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Glenn v. Leal

Court of Appeals of Texas, First District

March 1, 2018

CHRISTOPHER JAMES GLENN, M.D. AND NORTHEAST OB/GYN ASSOCIATES, L.L.P, Appellants
v.
JOSEPH LEAL AND DAWN LEAL, INDIVIDUALLY AND AS NATURAL PARENTS, NEXT FRIENDS AND LEGAL GUARDIANS OF AL, A MINOR, Appellees

         On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2013-44705

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          OPINION

          Sherry Radack Chief Justice

         In this medical malpractice case, we consider (1) whether Texas Civil Practice and Remedies Code section 74.153[1] 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 affirm.

         BACKGROUND

         Factual Background

         On May 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 pregnancy.

         On the 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 4:45 p.m.

         Mrs. 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.

         Dr. 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.

         Fifteen 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.

         Procedural Background

         The 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.[2]

         The 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.

         The 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 age.

         Dr. 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.

         The trial court denied the motion for JNOV, and entered a final judgment in accordance with the jury's verdict. This appeal followed.

         INTERPRETATION OF CIVIL PRACTICES & REMEDIES CODE §74.153

         In his 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.

Section 74.153

         Both issues require this Court to interpret section 74.153 and to determine whether the "willful and wanton" standard of negligence ...


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