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Bartosh v. Gulf Health Care Center-Galveston10/11/2005
Jose de Alminana Smothers was attacked by fire ants while in the care of a nursing home facility run by Gulf Health Care Center-Galveston. She subsequently died from other causes. Her daughter, Sandra Smothers Bartosh, sued Gulf Health and Ecolab, Inc., the company that provided pest protection services at the property. Bartosh sued in her individual capacity and as administratrix of her mother's estate. She alleged medical malpractice and premises liability against Gulf Health and negligence against Ecolab. The trial court granted summary judgment favoring Gulf Health on the malpractice claims prior to trial and granted a directed verdict favoring Ecolab at the close of the plaintiff's case-in-chief. Consequently, only the premises liability claim against Gulf Health was submitted to the jury. The jury found Gulf Health liable and awarded $136,000 to Bartosh. The trial court entered final judgment in accordance with the jury's findings.
On appeal, Bartosh contends that the trial court erred in excluding (1) testimony from Texas Department of Human Resources personnel together with a report generated by those personnel, (2) testimony of plaintiff's medical expert, and (3) photographs of Smothers. Bartosh further contends that (4) the cumulative effect of the court's errors was to improperly limit the jury's assessment of damages, and (5) the trial court erred in granting a directed verdict favoring Ecolab. Gulf Health raises a cross-point asserting that because it has already tendered payment of the damages to Bartosh, this court should not award her any additional post-judgment interest after the date of tender. We affirm.
I. Background
On August 5, 2001, Jose de Alminana Smothers was taken to the University of Texas Medical Center at Galveston because she had become unresponsive at the Gulf Health facility in Galveston. Smothers was 82 at the time and was at the facility because she was suffering from end stage emphysema, among other ailments. While at the hospital, it was discovered that she had fire ants crawling on her. Although the evidence was somewhat inconsistent regarding how many ant bites she had sustained, she apparently had suffered dozens of bites to her legs. She was unresponsive at the time of admission but was observed to be moaning in apparent pain. She was treated at the hospital and discharged on August 24, 2001. On August 26, she died at home.
Her daughter, Sandra Bartosh, sued Gulf Health, alleging initially that it committed medical malpractice resulting in wrongful death by failing to prevent the fire ant attack. Bartosh subsequently amended her pleading to allege premises liability against Gulf Health. The trial court granted Gulf Health's motion for summary judgment in regard to the medical malpractice and wrongful death actions. Bartosh also sued Ecolab, alleging that it had committed negligence in the provision of pest control services at the facility. At the close of the plaintiff's case, Ecolab moved for a directed verdict based on Bartosh's failure to prove that Ecolab had a duty toward Smothers or that it had breached that duty. The trial court granted the directed verdict.
Also during trial, the court denied the admission of certain evidence about which Bartosh complains on appeal. First, the court refused to allow a report prepared by Texas Department of Human Resources (TDHR) personnel; the court additionally refused to allow the employees themselves to testify. The report included several unattributed statements regarding conditions and events at the Gulf Health facility and discussed the possibility of statutory and code violations at the facility. Second, the court refused to allow Bartosh's medical expert,
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