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Click here for the full text of this decision FACTS:CIGNA Healthcare of Texas Inc. appeals the trial court’s judgment entered on the jury’s verdict in favor of Dorothy Pybas and Shari L. Denton awarding $3,050,000 in actual damages and $10 million in exemplary damages. The appellees presented evidence of appellant’s alleged common-law negligence and lack of ordinary care under chapter 88 of the civil practice and remedies code by: 1. Nurse Vicki Middleton’s alleged failure to arrange for supplemental oxygen equipment to be set up for Pybas on his arrival at home; and 2. Dr. David Seeley’s and Middleton’s alleged insistence that Dr. Nathan Watson order Pybas’ discharge on a Friday night when Friday discharges are known to be “problematic.” Under negligence and lack of ordinary care, the subsequent harm to Pybas, if any, caused therefrom was due to the lack of supplemental oxygen while at home. HOLDING:The court modifies modifies the judgment to delete the award of exemplary damages and otherwise affirm the trial court’s judgment. The court interprets a Texas Rule of Civil Procedure 11 agreement as an agreement under Texas Revised Civil Statutes �13.01(h) to extend the time to file an expert report. The trial court had no discretion except to honor the parties’ agreement. Because the appellant’s motion to dismiss was based on Dr. James Berry’s report being the only expert report and because the parties agreed additional reports could be filed and considered by the trial court in making its determination under �13.01(e), the trial court did not abuse its discretion in denying appellant’s motion to dismiss on Oct. 30, 2001. Subsequently, on Dec.10, 2001, the appellees filed the additional expert reports, and the appellant did not renew its motion to dismiss. The appellant does not complain that these reports were untimely under the Oct. 23, 2001, Rule 11 agreement or that they fail to meet the requirements for an expert report. The appellant’s argument lacks merit. The court concludes the evidence is legally and factually sufficient to support the jury’s finding that appellant’s alleged negligence and lack of ordinary care proximately caused Pybas’ injuries. Unlike the situation in Cresthaven Nursing Residence v. Freeman, No. 07-02-00011-CV, 2003 WL 253283 (Tex. App.-Amarillo Feb. 5, 2003, no pet.), the record contains Dr. Charles Cefalu’s evidence of how the appellant’s alleged negligence and alleged lack of ordinary care affected Pybas’ long-term physical and mental prognosis. The record also contains the observations by the nursing staff of Pybas’ physical pain and mental anguish. Accordingly, Cresthaven Nursing Residence does not show the damages in this case are excessive. Convalescent Services Inc. v. Schultz, 921 S.W.2d 731 (Tex. App.-Houston [14th Dist.] 1996, writ denied) and Texas Health Enterprises Inc. v. Geisler, 9 S.W.3d 163 (Tex. App.-Fort Worth 1999, pet. dism’d by agr.), contain no description of the pain and mental anguish the plaintiffs suffered. The court concludes those cases do not show the damages awarded in this case are excessive. Pybas’ suffering and anticipation of death was much more than the few minutes to several hours endured by the plaintiffs in Wilhelm v. Flores, No. 13-98-148-CV, 2003 WL 22479211 (Tex. App.-Corpus Christi, Oct. 30, 2003, no pet. h.) and Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420 (5th Cir. 1992). If the $1 million awards in those cases were not excessive, then the $3 million award in this case is not excessive considering Pybas’ six days of pain and mental anguish. The court concludes the appellant has not shown the pain and mental anguish damages the jury awarded are excessive. Middleton is not a vice principal of appellant. Therefore, the appellees cannot recover exemplary damages based on Middleton’s conduct unless appellant ratified her conduct. Ratification occurs when the employer or vice principal confirms, adopts or fails to repudiate the acts of its employee. The court concludes that no reasonable fact finder could form a firm belief or conviction that appellant ratified Middleton’s acts or omissions or gross neglect resulting in Pybas’ injuries. Accordingly, the appellees are not entitled to exemplary damages based upon Middleton’s conduct. The appellant also asserts there is legally and factually insufficient clear and convincing evidence to show its alleged willful acts or omissions or gross neglect through those of its vice principals, Seeley, the appellant’s medical director, and nurse Jan Milligan, Middleton’s supervisor, resulted in Pybas’ injuries. The court states that Pybas’ premature discharge from IHS may have resulted from the appellant’s questionable balancing of business profits and patient care, and those matters may have increased the likelihood of Middleton’s negligence and lack of ordinary care in failing to obtain supplemental oxygen equipment for Pybas, but the evidence does not clearly and convincingly show Pybas’s injuries resulted from those policies and the premature discharge. OPINION:Tom James, J.; James, Bridges and Richter, JJ.

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