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Click here for the full text of this decision FACTS:On Friday, January 25, 2002, Shiketa Walker was treated at Memorial Hermann Baptist Hospital by Julie Jeanes, an obstetrical nurse. According to Jeanes, Shiketa said that she was pregnant and reported that she had been bleeding and passing clots for two weeks. Jeanes testified that she paged Dr. William N. Hawkins, who she understood was on call for Shiketa’s regular physician. Jeanes testified that Hawkins returned her call at 3 p.m. According to Jeanes, Hawkins ordered an ultrasound and told her to discharge Shiketa and tell her to see her regular physician on Monday if the ultrasound did not show she had a baby in her uterus. Subsequently, Shiketa’s ultrasound showed no significant abnormality, and at 4:30 p.m. MHBH discharged Shiketa from its care after advising her to follow up with her regular physician. Neither Hawkins nor any other physician examined Shiketa on Jan. 25 before her discharge from MHBH. On Jan. 27, 2002, Shiketa sought treatment at St. Elizabeth Hospital and saw Dr. Steven L. Kastl. At that point, she complained of abdominal pain. Following a positive pregnancy test and his examination, Kastl diagnosed Shiketa as suffering from constipation and discharged her. On Jan. 28, 2002, Shiketa died at home from a ruptured tubal ectopic pregnancy. Shiketa was 26 years old when she died. The principal dispute at trial concerned whether Jeanes spoke to Hawkins on Jan. 25. Hawkins testified that he was not on call on Jan. 25 prior to 5 p.m. Hawkins disputed that he spoke to Jeanes regarding Shiketa’s treatment at MHBH and testified that Jeanes was confused about whether she spoke to him. Kastl settled the claims against him before jury selection. The parties tried the case to a jury in December 2005. The jury found both Hawkins and Kastl negligent and found that their negligence proximately caused Shiketa’s death. The jury further found that MHBH was not negligent. The jury apportioned fault between the two doctors, allocating 60 percent of the fault to Kastl and 40 percent of the fault to Hawkins. The jury also answered issues concerning the parents’ damages. It awarded Vivian Walker damages of $500,000 for past loss of companionship and society, $500,000 for future loss of companionship and society, $500,000 for past mental anguish, $200,000 for future mental anguish, and $5,000 in funeral and burial expenses. The jury awarded Alex Walker no damages for past loss of companionship and society, $3,500 for future loss of companionship and society, $3,500 for past mental anguish, and nothing for future mental anguish. Based on the jury’s apportionment of fault, the trial court’s judgment awarded $812,298 to Vivian against Hawkins. After the trial court credited Hawkins with the settlement proceeds that Alex received from his settlement with Kastl, it awarded Alex no additional damages. Hawkins and Alex appealed from the trial court’s judgment. HOLDING:Reversed and remanded in part; affirmed in part. Hawkins asserted that legally and factually insufficient evidence supported the judgment against him. In particular, Hawkins asserted that legally insufficient evidence supported the jury’s findings against him on negligence and causation. During Shiketa’s earlier treatment at MHBH, Hawkins stated that Shiketa did complain of abdominal pain, a key symptom of an ectopic pregnancy. Shiketa, however, complained of abdominal pain during her later visit with Kastl. Thus, Hawkins argued that Kastl’s negligence in failing to diagnose Shiketa’s ectopic pregnancy was the sole cause of Shiketa’s death. The court found that Hawkins’ trial testimony contradicted his argument on appeal. Hawkins testified that on Jan. 25, Shiketa complained of sufficient symptoms to require her physician to rule out the possibility of an ectopic pregnancy. Hawkins also acknowledged that patients with ectopic pregnancies do not always complain of abdominal pain. To prevail on Vivian’s claims against Hawkins, the court stated that under Texas Civil Practice & Remedies Code �74.001(13), Vivian had to prove that: 1. a physician and patient relationship existed; 2. Hawkins had a duty to comply with a specific standard of care; 3. Hawkins breached that standard of care; 4. Shiketa was injured; 5. a causal connection existed between the breach of the standard of care and the injury; and 6. damages occurred. As a result, the court found sufficient evidence in the record to conclude that reasonable and fair-minded people could agree with the jury’s resolution of the negligence issue. The court also concluded that the record did not support Hawkins’ argument that Kastl’s failure to diagnose Shiketa’s ectopic pregnancy constituted a superseding cause of her death. Hawkins next argued that the jury’s award of $1.7 million to Vivian was excessive, because the evidence showed that Shiketa moved out of Vivian’s home in the ninth grade, Vivian did not know that Shiketa was pregnant, and Vivian did not accompany Shiketa to the hospital on Jan. 25 or Jan. 27. Hawkins concluded that those facts showed a strained relationship between Shiketa and her mother. But in finding legally sufficient evidence to support the award, the court noted that after Shiketa moved out, Vivian had regular contact with Shiketa, either in person or by telephone, and that Vivian reacted with anguish when informed of Shiketa’s death. The court then assessed Hawkins’ factual sufficiency challenge. While the testimony at trial, the court stated, showed that Shiketa and Vivian had a loving relationship, there was no testimony that Vivian was dependent on Shiketa or that Vivian continued to suffer a severe grief reaction after her initial shock from learning of Shiketa’s death. There was no evidence, the court stated, that Vivian suffered from depression, that she required any medical treatment to cope with Shiketa’s death, that she could no longer work as a result of Shiketa’s death or that Shiketa’s death significantly interfered with any of Vivian’s daily activities. For instance, the court found no evidence that Vivian missed any work or changed her daily activity as a result of Shiketa’s death. There was little evidence that Shiketa and Vivian had significant common interests or activities. There was no testimony from Vivian’s current spouse, her other children, close friends or members of the clergy about any adverse effect on Vivian’s physical or emotional status resulting from Shiketa’s death. There was no testimony that Vivian was financially dependent on Shiketa or that she relied upon Shiketa for any advice or household services. The law, the court stated, requires appellate courts to conduct a meaningful review of a jury’s nonpecuniary damage award in a wrongful death case, which, in turn, requires evidence “that the amount found is fair and reasonable compensation.” In this case, the court stated that the jury did not have sufficient specific evidence to assess the extent of Vivian’s intangible damages arising from Shiketa’s death. Without such evidence, the jury could only speculate about the nature, duration and severity of Vivian’s mental anguish and loss of companionship damages. Thus, the court found that factually insufficient evidence supported the jury’s award of $1 million in past and future loss of society and companionship damages and its award of $700,000 in past and future mental anguish damages. In addition, the court stated that “[g]iven the testimony, or lack thereof, to establish that Alex had a close relationship with Shiketa,” the jury’s total damage award of $7,000 for the intangible losses Alex suffered was not so against the great weight and preponderance of the evidence that it was manifestly unjust, nor did the award shock the conscience or clearly demonstrate bias. OPINION:Horton, J.; McKeithen, C.J., and Horton, J. DISSENT:Kreger, J. “Because the majority reverses the jury’s determination of non-economic damages suffered by Vivian Walker for the death of her child, Shiketa Walker, and remands same to the trial court for a new trial, I respectfully dissent . . . and would affirm the damage awards. While I agree with the majority that appellate courts are to conduct a meaningful evidentiary review in order to insure that the amount awarded is fair and reasonable, under a factual sufficiency review, appellate courts review all of the evidence to determine if it is so weak, or the contrary evidence so overwhelming, as to render the finding clearly wrong or manifestly unjust. . . . The mere fact that an award is large does not show that the jury was influenced by passion, prejudice, sympathy, or other circumstances not in evidence, and the award must be flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience before an appellate court sets it aside lest we run afoul of the Texas Constitution’s guarantee of a right to trial by jury.”

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