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Click here for the full text of this decision FACTS:This is an action against a hospital for negligently delaying a blood transfusion for the plaintiff, Ricardo Romero, while he was in surgery, and for malicious credentialing of the surgeon. The trial court rendered judgment on a verdict for the plaintiff on both claims. The jury in this case was instructed, at the plaintiffs’ request, that they could find malice only from clear and convincing evidence, and they did so. But the court of appeals determined that there was no evidence of malice. HOLDING:The court of appeals’ judgment is affirmed. This court held, as the hospital argued in the court of appeals and again here, “that in reviewing the legal sufficiency of evidence to support a finding that must be proved by clear and convincing evidence, an appellate court must”look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.’” Southwestern Bell Telephone Co. v. Garza, ___ S.W.3d ___, ___ (Tex. 2004) (quoting In Re: J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Malice must by statute be proved by clear and convincing evidence as a predicate to the recovery of exemplary damages, but the court knows of no requirement that malice be proved by more than a preponderance of the evidence as an element of a malicious credentialing action to recover actual damages. To recover actual damages, the Romeros were required to prove malicious credentialing only by a preponderance of the evidence; to recover exemplary damages, they were held to the higher standard of proof for malice. The trial judge pointed out this distinction and suggested that the standards of proof be different in the liability question and the exemplary damages question. But the Romeros requested that the jury find malicious credentialing by clear and convincing evidence in order to establish liability, and the trial court acceded. The sufficiency of the evidence must be measured by the jury charge when, as here, there has been no objection to it. Accordingly, the court holds the Romeros to the higher standard and reviews all of the evidence in the light most favorable to the verdict to determine whether a reasonable trier of fact could have formed a firm belief or conviction that Columbia acted with malice in credentialing the physician. The court of appeals concluded that it could not infer from the lack of information that the hospital did nothing, and that there was no evidence “that when the Hospital discovered [the physician's] substance abuse, it should have refused [the physician] active staff privileges in 1996 or withdrawn them at some point later.” The court agrees with the court of appeals that an expert witness’ two unsupported statements of opinion are legally insufficient to show that the hospital was consciously indifferent to the risk the physician’s drug use posed to patients. But the evidence of malice in this case must meet a higher standard; it must produce firm belief or conviction, and it does not do so, the court concludes. The court assumes solely for purposes of argument, as the court of appeals concluded, that the hospital had actual, subjective awareness of the risk posed by the physician’s drug abuse, at least at one point in time. The court focuses, as did the court of appeals, on whether there is evidence that the hospital was consciously indifferent to this risk. The court concludes that the court of appeals was correct in holding that there was no evidence of malice to support a judgment against the hospital for malicious credentialing. The plaintiffs complain that the peer review privilege effectively precludes recovery for malicious credentialing, but that complaint in this case, at least, is overstated, the court decides. Had the plaintiffs offered evidence that the hospital should not have allowed the physician to operate on Romero, there would be some evidence of malice, and had such evidence been convincing, it would support recovery. “We do not doubt that such evidence of malice is difficult to come by, but the Legislature has made recovery for improper credentialing of physicians difficult. Indeed, since this case was tried, the Legislature has amended the definition of malice to mean ‘a specific intent by the defendant to cause substantial injury or harm to the claimant’, eliminating the alternative definition of conscious indifference to a known, excessive risk. Thus, the Legislature has made it still more difficult to establish liability for improperly credentialing a physician.” The court considers whether the judgment for the plaintiffs can rest on the jury’s finding of negligence unchallenged on appeal. The court of appeals concluded that reversal and remand was required because of error in the jury question regarding the apportionment of responsibility. Having found malicious credentialing, the jury could not conceivably have ignored that finding in apportioning responsibility, the court states. While in other instances a jury may simply ignore a factor in the charge that lacks evidentiary support, there are other instances � and this case is one, the court points out � where the jury is as misled by the inclusion of a claim without evidentiary support as by a legally erroneous instruction. The court does not hold that the error of including a factually unsupported claim in a broad-form jury question is always reversible. The jury charge in this case needed one less question � the question on malicious credentialing, for which there was no evidence � to be free of error, and reversal could have been avoided with one more question, which the trial court offered to the plaintiffs, and they rejected. The reversible error rule of Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) and Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002), neither encourages nor requires parties to submit separate questions for every possible issue or combination of issues; the rule does both encourage and require parties not to submit issues that have no basis in law and fact in such a way that the error cannot be corrected without retrial. If at the close of evidence a party continues to assert a claim without knowing whether it is recognized at law or supported by the evidence, the party has three choices: he can request that the claim be included with others and run the risk of reversal and a new trial, request that the claim be submitted to the jury separately to avoid that risk, or abandon the claim altogether. Columbia argues that a new trial of the negligence claim is necessary because the jury’s malicious credentialing finding tainted not only their apportionment findings but their damages findings. Columbia is correct with respect to the punitive damages findings, and for that reason alone, a new trial on the entire negligence claim is required, the court concludes. OPINION:Hecht, J.; Jefferson, C.J., Owen, O’Neill, Wainwright, Medina and Green, JJ., joined. Brister and Johnson, JJ., did not participate in the decision. CONCURRENCE:O’Neill, J.; Medina, J., joins. “I agree with the Court that the evidence is legally insufficient to support a malicious credentialing verdict against the Hospital. The peer-review privilege prevented the Romeros from knowing what actions the Hospital took or failed to take to protect the public from a physician whose own former chief of staff, a member of the credentialing committee, thought was a menace to patients. While I fully join the Court’s opinion, I write separately because I am deeply troubled by the head-in-the-sand approach the various hospitals and health-care professionals in this case appeared to take in dealing with a drug-impaired physician. Unless health-care institutions and providers are in fact, rather than theory, vigilant and proactive in performing the critical competence analysis that the peer-review privilege was intended to promote, the purposes that prompted the privilege’s creation will prove to be illusory. Clearly, the privilege’s purposes were not served in this case.”

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