Harris County Hospital District v. Estrada

OPINION

COHEN, Justice.

This is an appeal from a wrongful death and survival action brought against appellant, Harris County Hospital District (the District), under the Texas Tort Claims Act. The principal question is whether the District’s liability is limited to $100,000 when one person was killed, but multiple claimants brought two claims, wrongful death and survival. The trial judge awarded a total of $200,000, divided equally between the two causes of action. We hold this was error. Consequently, we reform the judgment by reducing it to $100,000. As so reformed, we affirm.

Facts

On January 27, 1988, 73-year-old Carolina Gonzales went to the District’s West End Medical Clinic. Dr. John Bradberry, a Baylor College of Medicine resident physician, saw Gonzales as an out-patient and prescribed baetrim, a sulfa drug. Gonzales was allergic to sulfa drugs, and the day after taking one baetrim, she became sick and went to another hospital. Gonzales suffered a severe allergic reaction to the drug and died 16 days later.

Before filing this suit, appellees settled with Bradberry and Baylor College of Medicine for $230,000. Appellees then sued the District, alleging that errors in record keeping by the nurses and medical-clerical personnel, as well as the lack of eross-referenc-*762ing for allergy history at the hospital pharmacy, caused the prescription and dispensation of the sulfa drug, which led to Gonzales’ death.

In a non-jury trial, the judge found the District’s negligence was 35 percent responsible for appellee’s damages, which totaled $350,000, and granted judgment against the District for $200,000, awarding $100,000 to the wrongful death claimants and $100,000 for the estate’s survival claim.1 Appellees moved to dismiss the appeal for lack of jurisdiction, but this Court overruled that motion. This appeal followed.

In point of error two, appellant claims the trial judge erred in allowing an unqualified witness to testify as an expert. The District contends that Deborah Lessard, appellees’ nurse expert, was not qualified to testify as an expert because she had no experience, familiarity, or certification in nursing or health care administration, demonstrated no knowledge or familiarity with transcription of medication procedures or the applicable standard of care, was not certified in nursing administration, and offered no testimony to show she was certified in health care administration.

Whether a witness qualifies as an expert is within the trial judge’s discretion and will be reversed only for abuse of discretion. Sears v. Cooper, 574 S.W.2d 612, 615 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ ref'd n.r.e.). A nonphysieian nurse, even one who is not a registered nurse but is familiar with the standard of care at another similar hospital, can qualify by experience to testify as a medical expert in a medical malpractice action. Johnson v. Hermann Hosp., 659 S.W.2d 124, 126 (Tex.App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.). The nurse need not be certified or familiar with the standard of care in a particular locale, so long as the nurse is familiar with the standard of care at another hospital that is similar. Id.

Lessard was a registered nurse with clinical experience, including four years work experience at clinics within the Hospital District, as well as an attorney experienced in evaluating cases from the standpoint of hospital liability. Although she could not specifically testify as to the clinics’ individual division of duties, she was familiar with general nursing duties within the Hospital District.

Moreover, Lessard testified she was familiar with the applicable standard of care for nurses, particularly as to the standard of care regarding allergies and prescriptions. For example, she testified that after the doctor has seen a patient and written prescriptions, it was then the discharge nurse’s independent duty to compare the prescription with the patient’s chart for contradictions, such as allergies, and to bring any inconsistencies to the doctor’s attention for correction. Further, Lessard testified that after the discharge nurse reviews the written prescription and compares it to the chart, but before sending the patient to the on-premises pharmacy with the written prescription, the nurse is supposed to instruct the patient or the caretaker what to do if there is an adverse reaction. In sum, the record reflects Lessard was experienced and familiar with the standard of care. The trial judge here did not abuse his discretion by allowing her to testify as an expert.

We overrule point of error two.

In point of error five, appellant contends the trial judge erred in not granting the District a directed verdict because appel-lees failed to prove causation. Appellant argues there was no proof that faulty record keeping caused Gonzales’ death.

Appellees claim the evidence shows that the District’s breach of duty in them record keeping, the failure to properly cross-check the prescription with known allergies, and the failure to instruct Gonzales on how to proceed in the event of an allergic reaction, proximately caused the sulfa drug to be dispensed to Gonzales, which caused the allergic reaction and her death.

Dr. Chi C. Mao, the physician who admitted Gonzales to the Heights Hospital emergency room after she ingested the sulfa drug, *763testified that the main cause of Gonzales’ death was a severe allergic reaction to a sulfa drug. Moreover, Gonzales’ death certificate states the cause of death was a severe allergic reaction to the sulfa drug. Thus, there is factually and legally sufficient evidence to show the sulfa drug caused Gonzales’ death.

We next consider whether there was sufficient evidence that the nurses’ negligence caused the dispensation of the sulfa drug.

Dr. Bradberry testified that in prescribing the sulfa drug, he relied on the District’s computer printout that showed Gonzales had no allergies. The one-page computer printout sheet comes with the patient file given to the doctor when he sees the patient. The printout sheet is supposed to summarize the medical data contained in the chart, so that the doctor does not have to examine the entire chart. The medical records clerk is responsible for including relevant medical information in the updated computer sheet. In this case, however, the computer printout on top omitted the fact that Gonzales was allergic to sulfa drugs, a fact known to the clinic and contained in the records underneath the cover sheet.

Lessard testified that the sole proximate cause of the misprescription and death was the negligent recordkeeping by the District’s nurses and staff. She testified it was foreseeable that the inconsistency in Gonzales’ records could lead to the misprescription and death. Specifically, Lessard testified that after the doctor has seen a patient and written prescriptions, it is the discharge nurse’s independent duty to compare the prescription with the patient’s chart for contradictions and to bring any inconsistencies to the attention of the doctor to clarify or correct. Lessard and Bradberry testified clinic records showed several omissions and inconsistencies concerning Gonzales’ allergy that should have been corrected by District employees. Lessard also testified that pointing out any inconsistency between the prescription and the chart is particularly important with a resident doctor, such as Bradberry, as opposed to a medical doctor who had completed the residency. Lessard testified the inconsistency could and should have been identified several times before it was too late, but it was not.

Finally, Lessard and nurse Loughron, the District’s witness, testified that the clinic staff should have told Gonzales what to do if she had an adverse reaction to the drug. Evidence showed the staff should have instructed Gonzales to seek medical attention within 20 minutes to an hour of any adverse reaction because, if treated quickly, the reaction could be reversed. Lessard testified this failure to properly instruct was a proximate cause of the death, because, if Gonzales had been properly instructed and had sought treatment immediately after her reaction started, it would have been possible to reverse that reaction. We hold the evidence was sufficient.

We overrule point of error five.

In points of error one, three, and four, appellant challenges the factual and legal sufficiency of the evidence and also challenges some implied factual findings of the trial judge.

Appellant did not request any findings of fact, and none were filed. Thus, we will imply all the findings necessary to support the judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). In determining whether some evidence supports the implied findings of fact, we consider only the evidence favorable to the judgment and disregard all evidence to the contrary. Id. The judgment will be affirmed on any legal theory supported by the evidence. Id.

In point of error one, appellant claims appellees failed to prove proximate cause. We overrule this point of error for the same reason we overruled point of error five.

In points of error three and four, appellant challenges the award of damages on four grounds. First, appellant claims there was no evidence of $350,000 in damages. Appellant argues that appellees offered no evidence of Gonzales’ income, life expectancy, or any testimony to prove damages.

Courts typically give the fact finder “considerable latitude” in awarding damages in personal injury and wrongful death actions because those damages cannot be proved *764with great certainty. See Brazoria County v. Davenport, 780 S.W.2d 827, 931 (Tex.App.—Houston [1st Dist.] 1989, no writ); Leonard & Harral Packing Co. v. Hahn, 571 S.W.2d 201, 204 (Tex.Civ.App.—San Antonio 1978, writ ref'd n.r.e.). Here, the trial judge found total damages of $350,000 and entered judgment against the District for $100,000 on the survival claim and for $100,000 on the wrongful death claim.

The survival action is the estate’s claim for personal injuries and includes damages for the conscious pain and mental anguish Gonzales suffered before her death. Tex.Civ.Prac. & Rem.Code Ann. § 71.021 (Vernon 1986); Levinge Corp. v. Ledezma, 752 S.W.2d 641, 645 (Tex.App. — Houston [1st Dist.] 1988, no writ). Gonzales’ hospital bill was approximately $46,000. The evidence shows Gonzales suffered a gruesome and painful 16 days prior to her death. The drug caused her to feel as if she was being burned from the inside out. She was conscious, her body was swollen, and her skin was severely blistered, getting worse from one day to the next. We hold the evidence of damages in the survival action was sufficient. See, e.g., Levinge, 752 S.W.2d at 645 ($175,000 award of damages for decedent’s pain and suffering upheld although he was conscious and in severe pain for only short time).

In a wrongful death case, a fact finder may award a decedent’s family damages for their mental anguish and loss of society, companionship and affection. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635-36 (Tex. 1986); Sanchez v. Schindler, 651 S.W.2d 249, 259 (Tex.1983) (op. on reh’g). Evidence showed Gonzales held the large but close-knit family together; she was survived by seven children, and Gonzales contributed to the support of one of her adult children who was brain damaged. Family members saw Gonzales, conscious and alert, suffer a slow, painful death for 16 days. The evidence of Gonzales’ pain and suffering was horrific. One family member described Gonzales’ body as swollen and smelling like burned meat. Another recalled how Gonzales’ skin once came off when the bedsheet was lifted. We hold the evidence supported the award of damages on the wrongful death claim.

We overrule this portion of points of error three and four.

Before suing the District, appellees settled for $230,000 with Dr. Bradberry and Baylor College of Medicine. The District was the only remaining defendant, and the trial judge found it 35 percent responsible for Gonzales’ damages. In its second argument under these points of error, the District claims that because it was the only defendant, we should assume the trial judge assessed the remaining 65 percent of the responsibility against appellees. Consequently, the District argues, appellees’ recovery is barred because their responsibility exceeds 50 percent. See Tex.Civ.Prac. & Rem.Code Ann. § 33.001(a) (Vernon Supp.1993).

Presumptions are made in favor of the judgment, not against it. Worford, 801 S.W.2d at 109. The District neither pled nor proved contributory negligence. The contention has no merit.

In their third argument under points of error three and four, the District contends its maximum liability under the Texas Tort Claims Act, is $100,000. See Tex.Civ.Prac. & Rem.Code Ann. § 101.023(b) (Vernon Supp. 1993).2

Initially, appellees argue that although the District pled governmental immunity and objected in its motion for new trial that the evidence was insufficient to support the damage award, it never objected to the judgment on the basis of section 101.023(b). Thus, appellees urge, the District waived the limitation on liability by failing to object on that basis. For support, appellees rely on Davis v. City of San Antonio, 752 S.W.2d *765518, 519 (Tex.1988), and Winograd v. Clear Lake City Water Authority, 811 S.W.2d 147, 156 (Tex.App.—Houston [1st Dist.] 1991, writ denied).

Those cases are distinguishable. In Davis, the government failed to plead sovereign immunity and thus waived it. 752 S.W.2d at 519-20. Here, the District pled the $100,000 limit. In Winograd, claims of immunity were disallowed by a finding of bad faith. 811 S.W.2d at 159. Here, there is no finding of bad faith. Moreover, Tex.R.App.P. 52(d) allows a party in a nonjury trial to complain of excessive damages without making a complaint on that subject in the trial court.

Finally, this Court has held a sovereign does not waive the $100,000 limit of liability imposed by the Texas Tort Claims Act by failure to plead and urge it. City of Houston v. Amey, 680 S.W.2d 867, 874-75 (Tex.App.—Houston [1st Dist.] 1984, no writ). In Amey, the city’s answer was stricken as a discovery sanction, and the trial judge rendered a default judgment in excess of the Act’s liability limits. Nonetheless, this Court refused to hold that the $100,000 limit was waived. 680 S.W.2d at 874-75. Other courts, as well, have reasoned that since the governmental unit would have no liability but for the Act, the Act’s limitations must be accepted along with its benefits. See, e.g., Whipple v. Deltscheff, 731 S.W.2d 700, 705 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.) (holding damages are strictly limited to those imposed by statute). Thus, the issue is preserved for review.

Alternatively, appellees argue the $200,000 awai’d is proper because, in addition to their derivative losses by reason of Gonzales’ death, Gonzales’ children suffered separate and individual injuries.

The Texas Supreme Court has disapproved awards exceeding $100,000 for the death of a single person. Madisonville Indep. Sch. Dist. v. Kyle, 658 S.W.2d 149, 150 (Tex.1983). In Kyle, a child was severely injured in an automobile collision. Death was not instantaneous; he died a few hours later. Id. The trial court awarded more than $100,000 to the parents. The supreme court reduced that amount to $100,000. Id. In City of Austin v. Cooksey, 570 S.W.2d 386 (Tex.1978), the lower courts made and affirmed an award exceeding $100,000 to the widow, mother, and children of a man killed. The court wrote:

When one person is injured or killed, and one plaintiff brings suit, the applicable limit of liability is $100,000. That limit should not change simply because the deceased is survived by two or more statutory beneficiaries under the wrongful death statute.
The controversy here centers around whether the term “per person” in the statute refers to the person injured or those persons who suffer a loss as a result of injury to someone else. We think the clear meaning of the statute is that it refers to the person or persons who sustain injury.... To construe “per person” to mean “per claimant” would mean that a sole surviving heir would be limited to the same recovery when he suffered loss from the death of two or more persons in the same accident as when he suffered loss from the death of only one person.
We hold that the State’s liability is limited to $100,000 as a result of the wrongful death of Michael Cooksey.

Id. at 387-88 (citations omitted). After Cooksey, it cannot be argued that the Act allows a recovery of $100,000 per claimant.

Appellees argue, however, that they are entitled to $100,000 per claim because they recovered under two different statutes granting relief for two different types of loss to two different groups of beneficiaries. Two courts of appeals have allowed awards exceeding $100,000 for a single injury under these circumstances. In City of Denton v. Page, 683 S.W.2d 180, 205-206 (Tex.App.—Fort Worth 1985), rev’d on other grounds, 701 S.W.2d 831 (Tex.1986), the court upheld an award exceeding $100,000 to a wife and a husband, even though the husband was the only one physically injured. The court distinguished City of Austin v. Cooksey on the basis that the plaintiffs’ claims there were based solely on the wrongful death of the deceased, not on any injury sustained by the plaintiffs themselves. The court held that Mrs. Page had suffered injury herself, specifically, mental anguish, loss of consortium, *766and loss of services, and that those damages were “the type of injury which formed the basis of a separate and independent cause of action which injury is compensable under the Act.” Id. at 206. The court of appeals in Page cited no judicial decisions supporting this conclusion. The Texas Supreme Court reversed the court of appeals’ judgment in Page and rendered judgment that Mr. and Mrs. Page take nothing. 701 S.W.2d 831, 835 (Tex.1986). Because the supreme court found no liability, it did not discuss the statutory limitation on damages. Thus, the intermediate court’s holding on damages in Page is, at least, questionable.

In City of Austin v. Davis, 693 S.W.2d 31 (Tex.App.—Austin 1985, writ ref'd n.r.e.), the court allowed a wrongful death recovery in excess of $100,000. The deceased’s statutory beneficiaries, excluding his father, settled their wrongful death claim for $93,000, and the father sued for his own mental distress and physical injuries sustained as a result of discovering his son’s body. Id. at 33. The court held the father was a bystander suing for injuries he personally suffered, not for damages resulting from his son’s wrongful death, and thus the father, in addition to the son, was “a person injured” under the Tort Claims Act. Id. at 34. The court cited no case allowing a recovery exceeding $100,000 where the State’s negligence physically injured only one person. Thus, Davis supports appellees because it required the State to pay more than $100,000 although only one person was physically injured.

We decline to follow Davis and Page because we cannot reconcile them with Cook-sey. Cooksey disapproved of recoveries exceeding $100,000 for a single death just because there were two or more statutory wrongful death beneficiaries. Nothing suggests to us that the court was pondering a different result where claimants (of whatever number) have multiple causes of action. Concluding that the “per person” language in the Tort Claims Act refers to the person physically injured by the State’s negligence, and not others, the Cooksey court wrote:

Similar provisions are often found in liability insurance policies. The insurance cases uniformly hold that the terms “per person” or “each person” or the like refer to the person injured. This is especially true in cases in which the words of limitation refer to “bodily injury” as they do in the Texas Tort Claims Act.

570 S.W.2d at 388 (citations omitted). If the insurance eases cited in Cooksey should guide our decision, we doubt that the expansive interpretation urged by appellees can be used to raise the government’s limit of liability to $100,000 for every cause of action (survival, wrongful death, bystander, etc.) on which various plaintiffs may prevail in case where the State’s negligence physically injured only one person. Accord Texas Dep’t of Tramp, v. Ramming, 861 S.W.2d 460, 465-66 (Tex.App.—Houston [14th Dist.] (1993) (holding that the phrase “each person” in the Tort Claims Act refers only to a person who suffers bodily injury or death).

We sustain point of error three and reform the judgment by reducing it from $200,000 to $100,000.

Appellees contend in a cross-point of error that we have no jurisdiction because the cost bond was filed too late. We overrule the point for the reasons stated earlier in Harris County Hospital District v. Estrada, 831 S.W.2d 876, 880 (Tex.App.—Houston [1st Dist.] 1992) (order).

As so reformed, the judgment is affirmed.

. The District was jointly and severally liable for the entire judgment as a result of the 35 percent finding. TexCivPrac & Rem.Code Ann. § 33.013 (Vernon Supp.1993).

. The statute reads:

Except as provided by Subsection (c), liability of a unit of local government under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

Tex.Civ.Prac. & Rem Code Ann. § 101.023(b) (Vernon Supp.1993).