Court of Appeals of Texas, Second District, Fort Worth
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
Appeal from the 348th District Court Tarrant County, Texas
Trial Court No. 348-275904-14
Gabriel, Birdwell, and Bassel, JJ.
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.
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. Because Campbell introduced no
evidence to satisfy Duren's elements, we
conclude that the trial court properly ruled against her
failed to preserve her fourth and final issue regarding the
admission of evidence. Accordingly, we affirm.
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.
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
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."
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
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.
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.
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.
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.
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.
Campbell Files Suit
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.
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
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.
Emergency Medical Care
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.
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.
General Applicable Law
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.).
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.
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.
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.
"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.
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.
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
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.
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.
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
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).
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.
Emergency Medical Care
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.
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.
statute provides the following definition of "emergency
"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).
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. "[I]f such services are provided