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HCRA of Texas11/3/2005
hat
"Malice" means an act or omission by [Nurse] Burns:
(a) which, when viewed objectively from the standpoint of [Nurse] Burns at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(b) of which [Nurse] Burns had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
The jury answered "yes" to special question number 7.
Experts testified that decubitus ulcers are preventable if the patient is repositioned every two hours and that the standard of care requires such repositioning if the patient is unable to reposition himself. Expert testimony established that the existence of a J-tube does not prevent a patient from rolling onto his stomach or from sleeping on his stomach. And although Lloyd's mobility and strength initially improved at HCRA, at some point he became incapable of repositioning himself. Lloyd's family members testified that in the last week of Lloyd's stay at HCRA they noticed two ulcers on his lower back. Lloyd's hospital records establish that upon admission from HCRA he had two stage three, necrotic, decubitus ulcers that were oozing blood. And HCRA's records do not document the existence of, or any care for, these ulcers. Based on this evidence, Appellees argue that HCRA "either ignored [Lloyd's] worsening injuries or falsely claimed to have examined him when it did not" and that "such evidence is sufficient to support the jury's conclusion that [HCRA] acted with conscious indifference to the rights of [Lloyd] despite awareness of an extreme risk of serious harm."
Generally, the definition of malice under civil practice and remedies code section 41.001(7)(B) consists of two components: one objective and one subjective. See Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 854 (Tex. App.--Fort Worth 2003, pet. denied). Objectively, the defendant's conduct must involve an extreme risk of harm, a significantly higher threshold than the objective reasonable person test for negligence. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994). To satisfy the objective malice prong, the defendant's conduct must, viewed objectively from the actor's standpoint, involve an extreme degree of risk. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). "Extreme risk" means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Id. Subjectively, the defendant must have actual awareness of the extreme risk created by the conduct. Id. Evidence of simple negligence is not enough to prove either the objective or subjective components of malice. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
The evidence concerning HCRA's breach of the standard of care by failing to reposition Lloyd or to notice or treat his decubitus ulcers after his health took a turn for the worse during his last seven to ten days at HCRA is not, standing alone, evidence of the type of acts or omissions that, viewed from the actor's standpoint, pose "an extreme degree of risk, considering the probability and magnitude of the potential harm to others." Compare Universal Servs. Co. v. Ung, 904 S.W.2d 638, 642 (Tex. 1995) (holding failure to adequately protect road worker from specific hazards, including the pothole in the road, did not create "likelihood of serious injury" required to satisfy objective gross negligence prong) with Lee Lewis Constr., Inc., 70 S.W.3d at 786 (holding obvious risk of death from falling ten stories was extreme
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