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Sisters of St. Joseph of Texas3/29/2001
Appellees' Motion for Rehearing denied April 26, 2001. Petition for review denied August 16, 2001.
SISTERS OF ST. JOSEPH OF TEXAS, INC. D/B/A ST. MARY OF THE PLAINS HOSPITAL AND REHABILITATION, APPELLANT
v.
GENELL P. CHEEK, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF WILKER CHEEK; DERINDA K. CHEEK; SHELLY C. LANE; AND DOLLY K. CHEEK AND ALL STATUTORY BENEFICIARIES OF WILKER CHEEK, APPELLEES
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-500,095; HONORABLE SAM MEDINA, JUDGE
Before Boyd, C.J., and Reavis and Johnson, JJ.
The opinion of the court was delivered by: Phil Johnson Justice
Appellant Sisters of St. Joseph of Texas, Inc., d/b/a St. Mary of the Plains Hospital and Rehabilitation, appeals from a judgment in favor of appellees Genell P. Cheek, Individually and as Administrator of the Estate of Wilker Cheek; Derinda K. Cheek; Shelly C. Lane; and Molly K. Cheek and All Statutory Beneficiaries of Wilker Cheek. By sixteen issues appellant challenges (1) rulings of the trial court admitting evidence and testimony, (2) the legal and factual sufficiency of the evidence to support jury findings, and (3) the trial court's failure to render judgment notwithstanding the jury's verdict. Because we determine that the evidence is legally insufficient to support the jury's finding that negligence of the hospital proximately caused the death of Mr. Cheek, we reverse and render.
BACKGROUND
On January 17, 1996, Wilker Cheek went to appellant's emergency room complaining of abdominal pain. He was admitted for evaluation. Eventually an exploratory laparotomy was performed by Dr. Job Buschman. The laparotomy revealed that Mr. Cheek was suffering from acute appendicitis. On January 19th, Dr. Buschman performed an appendectomy on Mr. Cheek. During the post-operative period, Mr. Cheek's condition seemed to improve, then deteriorate. He was transferred to the intensive care unit on January 23, 1996, and was diagnosed as having a pulmonary embolism. His condition continued to worsen and he died on January 25th.
Appellees filed suit against appellant and Dr. Buschman seeking actual and exemplary damages because of Mr. Cheek's death. The case went to trial in February, 2000. Doctor Buschman settled during trial. The jury found that the negligence of both Dr. Buschman and appellant proximately caused the death of Mr. Cheek, and that the harm to Mr. Cheek resulted from malice on the part of appellant. The trial was bifurcated as to the issue of exemplary damages. Pursuant to the jury finding of malice, the issue of exemplary damages was then submitted and the jury assessed exemplary damages against appellant.
Appellant asserts reversible error via sixteen issues. We find its second issue to be determinative of the appeal and will not address the remainder of the issues. Tex. R. App. P. 47.1.
By its second issue, appellant challenges the legal sufficiency of appellees' proof that alleged negligence of appellant proximately caused the death of Mr. Cheek. Appellant asserts that the record contains no evidence that, to a reasonable medical probability, (1) "but for" any of the alleged breaches of standard of care on the part of its nurses, Mr. Cheek would have lived, or (2) any of the alleged breaches of standard of care by its nurses was a substantial factor in causing Mr. Cheek's death.
Appellees do not contest appellant's assertion that their burden was to prove, to a reasonable medical probability, that the negligence of appellant was a proximate cause of Mr. Ch
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