambulance (3 RR 33), and became

unquestionably inappropriate once Delaune made a third attempt to exit the ambulance as it sped

down the highway (3 RR 35).

Next, at pp. 27-28 of its Brief (and again at 36-37), Appellant once again cites a mish-

mash of irrelevant workplace injury cases in support of its assertion that Appellees were required

to prove that ETMC should have supplied training beyond what it actually provided to its EMS

Providers. Ours is hardly a case where Appellees’ expert blandly concluded, without more, that

ETMC had failed to properly train its EMS Providers. Rather, Dr. Wayne’s testimony explicitly

identified the relevant defect in ETMC’s implementation and enforcement of its policies, i.e. that

they should have ensured that its EMS Providers knew when to employ physical restraints after

initial “talk-down” efforts ceased to be appropriate (3 RR 22, 29, 44). Dr. Wayne likewise

identified at what precise junctures in their dealings with Crystal Delaune, the EMS Providers’

training should have alerted them to the fact that physical restraints were now required (3 RR 33,

35). The cases cited by Appellant’s Brief require nothing more.

Conclusory Testimony And Inference Stacking

24
 Next, at pp. 29-30 of its Brief, Appellant complains that the testimony of Appellees’

expert Dr. Wayne should be deemed legally insufficient because it is i) “conclusory and ipse

dixit in nature”, and ii) involves “one inference stacked on other inferences”.

First, Appellant complains that – in determining that the EMS Providers’ training had

improperly left such Providers fixated on the talk-down component of restraining psychotic

patients, with no effective knowledge of when to escalate to physical restraints – Dr. Wayne

improperly relied upon the depositions of such EMS Providers. Appellant’s Brief cites to no

portion of these depositions which contradict Dr. Wayne’s testimony. Instead, at pp. 33-34,

Appellant argues that if only different questions had been asked at such depositions (including by

Appellant’s own counsel), the EMS Providers might have supplied answers favorable to

Appellant.

Appellees do not wish to engage in any such speculative game of “what if”; rather,

Appellees would simply point out that the above-excerpted trial testimony of EMS Provider

Linda Moore emphatically and repeatedly confirms every ‘inference’ supposedly made by Dr.

Wayne from the EMS Providers’ earlier deposition testimony. That is, Linda Moore repeatedly

testified at trial that her actions, or inactions leading to Crystal Delaune’s death were entirely

consistent with the training she had received from ETMC, and that such training stressed an

unending reversion to talk-down techniques, regardless of the patient’s psychotic condition,

escalating history of misbehavior, or proximity to harm (2 RR 239; 3 RR 98, 99, 116, 149-50,

189, 200, 202, 204-05, 210).

Next, to the extent that Appellant asserts at p.31 that the City Of Keller case entitles it to

introduce additional evidence supposedly illustrating how Dr. Wayne gleaned improper

inferences from the EMS Providers’ depositions, Appellees fully welcome a review of such

25
additional evidence. City Of Keller v. Wilson, 168 SW3d 802, 813 (Tex. 2005). As already

noted, the trial testimony of EMS Provider Linda Moore amply confirmed her earlier deposition

statements indicating that her training left her unprepared to know when to employ any restraint

technique other than mere talk-down.

Likewise, the undisputed facts of the case themselves undeniably support Dr. Wayne’s

conclusions regarding the inadequacy of the EMS Providers’ training, given that the EMS

Providers continued to abjure restraining Crystal Delaune, despite her admitted psychotic state,

repeated escape attempts (sufficient to cause the EMS Providers to halt the ambulance, and call

for but then cancel assistance), and explicit recognition that Ms. Delaune might seek to exit the

speeding ambulance (as shown by Moore’s ineffective locking of the rear door, in response to

Delaune’s third attempt). Note that in his testimony, Dr. Wayne stated that he based his

conclusion not only on the EMS Providers’ depositions, but also on “the events that occurred”

(33 RR 141).

At pp. 32-33 of its Brief, Appellant attempts to argue that the EMS Providers’ failure to

restrain Ms. Delaune merely reflected an independent ‘exercise of judgment’ that physical

restraints were not called for, rather than any deficiencies in training. However, EMS Provider

Linda Moore repeatedly testified that all actions taken by her were consistent with the training

provided by ETMC (3 RR 98, 99, 116, 149-50, 163, 200, 202, 210). Likewise, Appellees would

ask that the Court note the manner in which Appellant’s counsel led their employee Linda Moore

through her testimony, repeatedly seeking to confirm that that her failure to restrain Crystal

Delaune was fully in accordance with ETMC’s policy of “verbal first”, until required by the Trial

Court to halt such leading questions (3 RR 188-89, 193, 195, 197, 199-200). Finally, although

Dr. Wayne did indeed testify that the decision to escalate to physical restraints involved the

26
exercise of judgment (3 RR 73), he immediately went on to clarify that an EMS Provider cannot

properly exercise such judgment unless her training has supplied the underlying knowledge (3

RR 74), which Wayne asserted ETMC’s training failed to effectively do.

Next, Appellant’s Brief asserts at p. 30 that the essence of Appellees’ case is that “the

EMS Providers only knew talk-down and were not taught about the use of restraints”, and then

responds at p. 35 with a flurry of record cites indicating that restraint training did in fact occur.

Unfortunately for Appellant, Appellee’s expert Dr. Wayne identified a much more specific flaw

that was not addressed by ETMC’s generalized restraint policies, and which led to Crystal

Delaune’s death: that is, by reason of ETMC’s policies, the EMS Providers:

“did not possess … knowledge of the critical next steps when talking down didn’t
work”(3 RR 22)

“didn’t have the intrinsic knowledge, the ability to know to go to the next step.”
(3 RR 29)

Thus, the negligence alleged in this case – and upheld by Dr. Wayne’s testimony – is not

whether ETMC’s policies generically covered the topic of restraints, nor whether the EMS

Providers knew that other restraint levels existed beyond talk-down. Rather, the critical issue is

whether such training was effective in educating the EMS Providers as to WHEN it was

appropriate to advance beyond verbal to physical restraints. See Dr. Wayne’s testimony at 3 RR

41-46, where he indicates no less than seven times that the ultimate issues in our case involved

whether ETMC had “properly train[ed] Ms. Moore and Ms. Spurgers on when to use restraints

on patients like Crystal Delaune” (emphasis added).

By way of a homely example, a police department’s policy may well be to train its

officers not to immediately draw their firearms upon encountering a suspect, but to wait until

physical harm is threatened. All well and good, but if a policeman (and his partner) – in

27
compliance with such policy, at a real-world crime scene – thereafter indicates that he did not see

fit to draw his gun until the suspect’s weapon actually injured that policeman, then it would

hardly seem a stretch to find that the departmental training policy was deficient. And this would

be so despite the fact that i) the officer might have had ample use-of-force training, and ii) such

training had clearly informed the officer that he was entitled to use deadly force; the only defect

would lie in the all-important question of “when” to do so.

Though Appellant’s Brief repeatedly accuses Dr. Wayne of engaging in improper

“inference stacking” in reaching his conclusion, such stacking allegation is directly linked to

Appellant’s misrepresentation that their negligence lies in a wholesale failure to provide any

training, or their EMS Providers’ total ignorance of physical restraints. As shown above, Dr.

Wayne testified that ETMC’s training was deficient solely in educating their EMS Providers to

know when physical restraint was called for, and such opinion was based both on “the events

that occurred” (33 RR 141) and on the EMS Providers’ depositions, with any such deposition-

inferences being repeatedly confirmed by the very same Linda Moore trial testimony that

Appellant urges this Court to review. Thus, no “stacking” occurred, and Appellant has failed to

back his allegations with any concrete examples.

Failure To Understand What Is Taught

Finally, at pp. 37-43 of its Brief, Appellant takes issue with Dr. Wayne’s testimony that

the actionable defect in ETMC’s training – i.e. regarding “when” to switch over from verbal to

physical restraints – lay not in what was put down on paper, but the ignorance demonstrated by

both EMS Providers in their depositions.

A: Okay. Fact one is what your pieces of paper say and what you teach. Fact two is
assessing that those people have understood that knowledge. So I don’t doubt that East
Texas Medical Center’s documentation that we all saw is what their documentation is.

28
 My concern is that – and my feeling where the failure of standard of care occurred is that
if the EMS providers only knew to talk-down, they had not been taught. The paper says
that’s why you do, but the education wasn’t there to validate that piece of paper.
(3 RR 36)

A My opinion is, again, we have the discrepancy between performance and teaching
– or at least paper education. I mean – and I’m not being disrespectful to East Texas
Medical Center. I’m sure they’re good people – good, caring people. The paperwork
says: This is what we teach. The knowledge based by two EMS providers – not one but
two – say, “That’s not what we knew.” So based on those pieces of information, I would
say, yes, they fell below the standard of care.
(3 RR 43)

Appellees would begin by noting that there is no evidence or allegation in the Trial Record –

from either side – that the EMS Providers departed from their training in failing to know how to

restrain Crystal Delaune, and so prevent her death. Rather, Linda Moore repeatedly testified –

often with encouragement of Appellant’s counsel – that her actions were fully congruent and in

compliance with ETMC’s policy implementation and enforcement (training) of “verbal first”;

i.e., in ETMC’s negligent failure to train when to restrain.

Yet, Appellant apparently now seeks to argue that as long as its restraint policy said all

the right things, it is wholly irrelevant if – after decades of receiving such training – its EMS

Providers actually understood when and how to properly apply ETMC’s restraint policies in the

real world, when caring for troubled human beings. Elsewhere, Appellant’s Brief repeatedly

refers to the relevant tort in this case as a “failure to train” employees, but seemingly now seeks

to claim that such tort should instead be deemed a “failure to draft training manuals”. Appellees,

in turn, would remind the Court that they have at all times asserted that the relevant tort was

ETMC’s breach of its duty:

to formulate, implement, and enforce a policy requiring patients like Ms. Delaune, who
are at risk of harming themselves and/or others, to be continuously restrained physically
and/or chemically during transport.

29
See 9.02 of Appellees’ Second Amended Petition (1 CR 32). Accord, Mills v. Angel, 995 SW2d

at 269: “courts have recognized a duty to use due care in enforcing such policies and procedures

and in ensuring that they are not violated”; Columbia North Hills Hospital v. Alvarez, 2011 Tex.

App. LEXIS 5908 *12-13 (Tex. App. – Fort Worth 2011, no pet.).

In short, there is no question that ETMC owed a direct duty to Crystal Delaune to not

only adopt appropriate policies affecting its care of her, but to likewise see that such policies

were implemented and enforced, i.e. actually carried out by its employees while actually caring

for patients. See Durham Transportation, Inc. v. Valero, 897 SW2d 404, 413 (Tex. App. –

Corpus Christi 1995, writ denied), citing Greater Houston Transportation v. Zrubeck, 850 SW2d

579, 591-92 (Tex. App. – Corpus Christi 1993, writ denied). Therefore, ETMC’s duty to

“implement and enforce” its policies necessarily correlates with a requirement that ETMC ensure

that its policies effectively convey the desired information, as measured by the trained

employees’ subsequent knowledge of, and conduct in conformance with, the training imparted

by ETMC pursuant to its policies. Any assertion by Appellant that its training-related duties did

not extend to making sure that the EMS Providers actually understood what ETMC taught them

must fail, because the common law duties owed by ETMC to Crystal Delaune likewise

encompass a duty “to periodically monitor and review the competency of the members of its

medical staff.” Ching v. Methodist Children’s Hospital, 134 SW3d 235, 241 (Tex. App. –

Amarillo 2003, pet. denied).

In applying this duty to “implement and enforce” to our present facts, Appellees would

cite the ancient legal maxim that “the proof is in the pudding.” It is beyond question that,

pursuant to its relevant policies, the purpose of training EMS Providers when and how to

properly respond to restraint scenarios is to improve their care of actual patients such as Crystal

30
Delaune. Here, not only was Ms. Delaune fatally injured while in the care of ETMC’s EMS

Providers, but Linda Moore explicitly testified – at the behest of Appellant’s counsel – that such

disastrous real-world result was fully congruent with Moore’s understanding of the “verbal first”

training she had received from ETMC. Such testimony is entirely consistent with the fatal flaw

in ETMC’s implementation and enforcement of its policies, as specifically identified by Dr.

Wayne.

Once again, then, the proof is in the pudding, and the tragic results of ETMC’s transport

of Crystal Delaune speak for themselves. The efficacy of a hospital’s implementation and

enforcement of its policies must be measured by how well it succeeds in preparing its personnel

to respond to known hazards, and not by how comprehensive the syllabus appears on paper.

Valero, 897 SW2d at 413; Zrubeck, 850 SW2d at 591-92; and Ching, 134 SW3d at 241. The

cases cited by Appellant on pp. 39-43 of its Brief say nothing to the contrary. As with our “gun-

shy police officer” hypothetical, all the training policies in the world are of no use if the

employer does not implement and enforce such by ensuring that the employees possess sufficient

knowledge to know when to usefully apply such training.

CONCLUSION

As set out at p. 18 of its Brief, Appellant has chosen to base its appeal solely on grounds

that Appellees’ evidence was supposedly legally insufficient to support the verdict and judgment

against it, as to two issues. As Appellant’s own authorities show, the applicable standard of

review is a steep one, requiring this Court to first “credit favorable evidence if reasonable jurors

could, and disregard contrary evidence unless reasonable jurors could not”, and secondly to

“uphold the jury’s finding if more than a scintilla of competent evidence supports it”. Tanner v.

Nationwide Mutual, 289 SW3d 828, 830 (Tex. 2009).

31
 Tasked, then, with essentially demonstrating that “no evidence” supports the verdict in

Appellees’ favor, Appellant stumbles badly. As to its first issue, Appellant centers its argument

upon the false claim that – in extending the protections of the Good Samaritan Statute to the

EMS Providers only – the Trial Court somehow also ruled that their care of Crystal Delaune

categorically could not have constituted negligence, by themselves or by their employer ETMC.

As demonstrated herein, the Trial Court made no such ruling, and Texas law provides no

grounds for excusing employers from their direct liabilities owed to plaintiffs who are actually

injured via their employees’ actions.

As to Appellant’s second issue, Appellant advances an equally bogus claim that the trial

testimony of Appellees’ expert Dr. Wayne did not adequately establish the requisite elements of

Appellees’ claim. However, the above-listed excerpts from Dr. Wayne’s testimony amply refute

all such allegations made by Appellant. Moreover, the above-cited testimony of EMS Provider

Linda Moore only serves to confirm – in spades – the validity of the jury’s findings regarding the

“negligent training” (implementation and enforcement of policies) claims brought against

ETMC.

PRAYER

For the foregoing reasons, Appellees Jody Delaune, Individually and as Personal

Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton

Delaune, Destiny Delaune and Dee Ann Delaune, Minors request that:

1) the Trial Court’s Final Judgment in favor of Appellees be upheld in all respects;

2) that all costs of court and other relief granted Appellees under the Trial Court’s Final
Judgment be likewise upheld; and

3) Appellees further request all other relief to which they may be entitled, at law or in
equity.

32
 RESPECTFULLY SUBMITTED:

RYAN KREBS, M.D., J.D.
805 W. 10th Street, Ste. 300
Austin, Texas 78701
(512) 478-2072
(512) 494-0420 -Facsimile
ryan@ryankrebsmdjd.com

___________________________________
RYAN KREBS
State Bar No. 00792088
Counsel for Appellees

CERTIFICATE OF SERVICE

On July 3, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I hereby
certify that a copy of the foregoing Appellees’ Brief was served upon all other parties to the trial
court’s judgment by first-class United States mail, properly posted and deliverable as follows:

THIEBAUD REMINGTON THORNTON BAILEY, LLP
Russell G. Thornton
State Bar No. 19982850
4849 Greenville Avenue, Suite 1150
Dallas, Texas 75206
(214) 954-2200
(214) 754-0999 -Facsimile
rthornton@trtblaw.com
___________________________________
Ryan Krebs

33
 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)

I certify that this document contains nine thousand, one hundred twenty-three (9,123)

words, as indicated by the word-count function of the computer program used to prepare it, and

excluding the caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification, certificate

of compliance, and appendix, as provided by Appellate Rule 9.4(i).

___________________________________
Ryan Krebs
Counsel for Appellees

34
APPENDIX
APPENDIX “A”
DEC-23-2014 15:51 From:9035901641

Cause No. 13-0984-A

JODY DELAUNE, Individually; and §
11s Personal Representative of the Estate §
of CRYSTAL DELAUNE, Deceased; §
nnd as Next Friend of DAL TON §
DELAUNE, DESTINY DELAUNE, §
and DEE ANN DELAUNE, Minors, §
§
Plaintiffs, §
§
v. § SMITH COUNTY, TEXAS
§
•~AST TEXAS MEll!CAL CENT•:R §
D/BfA EAST TEXAS MEDICAL CENTER §
EMERGENCY MEDICAL SERVICES, §
§
Ii
§
§
Defendant. § 7th JUDICIAL DISTRICT

FINAL JUDGMENT

The Court finds that the jury's verdict in this healthcare liability claim is supported by the

evidence and thel'efore rendel's judgment against Defendant and for Plaintiffs as follows:

I. The Court orders that Plaintiff, Jody Delaune, Individually recovers from Defendant, the sum

of:

a.) $7,500.00 for pecuniary loss sustained in the past;
b.) $36,000.00 for pecuniary loss in the future;

The Court orders that Plaintiff, Jody Delaune, as Ne11:t Friend of Dalton Delaune recovers

from Defendant, the sum of:

c.) $7,500.00 for pecuniary loss sustained in the past;
d.) $20,000.00 for pecuniary loss in the future;
e.) $2,500.00 for loss of compruiionship and society it1 the past;
f.) $2,500.00 for loss of companionship and society in the furore;
g.) $2,500.00 for mental ani;,"Uish in the past;
DEC-23-2014 15:51 From:9035901641 Paoe: 3/5

h.) $2,500.00 for mental anguish in the future;

The Court orders that Plaintiff, Jody Delaune, as Next Friend of Destiny Delaune recovers

from Defendant, the sum of:

i.) $7,500.00 for pecuniary loss sustained in the pnst;
j.) $26,000.00 for pecuniary loss in the future;
k.) $2,500.00 for loss of companionship and society in the past;
1.) $2,500.00 for loss of companionship and society in the future;
m.) $2,500.00 for mental ani,'Uish in the past;
n.) $2,500.00 for mental anguish in the future;

The Court orders that Plaintill; Jody Delaune, as Next Friend of Dee Ann Delaune recovers

from Defendant, the sum of:

o.) $7,500.00 for pecuniary loss sustained in the past;
p.) $36,000.00 for pecuniary loss in the future;
q.) $2,500.00 for loss of companionship and society in the past;
r.) $2,500.00 for loss of companionship 1111d society in the future;
s.) $2,500.00 for mental anguish in the past;
t.) $2,500.00 for mental anguish in the future;

The Cowt orders that Plaintiff, Jody Delaune, as Personal Representative of the Estate of

Crystal Delaune recown; from Dctlmdant, the sum of;

u.) $3,000.00 for funeral and burial expenses.

Ibe totaljudb'llJCilt for a - u above is $181,000.00.

The judgment for "past damages" for items a, c, e, g, J, k, m. o, q and s is $45,000.00.

Plaintiff is entitled to recover prajudgment interest on the $45,000.00 in "past damages." TI1e

prejudgment interest rate on these past damages is equivalent to the post judgment interest

rate of 5%. Tex. Fin. Code§ 304.103 (Vernon Supp. 2002). Pursuant to Texas Finance Code

section 304.007, the Court hereby takes judicial notice of the fact that at the time of the

rendition of this judgment, the post judgment interest rate as set by the Consumer Credit

Commission and published in the Texas R~gistcr is 5 percem (5%). Pre-judgment interest in

a health care liability claim begins accruing on the earlier of the 180'" day after the date

Defendant received written notice of the claim or the date suit is filed and ends on the date

before the judgment is signed. Defendant received written notice of the claim on November
DEC-23-2014 15:52 From:9035901641

8, 2012. See Exhibit B attached to Plaintiffs' First A.mended Motion for Judgment on the

Verdict. (Plaintiffs' Original Petition was filed April 15, 2013). 180 days ftom November 8,

2012 is May 7, 2013. May 7, 2013 to December 21, 2014, the day before sii.,'lling of the

judgment on Dcc~'tllbcr 22, 2014 is 594 days or 1.63 years (594/365 ~ 1.63). Using these

calculations, the Court finds that prtj udgment interest of 5% simple interest on the

$45,000.00 in "past damages" accruing 1.63 years is $3,661.64 (.05 x 1.63 x 45,000 ~

3,661.64).

2. Tue Court orders that Plaintiffs, Jody Delawie, Individually; and as Personal R~'Pfcscntative

of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny

Delaune, and Dee Ann Delaune, Minors, recover from Defendant t=hle court costs in the

amount of $7,377.48 from Defendant. See Exhibit C attached to Plaintiffs' First Amended

Motion for Judgment an the Verdict.

3. The Court orders that the total judgment for damages recoverable by Plaintiffs from

Dcfrndant as reO~cl<: