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Welch v. McLean6/2/2005
OPINION ON REHEARING
We withdraw our opinion and judgment of March 25, 2004 and substitute the following in their place. We grant Simeon Eden McLean's motion for rehearing and deny his motion for en banc rehearing.
Introduction
In this medical malpractice case, the primary issues we must decide are whether the evidence is legally and factually sufficient to support the jury's verdict that Robert Morrow Welch, M.D.'s failure to diagnose pulmonary emboli in Delores McLean on April 24, 1996 was a proximate cause of her death from a massive pulmonary embolus two-and-a-half months later; whether the trial court erred in refusing to apply the noneconomic damages cap of the Medical Liability and Insurance Improvement Act to the jury's damages award based on a finding that facts exist that would enable the health care provider to invoke the Stowers doctrine; whether the trial court erred in failing to include prejudgment interest in the damages cap; and whether the trial court incorrectly applied the settlement credit to the capped damages. Because we hold that the evidence is both legally and factually sufficient to support the jury's verdict and that the trial court correctly applied the settlement credit, but that the trial court erred in refusing to apply the damages cap to the jury's damages award and prejudgment interest, we reverse and render.
Background Facts and Procedural History
On April 24, 1996, thirty-year-old Delores called Dr. Mark Godfrey, her primary care physician, complaining of shortness of breath and chest pain. Dr. Godfrey sent Delores to the emergency room at Harris Methodist Hospital HEB (hereafter, the emergency room) for further evaluation. Delores's husband, Simeon, drove her to the emergency room. Simeon observed that Delores seemed to be experiencing pain when she breathed, that she held her chest, and that she struggled to breathe.
When she arrived at the hospital at approximately 12:30 p.m., Delores was assessed by Raenita Pearson, the triage nurse on duty that day. Pearson observed that Delores had a blood pressure of 130 over 72, pulse of 101, and respirations of 28, with a normal temperature. She noted that Delores complained of shortness of breath the week before, headache the day before, vomiting that day, and difficulty breathing. Delores did not, however, complain to Pearson about chest pain.
Delores was then evaluated at 12:40 p.m. by staff nurse Meagan Stillwagoner. Stillwagoner noted that Delores complained of a sinus headache that medication did not improve, nausea, vomiting, and shortness of breath, mainly with exertion. Delores also had shallow and rapid respirations and a low blood oxygen saturation of 90%. Her breath sounds were normal, however, and she was breathing with normal effort.
Dr. Welch first saw Delores about 1:10 p.m. He reviewed her history, which was consistent with her earlier conversations with the nurses and noted the presence of sinus drainage, a productive cough with green mucus, and her complaint of shortness of breath. Delores did not complain to Dr. Welch about chest pain, and he did not observe any physical signs of chest pain. Dr. Welch ordered a chest x-ray, a sinus x-ray, pulse oximetry, and an arterial blood gas test. He also examined Delores's legs for evidence of thrombosis (the formation or presence of a blood clot within a blood vessel). Because of Delores's severe obesity, however, he did not consider that examination very useful.
Delores's x-rays were normal. The pulse oximetry, however, showed an oxygen saturation level that was below normal, and the blood gas test showed a low pO2 of 56. Based on Delores's history, physic
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