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decided: October 28, 1987.




Mr. Frank L. Branson, Mr. Paul N. Gold, The Law Offices of Frank L. Branson, Prof. J. Hadley, Edgar, School of Law, Texas Tech University, for Petitioners.

Mr. Victor Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Mr. William A. Eldredge, Jr., Friday, Eldredge and Clark, Mr. John C. Hawkins, Jr., for Respondents.

James P. Wallace, Justice.

Author: Wallace

Kellie Birchfield was born prematurely with a congenitally functionless right eye. Shortly after her release from the hospital, she was diagnosed as having retrolental fibroplasia (RLF) in her left eye and is now totally blind. Her parents, Phillip and Mary Jo Birchfield, individually and as next friends of Kellie, sued Texarkana Memorial Hospital (Wadley) and her three treating physicians, Dr. Jon Hall, Dr. Noel Cowan, and Dr. Betty Lowe. The petition alleged negligence on the part of all four defendants plus a D.T.P.A. action against Wadley under the 1973 version of the Act. Deceptive Trade Practices Act, ch. 143, 1973 TEX. GEN. LAWS at 322-43. The jury answered all issues favorably to the Birchfields. The trial court rendered judgment for actual damages against all defendants and exemplary damages against Wadley, but refused to render judgment on the D.T.P.A. action. The court of appeals initially affirmed the judgment, 718 S.W.2d 313, but on rehearing, reversed and remanded for trial. 718 S.W.2d at 345. We reverse the judgment of the court of appeals and render judgment for the Birchfields.

As a premature infant, Kellie was administered approximately 400 hours of supplemental oxygen without adequate monitoring of arterial blood gases. This occurred even though a 1971 report published by the American Academy of Pediatrics cautioned the medical community about the danger of RLF in premature infants receiving supplemental oxygen, and advised practitioners to closely monitor arterial blood gases of such infants. In the wake of the report Dr. Lowe predicted at a pediatrics section meeting, attended by a Wadley administrator, that the hospital was "going to have blind babies" unless it acquired the facilities to adequately monitor blood gases. However, during the period from 1971 through 1973 Wadley expended approximately $200 per year for nursery improvements. Kellie was born in August of 1974.

The jury found the individual doctors negligent and Wadley both negligent and grossly negligent in failing to properly treat Kellie. It also found that Wadley had violated the D.T.P.A. by holding out to the Birchfields that the hospital was adequately equipped to handle premature babies when it was not. The damage award was $2,111,500 actual damages against all defendants, jointly and severally, plus $1,200,000 exemplary damages against Wadley.

The issues before us fall within five groups: evidentiary, cumulative error, trial court bias, errors in the jury charge, and failure to award both exemplary and D.T.P.A. treble damages. We will discuss them in that order.


Reference to Other "Blind Babies" and Other RLF Cases.

The court below held that evidence of other RLF cases was inadmissible, and that repeated references to "other blind babies" constituted harmful error. 718 S.W.2d at 341 - 45. We disagree. Evidence of a defendant's subjective knowledge of the peril created by his conduct is admissible to prove gross negligence. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 573 (Tex. 1985). Dr. Lowe's prediction of "blind babies," the lack of remedial action by Wadley and the occurrence of other RLF cases were admissible to show Wadley's conscious indifference to the peril its conduct created. Wadley did not request an instruction limiting the evidence to that purpose, therefore it waived any complaint to general admission of the evidence. TEX. R. EVID. 105(a). This is some evidence of gross negligence and defeats Wadley's no evidence contention.

Reference to Settlement of Another RLF Case.

Reference to settlement of another case is generally not admissible. TEX. R. EVID. 408. The Birchfields' expert witness made three passing remarks to the settlement. No timely objections to these remarks were made by the defendant and no timely request was made for instruction to the jury to disregard these references. The Birchfields' counsel referred to the settlement during voir dire and upon objection by defendant's counsel the court instructed the jury to disregard the reference. Counsel again referred to the settlement during closing argument and no objection was made nor instruction requested. During voir dire the jury was closely questioned by defendant's counsel about any bias arising from publicity about settlement of another RLF case. In view of the careful voir dire, the volume of testimony, and the full development of the case, we hold ...

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