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HCRA of Texas11/3/2005
ficiency
An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998).
3. Legal Sufficiency Challenge in Light of Clear and Convincing Evidence Burden of Proof
The Texas Supreme Court recently clarified the appellate standards of review to be applied to a legal sufficiency challenge in light of the clear and convincing burden of proof. Accord In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review in termination of parental rights appeal). A legal sufficiency review of a finding required to be based on clear and convincing evidence must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter required to be established by clear and convincing evidence. Id.; see also Kroger Tex. Ltd. P'ship v. Suberu, 113 S.W.3d 588, 601 (Tex. App.--Dallas 2003, pet. granted) (applying standards of review enunciated in J.F.C. to legal sufficiency challenge to evidence of malice). We are to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." J.F.C., 96 S.W.3d at 266.
B. The Jury's Finding that HCRA's Negligence Proximately Caused Injuries to Lloyd
Dr. Klavon was the medical director at HCRA during Lloyd's stay there. Dr. Klavon testified that Lloyd was admitted to HCRA after bypass surgery for two to three weeks of rehabilitation. Lloyd steadily improved during his first two to three weeks at HCRA, however, Lloyd then became sick, experiencing vomiting and diarrhea.
Margie Burns, the director of nursing at HCRA, testified that Lloyd was taking the medicine Lasix and that it was important to monitor the fluid input and output of a patient on Lasix because Lasix is a diuretic that can contribute to dehydration. Dr. Richard Thorner likewise testified that Lasix may contribute to dehydration, especially in a patient with diarrhea. Dr. Gunda Kirk and Dr. David Stump testified that because Lloyd had a feeding tube and a catheter, it should have been very simple for the HCRA nurses to measure his fluid input and output and to keep him hydrated and nourished. Nurse Burns testified that the standard of care required HCRA's nurses and nurses' aides to keep a patient nourished and hydrated and to chart a patient's fluid input and output. She admitted Lloyd's fluid input and output were not properly charted as required by the standard of care. Dr. Klavon testified that Lloyd was not well nourished when he left HCRA and was dehydrated.
Lloyd's family testified that they visited Lloyd daily at HCRA and that they did not see the nurses move or reposition Lloyd. Lloyd's youngest son testified that after Lloyd became sick and developed diarreaha, he would ring for the nurses, but they would not come; they left him laying in his feces. Toward the end of Lloyd's stay at HCRA, Lloyd's family observed two ulcers on Lloyd's back, behind his hip bones. HCRA's records concerning Lloyd do not document the existence of, or any care or treatment for, these ulcers. When Lloyd was transferred by ambulance on June 15, 1999 to the hospital emergency room, phy
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