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At a Glance:
Title:
Gunn v. Mccoy
Date:
June 15, 2018
Citation:
554 S.W.3d 645
Court:
Texas Supreme Court
Status:
Published Opinion

Gunn v. Mccoy

Supreme Court of Texas.

Debra C. GUNN, M.D., Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C., Petitioners,

v.

Andre MCCOY, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Respondent

No. 16–0125

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Argued February 8, 2018

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OPINION DELIVERED: June 15, 2018

|

Rehearing Denied September 28, 2018

*653 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

Attorneys & Firms

Jim Hund, Linda Ruth St. Clair Russell, Hund Krier Wilkerson & Wright, P.C., Lubbock, for Petitioners.

Joseph Todd Trombley, for Respondent.

Erin E. Lunceford, for Amicus Curiae American Medical Association and Texas Alliance for Patient Access and Texas Medical Association.

Roger W. Hughes, for Amicus Curiae Texas Association of Defense Counsel.

Opinion

Justice Blacklock joined.

This is a medical-malpractice case involving multiple issues. Shannon McCoy (Shannon) was thirty-seven weeks pregnant and under the prenatal obstetrical care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) associated with Obstetrical and Gynecological Associates, P.A. (OGA). Shannon presented herself to the hospital with severe abdominal pain, where doctors determined that she had suffered quadriplegia, and later, her death. Acting as her guardian, Shannon’s husband, Andre McCoy (McCoy), sued the hospital and several attending doctors, including Dr. Debra Gunn, and their medical practice groups, including OGA.

The following issues are before us: (1) whether the court of appeals erred in holding that there was legally sufficient evidence of causation; (2) whether the trial court committed reversible error in excluding deposition testimony of the defendants’ expert witness regarding future medical expenses; (3) whether the medical billing affidavits providing proof of past medical expenses were proper under *654 Texas Civil Practice and Remedies Code section 18.001; (4) whether the trial court erred in refusing to instruct the jury on unavoidable accident; (5) whether the trial court erred in granting McCoy’s no-evidence summary judgment as to the defendants’ affirmative defense of comparative responsibility; (6) whether OGA’s indemnity claims were properly asserted post-verdict; and (7) whether Shannon’s death on the eve of the court of appeals’ decision created a windfall for McCoy that calls for a remand in the interest of justice.

We agree with the court of appeals’ holdings that the evidence of causation was legally sufficient, that the affidavits submitted by McCoy were proper under section 18.001, that the trial court did not commit reversible error in refusing the requested instruction on unavoidable accident, and that OGA’s indemnity claim against Dr. Gunn was properly asserted. We hold that the trial court erred in excluding the video deposition testimony of the defendants’ expert witness; however, the error did not probably cause the rendition of an improper judgment. We reject Dr. Gunn’s argument that Shannon’s death created a windfall for McCoy, and we hold that Dr. Gunn waived her argument with regard to the trial court’s summary judgment on comparative responsibility. Therefore, we affirm the judgment of the court of appeals.

I. Background

Shannon McCoy was thirty-five years old and pregnant with her first child. Dr. Gunn, an ob/gyn associated with OGA, provided prenatal and obstetrical care to Shannon. Shannon first saw Dr. Gunn in March 2004, when she was estimated to be roughly nine weeks into her pregnancy. Her pregnancy was generally uneventful until September 13, 2004, when she was thirty-seven weeks into her pregnancy. On that morning, Shannon went to a routine prenatal visit with Dr. Gunn and everything appeared normal. Dr. Gunn ordered lab tests as a precautionary measure to check for placental abruption. There is no dispute that in Shannon’s case, DIC was not the fault of any party.

Dr. Jacobs consulted with Dr. Brian Kirshon, a maternal/fetal medicine specialist, and the two doctors ordered a blood-product replacement plan to counter Shannon’s DIC. Exactly how much blood Shannon lost and how much she received in the following hours—and how much she should have received—are heavily disputed. Some of this dispute stems from confusion in terminology between the parties and the court of appeals with respect to “blood” and “blood products.” At no point did Shannon receive platelets, which are cell fragments that also promote the clotting process. Once separated from whole blood, the blood products are diluted with intravenous (IV) fluid before they are transferred to the patient. Dr. Kirshon recommended that Shannon receive two units of FFP and two units of packed red blood cells “in light of the DIC.” On Dr. Jacobs’ order, FFP was given at 3:07 a.m. and 3:21 a.m., and the packed red blood cells were given at 3:56 a.m. and 4:50 a.m. Dr. Kirshon included the following recommendation: “I would have more blood products available and be on the look out for major postpartum hemorrhage.”

Dr. Gunn arrived at the hospital around 4:00 a.m. on September 14 and assumed care of Shannon. Dr. Gunn consulted with Dr. Kirshon, and they agreed that vaginal delivery was necessary because of Shannon’s DIC. They hoped, as is often the case with Lasix, a diuretic.

Shortly after 11:00 a.m., Shannon’s condition was considered stable and post-labor bleeding appeared to have lessened, so Dr. Gunn authorized her transfer to the intensive care unit (ICU). At 12:00 p.m., nurses documented that Shannon’s uterus was “boggy” and that she received Digoxin.

At 12:45 p.m., Shannon’s uterus remained boggy upon hysterectomy to remove Shannon’s failing uterus and ordered a blood emergency, alerting the blood bank “to prepare every unit [of blood products] that could be used with Shannon.”

As the doctors moved Shannon from the ICU to the operating room, she was responsive, but she continued to hemorrhage. According to the operative report, “[t]he ICU bed had blood throughout from the head of the bed to the foot.” Dr. Gunn continued to massage Shannon’s uterus even after Shannon was moved to the operating table. Immediately after hysterectomy.

Later that evening, in the ICU, Shannon experienced seizure activity. A neurology consult was called, and the neurologist concluded that this activity was probably a sign of hypoxia, and she never recovered her previous improvement.3

*657 McCoy, acting individually and as Shannon’s guardian, sued Woman’s Hospital, Dr. Gunn, Dr. Jacobs, Dr. Collins, and OGA. Prior to trial, Dr. Collins was dropped from the pleadings, and Woman’s Hospital and Dr. Jacobs each settled with McCoy for a total of $1,206,773.50. Dr. Gunn and OGA asserted the affirmative defense of comparative responsibility, claiming that McCoy, his family members, the treating labor-and-delivery nurses, and Dr. Collins were negligent and that their negligence contributed to Shannon’s brain damage. McCoy filed a no-evidence motion for summary judgment on this affirmative defense, which the trial court granted. Testimony at trial was hotly disputed. Ultimately, the jury returned an eleven-to-one verdict in favor of McCoy as to Dr. Gunn’s negligence and awarded $10,626,369.00 in damages. The award included $703,985.98 for past medical expenses and $7,242,403.00 for future medical expenses. The trial court applied a dollar-for-dollar settlement credit to offset the verdict in the amount of $1,206,773.50. The court ruled that OGA was vicariously liable for Dr. Gunn’s negligence and ordered that the two defendants were jointly and severally liable.

The verdict spawned a series of new litigation tactics by McCoy, who joined a number of parties to the case after the verdict and delayed the entry of judgment for nearly two years. McCoy filed amended petitions adding new defendants to the case and seeking to collect the damages awarded in the verdict from them. Ultimately, the trial court granted summary judgment in favor of the new defendants and the court of appeals affirmed. McCoy v. FemPartners, Inc., 484 S.W.3d 201, 214 (Tex. App.—Houston [14th Dist.] 2015, no pet.). OGA filed post-verdict claims for indemnity against Dr. Gunn and legal malpractice claims against its former defense counsel,4 but later dismissed its legal malpractice claims. The trial court signed the final judgment in 2013, two years after the verdict was issued, and included an order that OGA was entitled to indemnity from Dr. Gunn.

Dr. Gunn and OGA appealed, raising several issues. Both argued that: (1) there was no evidence of causation; (2) the trial court should not have granted summary judgment on comparative responsibility; (3) the court should not have excluded Dr. Helen Schilling’s testimony regarding Shannon’s future medical expenses; (4) the court should have submitted various jury instructions; and (5) the evidence was legally and factually insufficient to support Id. at 117. Shannon continued to require around-the-clock care until her death on December 12, 2015, ten days before the court of appeals issued its original decision. We *658 granted OGA’s and Dr. Gunn’s petitions for review. 61 Tex. Sup. Ct. J. 114 (Dec. 8, 2017).

II. Causation

As their first issue, Dr. Gunn and OGA each argue that the evidence was legally insufficient to support the jury’s finding that Dr. Gunn’s alleged negligence caused Shannon’s brain damage. In a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) ).

Recovery in a medical-malpractice case requires proof to a reasonable medical probability that the injuries complained of were proximately caused by the negligence of a defendant. Jelinek, 328 S.W.3d at 533.

The parties offer competing theories on causation. The court of appeals articulated McCoy’s theory, which the jury apparently accepted:

McCoy’s causation theory is that Gunn failed to adequately treat Shannon’s DIC by failing to order FFP to replace Shannon’s clotting factors and slow her bleeding, and by failing to infuse enough units of blood. As Shannon continued to bleed, her body attempted various compensation mechanisms in an effort to maintain enough oxygen flow to avoid cardiovascular collapse and damage to her critical organs. However, Shannon continued to lose blood volume. As her *659 blood volume loss approached the critical danger zone of approximately 40%, Shannon’s body could no longer compensate, resulting in her cardiac arrest, lack of oxygen flow to her brain, and her permanent brain damage.

blood clots to form in Shannon’s vascular system and some of those small clots lodged in blood vessels in Shannon’s brain, resulting in her injuries. We summarize the evidence supporting the parties’ arguments.

A. McCoy’s Theory

For the standard of care and Dr. Gunn’s alleged failure to meet it, McCoy relied upon the testimony of Dr. Molly Brewer, a medical doctor board certified in both obstetrics and gynecology and gynecological oncology. Dr. Brewer underwent specific training in handling DIC patients, and she taught “how to handle DIC from placental abruption and other causes” to other ob/gyns.

Dr. Brewer testified that DIC impacts the body’s ability to clot, which puts people at risk of bleeding because their clotting factors are no longer working properly. She stated that Shannon “absolutely” had DIC. Dr. Brewer estimated Shannon’s blood volume based on her hemoglobin levels, to approximate blood volume and blood loss.

Based on this underlying assumption, Dr. Brewer testified that the decreased hemoglobin levels had dropped from 9.5 to 5.5, which “should have put [Dr. Gunn] into almost panic mode.” Dr. Brewer testified that by 1:00 p.m., Shannon had lost about 33 to 44% of her blood volume. Lab results also indicated that Shannon’s PT had increased, meaning that her blood was not clotting properly. Because DIC interfered with Shannon’s body’s clotting ability, Dr. Brewer stated that it was critical that she receive FFP and that Dr. Gunn breached the standard of care by failing to order or administer FFP in response to Shannon’s lab results.

[Y]ou can replace blood until the cows come home, but if you can’t clot and you have an open coagulation disorder.

According to Dr. Brewer, a reasonable and prudent physician managing DIC should be making calculations based on hemoglobin went from x to y and therefore, we assume that she’s lost two units, three units, four units, and then it’s appropriate to replace it”). She testified that Dr. Gunn breached the standard of care by failing to do these calculations and, on a broader level, by failing to create and document a cohesive plan to manage Shannon’s DIC.

Additionally, Dr. Brewer believed Shannon’s lab results in the morning and the afternoon with respect to her other vital functions should have alerted Dr. Gunn that Shannon was losing blood due to her body’s inability to clot. Dr. Brewer reported that Shannon’s increased Lasix, which is “for fluid overload” and probably made it worse for Shannon. She testified that a reasonable and prudent physician needs to stay equal with or ahead of blood loss in managing a patient like Shannon, and in this case, “Shannon was behind in her blood volume all the way along.”

According to Dr. Brewer, Dr. Gunn’s failure to replace Shannon’s clotting factors by administering FFP contributed to her developing ventricular fibrillation. “The problem was [ ] she had lost so much blood at that point that it was a disaster.”

Dr. Brewer stated that Shannon’s lack of blood led to her anoxic encephalopathy, which is global damage to the brain caused by a lack of oxygen.

Dr. Brewer offered the following conclusions: Dr. Gunn was negligent in failing to give more blood products from the beginning; Dr. Gunn was negligent in failing to order more frequent lab tests to determine whether the blood products needed to be adjusted; and Dr. Gunn was negligent in failing to include adjustments to the administration of blood products to deal with the platelets, and lack of FFP. “You can [pour] the blood in, but the blood just keeps coming out if you can’t clot it.”

B. Dr. Gunn and OGA’s Theory

Dr. Gunn and OGA produced three experts on the issue of liability: Dr. James Aubuchon, a medical doctor, board certified in anatomic and clinical pathology, blood banking, and transfusion medicine; Dr. James Alexander, a medical doctor, board certified in obstetrics and gynecology with a subspecialty of maternal/fetal medicine; and Dr. Martin Steiner, a neurologist.

Contrary to Dr. Brewer’s testimony, Dr. Aubuchon testified that with the blood products and fluids she had been given, *661 Shannon had more than enough volume for her heart to function properly. He testified that her lab results (creatinine, and PT), while outside of the normal ranges, were not “exceedingly high” or cause for panic. He also pointed to nurses’ notes that recorded the presence of clots in the post-delivery vaginal bleeding, which “implies that the clotting system [was] able to work.”

The three experts collectively offered an alternative theory of liability. They testified that thrombi,” are being formed throughout the entire body. These small clots move through the vascular system, and if they move into even smaller vessels, they may block those vessels, which is called “microthrombus.” Such blockage would prevent blood flow to surrounding tissues, causing those tissues to die from lack of oxygen.

Dr. Steiner testified that Shannon’s brain injury, was significant because Shannon never regained the improved function she initially experienced.

C. Competency of Evidence

In analyzing whether there was legally sufficient evidence of causation, we start with the general proposition that “a determination of scientific reliability is appropriate in reviewing the legal sufficiency of evidence.” Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011).

Justice Gonzalez, in writing for the Court, gave rather colorful examples of unreliable scientific evidence in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995), when he said that even an expert with a degree should not be able to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system. If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no.

Mel Acres Ranch, 443 S.W.3d at 829.

1. The Hemoglobin Test

Dr. Gunn challenges the underlying basis for Dr. Brewer’s opinion—that one point on the hemoglobin levels had in fact increased from 5.5 to 7.5.

An expert’s opinion may be considered unreliable if it is based on assumed facts that vary materially from the actual facts, or if it is based on tests or data that do not support the conclusions reached. Havner, 953 S.W.2d at 714).

In her testimony, Dr. Brewer first offered a basis for using hemoglobin as an indicator of blood loss:

Q: Now you hear about these blood tests like a CBC, a hemoglobin included in the CBC?

A: It is. Usually, a platelet count.

Q: If a physician wants to know if his or her patient is bleeding, can they order a CBC and look at hemoglobin?

A: They can. They can also just order a hemoglobin and a hematocrit. They can do either.

She testified that using lab results, including hemoglobin level in the afternoon.

Q: So what really was going on when the hemoglobin went from 5.5 at 7:27 in the morning to 7.5 at 1:16 in the afternoon, explain that to us please.

A: That she was continuing to bleed.

Q: And how do you know that?

A: Because from the amount that was put in, that she was infused, it should have been higher than that.

Finally, Dr. Brewer acknowledged that hemoglobin levels provide only an approximation of blood loss, repeatedly emphasizing on both direct and cross examinations that such levels must be viewed within the broader context of Shannon’s condition.

Q: ... But if [Shannon’s hemoglobin. Correct?

A: I can’t agree with what you’re saying because you’re taking things out of context.

Q: Let’s do this as—let’s don’t use Shannon McCoy.

A: I don’t think you can say it about any patient. It has to be in the context of what’s happening medically.

The court of appeals correctly noted that the jury was entitled to credit Dr. Brewer’s testimony “that it is not ‘appropriate’ for someone managing a DIC case to consider just one lab result such as hemoglobin and ignore all the other markers, including the presence of quantifiable external bleeding.” City of Keller, 168 S.W.3d at 827 (holding that a reviewing court “must credit favorable evidence if *664 reasonable jurors could and disregard contrary evidence unless reasonable jurors could not”).

2. The Quantity of Blood Products Transfused

Applying Dr. Brewer’s hemoglobin assumption, the court of appeals conducted detailed calculations of Shannon’s blood loss based on the evidence in the record, reaching the following conclusions:

Utilizing the initial blood volume figure of 20.1 units cited by Gunn and OGA, the jury reasonably could have concluded that Shannon’s blood volume loss reached approximately 36% by 1:00 p.m. in reliance on these figures:

• 20.1 units of blood present in Shannon’s body at 11:00 a.m. on September 13 minus 13.2 units of blood lost plus 6 units of blood replaced equals 12.9 units of blood present at 1:00 p.m. on September 14.

• 20.1 units of blood present in Shannon’s body at 11:00 a.m. on September 13 minus 12.9 units of blood present at 1:00 p.m. on September 14 equals a net blood loss of 7.2 units during that interval.

• A net blood loss of 7.2 units as of 1:00 p.m. on September 14 divided by 20.1 units of blood present at 11:00 a.m. on September 13 equals 36% of blood volume loss during that interval.

This percentage falls squarely within Brewer’s estimated blood volume loss range of 33% to 44%, and approaches the critical danger zone where it is undisputed on this record that cardiac arrest is a reasonable medical probability.

Bustamante, 529 S.W.3d at 456.

D. Superiority Requirement

To avoid being conclusory, an expert must, to a reasonable degree of medical probability, explain how and why the negligence caused the injury. blood-clot theory. We disagree.

McCoy’s counsel addressed id.

Like many medical-malpractice cases, this case involved a battle of the experts. See, e.g., Mel Acres Ranch, 443 S.W.3d at 833. We agree with the court of appeals that the evidence *666 is legally sufficient to support a finding of proximate cause.

III. Shannon’s Future Medical Expenses

Both Dr. Gunn and OGA assert that the trial court erred in refusing to admit video deposition testimony of Dr. Helen Schilling, which Dr. Gunn and OGA offered to controvert McCoy’s evidence of the cost of future medical expenses.9 We review a trial court’s exclusion of an expert witness’s testimony for an abuse of discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

We first assess whether Dr. Schilling’s exclusion was in error and conclude that it was. At trial, McCoy presented evidence of future medical expenses through the testimony of Dr. Alex Willingham. When Dr. Gunn and OGA sought to present video deposition testimony from their own damages expert, Dr. Schilling, McCoy objected on the ground that the video cuts at issue did not contain the predicate to establish Dr. Schilling’s qualifications as an expert witness. The trial court agreed and refused to allow the video deposition cuts on their own, but it acknowledged that Dr. Schilling could testify live at trial to establish the basis for her expertise. Dr. Gunn and OGA chose not to call Dr. Schilling as a live witness, but presented an offer of proof instead.

To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a reliable foundation. TEX. R. EVID. 103. However, based on the record before us, we are satisfied that the defense offered testimony of an expert witness whose qualifications were established. We have no reason to believe that the defense excluded its own expert witness’s qualifications from the video cuts offered,11 nor can we conclude from the record before us that the qualifications discussed in the defense’s offer of proof were in fact excluded from the video cuts that it intended to show the jury.12

Litigants in Texas are afforded a broad right to make strategic decisions when introducing evidence at trial, and they are entitled to present experts in a manner of their choosing, so long as it is consistent with the Texas Rules of Civil Procedure and the Texas Rules of Evidence. E.g., Jones, 820 S.W.2d at 866. OGA’s attorney indicated at the time of the objection that Dr. Schilling’s qualifications were contained in the proffered video cuts, and considering the deposition transcript, we see no reason to doubt that representation. Moreover, Dr. Schilling’s qualifications were established in Dr. Gunn and OGA’s offer of proof, referencing page and line numbers of the same deposition testimony they sought to present by video. Accordingly, we hold that the trial court abused its discretion in excluding Dr. Schilling’s testimony.

*668 We next consider whether the exclusion of this evidence was harmful.13 Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979) ).

We have, however, noted that the role excluded evidence plays in the context of trial is important, and we have provided guidelines to assist trial courts in applying the reversible error standard. See Gee, 765 S.W.2d at 396.

The dissent manipulates the language we have used in analyzing whether error is harmful by omitting the word “likely” from our guidelines and introducing a two-part “framework” under which an error “is considered to have caused rendition of an improper judgment ... if the excluded testimony was crucial to a key issue, provided that the excluded evidence was not merely cumulative and that the other evidence was not so one-sided that the excluded evidence likely would have made no difference.” 554 S.W.3d at 681. However, we have never endorsed this standard and have in fact noted that establishing a bright-line rule—as the dissent proposes to do—is impossible. Cent. Expressway Sign Assocs., 302 S.W.3d at 869 (internal quotations omitted).

Dr. Gunn and OGA explained to the trial court that Dr. Schilling’s video deposition testimony revolved around her line-item annotations to the life-care plan that Dr. Willingham had prepared, and in their offer of proof, they tendered Dr. Schilling’s marked-up copy of Dr. Willingham’s life-care plan for Shannon to be admitted into the record.14 Dr. Gunn and OGA argued that the excluded video testimony indicated that Dr. Schilling believed some items in Dr. Willingham’s life-care plan were not reasonably necessary, and that Dr. Schilling believed some items in that life-care plan related to Shannon’s subsequent conditions (her seizure and hypoxia in 2005) and thus were unrelated to Dr. Gunn’s alleged negligence.

Dr. Willingham’s life-care plan projected future medical expenses for two care options, one for home care (Option 1) and one for facility-based care (Option 2). The two options were clearly presented to the jury. Both plans accounted for a twenty-year life expectancy. Dr. Willingham’s testimony enumerated a number of categories of expenses—physician services, therapeutic services, medication, diagnostics, and supported life care, among others. He explained in detail what each category entailed, and he discussed why the projected expenses for some categories were the same for Option 1 and Option 2 while others were different for the two options.15 *670 He testified that, in total, the projected future medical expenses were “just over $6.9 million” for Option 1 and “just over $7.3 million” for Option 2.16 He then explained that Dr. Schilling had made annotations to his life-care plan, “getting rid of some items and reducing the frequency of some items and lowering the cost of some items.” He testified that implementing Dr. Schilling’s changes and criticisms reduced the projected costs to $3.3 million for Option 1 and $6.7 million for Option 2.

Neither of the two witnesses’ testimony purported to speak to liability, which the jury ultimately decided in favor of McCoy. Therefore, although the exclusion of Dr. Schilling’s video testimony was error, we are satisfied that the exclusion did not affect the jury’s determination of liability. Nor did it cause the rendition of an improper judgment with regard to awarding future medical expenses, since both experts conceded that Shannon would require several millions of dollars in future medical expenses. And the parties do not dispute that the amount of Shannon’s future medical expenses would be at least equal to Dr. Schilling’s reduced projections for Option 1 and Option 2—a minimum of $3.3 million. Thus, the only harm that could have resulted from the exclusion of Dr. Schilling’s testimony was with respect to the amount of the award for future medical expenses that exceeded Dr. Schilling’s minimum projection of $3.3 million.

Furthermore, neither Dr. Willingham’s testimony nor Dr. Schilling’s proffered video testimony attempted to persuade the jury that one option was preferable to the other. On the contrary, Dr. Willingham specifically stated on cross examination that he was not making a judgment call as to which option was preferable: “Either venue is appropriate, either care remaining within the home with caregivers brought in or moving to a life care residential. Either venue is appropriate.” Likewise, Dr. Schilling’s excluded deposition testimony contains nothing that might have suggested to the jury that home care would have been preferable. The jury was presented with ample testimony to understand the nature of the two options and chose Option 2, facility-based care. Thus, the question is what effect, if any, the erroneous exclusion of Dr. Schilling’s video testimony had on the amount of damages awarded under the Option 2 plan, and whether the exclusion probably caused the jury to improperly award future medical expenses in excess of her projection for that option, $6.7 million.17

Dr. Gunn and OGA do not challenge the legal sufficiency of the evidence supporting the jury’s award of future medical expenses; therefore, that issue is not before us. We note that there is evidence to support Dr. Willingham’s projected expenses, and the jury was presented with some evidence of Dr. Schilling’s projections and criticisms. An award of future medical expenses is, by its very nature, not a matter of certainty. See, e.g., *671 Sw. Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 713 (Tex. 2016) (explaining that when determining whether the jury had a sufficient evidentiary foundation on which to base its damages award, we limit our review to only the evidence tending to support the jury’s damages award, unless contrary evidence is conclusive).

An error in excluding evidence is harmful when it “probably” caused the rendition of an improper judgment, and “probably” is a higher standard than “might” or “could have.” See TEX. R. APP. P. 61.1.

This is, of course, not to say that a plaintiff can effectively preempt a defense expert’s presentation of evidence or a witness by having one of the plaintiff’s expert witnesses discuss the substance of the defense witness’s testimony. That cannot be the case. We hold only that in this case, on the record before us, the exclusion of Dr. Schilling’s testimony did not “probably cause the rendition of an improper judgment.” Id.; see Gee, 765 S.W.2d at 396.

IV. Medical Billing Affidavits

As their second and third issues respectively, Dr. Gunn and OGA argue that McCoy failed to present legally sufficient *672 evidence of Shannon’s past medical expenses, for which the jury awarded $703,985.98. Specifically, they argue that the affidavits McCoy served did not comply with Texas Civil Practice and Remedies Code section 18.001 and therefore constituted no evidence, and in the absence of proper affidavits, McCoy failed to provide expert testimony regarding the reasonableness and necessity of the fees.

Haygood v. De Escabedo, 356 S.W.3d 390, 397–99 (Tex. 2011). The statute provides:

Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

Haygood, 356 S.W.3d at 397–98.

McCoy initially served fourteen section 18.001 limits the proper affiants to providers or record custodians for those providers. We disagree.

Our primary goal in statutory construction is to give effect to the Legislature’s intent. Haygood, 356 S.W.3d at 397–98. We therefore assess whether subrogation agents are in a position to testify to the reasonableness and necessity of medical expenses.

Health care costs today are complex, and the price of a particular provider’s services may depend on many factors, including geography, experience, location, government payment methods, and the desire to make a profit. Keith T. Peters, supra at 366).

Although the list price of health care varies widely across different regions of the country, the actual price paid is relatively static. Peters, The Persistence of Opportunistic Business Models in Health Care and a Stronger Role for Insurance Regulators in Containing Health Care Costs, 41 NOVA L. REV. 313, 315 (2017).

We have previously noted that agreements between willing providers and willing insurers can yield reasonable rates. See supra at 315. Moreover, insurance companies keep records and databases of both the list prices and the actual prices of specific treatments and procedures, though they may not pass this information to consumers. See Peters, supra at 375 (noting as examples that Blue Cross and Blue Shield of North Carolina provides the low, high, and average retail prices of specific procedures on its website, and that Aetna initiated a controversial pilot program in 2005 making information on the actual price for common procedures available to its insureds). Thus, with national and regional bases on which to compare prices actually paid, insurance agents are generally well-suited to determine the reasonableness of medical expenses.

*674 In determining the necessity of medical expenses, it is beyond argument that medical providers—doctors—are in the best position to determine what treatments or procedures and resulting expenses are “necessary.” So of course, ideally, medical providers themselves would testify to the necessity of medical expenses. However, by drafting Unhealthy Determinations: Controlling “Medical Necessity,” 22 VA. J. SOC. POL’Y & L. 435, 442–43 (2015) (explaining that the insurance industry sits at the center of the delivery and coverage of health care in the United States and occupies “a privileged position in rendering medical necessity determinations—the rationale in terms of which health care is apportioned”).

Thus, the plain language of Haygood, 356 S.W.3d at 397.

We note that in this case, McCoy did produce affidavits from the medical providers or the providers’ records custodians, which were later rendered insufficient by our decision in TEX. CIV. PRAC. & REM. CODE § 18.001. We hold that the affidavits served by McCoy were proper and constituted legally sufficient evidence of the reasonableness and necessity of Shannon’s past medical fees.

V. Jury Instruction

At trial, Dr. Gunn and OGA requested the following instruction, which the trial court refused: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to the occurrence.” They now argue that the trial court committed harmful error by refusing to include their requested instruction in the jury charge. A trial court has considerable discretion to determine proper jury instructions, and we review a trial court’s decision to submit or refuse a particular instruction for an abuse of discretion. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) ).

An unavoidable accident is “an event not proximately caused by the negligence of any party to it.” Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992).

The parties agree that Shannon presented at Woman’s Hospital with Dillard, 157 S.W.3d at 433 (“There is at least a potential implication in [the *676 broad-form jury question] that the occurrence was caused by someone’s negligence. We see no harm in explaining to the jury through an inferential rebuttal instruction that no such implication is intended.”) (internal citations omitted).

Indeed, the evidence of causation has been the subject of dispute throughout the pendency of this case. So we have little hesitation in determining that the requested instruction would have been proper.18 See Towers of Town Lake Condo. Ass’n v. Rouhani, 296 S.W.3d 290, 301 (Tex. App.—Austin 2009, pet. denied) (“Significantly, though, while the supreme court has held that the trial court may, in its discretion, submit the instruction under such circumstances, it has not held that it is an abuse of discretion not to do so.”).

Even assuming the trial court abused its discretion in refusing to submit a jury instruction on unavoidable accident, we conclude that Dr. Gunn and OGA failed to show that the omission probably caused the rendition of an improper judgment.19 When a trial court errs in refusing to submit an otherwise proper instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Thota, 366 S.W.3d at 695–96 (holding that the trial court’s submission of the new and independent cause instruction was harmless error because conflicting expert testimony could have prompted a reasonable jury not to find the defendant negligent, regardless of its conclusion on the question of proximate cause).

VI. Summary Judgment on Comparative Responsibility

As her fourth issue, Dr. Gunn asserts that the trial court erred in granting McCoy’s no-evidence summary judgment motion as to the defendants’ affirmative defense of comparative responsibility. However, while the issue was raised in the “Issues Presented” section in both the petition for review and the brief on the merits, Dr. Gunn failed to support her contention with any argument or authority in either the petition or the brief. Every issue presented by a party must be supported by argument and authorities in the party’s brief on the merits, or it is waived. TEX. R. APP. P. 55.2(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Thus, Dr. Gunn’s issue of comparative responsibility is waived.

VII. OGA’s Indemnity Claims

As her fifth issue, Dr. Gunn argues that OGA’s indemnity claim will not be ripe unless and until there is a final payable judgment at the conclusion of the appeal. Essentially, she argues that OGA may not pursue inconsistent positions—that Dr. Gunn was not negligent but that OGA is entitled to indemnity from her—simultaneously after the verdict. Generally speaking, “a person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful conduct of another, is entitled to full indemnity from the other for expenditures properly made to discharge the liability.” Id. OGA’s liability in this case is purely vicarious, and thus it is entitled to bring a cause of action for indemnity against Dr. Gunn.

A cause of action for indemnity accrues when “the indemnitee’s liability to *678 the party seeking damages becomes fixed and certain, generally by a judgment.” SSP Partners, 275 S.W.3d at 457 (“[I]t is a general principle of law that an active wrongdoer may be made to indemnify one who has been subjected to, or is sought to be held liable for, damage through his wrong.” (second emphasis added) ).

The court of appeals correctly noted that “[Dr.] Gunn has not provided us with, and we have not located, any authority indicating that an indemnity claim only ripens when any related liability appeal is completed.” TEX. R. CIV. P. 48. We conclude that OGA’s common law indemnity claim was ripe for determination when the trial court rendered its judgment against Dr. Gunn notwithstanding the pending appeal.

VIII. Windfall

As her sixth issue, Dr. Gunn argues that Shannon’s death on the eve of the court of appeals’ decision created a windfall for McCoy that calls for a remand in the interest of justice. She notes that almost 70% of the trial court’s judgment was for future medical expenses, which will now never be incurred. Texas Rule of Appellate Procedure 7.1 speaks to this very situation:

If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living.

Rule 7.1 requires.

We note that the outcome may well be different had the trial court awarded McCoy periodic payments of future medical expenses. Texas Civil Practice and Remedies Code section 74.506 provides:

(a) On the death of the recipient, money damages awarded for loss of future earnings continue to be paid to the estate of the recipient of the award without reduction.

(b) Periodic payments, other than future loss of earnings, terminate on the death of the recipient.

Rule 7.1, we review and adjudicate the lump-sum award of future medical expenses as if Shannon were still alive.

Besides that, we are hardly persuaded by the argument that McCoy received a windfall merely because Shannon’s actual life span was shorter than her projected life span. While evidence must establish a reasonable probability of future medical expenses in order to support an award, such an award, by its nature, evades certainty. See Rosenboom Mach. & Tool, Inc., 995 S.W.2d at 828. Dr. Willingham projected and Dr. Schilling did not contest that Shannon’s future medical expenses were based on a twenty-year life expectancy. And Shannon could have outlived that expectancy, in which case the judgment would have been for less than she needed. Further, based on Dr. Willingham’s testimony, the jury clearly considered the possibility that Shannon’s life expectancy would end up not being accurate:

Q: So if she lives for one year longer than you’re forecasting, she is going to run out of money, isn’t she?

A: And this would understate her need, that’s correct.

But of course, we would not go back and adjust the judgment upwards if she had outlived Dr. Willingham’s projection. Similarly, we do not vacate a judgment for future medical expenses simply because a party died earlier than projected. Cf. Gibbs v. Belcher, 30 Tex. 79, 84–85 (Tex. 1867) (concluding that the death of the party after judgment did not have the effect of vacating or opening the judgment). We decline to remand this case based solely on Shannon’s premature death.

*680 IX. Conclusion

We hold that: (1) the evidence is legally sufficient to support causation; (2) although the trial court erred in excluding the video deposition testimony of Dr. Schilling, the exclusion did not probably cause the rendition of an improper verdict; (3) Texas Civil Practice and Remedies Code section 18.001 does not limit the proper affiants to medical providers and medical providers’ record custodians; therefore, the affidavits served by McCoy were proper and constituted legally sufficient evidence of the reasonableness and necessity of Shannon’s past medical expenses; (4) Dr. Gunn and OGA failed to show that the trial court committed harmful error in refusing the requested instruction on unavoidable accident; (5) Dr. Gunn waived her challenge to the no-evidence summary judgment on comparative responsibility; (6) OGA’s indemnity claim was ripe when the trial court rendered its judgment against Dr. Gunn; and (7) Shannon’s death does not mandate a remand of the case. For the reasons expressed, we affirm the judgment of the court of appeals in its entirety.

Justice Boyd joined.

Justice Guzman did not participate in the decision.

Justice Boyd, dissenting.

I disagree that the trial court’s error in excluding the defendants’ expert witness testimony regarding Shannon McCoy’s future medical care expenses was harmless.

I also disagree that affidavits by subrogation agents with no disclosed familiarity or connection with the medical treatment in question provide sufficient basis to either admit the summaries of medical expenses attached to them, or support jury findings as to the reasonable and necessary amounts for past medical expenses.

Further, even if the subrogation agents’ affidavits would have otherwise provided a sufficient basis to admit the attached documents and support jury findings as to medical expenses, I disagree that all of the affidavits support the jury findings as to past medical expenses. One of the affidavits referencing over $300,000 of expenses was not sufficient because it did not address whether the expenses in the attached exhibits were necessary.

I. Future Medical Expenses

At trial, the parties did not dispute that Shannon’s conditions would require medical care for the rest of her life. But they disputed both whether all her conditions were proximately caused by the allegedly negligent actions of the defendants, Obstetrical and Gynecological Associates, P.A. (OGA) and Dr. Debra Gunn, as well as the cost of future care that would be medically necessary as a result of those actions. Shannon’s husband, Andre McCoy (McCoy), suing individually and as Shannon’s guardian, offered, and the trial court admitted, opinion testimony of Dr. Alex Willingham regarding the probable costs of Shannon’s future care. The life-care plan he prepared was introduced in connection with his testimony. To controvert Dr. Willingham’s testimony, OGA and Dr. Gunn sought to introduce video deposition testimony from Dr. Hellen Schilling. I agree with the Court that the exclusion of Dr. Schilling’s testimony was error. Ante at 666. However, I disagree that the error was harmless.

The standard for reversal of a judgment based on the exclusion of evidence is whether the error “probably caused the rendition of an improper judgment.” Reliance Steel & Aluminum Co., 267 S.W.3d at 873).

Given the extent to which parties engage in discovery in cases such as this, there is very little, if any, evidence presented at trial that the parties’ lawyers are unaware of before trial. Yet cases are tried because there is no way of accurately predicting how the evidence, or any particular piece of evidence, will affect a jury. Likewise, there is no realistic way of accurately determining how excluded evidence would have affected the jury’s findings if it had been admitted. Thus, the conclusion that an error in excluding evidence relevant to a key issue “likely was harmful” is as close as any analysis is going to get. Stated another way, the test this Court has articulated is, in substance, that an error in excluding testimony is considered to have caused rendition of an improper judgment (the exclusion was likely harmful) if the excluded testimony was crucial to a key issue, provided that the excluded evidence was not merely cumulative and that the other evidence was not so one-sided that the excluded evidence likely would have made no difference. That is a reasonable and at least somewhat objective test that requires examination of the entire record. Because OGA and Dr. Gunn are the parties asserting error, the burden is on them to meet the test. Which, as explained below, in my view they did by demonstrating that the record shows: (1) the excluded evidence was crucial to what even McCoy’s attorney told the jury was the most important issue; (2) the excluded evidence conflicted with the testimony of Dr. Willingham as to the amount of treatment and care that would be necessary for Shannon in the future, thus Dr. Schilling’s testimony was not merely cumulative in regard to the key issue of the cost of necessary future medical care; and (3) the opinion testimony of Dr. Willingham was not so one-sided that Dr. Schilling’s testimony likely would have had no effect at all on the jury’s finding for future medical expenses. After all, Dr. Willingham’s testimony was opinion testimony predicting the future, not factual testimony relating past events; Dr. Schilling and Dr. Willingham had substantively equivalent credentials; each examined Shannon one time for approximately the same amount of time; and each had extensive experience in preparing life-care plans for predicting the necessity *682 of and costs for future care for severely impaired patients.

The Court subtly but importantly departs from the workable legal standard we have established, as is set out above, for determining whether the exclusion of evidence on a crucial issue was harmful. The Court opts for merely balancing the evidence admitted and excluded to determine whether, in its opinion the excluded evidence would have made a difference in the sitting jurors’ minds and findings. The Court says,

We have, however, noted that the role excluded evidence plays in the context of trial is important, and we have provided guidelines to assist trial courts in applying the harmful error standard. Exclusion is likely harmless if the evidence was cumulative or if the rest of the evidence was so one-sided that the error likely made no difference in the judgment. By contrast, exclusion of the evidence is likely harmful if it was “crucial to a key issue.” We do not dispute that future medical expenses, which made up almost 70% of the trial court’s judgment, was indeed a “key issue.” But that does not end the inquiry; our guidelines make clear that the exclusion of such evidence is “likely harmful,” not conclusively or per se harmful.

Ante at 668 (citations omitted). The Court then, however, proceeds to briefly analyze the evidence and set out the standard it uses to make its decision:

An error in excluding evidence is harmful when it “probably” caused the rendition of an improper judgment, and “probably” is a higher standard than “might” or “could have.” See Aultman v. Dall. Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600 (1953) (defining “probably” as “having more evidence for than against, supported by evidence which inclines the mind to believe, but leaves some room for doubt, likely”) ... But “likely” does not mean “definitively”—we must review the record to determine whether, in this particular case, the exclusion of Dr. Schilling’s video deposition testimony “probably,” as opposed to “might have” or “could have,” caused the rendition of an improper judgment.

Ante at 671 (emphasis added). The Court’s application of the standard ignores the fact that the effect of particular evidence on a particular jury—whether admitted or excluded—is just not reasonably predictable to a fine degree. And the questions of whether the excluded evidence was cumulative and whether it was so one-sided that the error likely made no difference as part of the analysis disappear for all practical purposes in the Court’s analysis. But they should be the standards for evaluating the effect of the error after it has been determined that the error was likely harmful because the excluded evidence was crucial to a key issue. In situations such as this where the evidence was crucial to a key issue and was not cumulative, the harm analysis should turn on whether the evidence was so one-sided that the excluded evidence likely made no difference. The “likely” is tethered to the “so one-sided” part of the standard. Not so in the standard the Court applies today. And while the standard of “so one-sided” is to a degree subjective, it is not nearly so subjective as determining whether excluded evidence would “more likely than not” have caused the jury to return a different verdict, which in effect is merely a second-guessing of the jury’s view of the evidence.

The Court’s harm analysis in this case demonstrates the difference. After determining *683 that the exclusion of Dr. Schilling’s testimony was likely harmful because of its relationship to the key issue of future medical expenses, the Court moves directly to balancing the evidence. That necessarily means it considered how the jurors’ thought processes likely would have worked and what the jury likely would have done had it heard the excluded evidence. Explaining a framework for that exercise is hard to do, as witnessed by the Court’s explanation-less conclusion:

Having reviewed the entire record, we cannot say that the erroneous exclusion of Dr. Schilling’s video deposition testimony probably caused the rendition of an improper judgment.

Ante at 671.

The Court also says that there’s no bright line for deciding the harm question. I agree. But there must be some articulable standard which differs from merely balancing the evidence admitted and excluded. The standard we have previously articulated, properly applied, is such a standard.

Measuring the effect of the exclusion of Dr. Schilling’s testimony once future medical was determined to be a key issue under the previously articulated standard—the exclusion was likely harmless if the excluded evidence was cumulative or the rest of the evidence was so one-sided that the error likely made no difference in the judgment, Cent. Expressway Sign Assocs., 302 S.W.3d at 870—it seems to me that, indeed, (1) the trial court erred by excluding Dr. Schilling’s testimony; (2) her testimony was crucial to a key issue; (3) the testimony was not merely cumulative; and (4) the other evidence was not so one-sided that her testimony likely would have made no difference. Thus, the exclusion was not harmless.

Giving context to evidence determinative of whether the evidence was so one-sided that Dr. Schilling’s testimony likely would have made no difference requires examining all the relevant evidence, beginning with whether the testimony of Dr. Schilling concerned a key issue. The starting point for analyzing that question is the judgment. Reliance Steel & Aluminum Co., 267 S.W.3d at 871.

First, that Shannon’s future medical care expenses were a key issue is clear from the fact that of the jury’s damage findings for over $10.6 million, over $7.2 million was for future medical care. The amount found for future medical care was more than double the nearly $3.4 million for other damage findings combined. Second, whether the future medical was a key issue was answered by McCoy’s attorney in his closing summation to the jury. He stated that the last blank, where the jury was to place its finding as to Shannon’s future medical care expenses, “is the most important blank.”

The court of appeals opined that the key dispute was liability, not damages. JLG Trucking, LLC, 466 S.W.3d at 165 (same).

Next, the harm analysis looks to whether Dr. Schilling’s testimony was crucial to the key issue of future medical expenses for Shannon. And the answer is “Yes.”

Lay jurors are deemed to lack the knowledge to determine the reasonable costs of medical care that was necessary in the past or will probably be necessary in the future. See id. And almost categorically, both plaintiffs and defendants present—or at least try to present—experts to opine on the necessity of particular items of medical care and the cost of those items in the future, even when it is uncontested that future care will be necessary. And when experts testify, one aspect of persuading the jury to the presenting party’s position is presenting the expert’s qualifications. That is because it is generally accepted among experienced trial lawyers that (1) part of the jury’s decision regarding expert testimony will turn on whose expert the jury believes is the more credible witness, and (2) a significant part of an expert’s credibility relates to the expert’s qualifications and experience as to the particular issue.

As the Court notes, whether sufficient evidence supports the jury’s finding as to expenses for future medical care is not at issue. Ante at ––––. Dr. Willingham’s testimony is evidence to support the finding. But where Dr. Schilling was the defendants’ only witness as to the question of future medical care expenses, her testimony was crucial to the question of the differences between her opinions and those of Dr. Willingham. That conclusion is buttressed by McCoy’s attempts to keep Dr. Schilling’s testimony out of evidence. Further, Dr. Schilling’s testimony was not cumulative of Dr. Willinghams’s testimony as to many items of projected care and their cost, as demonstrated by both her testimony and her marked-up copy of Dr. Willingham’s life-care plan for Shannon. If it had been, McCoy would not have strived so hard to keep it out, and OGA and Dr. Gunn to have it admitted. Further, neither the trial court, the court of appeals, nor this Court have concluded that it was cumulative.

Which brings us to the question of whether the evidence was “so one-sided” that Dr. Schilling’s testimony likely would have made “no difference in the judgment.” See Cent. Expressway Sign Assocs., 302 S.W.3d at 870. The “so one-sided” question necessarily includes considering both Dr. Willingham’s testimony and the evidence and testimony which would have been introduced through Dr. Schilling. If it were otherwise, then the testimony of almost every expert would be so one-sided that excluding opposing expert opinions would be harmless error.

Dr. Willingham testified extensively about his training, experience in treating patients, experience in teaching medical students, lectures he had given, and other matters to bolster the opinions he testified to. However, Dr. Schilling’s testimony showed that she was eminently qualified to opine as to and calculate the expenses likely to be necessary for Shannon’s future medical care. Dr. Schilling testified that she was the medical director of the rehabilitation department at a Houston hospital; *685 taught fourth-year residents in that area of medicine; was on the faculty at Baylor College of Medicine; reviewed complaints against physicians in the area of physical medicine and rehabilitation for the Texas State Board of Medicine, as well as Medicare and the Texas Workers’ Compensation Commission; and performed peer reviews regarding other practitioners in the field of physical medicine and rehabilitation. But because the trial court excluded Dr. Schilling’s testimony, the jury never heard about her training, extensive experience, and expertise.

Further, the jury heard Dr. Willingham testify about his personal examination of Shannon during the course of formulating his opinions. He described her conditions based on his personal observations as well as the medical records he reviewed. He described the records he reviewed in some detail and explained the amount of time he spent in reviewing them and analyzing them as part of reaching his opinions, in preparing his life-care plan for Shannon, and in estimating the costs of her future care. But the jury did not hear of Dr. Schilling’s similar foundation for her testimony: her personal examination of Shannon, her detailed review of Shannon’s records, the amount of time she spent in analyzing Shannon’s probable future medical needs, her experience in caring for persons, such as Shannon, with severely debilitating conditions and her experience in preparing life-care plans.

So why would the jury give similar weight—or even any weight—to Dr. Schilling’s views that were briefly referenced and depreciated by Dr. Willingham when Dr. Schilling’s qualifications and other testimony were not admitted? The answer, logically, is that it would not. Even more, the fact that the jury knew the defendants hired Dr. Schilling to examine Shannon and review the life-care plan prepared by Dr. Willingham could well have led it to conclude that because Dr. Schilling’s testimony was not presented, Dr. Willingham’s testimony was not only uncontroverted, but that it was essentially uncontrovertible. Under the circumstances, it is hard to conceive of a jury giving much, if any, credence to the limited part of Dr. Schilling’s testimony that it heard via the route of hearsay through Dr. Willingham.

Dr. Willingham gave his opinions as to a range of future medical care expenses, including projections of approximately $6.9 million for a home care option and $7.24 million for a facility-based care option. But through the filter of McCoy’s retained expert, Dr. Willingham, the jury received a limited view of Dr. Schilling’s opinions regarding Shannon’s future medical care expenses. Dr. Willingham noted that Dr. Schilling projected $3.3 million as being necessary for home care and $6.7 million for facility-based care. He referenced a copy of a life-care plan he had prepared and that had been marked up by Dr. Schilling, and testified as to his disagreement with her opinions. After noting her projections for care, he opined that Dr. Schilling’s view was, in effect, to divide the amount needed for Shannon’s care in half. Thus, the jury heard in very cursory manner of Dr. Schilling’s opinions.

The jury found $7,242,403 for future medical care—precisely the amount testified to by Dr. Willingham. That is not surprising, given that the jury heard only Dr. Willingham’s testimony regarding such care. Dr. Schilling’s excluded testimony, in part, would have been that approximately $3.3 million, or 46% of the amount the jury found for future care, would have been reasonable for a home care situation. Her testimony as to the probable cost of future care in a facility setting was over $500,000 less than the amount Dr. Willingham testified to. While $500,000 is less than 10% of *686 the amount that the jury found for future care, and is much less than the $3.9 million difference between Dr. Schilling’s home care projection and the jury’s finding, $500,000 is nevertheless a significant amount.

The Court notes, as did the court of appeals, that the full range of future medical care expense projections were in front of the jury via the opinion testimony of Dr. Willingham. Ante at 670–71. But allowing a witness hired by one party to relate to the jury a filtered version of the opinion testimony of the only witness for an opposing party as to a crucial matter, then having relevant, direct testimony of the opposing party’s witness as to that matter excluded and calling it a reasonably fair trial goes too far. The trial court’s ruling placed the attorneys for OGA and Dr. Gunn in a no-win situation. If they did not cross examine Dr. Willingham and challenge his testimony, the jury would most likely perceive his testimony as unchallengeable. If they cross examined him extensively about Dr. Schilling’s testimony, as an experienced expert witness he simply was going to repeat his opinions and disagreement with her, thus reinforcing the effect of his testimony on the jury.

If the exclusion of testimony by witnesses for opposing parties as happened here becomes the paradigm, then a minimally competent lawyer for the plaintiff—or whichever party presents evidence first—in most cases should be able to short-circuit the opposing party’s presenting much evidence at all, merely by having the first, friendly witnesses testify to their version of what the opposing party and the opposing witnesses have testified to or disclosed in discovery. And it is almost guaranteed that one party’s evidence presented and filtered through witnesses for the opposing party will be less adverse to the opposing party than if it were fully presented through the proponent’s witnesses themselves.

In sum, I agree with the Court that the trial court erred by excluding the testimony of Dr. Schilling. But given the differences between her excluded testimony and that of Dr. Willingham regarding the key issue of the cost for future medical care for Shannon, both percentage-wise and in absolute numbers, I would hold that the excluded evidence was crucial to that key issue and the exclusion was harmful. See Cent. Expressway Sign Assocs., 302 S.W.3d at 870. Accordingly, I would reverse as to the future medical care damages.

II. Past Medical Expenses

The amounts recoverable in a tort action for medical care expenses must be both reasonable in price and necessary for treatment. See Texas Civil Practice and Remedies Code section 18.001 provides as follows:

(b) Unless a controverting affidavit is served as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

(c) The affidavit must:

...

(2) be made by:

*687 (A) the person who provided the service; or

(B) the person in charge of records showing the service provided and charge made; and

(3) include an itemized statement of the service and charge.

(c)(2)–(3).

The amounts actually paid by insurance companies, with their access to large quantities of data across many health care providers, may represent what are reasonable fees for health care services, as the Court says. Ante at 673 (citing Haygood, 356 S.W.3d at 394 (stating that agreements between willing providers and willing insurers can yield reasonable rates) ). However, whether fees paid for health care services rendered to a patient are reasonable is a much different question than the question of whether those health care services were medically necessary for the treatment of conditions caused by a particular person, event, or series of events.

OGA and Dr. Gunn objected to admission of summaries of charges and payments for Shannon’s past medical care based on affidavits from representatives of three subrogation collection companies. The summaries contained information in different formats, but as relevant to the issue before us, they generally set out names of the billing providers, very brief general descriptions of services rendered by the providers, the amounts charged for the services, and the amounts paid for the services. For example, one company’s summary had columns entitled “DOS Start,” “DOS End,” “Provider,” “Service,” “Diagnostic Code,” “Billed,” and “Paid” for each item. An example of the entries is one that listed “DOS Start” as “3/24/06”; “DOS End” as the same date of “3/24/06”; “Provider” as “The Methodist Hospital”; “Service” as “D040”; “Diagnosis Code” as “7993”; “Billed” as “71,440.50”; and “Paid” as “20,808.60”. That is it—no other information, explanation, or detail as to the services provided or cost breakdown for the services. Every DOS Start and DOS End date on the summary for a particular service are the same date, just as the above example shows for $71,440.50 of hospital services billed.

OGA and Dr. Gunn point to the language of section 18.001, the Legislature intended to authorize affidavits by subrogration agents located in Kentucky, Wisconsin, and Illinois to support a finding that particular treatments by health care providers in Texas were medically necessary where there is no evidence demonstrating that the affiants had any training in medicine or even had a connection with medical services, apart from their positions in companies whose business was receiving bills and information from insurance carriers and then asserting the insurers’ rights of subrogation.

A. The Subrogation Agents as Affiants

McCoy used affidavits by three subrogation agents to support the claim of $703,985.98 for Shannon’s past medical expenses. One affidavit was executed in Oldham County, Kentucky, by Carroll C. Rawlings. According to the affidavit, Rawlings was the Subrogation Team Manager for the Rawlings Company, whose principal place of business was on Eden Parkway *688 in LaGrange, Kentucky. She averred that the itemized statement of claims attached to her affidavit related to Shannon’s care from September 14, 2004, to December 28, 2005; the claims were paid by Aetna; and the “information contained in the records was transmitted to [her] in the regular course of business by an employee or representative of the Rawlings Company who had personal knowledge of the information.” The specific language of her affidavit, in relevant part, was as follows:

Attached to this affidavit are records that provide an itemized statement of the claims paid by Aetna related to the medical care provided to Shannon McCoy from September 14, 2004 to December 28, 2005.... The attached billing records are kept by me in the regular course of business. The information contained in the records was transmitted to me in the regular course of business by an employee or representative of The Rawlings Company who had personal knowledge of the information. The records were made at or near the time or reasonably soon after the time that the service was provided.... I am familiar with the customary charges for like or similar services rendered in this vicinity and I know that the charges reflected on these records are reasonable for like or similar services rendered in this vicinity.... The services provided were necessary and the amount charged and paid for the services were reasonable at the time and place the services were provided.

(Emphasis added).

The second affidavit was executed in Waukesha County, Wisconsin, by Christi–Jo Buchanan, a Subrogation Specialist II for Meridian Resource Company, L.L.C., whose principal place of business was 20725 Watertown Road, Waukesha, Wisconsin. Buchanan’s affidavit was essentially the same as Rawlings’s affidavit except she averred that the claims itemized in the records attached to her affidavit covered Shannon’s care from September 14, 2004, to December 23, 2007; they were paid by Unicare; and the information in the records was transmitted to her in the regular course of business by an “employee or representative of Meridian Resource Company, L.L.C. who had personal knowledge of the information.”

The third affidavit was executed in Cook County, Illinois, by Patricia A. Heeney, the general counsel for Vengroff, Williams and Associates, Inc., whose principal place of business was 7101 North Cicero Avenue, Lincolnwood, Illinois. Heeney’s affidavit was similar in substance to those of Rawlings and Buchanan. She averred that the claims itemized in records attached to her affidavit covered Shannon’s care from March 6, 2006, to March 23, 2011; they were paid by the Federal Express Benefit Plan through its claims administrators, Cigna and Anthem Blue Cross Blue Shield; and “information contained in the records was transmitted to [her] in the regular course of business by an employee or representative of the claims administrators, Cigna Healthcare and Anthem Blue Cross Blue Shield who had personal knowledge of the information.” But Heeney did not state in her affidavit that the services provided to Shannon were necessary; she stated only that “[t]he amount charged and paid for the services were reasonable at the time and place that the services were provided.”

The contents of the affidavits and their attachments, simply put, do not make sense as to their purpose of proving the reasonableness and necessity of Shannon’s past medical expenses, as is explained more fully below. But to briefly summarize:

*689 1. The documents attached to the affidavits are not itemized statements as the affidavits say they are. They are one-line summaries of billings and collections.

2. The documents attached to the affidavits are not billing records as the affidavits say they are. They are summaries of billing records.

3. The affidavits of Rawlings and Buchanan circularly say that the information in the attached records was transmitted to their companies by an employee or representative of the subrogation company who had personal knowledge of the information, although the information in the attached summaries was for billings and collections as to numerous, diverse medical providers in Texas. The affidavit of Heeney was of the same nature, except in her affidavit Heeney says that an employee or representative of the claims administrators, Cigna Healthcare and Anthem Blue Cross Blue Shield had personal knowledge of the information in the attached summaries and transmitted it to Vengroff, Williams and Associates.

4. The affidavits of Rawlings and Buchanan, presented to support charges made in Houston, say that Rawlings and Buchanan, as affiants, are familiar with charges made “in this vicinity”—that is, in Kentucky and Wisconsin, respectively—and that the charges are reasonable for charges made in “this vicinity.” Then, switching tracks, Rawlings and Buchanan aver that the services provided were necessary and the charges were reasonable “at the time and place the services were provided”—that is, in Houston, a completely different area of the country. Heeney’s affidavit is better in that she avers that “[t]he amount charged and paid for the services were reasonable at the time and place that the services were provided.” But she says nothing about whether the services were necessary.

As noted, Rawlings and Buchanan stated in their affidavits that they were familiar with customary charges for “like or similar services rendered in this vicinity” and that the charges reflected on the records attached to their affidavits “are reasonable for like or similar services rendered in this vicinity.” (Emphasis added). The vicinity of Rawlings’s principal office and the location where Carroll Rawlings executed her affidavit was Oldham County, Kentucky. The vicinity of Meridian Resource’s principal office was Waukesha, Wisconsin, and the vicinity of where Christi–Jo Buchanan executed her affidavit was Waukesha County, Wisconsin. But averring that they are familiar with customary charges in Kentucky and Wisconsin does not speak to their familiarity with charges for services provided in Houston. And the affidavits do not demonstrate that the affiants had any knowledge about the rendering of or the customary charges for medical care in Houston. It is in that context that both Rawlings and Buchanan averred that “the amount charged and paid for the services were reasonable at the time and place that the services were provided”—that is, Houston. Moreover, the affidavits are devoid of information to show that any of the three affiants had any training or held any position that would qualify them to give competent testimony as to the necessity of the medical procedures and services to treat Shannon, even though Rawlings and Buchanan said they were. Heeney did not bother to aver that the services for which her company was seeking to recover were necessary.

The affidavits are internally inconsistent, do not substantially comply with the Legislature’s intent as to requirements for *690 this type of affidavit, and fail in several ways to support jury findings based on basic evidentiary requirements. That is understandable because the affiants were asked to verify the medical necessity of medical services rendered in another state by persons and entities with whom they had no discernable connection, that were provided to a person whose condition they had no demonstrated knowledge of, by affidavits containing language distorted to make the affidavits appear to conform to language specified by the Texas Legislature. But as demonstrated above, the affidavits do not conform to the Legislature’s requirement for proof of medical expenses by affidavit. TEX. CIV. PRAC. & REM. CODE § 18.001. And when affidavits are made by such providers or their employees or representatives, then the problems demonstrated by these three affidavits—internal inconsistency, lack of demonstrated knowledge of the services or of how the records of the services were made, and violation of basic evidentiary rules that protect the integrity of the trial process—for the most part disappear.

The Court’s interpretation fails to cabin the statute within its logical limits. “We look to and rely on the plain meaning of a statute’s words as expressing legislative intent unless a different meaning is supplied, is apparent from the context, or the plain meaning of the words leads to absurd or nonsensical results.” 18.002 together compels the conclusion that the Legislature did not intend such results as will flow from the Court’s construction of the statutory language.

B. The Billing Summaries

As for whether the affidavits comply with section 18.001, affidavits must be made by certain categories of persons, as discussed in the preceding section, and that documents attached to the affidavits must show that the services and charges were made by persons with knowledge of the services rendered or by persons who received information from persons with knowledge of the services rendered.

The documents attached to the affidavits in this case do not come close to measuring up. Rawlings, Buchanan, and Heeney attached to their affidavits what apparently are documents generated by each of their respective subrogation agencies, as indicated by the fact the documents attached to each of the three affidavits have different formats with different categories of information. The documents fairly clearly are not bills from medical providers, because each document lists numerous different providers. Rather, based on the information in the affidavits, they can only be summaries of information received from the payer entities. According to the affidavits, the amounts paid by the three payer entities were as follows: Aetna—$61,428.60; Unicare—$322,644.30; and Federal Express Benefit Plan—$319,912.99. But, according to the affidavits, the entities do not claim to have had any part in providing the services rendered to Shannon. The documents are not itemized billing records from the medical providers; instead, the attachments to the affidavits are cursory summaries of charges by providers and payments on those charges by the payer entities. Thus, the statements in the affidavits that “Attached to this affidavit are records that provide an itemized statement of the claims paid” are patently false. The affiants refer to the “attached billing records” as having been kept by the *692 affiants or the subrogation entities in the regular course of business. While the documents attached to the affidavits may have been kept in the regular course of business by the subrogation entities, the subrogation documents on their face are not billing records. The affiants each circularly state that the attachments to their affidavits are based on information transmitted to the affiant by an employee or representative of the subrogation company itself, or, in the case of Heeney, by claims administrators for Federal Express Benefit Plan “who had personal knowledge of the information.” But none of the affiants state that the persons who transmitted the information had knowledge of the services provided or the necessity of the services, as the section 18.002 exemplar affidavits show the Legislature intended.

I would hold that the trial court erred by overruling objections of OGA and Dr. Gunn to the admission of the documents attached to the subrogation agents’ affidavits. Absent the documents, there was no evidence to support the finding as to Shannon’s past medical expenses. Accordingly, I would reverse the court of appeals’ judgment on this issue.

And even if the documents attached to the affidavits of Rawlings and Buchanan were properly admitted, the documents attached to the affidavit of Heeney were admitted in error. She did not state in her affidavit that the services in the documents were necessary for Shannon’s treatment. Thus, there is no evidence to support that part of the judgment awarding past medical expenses paid by the Federal Express Benefit Plan.

III. Conclusion

I would reverse the judgment of the court of appeals as to both the future and past medical care expenses and remand to the trial court for further proceedings.

In the alternative, I would reverse the judgment as to the past medical expenses paid by the Federal Express Benefit Plan and render judgment that McCoy take nothing as to those expenses.

I respectfully dissent.

Footnotes

1

hemoglobin in the bloodstream. According to McCoy’s expert, they can be used as an indicator of blood loss.

2

“anoxia” refers to no oxygen.

3

Dr. Martin Steiner, an expert witness who testified on behalf of Dr. Gunn and OGA, testified that this seizure event was unrelated to Shannon’s initial injury. In 2007, Shannon suffered a massive stroke; Dr. Steiner testified that this too was unrelated to the events of 2004.

4

OGA filed a motion to disqualify Dr. Gunn’s lead trial counsel, Barbara Hilburn, based on its suit against Dr. Gunn for indemnity, which the trial court granted. See Id. at *7.

5

The court of appeals did not address this underlying assumption because Dr. Gunn and OGA did not raise it before that court. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 455 (Tex. 2015) (“We liberally construe issues presented to obtain a just, fair, and equitable adjudication of the rights of the litigants.”).

6

Dr. Gunn suggests that medical expertise is required to properly understand the medical records, and argues that “speculative expert testimony may not be supplemented by the analyses of reviewing courts, which are unqualified to review medical records and render medical opinions.” We remind the parties that neither the court of appeals nor this Court is composed of medical experts, and the vast majority of jurors are not doctors. And our review is confined to the record before us. E.g., Id. at 827.

7

Indeed, McCoy’s counsel phrased his question with language lifted directly out of Jelinek, which was new at the time of the trial.

8

The record indicates that more than twenty neurological assessments performed on Shannon between September 2004 and October 2004 documented that Shannon had ischemic encephalopathy, and a hypoxic event.

9

McCoy asserts that the trial court did not exclude Dr. Schilling as a witness, but rather excluded only her video testimony as lacking the proper foundation, and would have allowed her to testify live. Because we hold that the trial court erred, we do not address McCoy’s proposed distinction.

10

We have recently held that video depositions generally do not need to viewed by the court before ruling on objections, as do other videos offered as evidence. Robinson challenge.

11

In response to McCoy’s objection to the testimony’s lack of foundation, OGA’s counsel responded, “[Y]ou asked for a foundation, and it is stated in here in the cuts that we have.” (Emphasis added).

12

At oral argument, McCoy’s counsel contended that he intentionally did not ask questions regarding Dr. Schilling’s qualifications so that her deposition could not be used at trial. But the transcript and the fact that the entire deposition was videotaped suggest otherwise.

13

The court of appeals concluded that if there was error, the error was harmless based on (1) the fact that the jury heard about Dr. Schilling’s cost projections from McCoy’s expert witness, Dr. Willingham; (2) the court’s view that the “key dispute” in the case was over liability, not damages, meaning that the judgment did not turn on Dr. Schilling’s testimony; and (3) the court’s determination that the error in excluding the testimony was minor, if it was error at all, because both experts agreed that Shannon’s future medical expenses would likely be millions of dollars. 489 S.W.3d at 111–12.

14

McCoy raised a hearsay objection to the admission of Dr. Schilling’s testimony based on the marked-up copy of Dr. Willingham’s life-care plan. Under the Texas Rules of Evidence, a statement made in a deposition taken in the same proceeding is an exclusion from hearsay, regardless of the deponent’s availability as a witness. TEX. R. EVID. 801(e)(3).

15

Dr. Willingham also included a category called “potential care needs,” which he described as “possibilities but not likely to occur.” The amount in this category was the same for both options. The court of appeals held that this category was not supported by legally sufficient evidence, suggested a voluntary remittitur in the amount projected for this category ($159,854.00), and ultimately affirmed the trial court’s judgment as modified to reflect the remittitur. 489 S.W.3d at 113.

16

These values were reduced to present value and adjusted for inflation, bringing them to “just over $6.6 million” for Option 1 and “just over $7 million” for Option 2.

17

The jury’s award was consistent with Dr. Willingham’s recommendation for Option 2, reduced to present value (approximately $7.2 million), instead of the $6.7 million proposed by Dr. Schilling’s Option 2 plan. However, the amount of the jury award was reduced further to approximately $7.1 million by the court of appeals’ modified judgment, to account for damages that were not proven by sufficient evidence. 489 S.W.3d at 117. Thus, the amount of the harm, if there was any, is limited to roughly $400,000—the difference between the modified judgment and Dr. Schilling’s proposed Option 2 amount.

18

The court of appeals held that the instruction was improper in part because “there was no testimony that Shannon’s Dillard, 157 S.W.3d at 432–34. They were catastrophic.

19

As a preliminary matter, we reject the court of appeals’ conclusion that the “bad result” instruction contained in the first jury question is dispositive of whether the requested instruction was reasonably necessary to enable the jury to render a proper verdict. See TEX. CIV. PRAC. & REM. CODE § 74.303(e)(2). Thus, the court of appeals’ holding would have the effect of rendering an unavoidable-accident instruction unnecessary in all health care liability cases. Moreover, the two instructions deal with different elements of the health care liability suit: a bad-result instruction speaks to the question of negligence, whereas an unavoidable-accident instruction speaks to the element of causation. Therefore, the presence of one instruction does not and cannot render the other unnecessary or irrelevant.

20

Now codified as the “Proportionate Responsibility” statute. See TEX. CIV. PRAC. & REM. CODE § 33.001.

1

The Civil Practice and Remedies Code provides the following examples of adequate affidavits, although the exemplars are not exclusive, and affidavits that substantially comply with section 18.001 are sufficient:

I am the person in charge of the records of (PERSON WHO PROVIDED THE SERVICE)....

The attached records are kept by me in the regular course of business. The information contained in the records was transmitted to me in the regular course of business by (PERSON WHO PROVIDED THE SERVICE) or an employee or representative of (PERSON WHO PROVIDED THE SERVICE) who had personal knowledge of the information. The records were made at or near the time or reasonably soon after the time that the service was provided. The records are the original or an exact duplicate of the original.

The service provided was necessary and the amount charged for the service was reasonable at the time and place that the service was provided.

TEX. CIV. PRAC. & REM. CODE § 18.002(b) (emphasis added). Another form states:

I am a custodian of records for ____________. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that ____________ provided to __________ on _____....

The attached records are kept by ____________ in the regular course of business, and it was the regular course of business of ____________ for an employee or representative of ____________, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

Id. § 18.002(b–1) (emphasis added).

End of Document
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