Texas First Court of Appeals Delivers the Latest Word on Damages in Medical Malpractice

Two issues decided by the First Court of Appeals of Texas in the recent Glenn v. Leal case impact the likelihood and calculation of damages in medical malpractice and other personal injury cases. The second issue is relevant for life care plans. First, the court held that the benefit of the higher standard of medical negligence (willful and wanton) is available only when treatment begins in a hospital emergency room. Second, the trial court and the court of appeals held that life care plans should continue to use usual and customary charges in estimating future medical expenses. The court rejected the argument that lower rates should be used because the plaintiff could purchase coverage under the Affordable Care Act. The court declined to extend the “paid or incurred” measure of medical expenses in this case. However, had the plaintiff been a person age 65 covered by Medicare, such that coverage was not speculative, it is not clear the reasoning in this case would apply. With those facts a court might find that there was reasonable certainty the plaintiff would not pay or incur usual and customary charges for services covered by Medicare.

Case Summary

Dawn Leal was a patient of OB-GYN, Dr. Christopher Glenn.  Having previously delivered her first child, Dr. Glenn knew Mrs. Leal was a diabetic and thus scheduled her for an elective induction at 39 weeks of pregnancy. On the day of the induction, Mrs. Leal received the routine course of treatment, none of which occurred in the hospital’s emergency room. As her labor progressed and it was time for Mrs. Leal to push, the baby’s head crowned but became lodged against Mrs. Leal’s pubic symphysis bone. The umbilical cord was also found to be looped around the baby’s head. The emergent situation only allowed Dr. Glenn a window of several minutes time to deliver the child before brain damage or possible death could result. Dr. Glenn began a maneuver to dislodge the baby’s shoulder. Fifteen seconds later the baby was delivered. In the process, the baby suffered a permanent brachial injury which the Leals contended was due to Dr. Glenn’s pulling, twisting and turning of the baby’s head to hasten delivery.

The Leals filed a medical malpractice suit against Dr. Glenn and Northeast OB/GYN Associates, LLP. The suit alleged Dr. Glenn was negligent in failing to use ordinary care during the baby’s delivery and that his negligence was the proximate cause of the injury. At the close of evidence, Dr. Glenn moved for a directed verdict, claiming legally insufficient evidence supporting two areas. Dr. Glenn first argued that there was legally insufficient evidence of the willful and wanton negligence was required of an emergency healthcare provider under Section 74.153 of the Texas Civil Practices and Remedies Code. Dr. Glenn also contended there was insufficient evidence of future medical expenses. The trial court rejected the arguments and the jury returned a verdict in the Leals’ favor and awarded them $2.2 million in damages. Future medical expenses comprised $1.2 million of this amount. Dr. Glenn’s subsequent motion for a judgment notwithstanding the verdict was rejected.

The appeal filed by Dr. Glenn  focused on the “willful and wanton” standard of negligence and the sufficiency of the evidence future medical expenses.

Standard of Care

Dr. Glenn first contended that the trial court did not interpret Section 74.153 correctly when it considered his delivery of Mrs. Leal’s child. Dr Glenn claimed the court erred by not applying the statute’s negligence standard requiring a plaintiff to show “willful and wanton negligence” in the circumstances. Dr. Glenn contends in his appeal that when an emergency develops during a delivery regardless of the location, the statute is triggered and the physician receives the benefit of the “willful and wanton” standard of negligence.

The Leals argued, and the trial court agreed, that pursuant to Section 74.153 the “evaluation or treatment of a patient in a hospital emergency unit” before treatment in an obstetrical unit was required to trigger application of the statute. A scheduled delivery like Mrs. Leal’s that begins in an obstetrical unit but later develops into an emergency would not.

The First Court of Appeals discussed a 2017 decision by The Fort Worth Court of Appeals in an appeal of a judgment in a malpractice case (D.A. v. Texas Health Presbyterian Hospital of Denton) with nearly identical facts as Leal v. Glenn. The Fort Worth Court of Appeals decided Section 74.153 is triggered by the evaluation and treatment of a patient in the hospital emergency department. Once triggered, it does not matter whether the subsequent emergency care is administered in an obstetrical unit or surgical suite, the willful and wanton negligence standard continues to apply. The First Court of Appeals in Glenn v. Leal adopted the Fort Worth court’s analysis and affirmed the trial court’s ruling. Because Dr. Glenn began the patient’s treatment as an elective induction in the obstetrical unit, and not in the emergency room, the higher standard of negligence would not apply.

Future Medical Expenses

Dr. Glenn’s next issue on his appeal addressed the 1.2 million dollars in future medical expenses awarded to the Leals. Glenn argued there was no evidence that the future medical expenses would be “actually paid or incurred” because the Leals’ damages expert testified that his calculation of future medical expenses was based on what providers actually charge and did not consider discounts, agreements or laws limiting what they can charge.

The Court of Appeals rejected Glenn’s argument that there was legally insufficient evidence for the award. The court reasoned that because there is no evidence of any law or contractual agreement limiting the amount providers can charge for future medical expenses, and because the jury was asked to fairly and reasonably compensate for those expenses, to assume the amount awarded is beyond the   amount of future medical bills would be speculative.

Dr. Glenn’s final issue also concerned the future medical expenses. He contended that the plaintiffs’ life care plan did not consider the impact of the Patient Protection and Affordable Care Act (“Affordable Care Act”). Dr. Glenn argued that because of the ACA, the jury should not be led to believe that future medical expenses on a life care plan will or could be paid entirely out of pocket. The assumption that Glenn’s argument relied on is that all individuals will never be billed full or list rate, but will strictly pay premiums or out of pocket expenses. However, the appeals court concluded that Dr. Glenn’s assumption that the Leals will have insurance coverage, or specifically, coverage for the items and services in the medical bills presented to the jury was also speculative. The ACA does not require an individual to buy insurance (although there is a penalty for failure to do so), therefore, the appeals court reasoned, Dr. Glenn had not demonstrated that the Leals’ evidence was insufficient because it failed to provide speculative information how these future medical bills might be affected if they have insurance when such expenses are incurred.