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Click here for the full text of this decision FACTS:Lloyd Thomas Johnston, a 71-year-old man, underwent bypass surgery and, as a result of complications from that surgery, needed additional rehabilitation. The hospital therefore discharged Lloyd to a nursing home, HCRA of Texas Inc., for rehabilitation. After approximately three weeks at HCRA, Lloyd’s health took a turn for the worse, and after 25 days at HCRA, Lloyd’s condition had severely deteriorated. Dr. Aziz Klavon ordered Lloyd transferred immediately by ambulance to the hospital emergency room, where Lloyd died less than 24 hours later. Lloyd’s death certificate indicated that he died of multisystem organ failure secondary to sepsis, septic shock, with ischemic colitis listed as a tertiary cause of death. As a result, members of Lloyd’s family � Margie Faye Johnston, Tommy Lloyd Johnston, Gary Wayne Johnston and Douglas Lee Johnston � individually and on behalf of the estate of Lloyd Thomas Johnston, deceased (collectively, appellees or Johnstons) filed a nursing home liability case against HCRA. Lloyd’s family and experts presented evidence that at HCRA Lloyd was not properly cleaned or repositioned, causing him to develop decubitus ulcers; he was not properly nourished; he was not given his medicines; his urine output and body temperature were not measured; his room was not cleaned; and HCRA kept inadequate records and fabricated some records. The trial court rendered judgment on the jury’s verdict for the Johnstons and HCRA appealed. HOLDING:The court reverses the exemplary damages award and renders judgment that appellees take nothing on their exemplary damages claim. The court affirms the remainder of the trial court’s judgment. The court states that the primary issues on appeal are the sufficiency of the evidence to support the jury’s damage awards and malice finding. The court reviews the evidence and inferences tending to support the jury’s finding that HCRA’s negligence proximately caused injuries to Lloyd � malnourishment, dehydration and decubitus ulcers � that could have been given credit by reasonable jurors. The court finds that the evidence presented includes expert testimony that the standard of care requires that patients who are unable to reposition themselves be repositioned every two hours, that decubitus ulcers do not develop if the repositioning demanded by the standard of care occurs, that it should have been easy for HCRA to keep Lloyd adequately nourished and hydrated because he had a feeding tube, that the standard of care requires patients be adequately hydrated and nourished, and that Lloyd was not adequately nourished or hydrated when he left HCRA. The court also notes evidence that Lloyd’s family members observed decubitus ulcers on Lloyd’s lower back while Lloyd was at HCRA and hospital emergency room records documenting that Lloyd had two stage three decubitus ulcers on his back when he arrived at the emergency room. The court holds that the evidence is legally sufficient to support the jury’s finding that HCRA’s negligence proximately caused injuries to Lloyd. The court next examines HCRA claims that legally and factually insufficient evidence exists to support damage awards of $17,805 for the necessary medical and hospital care Lloyd received before his death as a result of his injuries and $75,000 for Lloyd’s physical pain and mental anguish he experienced before his death as a result of his injuries. HCRA objects to the medical expense award because the jury did not segregate the damages caused by HCRA’s negligence from the medical costs that would have accrued without HCRA’s negligence the medical expenses related to Lloyd’s ischemic colitis. But the court points out that Lloyd was not diagnosed with ischemic colitis until it was noted on his death certificate after an autopsy. The court then goes on to point out that HCRA’s challenge to the jury’s physical pain and mental anguish award is limited to three sentences and simply claims that the record is devoid of any evidence that Lloyd suffered pain or anguish. The court finds that Lloyd’s family saw the decubitus ulcers on Lloyd’s back, which medical records and expert testimony established were stage three, necrotic and oozing blood. Lloyd, who was fully conscious, complained to his family that his back hurt, indicating he was experiencing physical pain. Further, the court notes that Lloyd was malnourished, causing his body to break down muscle to meet its caloric needs. The court concludes that the jury could have reasonably inferred from this evidence that Lloyd experienced physical discomfort, pain and suffering from the injuries that the jury found proximately caused by HCRA. Finally, the court addresses special question No. 7 of the court’s charge, which asked the jury whether it found by clear and convincing evidence that the harm to Lloyd resulted from malice attributable to HCRA. The charge instructed the jury that in order for malice to be attributable to HCRA it must find that Nurse Burns was employed by HCRA in a managerial capacity and was acting in the scope of that capacity. The court examines the record for evidence of malice and determines that the evidence concerning HCRA’s breach of the standard of care by failing to reposition Lloyd or to notice or treat his decubitus ulcers after his health took a turn for the worse during his last seven to 10 days at HCRA is not, standing alone, evidence of the type of acts or omissions that, viewed from the actor’s standpoint, pose “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” The court finds that the evidence presented does not demonstrate that, viewed objectively from the standpoint of Burns, the acts or omissions upon which appellees premise their exemplary damages claim posed an “extreme degree of risk” to Lloyd. The court therefore holds that a reasonable trier of fact could not have formed a firm belief or conviction that from Nurse Burns’ standpoint the risk presented to Lloyd was an extreme risk of serious injury. As a result of its finding that malice was not proved, the court reverses the judgment’s award of exemplary damages and renders judgment that appellees take nothing on their exemplary damages claim. OPINION:Sue Walker, J.; Cayce, C.J.; Holman and Walker, JJ.

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