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Bowser v. Craig Ranch Emergency Hospital L.L.C.

Court of Appeals of Texas, Fifth District, Dallas

January 8, 2018

STACI BOWSER, Appellant
v.
CRAIG RANCH EMERGENCY HOSPITAL L.L.C., Appellee

         On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-00158-2012

          Before Justices Lang, Brown, and Whitehill Opinion by Justice Lang

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE

         Staci Bowser appeals the trial court's judgment ordering that Bowser take nothing on her medical negligence claim under Chapter 74 of the Texas Civil Practice and Remedies Code against Craig Ranch Emergency Hospital L.L.C. d/b/a Emerus 24 Hour Emergency Room. In her sole issue on appeal, Bowser argues the trial court erred when it denied her objection to the jury charge. We conclude that, even if the trial court erred, Bowser has not shown that she was harmed by the alleged error. The trial court's final judgment is affirmed.

         I. PROCEDURAL CONTEXT

         In her fourth amended petition, Bowser alleged a claim for medical negligence against Craig Ranch. Generally, she claimed that a nurse gave her an injection in the wrong location for the deltoid muscle, resulting in a nerve injury that caused her to develop complex regional pain syndrome (CRPS). Bowser alleged that Craig Ranch breached its duty of care in six different ways. Craig Ranch answered generally denying the claim and asserting several affirmative defenses.

         The case was tried to a jury. After Bowser rested her case, Craig Ranch moved for a directed verdict on four of Bowser's allegations of medical negligence on the basis that there was no evidence of negligence or causation. The trial court granted the motion for directed verdict and the case proceeded on the two remaining allegations, i.e., Craig Ranch breached its duty of care to Bowser by (1) failing to use the correct location for injection into the deltoid muscle, and (2) failing to inject a safer muscle than the deltoid, that is, a muscle that posed a lower risk of injuring a nerve. Bowser submitted a proposed jury charge, which included five proposed instructions that added to the standard pattern jury charge instruction by defining what must be foreseeable under Texas law. She contended that this was necessary because the ultimate resulting diagnosis was different from the original injury. Also, during the charge conference, Bowser objected to the proximate cause instruction in the proposed jury charge, arguing:

[T]he general pattern jury charge definition of foreseeability is not sufficient in this case because Texas law is such that only an injury or an inciting event must be foreseeable. And then the consequences that naturally proceed thereafter are also included, and without inclusion, something to that effect, [] it's confusing to the jury and misleading.

         Then, Bowser specifically requested that the trial court use her second proposed instruction. The trial court overruled the objection and instructed the jury with the standard pattern jury instruction on proximate cause.

         The trial court's jury charge defined "negligence" and "proximate cause" as follows:

"Negligence, " when used with respect to the conduct of Craig Ranch [], means failure to use ordinary care, that is failing to do what which an [sic] registered nurse of ordinary prudence would have done under the same or similar circumstances or doing that which an [sic] registered nurse of ordinary prudence would not have done under the same or similar circumstances. "Proximate cause, " when used with respect to the conduct of Craig Ranch [], means a cause that was a substantial factor in bringing about an injury, and which case such injury would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an [sic] registered nurse exercising ordinary care would have foreseen that the injury, or some similar injury, might reasonably result therefrom. There may be more than one proximate cause of an injury.

         The broad-form liability question submitted to the jury closely tracked the language suggested by the Texas Pattern Jury Charge in this type of case: "Did the negligence, if any, of Craig Ranch [] proximately cause the injury in question?"[1] See State Bar of Tex., Tex. Pattern Jury Charges: Negligence of Physician, Hosp., or Other Health Care Provider, PJC 51.3 (2016). The jury answered "No." The trial court signed a final judgment incorporating the directed verdict and the jury's verdict, and ordering that Bowser take nothing by her suit.

         II. JURY CHARGE

         In her sole issue on appeal, Bowser argues the trial court erred when it denied her objections to the jury charge. Assuming, but without deciding, that it was error for the trial court to deny Bowser's objection to the charge and incorporate her requested jury instruction on proximate cause, we consider whether that alleged error constituted harmful error. See Thota v. Young, 366 S.W.3d 678, 686 (Tex. 2012) (assuming error and deciding issue based on harmful error analysis). In her brief on appeal, Bowser claims that the Casteel presumed harm ...


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