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Click here for the full text of this decision FACTS:Dr. Benny P. Phillips is a gynecologic oncologist who on Oct. 29, 2002, performed a laproscopic-assisted vaginal hysterectomy on Vicki Bramlett. At first the procedure appeared to be successful, and Vicki returned to her hospital room. At approximately 5:30 p.m., someone notified Phillips that Vicki, although otherwise stable, had produced only 50 ccs of urine. A low urine output symptom could indicate internal bleeding or dehydration. Phillips ordered that hospital staff immediately test Vicki’s blood for hemoglobin and hematocrit levels (H&H test) immediately and that she be given 500 ccs of I.V. fluids over a 30- to 60-minute period (fluid challenge). He ordered that the results of these tests be called into his office. While hospital staff performed the tests, Phillips assisted another physician in surgical procedures at the same hospital. While Phillips assisted in the other surgeries, staff reported the results of Vicki’s tests to Phillips’ office, which relayed them to the voice mail on Phillips’ cell phone. The test results revealed that Vicki’s hemoglobin had dropped from a preoperative level of 15.7 to 9.8 and that her urine output had not changed. Following the completion of the last surgery, Phillips left the hospital without retrieving the voice mail from his cell phone, checking on Vicki’s status or otherwise determining the results of the ordered tests. Phillips proceeded to a previously scheduled cardiac workout with a trainer at a local gym. Upon arriving at the gym, Phillips received an urgent message that Vicki’s condition had critically deteriorated. Phillips rushed back to the hospital and ordered that Vicki be taken to the operating room. During surgery, Phillips discovered a massive amount of blood in Vicki’s lower abdomen and pelvis. Despite attempts at resuscitation, Vicki suffered aspiration pneumonia, brain damage and organ failure. Four days later, on Nov. 2, 2002, Vicki died from complications due to post-operative bleeding. Dale Bramlett and Vicki’s two sons Shane and Michael Fuller filed suit for wrongful death against Phillips and Covenant Hospital. Before trial, Covenant settled the family’s claims for $2.3 million, and the trial court dismissed it from the case. The remaining action against Phillips went to trial, and the jury returned a verdict in favor of Dale. The jury’s verdict included a finding that Phillips was grossly negligent in the matter. Moreover, the jury deemed Phillips 75 percent responsible for Vicki’s death. The jury then awarded the Bramlett family $11 million in actual damages and $3 million in punitive damages. Phillips filed a motion to disregard certain jury findings and a motion for judgment notwithstanding the verdict. The trial court overruled each of these motions. The trial court subsequently entered judgment awarding the Bramlett family $9,196,364.50 in actual damages and $2,972,000 in punitive damages. Following the court’s entry of judgment, Phillips filed a Motion to Correct, Modify or Reform Judgment and a Motion for New Trial. The trial court overruled each post-judgment motion and Phillips filed notice of appeal. Phillips presented six issues contesting the judgment. He argued that: 1. the evidence was legally or factually insufficient to support a judgment that Phillips proximately caused Vicki’s death; 2. Dale’s jury argument was improper and harmed Phillips; 3. the trial court failed to properly apply the statutory cap on damages in a medical malpractice action under Texas Revised Civil Statutes Art. 4590i, �11.02(a); 4. the evidence was legally or factually insufficient to support a finding of gross negligence; 5. the evidence was factually insufficient to support certain of the damages awarded by the jury; and 6. the award of punitive damages exceeded the limits set by Texas Civil Practice & Remedies Code �41.008. HOLDING:The court reversed and rendered the trial court’s award of punitive damages for gross negligence. The court affirmed the remainder of the judgment on condition that within 30 days Shane and Michael each make a remittitur of $220,000 on the issue of damages for future pecuniary loss. After a review of the evidence, the court found that the record reflected that all experts, including Phillips, testified that, if Phillips had followed up on the test results, Vicki would have lived. None of the experts, the court stated, indicated that the nurses unduly delayed reporting the test results. There was some conflicting testimony, the court stated, about the recording of Vicki’s vital signs and whether the hospital staff took the vital signs as ordered. The court found, however, that the trier of fact heard this evidence and resolved the conflict when it apportioned responsibility 75 percent to Phillips and 25 percent to the hospital. After reviewing all of the evidence, the court could not say that the jury’s finding was so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Therefore, the court found that factually sufficient evidence supported the jury’s verdict that Phillips’ negligence proximately caused Vicki’s death. Second, Phillips argued that Dale’s argument that the jury needed to send a message to the doctors of Lubbock County by awarding a substantial sum of money in damages was improper and reversible. But the court concluded that Dale’s “send a message” jury argument was not incurable and Phillips waived any error by failing to properly object and obtain a ruling at trial. Examining the jury’s $1 million award for Vicki’s conscious pain and suffering, the court found that even if the jury believed Phillips’ contention that Vicki was only conscious for a 30-minute period before her death, sufficient evidence of the pain that she suffered during this period, together with her awareness of her impending death, supported the jury’s verdict. Next, the court found that the record supported an award of future pecuniary damages for Vicki’s two sons. Pecuniary damages, the court stated, consist of more than just the lost earning capacity of the decedent but also the value of the advice, counsel, services, care, maintenance and support of the deceased. The court, however, found that the jury’s award of $250,000 to each son was too high, because both sons were grown and had moved out of their parents’ home. Accordingly, the court recommended that a remittitur is appropriate and suggested a remittitur of $220,000 for the future pecuniary loss award to each son. In assessing the damage awards for the family’s loss of companionship and society, the court noted that loss of companionship is meant to recompense the surviving members of the family for the positive benefits that flowed to the family from the decedent having been an integral part of it. The jury awarded Dale $1,265,000, and awarded Michael and Shane each $2,250,000 for loss of companionship. The court found that the jury’s award for loss of companionship and society was not clearly wrong or manifestly unjust. The mere fact that an award is large is not, in and of itself, indicative that passion, prejudice or improper motive on the part of the jury resulted in the verdict rendered, the court stated. Similarly, the court found that the jury’s award of $1 million for mental anguish damages to each of the survivors was not clearly wrong or manifestly unjust. Third, Phillips argued that the trial court erred reversibly by failing to apply the damage caps of Art. 4590i, �11.02, to the jury’s award of noneconomic damages to Dale. According to Phillips, the correct application of the damage caps would have reduced the jury award from $9,196,364.50 in actual damages and prejudgment interest to $1,585,365.85. The court overruled this point of error, however, because it found that the trial court found sufficient evidence allowing the invocation of a Stowers claim. The Stowers doctrine, the court stated, permits an insured to maintain a cause of action against his insurer for the negligent failure of the insurer to settle a claim within applicable policy limits. The elements of a Stowers claim, the court stated, are: 1. the claim against the insured was within the scope of coverage; 2. there was a settlement demand within policy limits; and 3. the terms of the demand were such that an ordinary prudent insurer would have accepted, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. Because the court construes construe Art. 4590i, �11.02(c), as making the damages cap of �11.02(a) inapplicable in a situation where a Stowers claim is successfully presented, the court concluded that the trial court did not err in refusing to apply the damage caps to the judgment rendered. Finally, the court assessed the validity of punitive damage award for Phillips’ alleged gross negligence. To recover exemplary damages, Dale was required to prove that Phillips acted in a grossly negligent manner by clear and convincing evidence. Gross negligence, the court stated, is an act or omission: which “when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others”; and “of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” The court found insufficient evidence that Phillips had actual awareness of the danger Vicki was in but chose to consciously disregard the risk by leaving the hospital. Accordingly, the court found the evidence legally insufficient to sustain the jury’s finding of gross negligence against Phillips. OPINION:Hancock, J.; Campbell and Hancock, J.J., and Reavis, S.J.

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