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Horizon/CMS Healthcare Corporation v. Auld
November 17, 1999
34 S.W.3d 887
Texas Supreme Court
Published Opinion

Horizon/CMS Healthcare Corporation v. Auld

Supreme Court of Texas.

HORIZON/CMS HEALTHCARE CORPORATION d/b/a Heritage Western Hills Nursing Home, Petitioner,


Lexa AULD, administratrix of the Estate of Martha Hary, deceased, Respondent.

No. 99–0169.


Decided Aug. 24, 2000.


Argued Nov. 17, 1999.

Attorneys & Firms

*890 Laura L. Frey, Dallas, for petitioner.

Charles W. Fillmore, Fillmore Law Firm, Fort Worth, for respondent.


Justice HECHT, Justice ENOCH, Justice OWEN, and Justice GONZALES join.

The focus of this case is whether section 11.02(b), but that Auld may recover prejudgment interest on damages subject to the cap only to the extent that such interest does not exceed the cap. Accordingly, we reverse in part and remand to the trial court to render judgment in accordance with this opinion.


Martha Hary became a resident at Heritage Western Hills Nursing Home (Heritage) in August 1994. When she arrived at Heritage, Hary suffered from, among other things, spinal arthritis. She resided at Heritage for about one year before she was hospitalized in Fort Worth, where she was treated for ten days. After her hospitalization, Hary was transferred to a different nursing home that is not a party to this suit.

Through her next friend Francis Orr, Hary filed suit against Horizon/CMS Healthcare Corporation (Horizon) alleging that its nursing home—Heritage—was *891 negligent and grossly negligent by failing to provide her with medical care and treatment within the acceptable standard of care. Hary alleged that substandard nursing care proximately caused her to develop pressure sores, that she suffered from contractures in all extremities, that not all the wound-care treatments and pressure-relieving devices that had been ordered were provided to her, and that the care actually administered for her pressure sores was painful. While the case was pending, Hary died from a heart attack. Hary’s administratrix, Lexa Auld, continued the suit through a survival action, which was tried to a jury.

The jury returned a verdict of $2,371,000 in actual damages, which included $1,750,000 for physical pain and mental anguish, $150,000 for disfigurement, $250,000 for impairment, and $221,0001 for medical care. The jury also awarded $90,000,000 in punitive damages, based on its finding that the nursing home engaged in grossly negligent conduct toward Hary. The trial court reduced both the actual and punitive damages awards. The court applied the 11.04.

The court also reduced the punitive damages award from $90,000,000 to $9,483,766.92, based on the statutory cap on punitive damages awarded in personal injury suits found in 985 S.W.2d 216. We affirm all parts of the court of appeals’ judgment, except for the award of prejudgment interest on the capped amount of actual damages.


Punitive Damages

The court of appeals held that punitive damages awards in health-care-liability *892 claims are not capped by Id. at 224, 234.


Article 4590i

Texas Revised Civil Statute article 4590i, section 11.02 provides:

(a) In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.

(b) Subsection (a) of this section does not apply to the amount of damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury.

TEX.article 4590i because the term “damages,” as used in the statute, means “compensation for injury or loss,” which would not include punitive damages.

This Court’s ultimate goal in construing a statute is to give effect to the Legislature’s intent as expressed in the language of the statute. See Castleberry v. Frost–Johnson Lumber Co., 283 S.W. 141, 142 (Tex. Comm’n App.1926, judgm’t adopted) (holding that “the word ‘damages,’ unless limited, as is not done [in the Workmen’s Compensation Act,] covers exemplary as well as actualdamages”). Nevertheless, any ambiguity concerning the scope of the meaning of “civil liability for damages” is clarified by the statute’s legislative history.

*893 Horizon and amici curiae5 in support of Horizon’s position argue that the statute’s legislative history evinces a legislative intent to include both punitive and compensatory damages within article 4590i’ s cap.

The Legislature enacted id. § 11.02. The underlying theory was that a medical-liability insurer could offer lower malpractice rates, which, in turn, would increase the availability of medical care for Texans.

Additional support for this legislative intent is derived from the Medical Professional Liability Study Commission’s findings, which were expressly adopted by the Legislature in article 4590i, the Commission addressed compensatory, but not punitive, damages:

In general those who suffer personal injury as a consequence of the negligence of another can recover two general kinds of damages: first, damages for non-economic losses that go by the name of physical pain and mental suffering; second, economic losses, such as expenses and loss of earnings. The Study Commission has for convenience lumped damages into three categories: (1) pain and suffering, (2) expenses, and (3) loss of earnings.

TEXAS MEDICAL PROFESSIONAL LIABILITY STUDY COMMISSION, FINAL REPORT TO THE 65 TH LEGISLATURE 5 (Dec.1976). This definition of damages makes no mention of punitive damages. Moreover, none of the report’s recommendations mentions punitive damages, except for recommending that insurance carriers be restricted from covering punitive damages. Because the Commission’s definition of punitive damages does not reference punitive damages awards and the Commission’s findings were expressly adopted by the Legislature, it is unlikely that this same Legislature would have intended “damages” to mean something other than what the Commission envisioned. If it intended otherwise, the Legislature provided no indication of that intent.

Even the Texas Medical Association (TMA), one of the leading proponents of article 4590i that the Legislature passed, House Bill 1048, was a compromise measure between two companion bills, Senate Bill 103 and House Bill 370. See Tex. H.B. 1048, 65 th Leg., R.S. (1977), Tex. S.B. 103, 65 th Leg., R.S. (1977) & Tex. H.B. 370, 65 th Leg., R.S. (1977). The cap on damages was taken from these two companion bills, and most of the testimony relating to the cap occurred during the hearings on these bills. In support of these two bills, the TMA submitted its own report discussing the findings and recommendations of the Commission. The TMA’s report, like the Commission’s report, did not mention punitive damages as a cause of the insurance crisis. See generally TEX. MED. ASS’N, REPORT ON THE MALPRACTICE INSURANCE CRISIS (1977). If the TMA desired punitive damages awards to be included in the cap, it certainly provided no hint of that desire.

Furthermore, Senate Bill 103 was referred to the Senate Jurisprudence Committee, where it was considered in a public hearing. At the hearing, a TMA representative, Jack Maroney, testified regarding the specifics of the proposed $500,000 cap, stating that “noneconomic losses, commonly denominated as pain and suffering[,]” would be capped at $100,0007 and that “the total award” would be capped at $500,000 “except for future medical.” Hearings on Tex. S.B. 103 Before the Senate Jurisprudence Comm., 65 th Leg., R.S. (Feb. 9, 1977) (testimony of Jack Maroney). Maroney followed with an example of how these caps would operate:

Assuming that a jury awarded eight hundred thousand dollars, including a hundred thousand limitation on the pain and suffering, four hundred for economic losses, a hundred and fifty for past medical and a hundred and fifty thousand for future medical, that plaintiff would be entitled to receive six hundred and fifty thousand dollars.

Id. And, in defining the “total award,” he testified:

I would like to call your attention to the fact that four hundred thousand dollars of economic award placed in a savings and loan or in a C.D. would realize some twenty five to thirty thousand dollars a year without invading the corpus. And I submit to you that this protects the very large, large percent of the population of this state.

Id. At no time did Maroney mention punitive damages. Although the TMA did not endorse the final version of the bill,8 House Bill 1048 borrowed the $500,000 cap directly from the TMA-backed companion bills discussed above, and the legislative history of those two bills contains no reference to punitive damages, much less any reference to including punitive damages in the cap.

When the constitutionality of the cap was later questioned, the TMA attempted to obtain a constitutional amendment to make the article 4590i cap to include punitive damages. It is noteworthy that in its amicus brief filed in this case, the Texas Medical Association did not disavow any of the statements that have been attributed to it.

Despite this legislative history, Horizon and its supporting amici curiae, including the TMA, contend that the Legislature implicitly included punitive damages in the cap by failing to include them in Mid–Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 274 (Tex.1999).

In addition to TEX. INS.CODE art. 5.15–1, § 8. This provision made punitive damages uninsurable so that the intentional or grossly negligent wrongdoer would be penalized and hopefully deterred. See TEXAS MEDICAL PROFESSIONAL LIABILITY STUDY COMMISSION, FINAL REPORT TO THE 65 TH LEGISLATURE 25 (Dec.1976); see also Hearings on Tex. H.B. 722 Before the House Comm. on State Affairs, 65 th Leg., R.S. (Feb. 14, 1977) (Rep. Davis’s statement in reference to the proposed prohibition in the Insurance Code that “it’s against social policy to permit someone to insure against their own gross negligence or a willful injury of another”).

This statutory mandate coincides with article 4590i—to *896 make insurance coverage affordable—and would conflict with the purposes of awarding punitive damages, which are to deter and punish culpable conduct.

In conclusion, the common-law meaning of damages is not readily ascertainable. However, article 4590i.


Section 41.007

The court of appeals held that 985 S.W.2d at 234.

Auld challenges this holding and argues that the trial court was not authorized to reduce the jury’s punitive damages award because (1) Horizon pleaded section 41.007 cannot apply, and, as such, there should be no cap on her punitive damages award.

Auld is correct that Horizon’s first amended original answer did not mention section 41.007’s capping provisions in light of Horizon’s pleadings.

Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). Horizon satisfied this standard. Being that there was, and is, only one punitive-damages cap provision in Chapter 41, it is hard to imagine that Auld was unaware of exactly what Horizon was claiming.

In addition, Auld did not specially except to Horizon’s misidentification of the applicable statutory provision. When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader. See section 41.007.


Prejudgment Interest

The trial court awarded prejudgment interest on the capped amount of actual damages, and the court of appeals affirmed, relying on former Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552–54 (Tex.1985).

It is clear—from the language used in the statute and the legislative intent—that the Legislature placed an unequivocal limit on the amount that a health-care provider must pay in a final judgment under Section 11.02(a) states:

In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.11

*898 TEX.section 11.02(b), which states:

Subsection (a) of this section does not apply to the amount of damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury.

See id. § 11.02(b).

Is prejudgment interest excepted from the cap? Obviously not. Is prejudgment interest included in the cap? Because section 11.02(a) mandates that prejudgment interest is subject to the cap.

Auld agrees that, after Cavnar, there is no question that the common law includes prejudgment interest as an element of damages recoverable in a personal-injury case but argues, nevertheless, that article 4590i. Auld’s contention suffers several flaws.

First, the conclusion that prejudgment interest is uncapped is contrary to the clear legislative intent of 1.03(b).

Second, Auld’s contention pretends that the Legislature intended the phrase “[a]ny legal term ... shall have such meaning as is consistent with the common law” to lock in the common law as *899 it existed in 1977. 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 El Chico Corp. v. Poole, 732 S.W.2d 306, 309–10 (Tex.1987))).

Since 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.

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., PROP.CODE § 92.061 (noting that “this subchapter does not affect any other right of a landlord or tenant under contract, statutory law, or common law that is consistent with the purposes of this subchapter”) (emphasis added in all).

To summarize, interpreting the section 1.03(b).

Next, Auld contends that if the 1.03(b) produces a result inconsistent with legislative intent and statutory construction rules.

The purpose of article 5069–1.05 effectuates this legislative intent.

This conclusion is consistent with the traditional statutory construction principle that the more specific statute controls over the more general. See article 4590i prevails over the general prejudgment-interest statute.

This, of course, does not mean that section 11.02(a)—to limit a health-care provider’s “civil liability for damages”—is fulfilled.

Finally, Auld also relies on Rose v. Doctors Hospital, in which the final judgment included a prejudgment-interest award exceeding the statutory cap. See id. at 845–46. The Court did not analyze or discuss whether the cap included prejudgment interest yet included it in the judgment; therefore, Rose has no precedential effect on this issue.

In sum, Auld may recover prejudgment interest on those damages specifically excluded from the cap by section 11.02(b), but Auld may recover prejudgment interest on damages subject to the cap only up to the amount of the cap. Accordingly, that portion of the court of appeals’ judgment affirming the trial court’s award of prejudgment interest to Auld on damages subject to the cap is reversed to the extent it exceeds the cap.


Constitutionality of Applying Article 4590i to a Survival Claim

Auld asserts that the court of appeals erred in reducing her recovery because the cap in id. at 690. Auld argues that the cap’s unconstitutional application to common-law personal-injury claims cannot be severed from its arguably constitutional application to survival claims, thereby rendering the cap void as to both types of personal injury claims. Horizon argues that Auld’s complaint is an open-courts challenge, and, because she cannot satisfy the open-courts test, her constitutional arguments against the cap’s application fail.



Auld urges that, even if her claim is statutory in nature and therefore not subject to an open-courts challenge, the unconstitutional application of the cap to a common-law claim for injury to a patient cannot be severed from the arguably constitutional application of the cap to the parallel statutory claim for injury to a patient; therefore, under Lucas, the entire cap is void. Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.1990).

In Rose we held that the severability clause in Western Union Tel. Co. v. State, 62 Tex. 630, 634 (1884)). Under that test, we held that “[t]he application of [sections] 11.02 and 11.03 to wrongful death claims remains complete in itself, capable of execution in accord with the legislature’s intent, and independent of any application to common law claims.” Id. (noting also that “the open courts provision does not apply to statutory claims,” and that the statute “may be validly applied to all but common law claims”).

Using this test, we reach a similar conclusion with regard to Auld’s survival claim. Because her survival claim is wholly statutory in nature—based on article 4590i cap to reduce a portion of Auld’s damages.


Common-law versus Statutory Claims

Auld presents a second constitutional challenge to the cap based on our opinion in Lucas, which stated that, under the open-courts provision of the Texas Constitution, the cap in Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983)).

For Auld’s argument to prevail, we must initially determine whether Auld’s claim for Hary’s personal injuries, although prosecuted under the survival statute, is cognizable as a common-law claim. As we stated in id.

We denied the petition for review in a per curiam opinion, stating that we “neither approve nor disapprove” of the court of appeals’ conclusion that “ ‘the claims were cognizable common-law causes of action when filed and at all times before Mr. Martin died[; therefore], we hold that the open courts doctrine applies and these claims are not barred by limitations.’ ” Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex.1995). The court of appeals in Catterson, therefore, misstated the law when it held that a statutory claim can withstand an open-courts challenge.15

We noted in Bala that a claimant in a common-law personal-injury action loses any right to recover on that claim when he dies. The representative of the decedent’s estate may continue prosecuting the claim on the decedent’s behalf; however, that right is statutory and not based in the common law. See Baptist Mem’l Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121–22 (Tex.1996) (first prong of open-courts test was not satisfied by a wrongful-death plaintiff whose suit was based on medical malpractice because the claim was purely statutory). In other words, survival claims exist only because the Legislature provided for them. If the Legislature desires to provide survival claimants with the same rights as common-law claimants, the Legislature has the prerogative to do so. As the law stands now, though, survival claims are not derived from the common law and should not be treated by the courts as if they were.

Auld also argues that the survival statute precludes defenses against a survival plaintiff that could not have been asserted against the deceased plaintiff had she survived, citingid. at 313.

Auld compares her claim to Vassallo and argues that because article 4590i, then, the cap can be pleaded and proved against Auld even though she is suing on Hary’s behalf.


Horizon’s Status as a “Health Care Provider”

Auld also challenges the cap’s application to her claim by arguing that Horizon failed to conclusively prove or obtain a jury finding that it was a “health care provider” as defined in the statute. The court of appeals held that Auld’s fourth amended petition alleging that her suit is a “health care liability claim,” and that Horizon is a “nursing home” and a “health care provider” as those terms are defined in article 4590i cap, to prove that defense, or ask for a jury finding on that defense.

Auld argues that because Horizon did not offer any evidence or obtain a jury finding that it was licensed or chartered by the State of Texas to provide health care to Hary during her residency at the nursing home, Horizon failed to meet the statute’s definition of “health care provider.” See article 4590i, relieving Horizon of any burden to introduce evidence or obtain a jury finding that it was a health care provider under the statute.

“A judicial admission must be a clear, deliberate, and unequivocal statement,” see id. at 886.

Auld’s Fourth Amended Petition contained numerous clear and unequivocal assertions of fact constituting judicial admissions that Horizon (by owning and operating Heritage) was a “health care provider” and that Auld’s claim was a “health care liability claim” as those terms are defined in article 4590i to her case.


Admissibility of the Survey Reports

Horizon challenges the admission into evidence of the nursing-home-survey reports produced by the Texas Department of Human Services. These reports evidenced Horizon’s staffing problems and its repeated failure to provide basic care to its residents, such as providing proper nutrition to and maintaining the personal hygiene of some of its residents. Horizon identifies two reasons why the reports’ admission resulted in harmful error. First, the trial court admitted the surveys based on a statute that was ineffective at the time the claim accrued and that only applied prospectively. Compare Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.1987).

We review a trial court’s evidentiary rulings for abuse of discretion. See Texas Rule of Evidence 105(a) provides:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

TEX.R. EVID. 105(a). Horizon did not request a limiting instruction as to the general admission of the survey reports. Thus, if the survey reports were admissible by any party or for any purpose, the court of appeals did not err in affirming the trial court’s admission of the reports. We therefore must determine whether the survey reports were admissible by any party or for any purpose.

We need not address whether Texas Human Resources Code section 32.021(j)(3) applies retroactively or whether the survey reports were admissible under that section because Horizon “opened the door” for the survey reports’ admission into evidence. Horizon witnesses testified that the care provided to Hary was not inadequate because, if it had been, TDHS would have cited the nursing home for not rendering proper care. The following exchange occurred between Auld’s counsel and one of Horizon’s witnesses, Mary Ellen Posthauer:

Q: And you also—Mr. King asked you—I believe you stated an opinion that [Hary] was provided 1,000 calories a day.

A: She was provided more than 1,000 calories.

Q: Okay. And I assume you’re talking your—that opinion is based on the medical chart?

A: That opinion is based on the standard regulations for nursing homes.

Q: Okay. So you’re assuming, simply because there is a regulation, that the nursing home complied with the regulation?

A: Correct.

Q: Well, let’s—But you really don’t know, do you? You really don’t know whether they did or not, do you?

A: They would be—They would have been cited. By the nursing home standard, they would have had a deficiency had they not.

Two other Horizon witnesses offered similar testimony. If the trial court did not allow the survey reports into evidence after Horizon’s witnesses testified in this manner, the jury would be left with a false impression that Horizon had not been cited for rendering improper care when, in fact, it had.

Finally, even if admitting the reports was erroneous, it cannot be said that *907 admitting them into evidence probably caused the rendition of an improper judgment. Auld presented evidence through expert medical testimony regarding the allegedly improper manner in which the nursing home treated Hary. The jury had sufficient evidence on which to base its verdict even disregarding the survey reports. And, Horizon presented controverting expert medical testimony that the nursing home provided adequate care to its residents, including Hary. Considering the entire record except for the survey reports, both sides presented evidence regarding how the nursing home treated Hary. Therefore, the reports probably did not cause the rendition of an improper judgment.

* * * * *

In sum, we hold that Texas Civil Practice and Remedies Code section 41.007 applies to Auld’s punitive damage award. We agree with the court of appeals’ conclusions with regard to the constitutional, procedural, and evidentiary matters raised by the parties. Accordingly, we affirm those parts of the court of appeals’ judgment, but reverse and remand with regard to the prejudgment interest award on the damages subject to the cap.

Justice O’NEILL joined.

Justice O’NEILL join.

I join the Court’s opinion and judgment on all issues except prejudgment interest. As far as I can tell, at best all the Court has done is cap prejudgment interest from 1985 to 1995, for the few plaintiffs that may be left with unresolved claims whose injury was severe enough to cause nonmedical damages exceeding the cap. At worst the Court creates an unnecessary conflict between article 5069–1.05, section 6(a), Martha Hary’s estate is entitled to its full and uncapped measure of prejudgment interest.

First, the Court’s reading of section 6 to the prejudgment-interest statute in response to Cavnar two years later in 1987.

In article 4590i several times after enacting the prejudgment-interest statute. Indeed, the Court cites part of the legislative history of the prejudgment-interest statute, but then refuses to give effect to the statute’s clear mandatory language.

My conclusion that prejudgment interest should not be capped is further supported by the Legislature’s 1995 enactment of article 4590i despite the Legislature’s apparent efforts at careful drafting.

The Court’s view that my reading of the statutes somehow “freezes” the common law is incorrect. The Court cites cases permitting a mother to recover damages from the birth of a stillborn fetus and permitting plaintiffs in varying relationships to an injured person to recover for loss of consortium. None of the cases (other than Cavnar ) were followed by the Legislature’s enactment of a statute mandating awards of those kinds of damages. Moreover, these cases seem to recognize or extend types of claims, not establish new elements of common-law damages. My disagreement with the Court is not over whether prejudgment interest was subject to the cap as an element of common-law damages once Cavnar issued in 1985. My disagreement is with the Court’s refusal to follow the mandatory language of the prejudgment-interest statute that governs this case.

Second, the Court’s reliance on the canons of statutory construction is misplaced because they can be used to support either result in this case. While the Court concludes that article 4590i and the prejudgment-interest statute.

If the statutes are reconciled as I propose, the Legislature’s overriding goal of keeping health-care liability damages reasonably determinable and predictable in an effort to ameliorate the costs of the health-care system is still met. If one knows the amount of damages to be awarded under the cap and the prejudgment-interest rate, one can simply calculate the amount of prejudgment interest owed. Damages remain capped as dictated by article 5069–1.05, section 6(a).

Finally, I must agree with Auld’s counsel that the Court has in effect granted a third motion for rehearing in Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex.1990). Prejudgment interest was awarded by the court of appeals in that case, and in its application for writ of error, the hospital’s counsel, the same attorney who represents Horizon in this case, made the same argument that prejudgment interest had to be capped. The hospital explicitly repeated its argument that prejudgment interest had to be capped in its two motions for rehearing following this Court’s opinions in Rose. Although the argument was not addressed by the Court in Rose, it was implicitly rejected by the Court’s judgment that the plaintiffs “shall each recover from Doctors Hospital Facilities ... prejudgment and postjudgment interest thereon at the legal rate.”

Thus, instead of harmonizing article 4590i. Accordingly, I dissent from the Court’s resolution of the prejudgment-interest issue.



Although the evidence with regard to medical expenses indicated $220,941.73 in damages, the jury awarded $221,000. The trial court reduced the judgment accordingly.


The statute requires an adjustment of the $500,000 cap listed in the statute to reflect changes in the consumer price index. See TEX.REV.CIV. STAT. art. 4590i, § 11.04. At the time of judgment in this case, the adjusted cap was $1,320,261.40.


Neither party challenges the trial court’s use of the uncapped actual damages, rather than the capped actual damages, as the multiplier in this case.


The court of appeals opinion explains how the trial court arrived at the final punitive damages figure:

To reduce the jury’s $90,000,000 exemplary damages finding under the 1994 version of section 41.007 of the civil practice and remedies code, the trial court quadrupled the jury’s uncapped finding of actual damages ($2,371,941.71 corrected). Although de minimis, we notice that four times $2,370,941.71 = $9,483,766.84, not the $9,483,766.92 figure recited in the judgment.

985 S.W.2d at 221 n. 3.


The following amici curiae filed briefs in support of Horizon: Columbia/HCA Healthcare Corp.; Texas Health Resources; Charter Behavioral Health Systems, Inc.; Texas Health Care Association; Texas Association of Homes for the Aging; Southwest Risk Advisors, LLC; and the Texas Medical Association.


The following amici curiae filed briefs in support of Auld: Victims of HMO Medical Negligence; United People for Better Nursing Home Care; American Jewish Congress; American Association of Retired Persons; Texas Advocates for Nursing Home Residents; and State Representative Tom Uher, former State Senator A.R. Schwartz, and former State Representative Don Henderson.


This subcap was part of an amendment to Senate Bill 103 that did not become part of the final version of the bill. In discussing this subcap, the sponsor of this proposed amendment conceded that the subcap was arbitrary but observed that “[i]n addition to [pain and suffering], the jury can award [damages] for lost wages and other economic type losses for a total of five hundred thousand or a half-million dollars.” Debate on Tex. H.B. 1048 on the Floor of the Senate, 65 th Leg., R.S. (Apr. 18, 1977) (statement of Senator Farabee) (emphasis added).


The TMA objected to the final version because the bill did not include provisions abrogating the collateral-source rule and providing for periodic rather than lump-sum payments of judgments.


Since TEX. INS.CODE art. 5.15–1), amended by Act of June 3, 1987, 70 th Leg., 1 st C.S., ch.1, § 7.01, 1987 Tex. Gen. Laws 1, 36 (allowing hospitals to obtain an endorsement that would provide coverage for punitive damages), amended by Act of May 21, 1997, 75 th Leg., R.S., ch.746, § 1, 1997 Tex. Gen. Laws 2451, 2451 (allowing not-for-profit nursing homes to obtain coverage for punitive damages).


The two statutes differ in their calculations of the maximum amount recoverable, and the newer version—section 41.008—renders the punitive damages cap wholly inapplicable to causes of action in which a party knowingly or intentionally violates one of fifteen enumerated criminal statutes.


The cap is adjusted when there is an increase or decrease in the consumer price index. See TEX.REV.CIV. STAT. art. 4590i, § 11.04.


See Act of May 26, 1989, 71 st Leg., R.S., ch. 1027, § 27, sec. 14.01, 1989 Tex. Gen. Laws 4128, 4145; Act of May 26, 1989, 71 st Leg., R.S., ch. 1027, § 28, sec. 7.02, 1989 Tex. Gen. Laws 4128, 4145; Act of Mar. 21, 1991, 72 nd Leg., R.S., ch. 14, 1991 Tex. Gen. Laws 42, 222; Act of May 25, 1993, 73 rd Leg., R.S., ch. 625, § 2, sec. 41.02, 1993 Tex. Gen. Laws 2347, 2347; Act of May 25, 1993, 73 rd Leg., R.S., ch. 625, § 3, sec. 13.01–.02, 1993 Tex. Gen. Laws 2347, 2347–48; Act of May 25, 1993, 73 rd Leg., R.S., ch. 625, § 4, sec. 15.01, 1993 Tex. Gen. Laws 2347, 2349–50; Act of May 25, 1993, 73 rd Leg., R.S., ch. 625, § 5, sec. 4.01, 1993 Tex. Gen. Laws 2347, 2350.


Separately, Auld contends that our interpretation of section 16 of article 4590i. Sections 16.01 and 16.02 provide:

Sec. 16.01. Notwithstanding [the mandatory prejudgment-interest statute in former article 5069–1.05], prejudgment interest in a health care liability claim shall be awarded in accordance with this subchapter.

Sec. 16.02. (a) In a health care liability claim, prejudgment interest may not be charged with respect to a defendant physician or health care provider who has settled the claim before the 181 st day after the date notice of the claim was first mailed to the physician or health care provider.

(b) In a health care liability claim that is not settled within the period specified by Subsection (a) of this section, the judgment must include prejudgment interest on past damages found by the trier of fact, but shall not include prejudgment interest on future damages found by the trier of fact.

TEX.section 16.02 does not apply in this case, it is unnecessary for us to decide this issue.


Section 1.02(b)(7) states:

Because of the conditions stated in Subsection (a) of this section, it is the purpose of this Act to improve and modify the system by which health care liability claims are determined in order to: ... make certain modifications to the liability laws as they relate to health care liability claims only and with an intention of the legislature to not extend or apply such modifications of liability laws to any other area of the Texas legal system or tort law.

See TEX.REV.CIV. STAT. art. 4590i, § 1.02(b)(7).


Because we denied the petition for review in Catterson, we express no opinion here concerning the other holdings of the court of appeals in that case.


See Act of May 26, 1995, 74 th Leg., R.S., ch. 1049, § 1, 1995 Tex. Gen. Laws 5199, 5199 amended by Act of May 28, 1997, 75 th Leg., R.S., ch. 1159, § 2.01, 1997 Tex. Gen. Laws 4363, 4387.

End of Document