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Horizon/CMS Healthcare Corp. v. Auld8/24/2000
7. That contention is inconsistent with the inherent meaning of common law and would lead to anomalous results for the common law, for other statutes enacted by the Legislature, and, most relevant here, for article 4590i. As we noted in Whittlesey v. Miller, " he law is not static; and the courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re- evaluation of common law concepts in light of current conditions." 572 S.W.2d 665, 668 (Tex. 1978); see also Reagan v. Vaughn, 804 S.W.2d 463, 465-66 (Tex. 1990) ("`The common law is not frozen or stagnant, but evolving, and it is the duty of this court to recognize the evolution.'" (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 309-10 (Tex. 1987))).
Since article 4590i's original enactment in 1977, this Court has recognized a number of new and different elements of common-law "damages" that are recoverable in personal-injury actions. See, e.g., Krishnan v. Sepulveda, 916 S.W.2d 478, 479-82 (Tex. 1995) (recognizing for the first time that "parents may recover damages from the birth of a stillborn fetus resulting from injury to the mother caused by the allegedly negligent diagnosis, prenatal supervision and treatment of the mother by her physician"); Reagan, 804 S.W.2d at 467 (recognizing that a child may recover damages for loss of parental consortium when a third party causes a serious, permanent, and disabling injury to a parent); Cavnar, 696 S.W.2d at 551 (in addition to recognizing that a personal- injury plaintiff is entitled to prejudgment interest as an element of common-law damages, the Court recognized that a decedent's children in a wrongful-death case can recover damages for mental anguish and loss of companionship) (citing Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983)); and Whittlesey, 572 S.W.2d at 668 (recognizing a derivative claim for damages by a spouse for loss of consortium caused by a tortfeasor's negligently causing injury to other spouse). If section 1.03(b) froze the common law as it pertains to section 11.02(a), then the following anomaly would result: the newly recognized damages would not be capped because they were not recoverable in 1977. Stated differently, if prejudgment interest is not capped under section 11.02(a) because it did not exist as a form of common-law damages when article 4590i was originally enacted, then, similarly, the common-law damages recognized in Krishnan, Reagan, and Cavnar, as well as any other new common-law damages that may be recognized in the future, will be uncapped. That result obviously is contrary to the legislative intent and mandate of article 4590i.
Auld provides no support for the notion that the Legislature intended this result. Indeed, this result would be inconsistent with the express legislative intent behind article 4590i. If subsequently recognized common-law damages are not included within the scope of the cap, the cap is eviscerated for all practical purposes. Plaintiffs would obviously channel their damage claims to the uncapped areas, leading to the uncertainty, unpredictability, and uncapped damages that the Legislature sought to achieve by enacting article 4590i.
Moreover, Auld's position could compromise the Legislature's true intent with numerous other statutes that contain provisions similar to 1.03(b). See, e.g., Tex. Rev. Civ. Stat. art. 1396-2.22A(Q) ("A corporation may indemnify and advance expenses to an officer, employee, agent . . . to such further extent, consistent with law, as may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors, or contract or as permitted or required by common law."); id. art. 6132a-1, ยง 11.17 ("A
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