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Campbell v. Pompa

Court of Appeals of Texas, Second District, Fort Worth

August 15, 2019

Tamisha Nicole Campbell, Individually and as Guardian and Next Friend of Tamatha Nanette Williams, an Incapacitated Person, Appellant
Paul H. Pompa, M.D. and Marcus Lesly Weatherall, M.D., Appellees

          On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-275904-14

          Before Gabriel, Birdwell, and Bassel, JJ.


          Wade Birdwell, Justice.

         Tamisha Campbell filed health care liability claims against Dr. Paul Pompa and Dr. Marcus Weatherall, who rendered care to her mother, Tamatha Williams, shortly before she sustained severe brain injuries. The jury rendered a verdict in favor of the defendants. In her first two issues, Campbell contends that the great weight of the evidence shows that Dr. Pompa did not render emergency medical care to Tamatha, and even if he did, Dr. Pompa and Dr. Weatherall acted with gross negligence sufficient to satisfy the heightened burden of proof that applies to certain emergency medical care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.153. We conclude that the jury's findings to the contrary were supported by factually sufficient evidence.

         In her third issue, Campbell challenges the composition of her venire panel, arguing that the use of an electronic jury summons system resulted in a venire that was disproportionately Caucasian, affluent, educated, and young. We hold that Campbell's claim should be moored to and judged under the standards articulated in Duren v. Missouri.[1] Because Campbell introduced no evidence to satisfy Duren's elements, we conclude that the trial court properly ruled against her challenge.

         Campbell failed to preserve her fourth and final issue regarding the admission of evidence. Accordingly, we affirm.

         I. Background

         A. December 10

         On Monday, December 10, 2012, Tamatha went to the TotalCare Clinic in Fort Worth, complaining of trouble swallowing, trouble breathing, and "severe" throat pain starting the day before, which she rated at ten out of ten. She was diagnosed with swelling in the head and neck. The doctor treated her with steroids and recommended that she go to the emergency room immediately, and the medical records show that Tamatha agreed to go "now." Tamatha instead went home to rest and then returned to her job as a bus driver that afternoon.

         B. December 11

         On the morning of December 11, 2012, Tamatha reported to work early. After finishing her morning shift, Tamatha went to the emergency room at Texas Health Harris Methodist Hospital Southwest Fort Worth ("Texas Health Southwest") at 9:16 a.m.

         At 9:20 a.m., nurse Kimberly Harbold triaged Tamatha. Among her symptoms, Tamatha reported chest pain. Tamatha described her pain as ten out of ten, which Harbold explained to patients meant "the worst [pain] you've ever experienced in your life." Harbold ordered an EKG to rule out heart problems. The EKG revealed an abnormality not associated with acute coronary issues. Harbold triaged her as a level three out of five, which was defined as "urgent."

         Dr. Paul Pompa saw Tamatha at 10:09 a.m. He documented symptoms including chest tightness, sore throat, high blood pressure, difficulty swallowing, and tenderness-but significantly, he did not observe any swelling. Within his differential diagnosis, he considered an array of possible diagnoses, including heart attack. However, he ruled out many of these possibilities based on testing and evaluation. He was soon convinced that Tamatha's situation did not present an emergency or anything warranting admission to the hospital. At 10:19 a.m., he determined that her symptoms best fit the diagnoses of upper respiratory infection, chest wall inflammation, ear infection, and hypertension. At 10:23 a.m., he informed Tamatha of his diagnosis and told her that she was being discharged from the emergency room with medications.

         During the discharge process, Tamatha was assessed by a nurse, who documented additional symptoms. Like Dr. Pompa, though, she did not observe any swelling. Tamatha was discharged shortly after 11:00 a.m.

         C. December 12

         When Tamatha woke the next morning, her face, tongue, and neck were swollen to the point that it was difficult to breathe. She returned to Texas Health Southwest's emergency department at 5:45 a.m. She was seen by Dr. Marcus Weatherall, who immediately recognized it as a dire situation and knew she was at high risk of losing her airway due to the swelling. The hospital tested and treated her for possible allergic and infectious reactions, to no avail. Dr. Weatherall determined that Tamatha might have to be intubated, so he ordered sedatives around 6:15 a.m.

         Recognizing that intubation might be difficult, Dr. Weatherall contacted Dr. Jones, an anesthesiologist experienced in airway management. Dr. Jones in turn recommended that an ear, nose, and throat specialist or a trauma surgeon be present during intubation in case there was a need to surgically establish an airway through the neck. No specialist or trauma surgeon was available, so it was decided that the next best option was the general surgeon on call, Dr. Domingo Tan. At 6:19 a.m., staff contacted Dr. Tan, who began to drive in from his home thirty minutes away. Tamatha was transferred to the operating room to await Dr. Tan's arrival. At this point, Tamatha was barely able to gasp one-word answers to the staff's questions, though her oxygen levels were still within normal limits. His shift about to end, Dr. Jones briefed a new anesthesiologist on the case, though Dr. Weatherall was unaware of this.

         At 6:38 a.m., Tamatha went into respiratory distress, and hospital staff began anesthesia to prepare for intubation. At about 6:45 a.m., Dr. Tan was still not at the hospital, so staff contacted the only surgeon on call, Dr. Darren Chapman, a urologist who had never performed a surgical airway procedure. When Dr. Chapman was called into the operating room, he began reading the directions to the surgical airway kit while the anesthesiologist attempted to intubate Tamatha. After five minutes of reading, Dr. Chapman was interrupted by the anesthesiologist, who told him that he needed to begin the surgical airway procedure immediately. Tamatha's airway had shut, and she was no longer breathing. Dr. Chapman made an incision, and as he attempted to thread a guide-wire into Tamatha's trachea, she went into cardiac arrest. Chest compressions were started, and Dr. Chapman made a second attempt to thread the wire. The wire went through and came out of Tamatha's mouth. The anesthesiologist used the wire to intubate Tamatha without a surgical airway.

         By the time her airway and heart rhythm were restored, Tamatha had sustained irreversible brain injuries due to lack of oxygen, leaving her in a vegetative state. Dr. Tan arrived around 7:00 a.m. and closed the wounds to Tamatha's neck caused by the attempted surgical airway.

         D. Campbell Files Suit

         Campbell filed health care liability claims individually and as guardian and next friend of her mother. Named as defendants were TotalCare, Dr. Pompa, Dr. Weatherall, and other parties not at issue in this appeal. Before trial, Campbell nonsuited her claims against TotalCare and filed a motion in limine seeking to prevent disclosure of her former TotalCare claims. The trial court denied the motion.

         The case was tried before a jury in September 2017. At trial, Campbell theorized that Tamatha had suffered from angioedema, a leaking of the blood vessels which causes swelling in the face and neck. Campbell argued that Dr. Pompa was liable for misdiagnosing Tamatha's condition on December 11 and that Dr. Weatherall was liable for mistreating her condition on December 12.

         The jury found that Dr. Pompa rendered "emergency medical care" on December 11, triggering a heightened burden of proof that required Campbell to show that he acted with "wilful and wanton negligence." See id. Campbell did not dispute that Dr. Weatherall rendered emergency medical care on December 12. The jury found that neither doctor acted with wilful and wanton negligence. Accordingly, the trial court rendered a take-nothing judgment against Campbell. She appeals.

         II. Emergency Medical Care

         In her first issue, Campbell contests the jury's finding that Dr. Pompa rendered emergency medical care. She asserts that the heightened burden of proof provided by section 74.153 is an affirmative defense which Dr. Pompa waived by failing to specifically plead it in his answer.

         In the alternative, Campbell argues that the jury's finding that Dr. Pompa rendered emergency medical care is not supported by factually sufficient evidence. She asserts that the overwhelming weight of the contrary evidence-including Dr. Pompa's admission that he did not consider Tamatha's situation to be an emergency-should compel the conclusion that Dr. Pompa did not render emergency medical care under the meaning of the statute.

         A. General Applicable Law

         Section 74.153 governs health care liability claims for injuries or death arising out of the "provision of 'emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.'" Burleson v. Lawson, 487 S.W.3d 312, 317 (Tex. App.-Eastland 2016, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.153). When it applies, the statute provides that the claimant

may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Tex. Civ. Prac. & Rem. Code Ann. § 74.153. These statutory provisions do not change the standard of care for an emergency room health care provider, but they heighten the burden of proof required by the claimant. Benish v. Grottie, 281 S.W.3d 184, 191 (Tex. App.-Fort Worth 2009, pet. denied). The wilful and wanton standard of section 74.153 is coextensive with the gross negligence standard. Martinez-Gonzalez v. EC Lewisville, LLC, No. 02-17-00122-CV, 2018 WL 1192242, at *6 (Tex. App.-Fort Worth Mar. 8, 2018, pet. filed) (mem. op.); Miller v. Mullen, 531 S.W.3d 771, 779 (Tex. App.-Texarkana 2016, no pet.); Sage v. Howard, 465 S.W.3d 398, 407 (Tex. App.-El Paso 2015, no pet.).

         B. Waiver

         As an initial matter, Campbell asserts that the protection of section 74.153 is an affirmative defense and that Dr. Pompa waived this defense by failing to specifically plead it. Campbell asserts that because this defense was waived under rule 94, the trial court erred in submitting that theory for the jury's resolution. See Tex. R. Civ. P. 94.

         In response, Dr. Pompa asserts that chapter 74.153 does not establish an affirmative defense. Rather, he asserts that this provision merely defines the standard of proof in cases involving medical emergencies, and he was therefore not required to plead it under rule 94.

         The Texas Rules of Civil Procedure require that any matter constituting an avoidance or affirmative defense be set forth affirmatively in a responsive pleading. Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015) (quoting Tex.R.Civ.P. 94). If an affirmative defense or avoidance is not expressly pleaded, the party cannot rely on the defense as a bar to liability. Id.

         Because "avoidance" and "affirmative defense" are closely related terms, courts frequently use the terms interchangeably. Id. at 156. An "affirmative defense" is a defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true. Godoy v. Wells Fargo Bank, NA, 575 S.W.3d 531, 536 (Tex. 2019). Similarly, an avoidance defense admits the plaintiff's cause of action but asserts the existence of other facts which justify or excuse it. Zorrilla, 469 S.W.3d at 156. Neither category of defense operates by "tend[ing] to rebut the factual propositions asserted in the plaintiff's case." Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991) (op. on reh'g); see MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136 (Tex. 2014). Rather, both categories of defenses seek to establish some "independent reason why the plaintiff should not recover." See Zorrilla, 469 S.W.3d at 156; Genesis Tax Loan Servs., Inc. v. Kothmann, 339 S.W.3d 104, 108 (Tex. 2011); Gorman, 811 S.W.2d at 546. Both categories of defenses place the burden of proof on the defendant to present sufficient evidence to establish the defense and obtain the requisite jury findings. Zorrilla, 469 S.W.3d at 156.

         With that framework in mind, we proceed to determine whether section 74.153 gives rise to an affirmative defense. Campbell asserts that another provision of chapter 74 should lead us to conclude that section 74.153 creates an affirmative defense. She notes that section 74.153 is an outgrowth of the Good Samaritan statute, a related provision found in section 74.151, which states as follows: "A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 74.151(a). Courts have recognized that the Good Samaritan statute provides an affirmative defense against ordinary negligence for persons who administer emergency care under specified circumstances. McIntyre v. Ramirez, 109 S.W.3d 741, 742 (Tex. 2003). Campbell asserts that because section 74.153 shares a common origin and roughly analogous content with the Good Samaritan statute, we should likewise conclude that section 74.153 creates an affirmative defense.

         We agree that section 74.153 shares a common legislative origin and at least some content with the Good Samaritan law. But legislative history does not control the meaning of an unambiguous statute. Tex. Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 136 (Tex. 2018). Rather, it is the statute's plain text that properly guides our interpretation. Id.

         In drafting section 74.153, the Legislature carved a linguistic path that differs in important respects from the Good Samaritan statute. Unlike section 74.153, the Good Samaritan statute creates an immunity, a set of facts which the defendant may prove to show that it is "not liable in civil damages." See Tex. Civ. Prac. & Rem. Code Ann. § 74.151(a); McIntyre, 109 S.W.3d at 744. The Good Samaritan statute is comparable to other immunity statutes that have been found to create affirmative defenses. See Lippert v. Eldridge, No. 03-15-00643-CV, 2016 WL 6068260, at *3 (Tex. App.-Austin Oct. 12, 2016, no pet.) (mem. op. on reh'g) (concluding that a volunteer immunity statute- which provides that if certain facts are shown, "no volunteer of a nonprofit organization or governmental entity shall be liable for harm" unless committed with gross negligence or worse-creates an affirmative defense); Doyal v. Tex. Dep't of Criminal Justice-Institutional Div., 276 S.W.3d 530, 536-37 (Tex. App.-Waco 2008, no pet.) (noting that government code section 497.096 creates an affirmative defense in that if certain facts are shown, a defendant is "not liable for damages" unless its wrong was intentional, wilful and wanton, or grossly negligent). The plain language of the Good Samaritan statute, then, is properly construed as putting the burden on the defendant to show an independent reason why the plaintiff may not recover. See Genesis Tax, 339 S.W.3d at 108.

         By contrast, section 74.153 deals with what a plaintiff must prove in order to prevail in certain types of health care liability claims. The statute provides that the claimant "may prove" a deviation from the standard of care only if the claimant demonstrates wilful and wanton negligence. Addressing an analogous provision, the court in Priddy v. Rawson rejected the view that the nonprofit corporation statute created an affirmative defense where it provided that a person seeking to establish liability of a director "must prove" certain facts. 282 S.W.3d 588, 594 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (citing a former version of Tex. Bus. Orgs. Code Ann. § 22.221(b)). Like the statute in Priddy, section 74.153 deals solely with what the claimant is required to prove in order to establish liability, and the statutory language thus "makes clear that the party seeking to impose liability . . . bears the burden of proof." See id. As such, section 74.153 "is not an independent reason to deny recovery; it goes to the heart of the plaintiff's case." See Genesis Tax, 339 S.W.3d at 108.

         We conclude that section 74.153 does not create an affirmative defense. Appellees were therefore not required to plead that theory in order to submit it for the jury's resolution.[2]

         Moreover, even assuming that Dr. Pompa was generally required to plead the applicability of that section, Campbell waived any objection to Dr. Pompa's failure to do so. At no point did Campbell object to the absence of such pleadings in the trial court. Before trial, Campbell did not file special exceptions concerning Dr. Pompa's failure to plead emergency medical care. See Tex. R. Civ. P. 90. Just the opposite, Campbell raised the issue of emergency care herself, pleading that Dr. Pompa did not render emergency medical care that would trigger section 74.153. During trial, both parties introduced evidence and argument concerning whether Dr. Pompa rendered care under emergency circumstances, and if so, whether his actions were wilful and wanton, implying that both parties understood this issue was being tried by consent. When issues not raised by the pleadings are tried by implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. Denton Cty. Elec. Co-op., Inc. v. Hackett, 368 S.W.3d 765, 773 (Tex. App.-Fort Worth 2012, pet. denied) (citing Tex.R.Civ.P. 67); see Godoy, 575 S.W.3d at 537 (applying this rule to an unpleaded affirmative defense); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (similar). And perhaps most importantly, Dr. Pompa sought and obtained a jury charge on section 74.153, with specific questions concerning emergency medical care and wilful and wanton negligence. Campbell did not object to the charge in this respect. Any complaint as to a jury question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically objected to in the trial court. Tex.R.Civ.P. 274; see Hughes v. Hughes, No. 13-15-00496-CV, 2017 WL 2705472, at *9 (Tex. App.-Corpus Christi-Edinburg June 22, 2017, pet. denied) (mem. op. on reh'g) (holding that appellant waived her argument concerning the submission of an unpleaded affirmative defense by failing to object to the charge); Brewer v. Tehuacana Venture, Ltd., 737 S.W.2d 349, 352 (Tex. App.-Houston [14th Dist.] 1987, no writ) (same); see also Tex. R. App. P. 33.1(a).

         Because Campbell never objected to Dr. Pompa's failure to plead section 74.153, and because her own pleadings instead put the applicability of that section in issue, she cannot protest this discrepancy on appeal.

         C. Emergency Medical Care

         Next, Campbell contests the evidence supporting the jury's finding that Dr. Pompa's treatment of Tamatha qualified as emergency medical care. Campbell contends that the great weight and preponderance of the evidence shows that Tamatha's condition on the morning of December 11 lacked the hallmarks of emergency medical care-severity, sudden onset, and the urgent need to address serious risks to health-and the evidence is therefore factually insufficient to support the jury's finding to the contrary.

         1. Applicable Law

         When conducting a factual sufficiency review, the court of appeals should not substitute its judgment for that of the jury. Windrum v. Kareh, No. 17-0328, 2019 WL 321925, at *13 (Tex. Jan. 25, 2019). We will set aside a finding for factual insufficiency only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 127 (Tex. App.-Fort Worth 2016, no pet.). An opinion reversing for factual insufficiency must detail the relevant evidence and clearly state why the jury's finding is so against the great weight and preponderance as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Windrum, 2019 WL 321925, at *13.

         The statute provides the following definition of "emergency medical care":

"Emergency medical care" means bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency.

Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(7). The statutory definition of "emergency medical care" as used in section 74.153 has two elements: (1) the type of care provided (i.e., "bona fide emergency services"), and (2) the emergency circumstances under which those services are provided. Turner v. Franklin, 325 S.W.3d 771, 776-77 (Tex. App.-Dallas 2010, pets. denied). The second element requires that care be provided after the sudden onset of a condition manifested with acute symptoms so severe that the absence of immediate medical attention could reasonably be expected to result in serious jeopardy or impairment to health. Id. at 777. It is the severity of the patient's condition, its rapid or unforeseen origination, and the urgent need for immediate medical attention in order to minimize the risk of serious and negative consequences to the patient's health that comprise the second element. Burleson, 487 S.W.3d at 319 (quoting Turner, 325 S.W.3d at 777).

         With regard to the first element, the statute does not define "bona fide emergency services." Any legal term or word of art used in chapter 74 that is not defined "shall have such meaning as is consistent with the common law." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b). In Turner, the court consulted the occupations code to give the term "services" a specialized meaning related to medical care, such that the phrase "bona fide emergency services" was defined as "any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions." Turner, 325 S.W.3d at 778. We conclude that this definition is consistent with the common law meaning of these terms.[3] "[I]f such services are provided ...

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