Texarkana Memorial Hospital, Inc. v. Firth

CORNELIUS, Chief Justice,

dissenting.

I dissent because I do not believe there is any evidence of gross negligence on the part of the hospital or one of its vice-principals.

As the hospital is a corporation, punitive damages were properly imposed against it only if there is sufficient evidence of gross negligence committed, authorized or ratified by a vice-principal.1 Fort Worth Ele*499vators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934), overruled on other grounds, Wright v. Gifford-Hill & Co., 725 S.W.2d 712 (Tex.1987).

Gross negligence is such an entire want of care that raises the belief that the defendant’s acts or omissions were the result of conscious indifference to the rights or welfare of the person injured. Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981). Conscious indifference relates to the mental attitude of the defendant. It “denotes a decision, in the face of an impending harm to another party, to not care about the consequences of the act which may ultimately lead to that harm.” Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex.1985). To establish gross negligence, there must be evidence which makes it fair to conclude that the defendant had decided to ignore the rights of the injured party, even in light of the probable and threatened injury. Williams v. Steves Industries, Inc., supra. Accordingly, conduct amounting to no more than momentary thoughtlessness, inadvertence or error of judgment will not constitute gross negligence.2

Appellees point only to the following acts and omissions as constituting some evidence of gross negligence:

(1) The hospital’s failure to properly monitor Wagner. Specifically, they point to Sam Haddock’s decision to allow RN Sterling to go home at 11:00 on the evening of the 14th, which left no registered nurse, but only an LVN and a PCA, in the open unit at that time to care for Wagner, and the hospital charts showing that Wagner was checked every two hours while asleep during the night of September 14.

(2) Failure to screen the windows in the open unit.

(3) Failure to staff the open unit with nurses properly trained to care for psychiatric patients.

(4) The cumulative acts of ordinary negligence.

The record establishes and appellees conceded that LVN’s and PCA’s were as competent to guard against a person attempting suicide as were nurses trained in psychiatry, so the failure to have such specially trained personnel available at all times in the open unit would not indicate a heedless and reckless disregard of Wagner’s personal safety.

In arguing that the cumulative force of the negligent acts justifies the award of punitive damages, the appellees are really arguing that if several acts of ordinary negligence are proven the conduct then becomes gross negligence. As a general proposition, that will not stand critical analysis. A person may be negligent in several different respects and still not have the mental attitude required to raise ordinary negligence to the level of gross negligence.

Of the remaining three instances of conduct cited as gross negligence, only two can be attributed to the hospital directly or to one of its vice-principals. They are the failure to screen the windows and Sam Haddock’s permission for RN Sterling to go home at 11:00 on the evening of the 14th. Assuming that the nurses failed to check Wagner every fifteen minutes as required by the hospital rules, that omission is not an omission of the hospital or a vice-principal.

While under the record here the failure to screen the windows and Haddock’s permission for Sterling to leave could be considered ordinary negligence, that conduct does not indicate that the hospital decided, “in the face of an impending harm to another party, to not care about the consequences of the act....” Williams v. Steves Industries, Inc., supra (emphasis added). The evidence shows that the hospital did care about Wagner’s safety. The fact that its care was found to be inadequate and to some extent based upon faulty judgment does not make its conduct gross negligence. If it can be considered *500that there is some evidence of gross negligence, I find it factually insufficient to support the jury’s finding.

For the reasons stated, I would reform the judgment to eliminate the award of punitive damages.

. As to gross negligence, the jury was instructed:

Was the negligence of Wadley Hospital, if any, that proximately caused the occurrence in question such as would amount to gross negligence?
You are instructed that "gross negligence" is the heedless and reckless disregard to the safety and welfare of Margaret Wagner. "Heedless and reckless disregard" means more than momentary thoughtlessness, inadvertence, or error of judgment, but is such an entire want of care as to indicate that such negligence was the result of conscious indifference to othe (sic) rights, welfare or safety of Margaret Wagner.
Before you are warranted in answering the above question "Yes”, the act or acts of negligence, if any that you have found must have been committed, authorized or ratified by a vice-principal or Wadley Hospital, which means:
(a) A corporate officer;
(b) Those who have authority to employ, direct and discharge servants of the corporation;
(c) Those engaged in the performance of non-delegable or absolute duties of the corporation; or
*499(d) Those to whom the corporation has confided the management of the whole or a department or a division of its business.

. The jury in this case was so instructed in Special Issue No. 9.