06.18.18

06.18.18

Last week the Supreme Court of Texas issued three opinions and five grants. One opinion and two grants are of particular interest.

First, Debra C. Gunn, M.D. et al. v. Andre McCoy, a medical malpractice case involving multiple suits, comes from the Court of Appeals for the 14th District of Texas. In this case, a woman died after complications during the emergency delivery of her stillborn baby. Andre McCoy, the woman's husband, sued the hospital, Dr. Gunn, several other doctors, and their medical practice groups as a result of this incident. The issues brought before the Texas Supreme Court include (1) whether legally sufficient evidence supports the verdict that a doctor's negligence caused a patient's brain damage, (2) whether the exclusion of a defense expert to testify on future medical expenses constituted reversible error, and (3) whether 18.001 affidavits to prove medical expenses must be offered by medical providers and, not by subrogation agents. The Supreme Court held that there was legally sufficient evidence to support the verdict that the doctor's negligence cause McCoy's brain damage.

As in many medical malpractice cases, this case consisted of a battle of competing experts for the plaintiff and the defense. The Court analyzed the sufficiency of the evidence under the framework announced in Jelinek v. Casas, which holds that when the facts support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion. The defense argued that the Plaintiff's expert's theory was not "superior." However, the Court held that the plaintiff's expert's testimony satisfied the Jelinek test by explaining specific medical reasons why her theory is superior.

Further, the court held that the exclusion of the defense expert to testify on future medical expenses did not constitute reversible error because the exclusion did not probably cause the rendition of an improper judgement. The Court held that the expert's testimony should have been allowed because the defense expert's qualifications were clearly established even though the defense chose to cut them from the video introduced as evidence. However, while the trial court erred in not allowing the defense expert's testimony, this did not result in reversible error because it likely did not change the amount of damages granted.

Finally, the Court held that § 18.001 affidavits provided by subrogation agents are allowed under the Texas Civil Practice and Remedies Code. The Court observed that in today's complex medical care system, insurance and other government programs play a major role in determining the cost of medical services and what is deemed "reasonable and necessary." Moreover, the plain language of § 18.001 does not limit the proper affiants to medical providers, but also allows the affidavit to be executed by "the person in charge of the records." The Court therefore held that subrogation agents are just as able to establish the reasonableness and necessity of expenses.

The Court also granted oral argument in Henry Rawson Jr. and Susan Rawson v. Oxea Corp., from Houston's 1st Court of Appeals. In this case, a man working on restoring power to a plant was electrocuted and suffered injuries when power suddenly returned to an area that was supposed to remain without power while the work was being completed. The Supreme Court will determine (1) whether the electrocuted contractor established a fact issue that the company that employed the electrician as a contractor had actual knowledge of the danger or condition that led to the injury, (2) if a fact issue is established that the company exercised or retained control over how the electrician worked, and (3) whether the electrician is owed a duty by the company who hired him as a contractor.

The Court also granted oral argument in Daniel Nghiem v. Rupom Sajib and Global Aviation Service Inc. out of Houston's First Court of Appeals. This case began after aircraft, owned and operated by Nghiem, made an emergency landing with Sajib as the co-pilot. Sajib filed a negligence theory suit against Nghiem. Nghiem then filed a plea for intervention alleging a negligence cause of action as pled by Sajib in the Original Petition. Sajib moved for a Motion to Strike. Nghiem then filed an Amended Plea in Intervention adding an Implied Warranty of Good and Workmanlike Repairs and Services. The trial court struck the intervention and the First Court of Appeals upheld the trial court's decision. The Supreme Court will hear whether the claim for implied warranty breach is only available under the Deceptive Trade Practices Act, and therefore subject to the act's two-year limitation.