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Click here for the full text of this decision FACTS:Columbia Rio Grande Healthcare LP, d/b/a Rio Grande Regional Hospital, appeals from a judgment entered against it on a jury verdict. On November 23, 2000, Jesus Rodriguez, M.D., performed a resection of Mrs. Hawley’s colon because of the ruptured diverticuli. The excised portion of Mrs. Hawley’s colon was sent to Jose Valencia M.D., a pathologist whose office is located within the Hospital. Valencia’s examination of the tissue specimen revealed that Mrs. Hawley had cancer. Valencia staged the cancer, in terms of severity, as Stage 3 or what is known as Duke’s C cancer. Mrs. Hawley did not learn that she had cancer until October 2001, almost a full year after she was diagnosed by Valencia. By that time, she had an inoperable tumor in her liver that was roughly the size of a softball. On Feb. 26, 2002, Mrs. Hawley and her husband, James A. Hawley, sued the hospital. Their live petition alleged that the hospital was negligent in failing to timely and properly convey the cancer diagnosis to Mrs. Hawley, her surgeon, Rodriguez, and her admitting physician. The Hawleys also complained that the hospital had failed to follow its own polices and procedures in the reporting of surgical pathology results. The case was tried to a jury, which returned a unanimous verdict that the hospital’s negligence was a proximate cause of the injuries and damages sustained by the Hawleys. The trial court entered a judgment on the verdict, and the hospital subsequently appealed the judgment to this court. At the time of trial in February 2003, Mrs. Hawley’s life expectancy was approximately six months. While the instant appeal was pending before this court, Mrs. Hawley succumbed to complications caused by her cancer. Her husband continues in this matter as sole appellee. HOLDING:Affirmed. The ultimate standard of proof on the issue of causation is whether, by a preponderance of the evidence, a negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred. Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995). Much of the trial focused on Mrs. Hawley’s chances of survival in November 2000, when Valencia initially diagnosed her with cancer. Both sides produced expert medical testimony to explain how colon cancer is staged and what the various rates of survival are for the different stages. The uncontradicted testimony established that, if Mrs. Hawley had been fully evaluated following her initial diagnosis, her cancer would have been staged at either Duke’s C or Duke’s D. Patients afflicted with cancer staged at Duke’s C and Duke’s D have markedly different rates of survival. The court concludes that there is legally sufficient evidence to prove that Mrs. Hawley had a greater than 50 percent chance of survival at the time of the hospital’s negligence. The Hawleys produced substantial evidence to prove that Mrs. Hawley’s cancer could not be staged beyond the Duke’s C category and that Mrs. Hawley’s chances of survival were therefore well above 50 percent. This evidence included, among other things, testimony from the two oncologists who treated Mrs. Hawley, testimony from the surgeon who examined Mrs. Hawley’s liver and took the tissue sample that led to the initial diagnosis of colon cancer, and testimony from the pathologist who made the initial diagnosis. The point of dissension among the experts was whether it was reasonable to use statistics on the doubling times of tumors to estimate how large the tumor in Mrs. Hawley’s liver was in November 2000. The hospital’s experts suggested that such an approach was appropriate, but the jury also heard testimony that the approach was unreliable and unreasonable. In some instances, the mixed testimony came from the hospital’s own witnesses. In two sub-issues, the hospital contends that the evidence is insufficient to support the final award because Dr. Billie Marek used the word “probably” in his testimony and because Marek based his estimate on the false assumption that Mrs. Hawley had not developed macrometastatic disease at the time of the hospital’s negligence. Only testimony of reasonable probability is required in cases such as this. Given this lower threshold of certainty, the court believes that Marek’s use of the word “probably” to qualify his opinion did not ipso facto render his testimony incompetent or inadmissible. As to the second sub-issue, the court finds that it is premised on an inaccurate interpretation of the record. The hospital argues that the trial court erred by admitting the testimony of Dr. Susan Escudier and Marek. The court finds it curious that the hospital objected to the qualifications of Escudier, when his qualifications were virtually the same as the hospital’s expert oncologist. The hospital criticizes Escudier for supposedly basing her testimony on speculation. The court disagrees. A complete reading of Escudier’s testimony demonstrates that Escudier merely acknowledged the limitations of medical science, and more specifically, those of retrospective cancer staging in circumstances in which metastatic cancer is untreated for an extended period. “We do not fault Dr. Escudier for having the professionalism to acknowledge that her opinion could be incorrect and that the true stage of the cancer is unknowable with absolute certainty because Mrs. Hawley’s initial diagnosis was not acted on for nearly a year.” The court finds that Marek’s testimony is reasonably comprehensible and helpful to resolve an issue of fact central to the case. Although the hospital presented evidence that conflicted with Dr. Marek’s testimony, conflicts in evidence do not necessarily render evidence inadmissible. The hospital argues that the trial court committed reversible error by excluding certain testimony regarding the negligence of Mrs. Hawley’s internist and surgeon. This evidence was offered to prove that the negligence of Mrs. Hawley’s physicians was a new and independent cause of her injuries. The hospital’s offers of proof support nothing more than a finding of a concurring cause. The hospital argues that the pleadings, as well as a doctor’s testimony, supported a jury instruction on new and independent cause. Unforeseeability is necessary, but not sufficient, for a finding of new and independent cause. Intervention of an unforeseen cause of a plaintiff’s injury does not necessarily mean that there is a new and independent cause of such a character as to constitute a superseding cause which will relieve the defendant of liability. The hospital contends that the trial court erred in refusing to give the jury an instruction that Mrs. Hawley must have had a greater than 50 percent chance of survival on November 28, 2000 for the hospital’s negligence to be a proximate cause of her injuries. The hospital has failed to produce any precedent from a Texas court endorsing a loss-of-chance instruction, much less any precedent holding that a trial court abuses its discretion in refusing to give such an instruction. Because the loss-of-chance rule necessarily follows from the ultimate standard of proof, there is no basis for concluding that a loss-of-chance instruction was reasonably necessary to enable the jury to render a proper verdict. The jury was instructed that the hospital could be negligent � that the hospital acts or fails to act � only through its employees, agents, nurses and servants. There being no evidence that Valencia was an employee, agent, nurse or servant of the hospital, the charge did not authorize the jury to reach a finding of negligence based on Valencia’s conduct. The hospital argues that it is entitled to a new trial based on the Hawleys’ failure to segregate the damages caused by the Hospital from those damages caused by Mrs. Hawley’s pre-existing condition. The court disagrees. The damages were sufficiently segregated between the reasonable and necessary medical expenses resulting from Mrs. Hawley’s pre-existing medical condition and those caused by the Hospital. The Hawleys’ claim against the hospital is for common law negligence not for wrongful death under the survival statute. In Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000), the Texas Supreme Court reaffirmed that the damage caps in former Texas Civil Practice & Remedies Act Article 4590i are unconstitutional as applied to common-law claims. In this case, the trial court refused to apply the caps, even though the hospital requested their application both before and after trial. The court finds no error in its refusal to do so. The hospital argues that the judgment must be modified to decrease the pre- and post-judgment interest rates from 10 percent to 5 percent. Because the judgment was not signed on or after the effective date of House Bill 4 and because it did not become subject to appeal on or after that date, House Bill 4 does not apply in this case. OPINION:Garza, J.; Rodriguez, Castillo and Garza, JJ.

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