CHRISTOPHER JAMES GLENN, M.D. AND NORTHEAST OB/GYN ASSOCIATES, L.L.P, Appellants
JOSEPH LEAL AND DAWN LEAL, INDIVIDUALLY AND AS NATURAL PARENTS, NEXT FRIENDS AND LEGAL GUARDIANS OF AL, A MINOR, Appellees
Appeal from the 295th District Court Harris County, Texas
Trial Court Case No. 2013-44705
consists of Chief Justice Radack and Justices Higley and
Radack Chief Justice
medical malpractice case, we consider (1) whether Texas Civil
Practice and Remedies Code section 74.153 applies to
emergency medical care provided in an obstetrical unit if the
patient has not first been evaluated in an emergency room,
and (2) whether there is legally sufficient evidence to
support the jury's award of future medical expenses. We
26, 2011, Dawn Leal arrived at Kingwood Medical Center for an
elective induction. She was admitted and treated by Dr.
Christopher Glenn. Dr. Glenn had been Mrs. Leal's
obstetrician throughout her first pregnancy and subsequent
delivery in June 2008, and Mrs. Leal began seeing Dr. Glenn
again around the 15-week mark of her second pregnancy.
Thereafter, she saw Dr. Glenn once a month for the next five
months. Dr. Glenn knew that Mrs. Leal was a diabetic, so he
scheduled her for an elective induction at 39 weeks of
day of the scheduled induction, Mrs. Leal was induced at 8:57
a.m., and Dr. Glenn checked on her progress at around noon.
At around 2:50 p.m., Mrs. Leal's cervix was completely
dilated and the nurses informed Dr. Glenn that she was ready
to begin pushing. Dr. Glenn arrived to attend her delivery at
Leal began pushing, the baby's head crowned, delivered,
and then his shoulder became lodged against Mrs. Leal's
pubic symphysis bone, a complication known as shoulder
dystocia. Once Dr. Glenn diagnosed the shoulder dystocia, he
also noted that the baby's umbilical cord was looped
around his head. Dr. Glenn then had several minutes to
deliver the child or the baby could possibly suffer brain
damage or possible death.
Glenn began performing maneuvers to dislodge the baby's
shoulder. Specifically, he instructed the nurses to perform
the McRoberts Maneuver, which involves hyperflexing the
mother's legs and pushing her knees back towards her
shoulders to open the bony structure of the pelvis. The
nurses also applied supra-pubic pressure to Mrs. Leal's
pubic bone to assist in dislodging the baby's shoulders.
seconds later, the baby was delivered. He suffered a
permanent brachial plexus injury, which the Leals contend was
due to Dr. Glenn's pulling, twisting, and turning of the
baby's head to hasten delivery.
Leals filed a medical malpractice suit against Dr. Glenn and
Northeast OB/GYN Associates, LLP, alleging that 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 baby's injury. The Leals further alleged
that OB/GYN Associates was vicariously liable under the
doctrine of respondeat superior.
case was tried to a jury on June 23, 2016. At the close of
the evidence, Dr. Glenn moved for a directed verdict, arguing
that there was legally insufficient evidence of the willful
and wanton negligence required of an emergency health care
provider under Section 74.153 of the Texas Civil Practices
and Remedies Code. He also alleged that there was legally
insufficient evidence of future medical expenses. The trial
court denied the motion for directed verdict. After the
charge conference, Dr. Glenn objected to the jury question on
negligence and future medical expenses on the same grounds,
which were also overruled.
jury returned a verdict in the Leals' favor, awarding
them (1) $100, 000 for physical pain and mental anguish
sustained in the past, (2) $500, 000 for future physical pain
and mental anguish, (3) $250, 000 for future disfigurement,
(4) $500, 000 for physical impairment, (5) $150, 000 for past
medical expenses, (6)$300, 000 for future medical expenses
until the child reaches 18 years of age, and (7)$900, 000 for
future medical expenses after the child reaches 18 years of
Glenn moved for a judgment notwithstanding the verdict
["JNOV"], again claiming that there was no evidence
of willful and wanton negligence and that there was legally
insufficient evidence of future medical expenses.
trial court denied the motion for JNOV, and entered a final
judgment in accordance with the jury's verdict. This
OF CIVIL PRACTICES & REMEDIES CODE §74.153
first two issues on appeal, Dr. Glenn contends the trial
court erroneously interpreted section 74.153 and failed in
not applying its negligence standard- requiring a plaintiff
to show "willful and wanton negligence"-to Dr.
Glenn's delivery of Mrs. Leal's child. Specifically,
Dr. Glenn contends:
[T]he trial court erroneously denied Appellants' motion
for directed verdict and for judgment notwithstanding the
verdict ("JNOV"), where Section 74.153 of the Texas
Civil Practice and Remedies Code governed the standard of
proof in this case and Appellees wholly failed to provide
legally sufficient evidence of willful and wanton negligence
as required under Section 74.153.
[T]he trial court abused its discretion in refusing to submit
Appellants' requested questions and instructions
regarding the application of Sections 74.153 and 74.154 of
the Texas Civil Practice and Remedies Code, and whether the
error in refusing to submit the questions and instructions
probably resulted in the rendition of an improper judgment.
issues require this Court to interpret section 74.153 and to
determine whether the "willful and wanton" standard
of negligence ...