roy-jon-v-lesley-dinwiddie-zulfiquar-hussain-jeremy-boggs-joshua-kenny ( 2010 )

NO. 07-08-0359-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 28, 2010
______________________________
THI OF TEXAS AT LUBBOCK I, LLC, D/B/A
SOUTHWEST REGIONAL SPECIALTY HOSPITAL, APPELLANT
V.
MARIO PEREA, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF JACOB PEREA, DECEASED;
MAX PEREA;TONY PEREA; AND GEORGE PEREA, APPELLEES
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-533.287; HONORABLE RUBEN REYES, JUDGE
_______________________________
Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.1
CONCURRING AND DISSENTING OPINION
I agree with the Court’s discussion of appellant THI of Texas at Lubbock I, LLC’s
issues challenging denial of its proposed jury instruction on negligence (issue one); the
trial court’s allowing the Pereas to amend their petition during trial (issue two); exclusion
of THI’s proffered testimony (issue six) and the trial court’s failure to apply liability caps
on damages set out in sections 41.008(b) and 74.301(b) of the Civil Practice and
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov=t Code Ann. ' 75.002(a)(1) (Vernon 2005).
Remedies Code (issue seven). With regard to its issues challenging the sufficiency of
the evidence supporting the jury’s findings of negligence and gross negligence (issues
three, four and five), I agree with the Court that legally and factually sufficient evidence
supports the jury’s negligence finding with regard to the negligence of THI’s nurses. I
disagree, however, that any evidence supports the Pereas’ “negligent
credentialing/hiring” theory of THI’s negligence.
As the Court holds, expert testimony was required to establish that THI failed to
act as a reasonably prudent hospital would act in the same or similar circumstances
with regard to its decision to hire Leonard Espinoza. The Court relies primarily on the
testimony of Dr. Haines with regard to the hospital’s hiring actions. He said that, when
hiring nurses, administrators “should look at” the applicant’s past employment record
and determine whether the applicant “had problems or troubles at prior nursing
facilities,” and that administrators “had a duty to research the background of people they
hired.”
But neither Dr. Haines nor any other expert testified that THI did not take those
actions when it hired Espinoza. No one said that THI’s nursing director Connie Long or
any other THI administrator hired Espinoza without review of his employment record or
a determination whether he had “problems or troubles” during a prior employment. The
record contains no expert testimony of THI’s breach of the standard of care Dr. Haines
described. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46(Tex. 2004)
(negligent credentialing). The Court seems to assume that no reasonably prudent
hospital would have hired Espinoza as a registered nurse knowing of his discipline by
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the Colorado authorities under his licensure in that state as a licensed vocational nurse,
but no expert said as much. Nor did any expert testify that THI’s breach of a duty to act
as a reasonably prudent hospital when it hired Espinoza proximately caused the injury
to Mr. Perea. See, e.g., Denton Regional Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950
(Tex. App.—Fort Worth 1997, no pet.). To the degree the Court concludes otherwise, I
respectfully dissent.
For the same reason, I must dissent from the Court’s conclusion sufficient
evidence supported the jury’s finding THI was “reckless in employing” Espinoza, and
thus was grossly negligent.2 The jury heard no expert testimony demonstrating that THI
was reckless in employing Espinoza. No expert was even asked to express an opinion
whether THI acted in a less than prudent manner by hiring him.
Despite my disagreement with my colleagues on the “negligent
credentialing/hiring” issue, I concur with Court’s judgment affirming the award of punitive
damages against THI, because I agree that such an award is supported by evidence
THI’s acknowledged vice-principal, director of nursing Connie Long, ratified or approved
Espinoza’s negligent act. See Shamrock Communs., Inc. v. Wilie, No. 03-99-00852-
CV, 2000 Tex.App. LEXIS 8284, *14 (Tex.App.—Austin 2000, pet. denied.) (mem. op.)
(not designated for publication), citing Prunty v. Arkansas Freightways, Inc., 16 F.3d
2
The jury charge authorized the jury to find THI was grossly negligent because of
an act by Espinoza if he was “unfit” and THI “was reckless in employing him,” or THI or
its vice-principal ratified or approved the act. No objection was raised to this aspect of
the jury charge, so we examine the sufficiency of the evidence in light of the unobjected-
to charge. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000); Soto v.
Seven Seventeen HBE Corp., 52 S.W.3d 201, 204 (Tex.App.—Houston [14th Dist.]
2000, no pet.).
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649, 653 (5th Cir. 1994) (case law provides that ratification may occur when the
employer confirms, adopts, or fails to repudiate the acts of its employee). The record
includes Espinoza’s assertion he was never disciplined for authorizing the
administration of Ativan to Mr. Perea and Long’s admission that Espinoza remained
employed for the year following this incident. Such testimony is evidence of Long’s
failure to repudiate Espinoza’s negligent act of authorizing administration of Ativan.
Accordingly, I dissent from the Court’s discussion of the plaintiffs’ “negligent
credentialing/hiring” theory but concur in the judgment.
James T. Campbell
Justice
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