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Click here for the full text of this decision FACTS:On April 24, 1996, Delores McLean, a 30-year-old obese woman, contacted her primary care physician, Dr. Mark Godfrey, complaining of chest pain and shortness of breath. Godfrey told McLean to go to the emergency room. The ER’s triage nurse assessed McLean, noting various problems, but McLean did not tell her she was having chest pains. A staff nurse also evaluated McLean and found she had a low blood-oxygenation saturation but that she was breathing normally. Dr. Robert Welch, the ER doctor, saw McLean approximately 40 minutes after she arrived. He ordered chest x-rays, sinus x-rays and an arterial blood gas test, among other tests. He checked McLean’s legs for thrombosis but found the examination unhelpful because of McLean’s weight. Based on the returned test results, which included abnormal blood gas and blood oxygenation levels, Welch believed that McLean’s shortness of breath was being caused by her weight, bronchospasm, infection and mucus-clogged lungs. He ordered treatment accordingly. In the five hours McLean was in the ER, Welch saw her five or six times. The final time he saw her he suggested that she go see her primary care physician within a day or two. McLean went to see Godfrey five days later, on April 29. McLean gave Godfrey the asthma instruction sheet she had been given in the ER, but Godfrey had no other information from McLean’s ER visit. He, too, believed McLean was suffering from various infections, such as bronchitis. He extended her antibiotics, though he might prescribed a different treatment if he had known about McLean’s abnormal blood gas levels. McLean went back to see Godfrey two days later and again on May 7. She was having chills, labored breathing, fever, headache, ear pain, nausea, vomiting, diarrhea and cold sweats. McLean indicated that her problems were gastrointestinal now, and that her respiratory problems were improving. On May 13, McLean visited another doctor in Godfrey’s group complaining of breathing difficulties. She did not see a doctor again until July 3, when she went to Godfrey complaining of a cough, congestion, wheezing and shortness of breath. She was told to start her medications again. On July 8, McLean went to the ER again. In addition to the many symptoms she had recited before, she said she was coughing up reddish mucous. A chest x-ray showed an abnormality that the ER physician on that visit, Dr. Jerome Novotny, concluded was pneumonia. McLean collapsed the next day and died shortly after midnight on July 10. McLean’s autopsy showed that she died of a massive embolism that had lodged in her pulmonary arterial trunk. The autopsy also revealed that McLean had deep leg vein thrombosis and another embolism in her lung, which Novotny had mistaken for pneumonia. Slides taken of normal-looking lung tissue, developed into slides and analyzed two years later, indicated that several more emboli were in McLean’s lungs and had been for at least four to six weeks before she died. There were other emboli that appeared to be one week to two-and-a-half weeks told. McLean’s husband, Simeon McLean, filed a medical malpractice suit against Welch. The jury concluded that Welch’s negligence proximately caused McLean’s death and that her husband had suffered past and future noneconomic damages of $5.154 million. HOLDING:Reversed and rendered. This opinion is on motion for rehearing from an opinion issued March 25, 2004. The court grants McLean’s husband’s motion for rehearing and denies his motion for en bank rehearing. The court substitutes this opinion for the 2004 one. The court first reviews the legal and factual sufficiency of the evidence, finding both standards were met in this case. Though Welch complains on appeal of testimony from two of McLean’s witnesses, the court finds no objection to their testimony in the trial court record. The experts’ testimony was not speculative, the court adds, and was legally sufficient to support a finding that McLean was suffering from pulmonary emboli when Welch treated her. As for the factual sufficiency, the court notes that Welch and two others testified as experts. Like many medical malpractice cases, the court finds this one comes down to a battle of the experts. Here, the jury believed McLean’s experts, not Welch’s. The court cannot say that the evidence supporting the jury’s finding that McLean was suffering from pulmonary emboli was too weak. The court next considers the jury argument offered by McLean’s attorney. In discussing the culpability of Welch and Novotny, the attorney said, “If you put less than 50 51 percent of the blame on Dr. Welch, I guarantee you that they will be dancing out in the hall.” He then told the jury to do as Novotny himself had suggested and put 80 percent of the liability on Welch. Welch says the argument improperly informed the jury of the effect of its answer on the other issue of joint and several liability for the entire damages award. The court disagrees, noting that the attorney never mentioned joint and several liability or suggested that a 50 percent, or less, burden would result in excusing Welch from responsibility. “Indeed, when taken in context, the complained-of comments could just as easily have been interpreted by the jury as arguing that a finding of more than fifty percent negligence was necessary to send a message to Dr. Welch that he was more responsible for [McLean's] death than Dr. Novotny,” the court writes. Welch also complains on appeal that the trial court wrongly sustained the husband’s Batson challenges. Welch tried to exercise one of his peremptory strikes against an African-American man who Welch said did not provide enough of an answer to know anything about him. McLean’s husband, in response, said that the juror had indicated on his juror questionnaire that he was in the Navy, was a Republican, admired Colin Powell and would not file a medical malpractice suit if he had to. Welch said he wanted to strike one African-American woman because she was a paralegal. But McLean’s husband pointed out that she did not work for a law firm but for a corporation and did not deal with litigants or lawsuits. Additionally, it was noted that Welch did not strike for cause a white medical malpractice defense attorney who was on the venire panel. The court concludes that the trial court reasonably could have believed that Welch’s stated reasons for wanting to strike the two potential jurors and found that the reasons given were a pretext for race. The court upholds the trial court’s exclusion of one of Welch’s experts, agreeing that the expert’s credentials were similar to another expert who was going to testify, and their testimony was going to be similar. Welch did not explain how their testimony would have been different, so the second expert’s testimony would have been duplicative. After upholding the jury’s verdict, the court then turns to the amount awarded to McLean’s husband. Welch argues that the damages cap precludes the trial court’s award of more than $5 million. Art. 4590i, 11.02 imposed a $500,000 cap that was adjustable based on increases in the consumer price index. The section also stated that the section did not limit the liability of any insurer “where facts exist that would enable a party to invoke the common law theory of recovery commonly known in Texas as the ‘Stowers Doctrine.”‘ The trial court found that $500,000 was worth $1.4 million at that time, but then still refused to apply the damages cap to Welch, finding that such Stowers Doctrine facts existed because Welch rejected the husband’s offer to settle the case for the $1 million limit of Welch’s insurance policy. Looking to the plain and common meaning 11.02, and presuming that the legislature intended the plain meaning of those words, the court holds that 11.02(a) limits Welch’s liability for McLean’s husband’s noneconomic damages to $500,000, as adjusted by the CPI, and that 11.02(c) applies only to insurers and does not lift the damages cap applicable to physicians. “To construe former section 11.02(c) to apply to physicians, as [McLean's husband] urges and as the trial court did in this case, would improperly enlarge the meaning of the phrase,”[t]his section shall not limit the liability of any insurer,’ beyond its ordinary meaning.” Consequently, the trial court erred in refusing to apply the damages cap against the jury’s recommendation. The court also agrees that the prejudgment interest awarded to McLean’s husband should have been capped, too. But, because the settlement credit Welch wants to claim would not have affected the capped damages, the court holds that the trial court did not err by not deducting the settlement credit. The court’s final judgment awards McLean’s husband $140,366 individually, $43,232 as administrator of his wife’s estate, and $631,648 each for McLean’s two children, for a total of more than $1.44 million. Though there is no prejudgment interest, post-judgment interest is appropriate, as are courts costs and ad litem fees. OPINION:Cayce, C.J.; Cayce, C.J.; Holman and Gardner, JJ.

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