Fourth Court of Appeals
San Antonio, Texas
CONCURRING AND DISSENTING OPINION
No. 04-18-00118-CV
Jesus VIRLAR, M.D. and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba
Medical Group,
Appellants
v.
Jo Ann PUENTE,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-04936
Honorable Norma Gonzales, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Concurring and Dissenting Opinion by: Patricia O. Alvarez, Justice
Sitting: 1 Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: February 5, 2020
I concur in the majority’s opinion and judgment in all respects except as to the issue of the
settlement credit. Because I believe appellants are entitled to a dollar-for-dollar credit for the full
amount of the confidential settlement and such a credit would not result in an open courts violation,
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Justice Rebeca C. Martinez has recused herself from this appeal.
Concurring and Dissenting Opinion 04-18-00118-CV
I would reverse and remand for the trial court to reduce the judgment by the full amount of the
settlement. Accordingly, I respectfully dissent in part.
Puente, Puente’s mother, and Puente’s daughter C.P. asserted a health care liability claim
against appellants and the hospital for negligently injuring Puente. C.P. sought loss of consortium
damages. The hospital and C.P. entered into a confidential settlement agreement, and C.P., Puente,
and Puente’s mother subsequently nonsuited their claims against the hospital. Puente proceeded to
trial against appellants and obtained a jury verdict in her favor. Appellants sought a settlement
credit for the full amount of the confidential settlement with C.P., which the trial court denied. On
appeal, Puente argues appellants are not entitled to any settlement credit because C.P.’s loss of
consortium claim is “a separate and independent claim distinct from” Puente’s claim and that
application of the settlement credit would result in an open courts violation. I disagree with both
arguments.
The crux of the dispute is whether C.P. is a “claimant” for whose claim appellants are
entitled to a settlement credit under Civil Practice and Remedies Code sections 33.011 and 33.012.
When interpreting a statute, we must “ascertain and give effect to the Legislature’s intent as
expressed by the language of the statute.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008). “If the statutory text is unambiguous, [we] must adopt the interpretation supported by the
statute’s plain language unless that interpretation would lead to absurd results.” Tex. Dep’t of
Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004).
Section 33.012 provides: “[I]f the claimant in a health care liability claim filed under
Chapter 74 has settled with one or more persons, the court shall further reduce the amount of
damages to be recovered by the claimant . . . by an amount equal to the sum of the dollar amounts
of all settlements . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 33.012(c). Section 33.011 defines
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Concurring and Dissenting Opinion 04-18-00118-CV
“claimant” to include both the injured person and “any person who is seeking, has sought, or could
seek recovery of damages for the injury, harm, or death of” the injured person. Id. § 33.011(1).
The statute’s plain and unambiguous language does not distinguish between the injured person and
a plaintiff seeking damages for that person’s injury. Further, the statute does not carve out of the
definition of “claimant” a plaintiff seeking damages the injured person could not recover herself,
such as damages for loss of consortium.
Here, C.P. and Puente each pleaded the same claim—a health care liability claim. Although
C.P. and Puente each sought different damages, both C.P.’s and Puente’s damages arose from
Puente’s injury. And while the supreme court has characterized claims for loss of consortium as
“separate and independent claims distinct from the underlying action,” it nevertheless recognized
they are “derivative” in the sense that a lost consortium plaintiff such as C.P. must establish a third
party’s “underlying injury in order to recover damages.” In re Labatt Food Serv., L.P., 279 S.W.3d
640, 646 (Tex. 2009); see also Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990) (“[C]hildren
may recover for loss of consortium when a third party causes serious, permanent, and disabling
injuries to their parent.” (emphasis added)). In other words, regardless of whether C.P.’s claim for
loss of consortium is separate and independent from Puente’s claims, both C.P. and Puente sought
damages for the injury to Puente. Therefore, both C.P. and Puente are the “claimant” under section
33.011’s plain language.
The supreme court’s decision in Drilex Systems, Inc. v. Flores, 1 S.W.3d 112 (Tex. 1999),
interpreting substantially similar language in the prior version of the statute, is consistent. In
Drilex, the supreme court construed “claimant” to include every party seeking recovery for injury
to the same person. Id. at 122. The court did not distinguish between a wholly derivative claim for
damages versus a separate and independent claim for damages, such as for loss of consortium.
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Concurring and Dissenting Opinion 04-18-00118-CV
Rather, the court held that what unifies parties as one “claimant” is the fact that they are seeking
damages arising from injury to the same person. Although the supreme court has criticized its
holding in Drilex, it has not overruled it, nor has it held the Drilex analysis is inapplicable to loss
of consortium claims. Therefore, in light of the plain language of sections 33.011 and 33.012 and
Drilex, I would conclude that because C.P. is a “claimant” who “has settled with one or more
persons,” appellants are entitled to a dollar-for-dollar credit for the amount of C.P.’s confidential
settlement.
I also disagree with the majority’s conclusion that application of section 33.012 in this case
results in an open courts violation. In Lucas, the supreme court held an arbitrary damages cap
unconstitutionally restricted a health care liability claimant’s right to redress for a common law
claim. Lucas v. United States, 757 S.W.2d 687, 691 (Tex. 1988). Section 33.012, in contrast, does
not restrict a health care liability claimant’s recovery; rather, it requires every member of the
claimant class to share in a single, but unrestricted, recovery for the underlying injury. Even if
application of section 33.012 restricts an individual plaintiff’s recovery, Lucas took issue with a
statute that capped the damages recoverable for a common law claim. Here, as noted, Puente and
C.P. are asserting the same health care liability claim, and section 33.012 neither caps nor
otherwise restricts the damages recoverable for that claim.
For these reasons, I would sustain appellants’ fourth issue and remand to the trial court
with instructions to apply a credit in the full amount of the confidential settlement in accordance
with section 33.012.
Sandee Bryan Marion, Chief Justice
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