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Click here for the full text of this decision FACTS:The evidence at trial showed that Dr. Bob J. Herrin was a retired general surgeon who lived and worked in Marshall for most of his nearly 50-year career. During most of that time, until 1998, Medical Protective Co. provided medical malpractice insurance to Herrin. In 1994, Herrin performed laparoscopic gall bladder surgery on a 25-year-old female. Unbeknownst to Herrin at the time, there were problems with the surgery. Herrin transected the patient’s common bile duct during the operation, resulting in bile spilling into her abdomen for several days before the error was corrected by two other surgeries performed by a different surgeon. The patient suffered severe complications as a result. The patient sued Herrin, and that case settled in 1996 following mediation for $300,000. This amount was less than Herrin’s Medical Protective policy limit of $500,000. Herrin testified at trial in the current case that at the time of that settlement, Chuck Curtice, Medical Protective’s agent, promised him that the doctor’s agreement to the settlement would not result in the cancellation or nonrenewal of his malpractice insurance with Medical Protective. Herrin, however, later stated that Medical Protective promised him through an agent only that his malpractice insurance would not be cancelled. In 1997, Medical Protective renewed Herrin’s malpractice insurance. But in 1998, the company did not renew Herrin’s policy because of the high frequency and severity of claims against his policy. After more than 40 years of doing business with Medical Protective, Herrin found a replacement insurance carrier before the expiration of his then-current policy. Herrin suffered no lapse in coverage. Herrin’s new carrier Frontier Insurance kept Herrin’s business for three years, but Frontier then withdrew entirely from the Texas market, leaving Herrin to find yet another company to provide him with medical malpractice coverage. By this time, Herrin was more than 70 years old and found himself unable to obtain the same type of insurance policy he had been purchasing for the entirety of his career. In particular, Herrin wanted occurrence coverage, but he could only find claim coverage. Herrin then retired from practicing medicine, because he could not receive the necessary coverage to continue his surgery practice. Subsequent to his retirement, Herrin sued Medical Protective for damages, including reduced earning capacity and mental anguish, associated with what Herrin considered to be a forced early retirement caused by Medical Protective’s decision to nonrenew his insurance coverage three years earlier. That suit went to trial and resulted in a jury verdict adverse to Medical Protective, which the insurance company appealed. HOLDING:Reversed and rendered. First, Medical Protective contended that legally insufficient evidence supported the jury’s finding that Medical Protective violated the DTPA. Assuming without deciding that the jury correctly found Medical Protective violated the DTPA, the jury’s verdict in this case created an additional problem in that jury found Herrin suffered no actual damages as a result of Medical Protective’s alleged DTPA violation. Rather, the jury found Herrin’s only compensable injuries for the alleged DTPA violation came from Herrin’s resulting mental anguish. Medical Protective contended that legally insufficient evidence supported the mental anguish finding. The process of awarding damages for amorphous injuries such as mental anguish, the court stated, is inherently difficult, because the alleged injury was a subjective, unliquidated, nonpecuniary loss. The court noted, however, the Texas Supreme Court’s 1996 holding in Saenz v. Fiduciary & Guaranty Insurance Underwriters that a plaintiff may not recover damages for mental anguish unless the plaintiff provided: 1. direct evidence of the nature, duration or severity of the anguish establishing a substantial disruption of the daily routine; or 2. other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment or anger. Herrin, the court stated, provided no testimony or evidence that the alleged mental anguish had any detriment to his physical health. Nor did Herrin present evidence that he sought professional psychiatric assistance or received medication to help him cope with his alleged mental anguish. The court also noted that there was no testimony from Herrin or other witnesses regarding the severity of any anguish that demonstrated a substantial disruption to Herrin’s daily routine, as would be required to support a compensable mental anguish claim. In short, the court found the evidence before the jury regarding Herrin’s mental anguish damages showed nothing more than mere worry, anxiety, vexation, embarrassment or anger. Therefore, the court found that legally insufficient evidence supported the jury’s finding that Medical Protective violated the DTPA. Second, Medical Protective contended that legally insufficient evidence supported the jury’s finding that Medical Protective committed fraud. The jury awarded Herrin $250,000 in damages for his fraud claim. Herrin’s claim of fraud, the court stated, flowed from his belief that Medical Protective through an agent had promised Herrin that the doctor’s consent to settling the 1996 malpractice claim for $300,000 would not cause Medical Protective to cancel or nonrenew his malpractice insurance. Assuming without deciding that Herrin met his burden of proof on the first five elements of his fraud claim, the court found that a review of the entire record before it revealed no evidence that Herrin suffered any injury as a result of relying on Curtice’s alleged promise that the doctor’s assent to settlement of the 1996 malpractice lawsuit would cause the cancellation or nonrenewal of his insurance. OPINION:Carter, J.; Morriss, C.J., and Carter and Moseley, JJ.

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