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CAUSE NO. DC-16-07257
ANGELINA ARREDONDO, Individually and IN THE 44th JUDICIAL
as Representative of the Estate of
DANIEL CANALES ARREDONDO, Deceased,
and Next Friend of LEIA ARREDONDO,
Individually Plaintiffs;
ve DISTRICT COURT OF
JOHN TIMOTHY TRACY, M.D.; BAYLOR
ALL SAINTS MEDICAL CENTER d/b/a
BAYLOR SCOTT & WHITE ALL SAINTS
MEDICAL CENTER - FORT WORTH;
BAYLOR HEALTH CARE SYSTEM d/ba
BAYLOR SCOTT & WHITE HEALTH,
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Defendants §
DALLAS COUNTY, TEXAS
PLAINTIFFS’ RESPONSE TO THE COURT’S CHARGE OF THE COURT
DISTRIBUTED OCTOBER 10, 2019
TO THE HONORABLE JUDGE OF SAID COURT:
Pursuant to the Court’s request, Plaintiffs, Angelina Arredondo, Individually and as
Representative of the Estate of Daniel Canales Arredondo, deceased, and as Next Friend of Leia
Arredondo, Individually, and on behalf of all heirs and statutory beneficiaries (including but not
limited to Victoria Lopez), and submit these comments to the Court’s Charge of the Court distributed
to counsel on October 10, 2019, to be considered in the informal charge conference.
I.
RESPONSE TO COURT’S DEFINITIONS/INSTRUCTIONS SECTION
(Contained on Pages 3-4 of the Charge of the Court)
A. Inconsistent/Incomplete Reference to Shortened Names for Defendants.
Charge of the Court, page 3, defines shortened names for the Hospital and System
Defendants. However, the Charge does not consistently utilize the defined shortened names
throughout the Charge. Further, the Charge does not include a shortened for the Physician Defendant,
but it nevertheless refers to him by a shortened name within the Charge.Plaintiffs have submitted a proposed Charge that utilizes the full names of each Defendant.
Plaintiffs submit that shortened names are not preferred or necessary, and the full name of each
Defendant should be utilized throughout the Charge. If shortened names are utilized, however,
Plaintiffs request that they be accurately defined for each Defendant and consistently utilized to
avoid confusion.
B. Erroneous Definition of the System Defendant as a "Hospital."
Charge of the Court, pages 3-4, erroneously references the System Defendant as a "hospital."
Specifically, the "Negligence," "Ordinary Care," and "Proximate Cause" definitions include both the
System and Hospital Defendants within the same definition and erroneously refer to them
collectively as "hospital." Defendant, Baylor Health Care System d/b/a Baylor Scott & White Health,
is not a hospital and should not be identified as such. Doing so misstates the definitions, applicable
standards, and serves to confuse the jury.
The appropriate term should be utilized to describe each health care entity defendant. Texas
Pattern Jury Charges- Malpractice, Premises & Products, PIC 50.2, Comment - Substitute
Particular Health Care Provider (2018). The PJC states: "The appropriate term to describe the
particular health care facility should be substituted for the word hospital." Id. (emphasis in original).
Accordingly, the term "hospital system" should be utilized to describe Defendant, Baylor Health
Care System d/b/a Baylor Scott & White Health. A definition of "Negligence," "Ordinary Care," and
"Proximate Cause" should be provided for each Defendant, not collectively, and utilizing the
appropriate descriptive term, and not an incorrect term.
Cc. Erroneous Definition of "Occurrence; Use of "Injury" versus "Occurrence."
The Charge of the Court utilizes the term "Occurrence" instead of "Injury." Page 4 of the
Charge defines Occurrence, stating: "Occurrence in Question" "means the date of death of Daniel
Arredondo on January 19,2016." Such definition is erroneously restrictive and inaccurate. The TexasPattern Jury Charge does not provide that a definition of "Injury" or "Occurrence" be given the jury.
If a definition of "Injury" or "Occurrence" is utilized in the Charge, it should correspond to and
accurately reflect all claims in the case, and make sense if substituted for the term "Occurrence in
Question" as it appears within the Charge.
This case encompasses both Wrongful Death and Survival claims. A Survival claim involves
injuries and damages proximately caused by a defendant prior to and including death. TEX. Civ.
PRAC. & REM. CODE § 71.021(a); See PJC 82.3, Survival Damages. For example, Charge of the
Court, Question 5 [sic], page 15, reflects the language PJC 82.3 regarding Survival Damages. The
Charge’s definition of "Occurrence in question" does not make sense when substituted for the term
it is meant to represent in the Question, which would read:
"1."Pain and mental anguish" means the conscious physical pain and emotional pain,
torment, and suffering experienced by Daniel Arredondo before his death as a result
of the date of death of Daniel Arredondo on January 19, 2016."
Likewise, Subsection 2 would read:
"2. "Medical expenses" means the reasonable expense of the necessary medical and
hospital care received by DANIEL CANALES ARREDONDO for treatment of
injuries sustained by him as a result of the date of death of Daniel Arredondo on
January 19, 2016."
"Occurrence" is typically meant to reference an event or series of events, while the term
"Injury" is meant to encompass death. See PJC 51.1. Further, under the Wrongful Death statute, a
defendant’s liability is predicated on "arising from injury that causes an individual's death." TEx.
CIv. PRAC. & REM. CODE § 71.002(a); See PIC 51.3, 51.18C/E, Comment - Substitution of "Death"
(2018). Thus, it is not accurate to define "Occurrence" at "the date of death." The Defendants’
negligence was a proximate cause of death, but the negligence occurred prior to the date of death.
Further, the damages includes injuries prior to death, and the wrongful death claim arise frominjuries that cause death.
D. Improper Instruction Regarding Baird’s Operation Relative to Jones and Tracy.
The Charge of the Court, page 4, provides the following instruction: "You are instructed that
Mr. Baird was operating under the license of Dr. Jones and not under the license, or legal supervision
of Dr. Tracy." The instruction is erroneous in several regards and should not be submitted. No party
requested the instruction in their proposed Jury Charges. No support for such instruction is provided
by the Texas Pattern Jury Charge or case authority. It is legally and factually incorrect and not
supported by evidence. Dr. Jones and Mr. Baird are not defendants, their names are not submitted
in the Charge, and there is no claim nor jury submission that Dr. Tracy is vicarious liability for Mr.
Baird or any other person. See eg PJC 50.2, Comment (providing explanatory instruction where
vicarious liability is asserted in the charge for some persons, but not others). The claim against Dr.
Tracy is direct liability for his own negligence. Accordingly, this instruction does not assist the jury
in deliberations, the jury questions do not rely on it, does not accurately state the law, not supported
by pleadings and evidence, and imposes a greater burden than the law requires; serves to confuse and
mislead the jury and comment on the weight of evidence. TEX. R. CIv. P. 277, 278.
E. Improper Instruction of "Unavoidable Occurrence."
The Charge of the Court, page 4, provides the following instruction: "An occurrence may be
an "unavoidable occurrence," that is, an event not proximately caused by the negligence of any party
to the occurrence." This inferential rebuttal instruction is not raised by the evidence and should not
be submitted. An unavoidable accident instruction is proper only when there is evidence that the
event was proximately caused by a nonhuman condition and not by the negligence of any party to
the event. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992). The instruction is
ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick
2-pavement, or obstruction of view. Jd. The instruction may also be proper when there is evidence
indicating that a very young child, legally incapable of negligence, was the only human cause of the
accident. Jd. When there is no evidence that the accident was caused by some such peculiar
circumstance, submission of the instruction is generally improper. Jd.
Il.
RESPONSE TO OSTENSIBLE AGENCY QUESTIONS
(Contained on Pages 5-6 of the Charge of the Court)
The Charge of the Court submits four jury questions regarding ostensible agency: (1) Dr.
Tracy as the ostensible agent of the Hospital; (2) Dr. Tracy as the ostensible agent of the System; (3)
Brendan Baird, PA as the ostensible agent of the Hospital; and (4) Brendan Baird, PA as ostensible
agent of the System. The parties did not submit questions of ostensible agency in their proposed Jury
Charges. Plaintiffs do not claim the proposed ostensible agency relationships.
Ul.
RESPONSE TO QUESTION NUMBERS 1-5 [sic]
(Contained on Pages 7-15 of the Charge of the Court)
A. Omission of Non-Emergency / Emergency Medical Care Questions, Definitions, and
Instructions.
The Charge of the Court submits two liability questions— Negligence (Question 1, page 7)
and Willful and Wanton Negligence (Question 3, page 9), without accompanying definitions,
instructions, or questions regarding "non-emergency medical care" and "emergency medical care."
The evidence in this case demonstrates that "non-emergency medical care" was provided to
Daniel Arredondo in the emergency department of Baylor All Saints Medical Center on January 16,
2016. It is Plaintiffs’ position that the evidence demonstrates that "emergency medical care" was not
provided. Accordingly, it is correct to submit solely a Negligence Question. See Texas Pattern Jury
Charges- Malpractice, Premises & Products, PJC 51.3, 51.18E, Comment - When to Use.Nevertheless, Texas Pattern Jury Charge 51.18E states that if the evidence shows that both
"non-emergency medical care" and "emergency medical care" were provided in a hospital emergency
department, then two liability questions are appropriate-- Negligence; Willful and Wanton
Negligence. PJC 51.18E, Comment- When to Use; If Emergency is Not in Issue. Further, it explains
that if the parties agree that both types of medical care have been provided, then these two liability
questions can be submitted without the accompanying predicate instructions provided in PJC 51.18E.
Id.
In circumstances in which the parties do not agree on whether both "non-emergency medical
care" and "emergency medical care" have been provided in the hospital emergency department, then
the four questions and accompanying definitions and instructions provided in PJC 51.18E are to be
submitted. Jd. In such scenario, the issues of whether "non-emergency medical care" and/or
"emergency medical care" were provided are decided by the jury, and liability questions for
Negligence and/or Willful and Wanton negligence are answered accordingly. Jd. The questions and
instructions, as set out in PJC 51.18E, were submitted in Plaintiffs’ proposed jury charge (operating
under the presumption that the parties do not agree).
Given that the Charge of the Court submits the two liability questions, without the remaining
questions and predicate instructions, are Plaintiffs to understand that the Court has determined that
both types of medical care were provided, instead of submitting these inquiries to the jury? A copy
of PJC 51.18E is attached for the Court’s review.
As part of an oral directed verdict, Defendants provided the Court with a case analyzing
whether the conduct of the hospital nursing staff satisfied the elements of willful and wanton
negligence sufficient to find the hospital liable. That issue is separate from the jury charge
submission, and Plaintiffs will address same in a separate Trial Brief.
4.B. Submission of Two Proportionate Responsibility Questions.
The Charge of the Court submits a Proportionate Responsibility Question following each of
the liability questions (Question 2, page 8) and Willful and Wanton Negligence (Question 4, page
10). A concern with submission of two proportionate responsibility questions is that each such
question may return differing percentages resulting in conflicting answers and confusion. Which
proportionate responsibility question then determines the allocation of responsibility for the damages
awarded? See TEX. Civ. PRAC. & REM. CODE § 33.013 (defendant is liable to a claimant for the
percentage of damages equal to that defendant’s percentage of responsibility with respect to the
personal injury, death, or other harm for which damages are allowed).
Texas Civil Practice and Remedies Code section 33.003 provides:
"The trier of fact, as to each cause of action asserted, shall determine the percentage
of responsibility, stated in whole numbers, for the following persons with respect to
each person’s causing or contributing to cause in any way the harm for which
recovery of damages is sought, whether by negligent act or omission, by any
dangerous product, by other conduct or activity that violates an applicable legal
standard, or by any combination of these."
TEX. CIV. PRAC. & REM. CODE § 33.003(a).
Cc. Erroneous Instruction Included in Wrongful Death Damages Questions,
The Charge of the Court appropriately submits wrongful death damages questions for
Angelina Arredondo (labeled Question 3 [sic], page 11-12) and Leia Arredondo (labeled Question
4 [sic], page 13-14), but includes an erroneous instruction in each. The third paragraph for each of
these Questions states:
"Do not reduce the amounts, if any, in your answers because of the negligence, ifany,
of Daniel Arredondo. Any recovery will be determined by the Court when it applies
the law to your answers at the time of judgment."
This instruction should be omitted if there is no claim of the decedent’s negligence. Texas PatternJury Charges- Malpractice, Premises & Products, PJC 81.3, Comment - Instruction not to reduce
amounts because of decedent’s negligence (2018). Defendants did not plead a claim of Daniel
Arredondo’s negligence and no such evidence has been submitted.
D. Damages Questions are Conditioned Only on Negligence Question.
The Charge of the Court submits Wrongful Death damages questions for Angelina Arredondo
(labeled Question 3 [sic], page 11-12), Leia Arredondo (labeled Question 4 [sic], page 13-14), and
Survival damages question for Daniel Arredondo (labeled Question 5 [sic], pagel5). The
Conditioning Instruction for each of these Questions is conditioned on Question 1 (Negligence
liability Question). Plaintiffs would be entitled to damages if the jury finds liability pursuant to
Question 3 (Willful and Wanton Negligence, page 9). The conditioning instructions for the damages
questions should reference both liability questions.
E. Omission of Damages Cautionary Instructions,
The Charge of the Court does not contain the damages cautionary instruction recommended
by Texas Pattern Jury Charge 81.7 and submitted by Plaintiffs in their proposed Jury Charge. PJC
81.7 provides:
"Do not consider, discuss, or speculate whether any party is or is not subject to any
damages limit under applicable law."
The Comment states that the instruction is required by the Texas Civil Practice and Remedies
Code in any action on a healthcare liability claim. PJC 81.7, Comment - When to Use, citing TEX.
Civ. PRAC. & REM. CODE § 74.303(e). The Comment also states that the parties can agree to waive
the submission. /d., citing TEX. R. Civ. P. 279.Respectfully submitted,
FRIEND & ASSOCIATES, L.L.P.
By st Gail Faiewnd _
Gail N. Friend
State Bar No. 07474700
Staci Bouthillette
State Bar No. 00791499
1010 Lamar Street, Suite 1010
Houston, Texas 77002
(713) 650-0024 Telephone
(713) 650-7100 Facsimile
COUNSEL FOR PLAINTIFFS
CERTIFICATE OF SERVICE
On this 13" day of October, 2019, a true and correct copy of the above and foregoing
pleading has been provided to all parties having appeared in this case through their attorney of
record, via electronic service through the Court, which was reported as complete, facsimile, or hand
delivery as required by TEX. R. Civ. P. 21 and 21a.
By /s/ Gail Qriend
ce: Stan Thiebaud, Counsel for Baylor Defendants
Ty Bailey Counsel for Dr. Tracy, Defendant
-7-\IEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY PIC 51.18
PIC 51.18E When Both Nonemergency Care and Emergency Care
(Statutory) Occur in a Hospital Emergency Department
or Obstetrical Unit or in a Surgical Suite Immediately
Following the Evaluation or Treatment of a Patient in a
Hospital Emergency Department
~LESTION |
Was “nonemergency medical care” provided by Dixon Hospital in the
.nergency department] [obstetrical unit] [surgical suite immediately follow-
= the evaluation or treatment in the hospital emergency department]?
~Nonemergency medical care” is medical care or treatment that is not “emer-
cy medical care,”
mergency medical care” means bona fide emergency services provided
the sudden onset of a medical or traumatic condition manifesting itself by
symptoms of sufficient severity, including severe pain, such that the
sosence of immediate medical attention could reasonably be expected to result
cing the patient’s health in serious jeopardy, serious impairment to bodily
stions, or serious dysfunction of any bodily organ or part. The term does not
de medical care or treatment that occurs after the patient is stabilized and
> capable of receiving medical treatment as a nonemergency patient or that is
elated to the original medical emergency.
Answer “Yes” or “No.”
-\Answer:
2CESTION 2
Was “emergency medical care” provided by Dixon Hospital in the [emer-
e.ney department] [obstetrical unit] [surgical suite immediately following the
:. uluation or treatment in the hospital emergency department]?
“Emergency medical care” means bona fide emergency services provided
r the sudden onset of a medical or traumatic condition manifesting itself by
e symptoms of sufficient severity, including severe pain, such that the
2osence of immediate medical attention could reasonably be expected to result
> placing the patient’s health in serious jeopardy, serious impairment to bodily
*.netions, or serious dysfunction of any bodily organ or part. The term does not
elude medical care or treatment that occurs after the patient is stabilized and
105
EXHIBIT
TsPIC 51.18 MEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY
is capable of receiving medical treatment as a nonemergency patient or that is
unrelated to the original medical emergency.
Answer “Yes” or “No.”
Answer:
If you answered “Yes” to Question 1 [question establishing the provision of
“nonemergency medical care”), then answer the following question. Other-
wise, do not answer the following question,
QUESTION 3
"Did the negligence, if any, involving “nonemergency medical care” of Dixo:
Hospital proximately cause the [injury] [occurrence] in question?
Answer “Yes” or “No.”
Answer:
If you answered “Yes” to Question 2 [question establishing the provision o7
“emergency medical care”’], then answer the following question. Otherwise, de
not answer the following question.
QUESTION 4
Did the willful and wanton negligence, if any, involving “emergency medi-
cal care” of Dixon Hospital proximately cause the [injury] [occurrence] ir.
question?
“Willful and wanton negligence” means an act or omission—
1. which when viewed objectively from the standpoint of the actor at
the time of its occurrence involves an extreme degree of risk, considering the
probability and magnitude of the potential harm to others; and
2. of which the actor has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to the
rights, safety, or welfare of others.
In answering this question, you shall consider, together with all relevant fac-
tors—
1. whether the person providing care did or did not have the patient's
medical history or was able or unable to obtain a full medical history, includ-
ing the knowledge of preexisting medical conditions, allergies, and medica-
tions;
106=
i
:
:
-{£DICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY PIC 51.18
2. the presence or lack of a preexisting physician-patient relationship
r health care provider—patient relationship;
3. the circumstances constituting the emergency; and
4, the circumstances surrounding the delivery of the emergency medi-
other acts or omissions of “emergency medical care” in that same location.
This situation often arises when there are allegations that the hospital’s provision of
emergency medical care” in a hospital emergency department or obstetrical unit or in
irgical suite immediately following the evaluation or treatment of a patient in a hos-
ual emergency department falls below the standard of care and there are also allega-
ons that the hospital’s provision of “nonemergency medical care” in a hospital
ergency department or obstetrical unit or in a surgical suite immediately following
evaluation or treatment of a patient in a hospital emergency department falls below
standard of care.
Gross negligence. If gross negligence will be charged to the jury, it must be
ensured, through predicate instructions or separate questions, that the jury answers any
ross negligence question only as to those questions for which the jury unanimously
answered “Yes” regarding negligence or willful and wanton negligence.
Use of “injury” or “occurrence.” See PJC 51.1.
Source of definition. Willful and wanton negligence found in Tex. Civ. Prac. &
Rem. Code § 74.153 means gross negligence for trial purposes. Turner v. Franklin,
325 S.W.3d 771, 780-81 & n.12 (Tex. App.—Dallas 2010, pet. denied) (concluding
that the willful and wanton standard required at trial is a gross negligence standard
even when the trial is in the form of a summary judgment hearing); see also Christus
Health Southeast Texas v. Licatino, 352 S.W.3d 556, 557, 562-63 (Tex. App.—Beau-
mont 2011, no pet.) (“plaintiff must prove an extreme degree of negligence”; evidence
107PIC 51.18 MEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY
of “an entire want of care” and behavior that “supports an inference that the nurses
consciously disregarded their patient’s welfare” is necessary to find willful and wan-
ton negligence). But cf: Benish v. Grottie, 281 S.W.3d 184, 192 (Tex. App.—Fort
Worth 2009, pet. denied) (declining to equate willful and wanton negligence with
gross negligence when evaluating the sufficiency of chapter 74 preliminary expert
reports).
If emergency is not in issue. PJC 51.18E assumes the parties will not agree on
whether both “nonemergency medical care” and “emergency medical care” have been
provided in the hospital emergency department or obstetrical unit or in a surgical suite
immediately following the evaluation or treatment of a patient in a hospital emergencs
department. If, however, the parties agree that both types of medical care have been
provided, then only Questions 3 and 4, without the accompanying predicate instruc-
tions, should be submitted.
When to omit jury instructions. Jury instructions 1-4 in Question 4 should not
be used if the medical care or treatment is related to an emergency caused in whole or
in part by the negligence of the defendant. Tex. Civ. Prac. & Rem. Code
§ 74.154(b)(3).
a sina
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CAUSE NO. DC-16-07257 ANGELINA ARREDONDO, Individually and IN THE 44th JUDICIAL as Representative of the Estate of DANIEL CANALES ARREDONDO, Deceased, and Next Friend of LEIA ARREDONDO, Individually Plaintiffs; ve DISTRICT COURT OF JOHN TIMOTHY TRACY, M.D.; BAYLOR ALL SAINTS MEDICAL CENTER d/b/a BAYLOR SCOTT & WHITE ALL SAINTS MEDICAL CENTER - FORT WORTH; BAYLOR HEALTH CARE SYSTEM d/ba BAYLOR SCOTT & WHITE HEALTH, § § § § § § § § § § § § § § Defendants § DALLAS COUNTY, TEXAS PLAINTIFFS’ RESPONSE TO THE COURT’S CHARGE OF THE COURT DISTRIBUTED OCTOBER 10, 2019 TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to the Court’s request, Plaintiffs, Angelina Arredondo, Individually and as Representative of the Estate of Daniel Canales Arredondo, deceased, and as Next Friend of Leia Arredondo, Individually, and on behalf of all heirs and statutory beneficiaries (including but not limited to Victoria Lopez), and submit these comments to the Court’s Charge of the Court distributed to counsel on October 10, 2019, to be considered in the informal charge conference. I. RESPONSE TO COURT’S DEFINITIONS/INSTRUCTIONS SECTION (Contained on Pages 3-4 of the Charge of the Court) A. Inconsistent/Incomplete Reference to Shortened Names for Defendants. Charge of the Court, page 3, defines shortened names for the Hospital and System Defendants. However, the Charge does not consistently utilize the defined shortened names throughout the Charge. Further, the Charge does not include a shortened for the Physician Defendant, but it nevertheless refers to him by a shortened name within the Charge.Plaintiffs have submitted a proposed Charge that utilizes the full names of each Defendant. Plaintiffs submit that shortened names are not preferred or necessary, and the full name of each Defendant should be utilized throughout the Charge. If shortened names are utilized, however, Plaintiffs request that they be accurately defined for each Defendant and consistently utilized to avoid confusion. B. Erroneous Definition of the System Defendant as a "Hospital." Charge of the Court, pages 3-4, erroneously references the System Defendant as a "hospital." Specifically, the "Negligence," "Ordinary Care," and "Proximate Cause" definitions include both the System and Hospital Defendants within the same definition and erroneously refer to them collectively as "hospital." Defendant, Baylor Health Care System d/b/a Baylor Scott & White Health, is not a hospital and should not be identified as such. Doing so misstates the definitions, applicable standards, and serves to confuse the jury. The appropriate term should be utilized to describe each health care entity defendant. Texas Pattern Jury Charges- Malpractice, Premises & Products, PIC 50.2, Comment - Substitute Particular Health Care Provider (2018). The PJC states: "The appropriate term to describe the particular health care facility should be substituted for the word hospital." Id. (emphasis in original). Accordingly, the term "hospital system" should be utilized to describe Defendant, Baylor Health Care System d/b/a Baylor Scott & White Health. A definition of "Negligence," "Ordinary Care," and "Proximate Cause" should be provided for each Defendant, not collectively, and utilizing the appropriate descriptive term, and not an incorrect term. Cc. Erroneous Definition of "Occurrence; Use of "Injury" versus "Occurrence." The Charge of the Court utilizes the term "Occurrence" instead of "Injury." Page 4 of the Charge defines Occurrence, stating: "Occurrence in Question" "means the date of death of Daniel Arredondo on January 19,2016." Such definition is erroneously restrictive and inaccurate. The TexasPattern Jury Charge does not provide that a definition of "Injury" or "Occurrence" be given the jury. If a definition of "Injury" or "Occurrence" is utilized in the Charge, it should correspond to and accurately reflect all claims in the case, and make sense if substituted for the term "Occurrence in Question" as it appears within the Charge. This case encompasses both Wrongful Death and Survival claims. A Survival claim involves injuries and damages proximately caused by a defendant prior to and including death. TEX. Civ. PRAC. & REM. CODE § 71.021(a); See PJC 82.3, Survival Damages. For example, Charge of the Court, Question 5 [sic], page 15, reflects the language PJC 82.3 regarding Survival Damages. The Charge’s definition of "Occurrence in question" does not make sense when substituted for the term it is meant to represent in the Question, which would read: "1."Pain and mental anguish" means the conscious physical pain and emotional pain, torment, and suffering experienced by Daniel Arredondo before his death as a result of the date of death of Daniel Arredondo on January 19, 2016." Likewise, Subsection 2 would read: "2. "Medical expenses" means the reasonable expense of the necessary medical and hospital care received by DANIEL CANALES ARREDONDO for treatment of injuries sustained by him as a result of the date of death of Daniel Arredondo on January 19, 2016." "Occurrence" is typically meant to reference an event or series of events, while the term "Injury" is meant to encompass death. See PJC 51.1. Further, under the Wrongful Death statute, a defendant’s liability is predicated on "arising from injury that causes an individual's death." TEx. CIv. PRAC. & REM. CODE § 71.002(a); See PIC 51.3, 51.18C/E, Comment - Substitution of "Death" (2018). Thus, it is not accurate to define "Occurrence" at "the date of death." The Defendants’ negligence was a proximate cause of death, but the negligence occurred prior to the date of death. Further, the damages includes injuries prior to death, and the wrongful death claim arise frominjuries that cause death. D. Improper Instruction Regarding Baird’s Operation Relative to Jones and Tracy. The Charge of the Court, page 4, provides the following instruction: "You are instructed that Mr. Baird was operating under the license of Dr. Jones and not under the license, or legal supervision of Dr. Tracy." The instruction is erroneous in several regards and should not be submitted. No party requested the instruction in their proposed Jury Charges. No support for such instruction is provided by the Texas Pattern Jury Charge or case authority. It is legally and factually incorrect and not supported by evidence. Dr. Jones and Mr. Baird are not defendants, their names are not submitted in the Charge, and there is no claim nor jury submission that Dr. Tracy is vicarious liability for Mr. Baird or any other person. See eg PJC 50.2, Comment (providing explanatory instruction where vicarious liability is asserted in the charge for some persons, but not others). The claim against Dr. Tracy is direct liability for his own negligence. Accordingly, this instruction does not assist the jury in deliberations, the jury questions do not rely on it, does not accurately state the law, not supported by pleadings and evidence, and imposes a greater burden than the law requires; serves to confuse and mislead the jury and comment on the weight of evidence. TEX. R. CIv. P. 277, 278. E. Improper Instruction of "Unavoidable Occurrence." The Charge of the Court, page 4, provides the following instruction: "An occurrence may be an "unavoidable occurrence," that is, an event not proximately caused by the negligence of any party to the occurrence." This inferential rebuttal instruction is not raised by the evidence and should not be submitted. An unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex. 1992). The instruction is ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick 2-pavement, or obstruction of view. Jd. The instruction may also be proper when there is evidence indicating that a very young child, legally incapable of negligence, was the only human cause of the accident. Jd. When there is no evidence that the accident was caused by some such peculiar circumstance, submission of the instruction is generally improper. Jd. Il. RESPONSE TO OSTENSIBLE AGENCY QUESTIONS (Contained on Pages 5-6 of the Charge of the Court) The Charge of the Court submits four jury questions regarding ostensible agency: (1) Dr. Tracy as the ostensible agent of the Hospital; (2) Dr. Tracy as the ostensible agent of the System; (3) Brendan Baird, PA as the ostensible agent of the Hospital; and (4) Brendan Baird, PA as ostensible agent of the System. The parties did not submit questions of ostensible agency in their proposed Jury Charges. Plaintiffs do not claim the proposed ostensible agency relationships. Ul. RESPONSE TO QUESTION NUMBERS 1-5 [sic] (Contained on Pages 7-15 of the Charge of the Court) A. Omission of Non-Emergency / Emergency Medical Care Questions, Definitions, and Instructions. The Charge of the Court submits two liability questions— Negligence (Question 1, page 7) and Willful and Wanton Negligence (Question 3, page 9), without accompanying definitions, instructions, or questions regarding "non-emergency medical care" and "emergency medical care." The evidence in this case demonstrates that "non-emergency medical care" was provided to Daniel Arredondo in the emergency department of Baylor All Saints Medical Center on January 16, 2016. It is Plaintiffs’ position that the evidence demonstrates that "emergency medical care" was not provided. Accordingly, it is correct to submit solely a Negligence Question. See Texas Pattern Jury Charges- Malpractice, Premises & Products, PJC 51.3, 51.18E, Comment - When to Use.Nevertheless, Texas Pattern Jury Charge 51.18E states that if the evidence shows that both "non-emergency medical care" and "emergency medical care" were provided in a hospital emergency department, then two liability questions are appropriate-- Negligence; Willful and Wanton Negligence. PJC 51.18E, Comment- When to Use; If Emergency is Not in Issue. Further, it explains that if the parties agree that both types of medical care have been provided, then these two liability questions can be submitted without the accompanying predicate instructions provided in PJC 51.18E. Id. In circumstances in which the parties do not agree on whether both "non-emergency medical care" and "emergency medical care" have been provided in the hospital emergency department, then the four questions and accompanying definitions and instructions provided in PJC 51.18E are to be submitted. Jd. In such scenario, the issues of whether "non-emergency medical care" and/or "emergency medical care" were provided are decided by the jury, and liability questions for Negligence and/or Willful and Wanton negligence are answered accordingly. Jd. The questions and instructions, as set out in PJC 51.18E, were submitted in Plaintiffs’ proposed jury charge (operating under the presumption that the parties do not agree). Given that the Charge of the Court submits the two liability questions, without the remaining questions and predicate instructions, are Plaintiffs to understand that the Court has determined that both types of medical care were provided, instead of submitting these inquiries to the jury? A copy of PJC 51.18E is attached for the Court’s review. As part of an oral directed verdict, Defendants provided the Court with a case analyzing whether the conduct of the hospital nursing staff satisfied the elements of willful and wanton negligence sufficient to find the hospital liable. That issue is separate from the jury charge submission, and Plaintiffs will address same in a separate Trial Brief. 4.B. Submission of Two Proportionate Responsibility Questions. The Charge of the Court submits a Proportionate Responsibility Question following each of the liability questions (Question 2, page 8) and Willful and Wanton Negligence (Question 4, page 10). A concern with submission of two proportionate responsibility questions is that each such question may return differing percentages resulting in conflicting answers and confusion. Which proportionate responsibility question then determines the allocation of responsibility for the damages awarded? See TEX. Civ. PRAC. & REM. CODE § 33.013 (defendant is liable to a claimant for the percentage of damages equal to that defendant’s percentage of responsibility with respect to the personal injury, death, or other harm for which damages are allowed). Texas Civil Practice and Remedies Code section 33.003 provides: "The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these." TEX. CIV. PRAC. & REM. CODE § 33.003(a). Cc. Erroneous Instruction Included in Wrongful Death Damages Questions, The Charge of the Court appropriately submits wrongful death damages questions for Angelina Arredondo (labeled Question 3 [sic], page 11-12) and Leia Arredondo (labeled Question 4 [sic], page 13-14), but includes an erroneous instruction in each. The third paragraph for each of these Questions states: "Do not reduce the amounts, if any, in your answers because of the negligence, ifany, of Daniel Arredondo. Any recovery will be determined by the Court when it applies the law to your answers at the time of judgment." This instruction should be omitted if there is no claim of the decedent’s negligence. Texas PatternJury Charges- Malpractice, Premises & Products, PJC 81.3, Comment - Instruction not to reduce amounts because of decedent’s negligence (2018). Defendants did not plead a claim of Daniel Arredondo’s negligence and no such evidence has been submitted. D. Damages Questions are Conditioned Only on Negligence Question. The Charge of the Court submits Wrongful Death damages questions for Angelina Arredondo (labeled Question 3 [sic], page 11-12), Leia Arredondo (labeled Question 4 [sic], page 13-14), and Survival damages question for Daniel Arredondo (labeled Question 5 [sic], pagel5). The Conditioning Instruction for each of these Questions is conditioned on Question 1 (Negligence liability Question). Plaintiffs would be entitled to damages if the jury finds liability pursuant to Question 3 (Willful and Wanton Negligence, page 9). The conditioning instructions for the damages questions should reference both liability questions. E. Omission of Damages Cautionary Instructions, The Charge of the Court does not contain the damages cautionary instruction recommended by Texas Pattern Jury Charge 81.7 and submitted by Plaintiffs in their proposed Jury Charge. PJC 81.7 provides: "Do not consider, discuss, or speculate whether any party is or is not subject to any damages limit under applicable law." The Comment states that the instruction is required by the Texas Civil Practice and Remedies Code in any action on a healthcare liability claim. PJC 81.7, Comment - When to Use, citing TEX. Civ. PRAC. & REM. CODE § 74.303(e). The Comment also states that the parties can agree to waive the submission. /d., citing TEX. R. Civ. P. 279.Respectfully submitted, FRIEND & ASSOCIATES, L.L.P. By st Gail Faiewnd _ Gail N. Friend State Bar No. 07474700 Staci Bouthillette State Bar No. 00791499 1010 Lamar Street, Suite 1010 Houston, Texas 77002 (713) 650-0024 Telephone (713) 650-7100 Facsimile COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE On this 13" day of October, 2019, a true and correct copy of the above and foregoing pleading has been provided to all parties having appeared in this case through their attorney of record, via electronic service through the Court, which was reported as complete, facsimile, or hand delivery as required by TEX. R. Civ. P. 21 and 21a. By /s/ Gail Qriend ce: Stan Thiebaud, Counsel for Baylor Defendants Ty Bailey Counsel for Dr. Tracy, Defendant -7-\IEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY PIC 51.18 PIC 51.18E When Both Nonemergency Care and Emergency Care (Statutory) Occur in a Hospital Emergency Department or Obstetrical Unit or in a Surgical Suite Immediately Following the Evaluation or Treatment of a Patient in a Hospital Emergency Department ~LESTION | Was “nonemergency medical care” provided by Dixon Hospital in the .nergency department] [obstetrical unit] [surgical suite immediately follow- = the evaluation or treatment in the hospital emergency department]? ~Nonemergency medical care” is medical care or treatment that is not “emer- cy medical care,” mergency medical care” means bona fide emergency services provided the sudden onset of a medical or traumatic condition manifesting itself by symptoms of sufficient severity, including severe pain, such that the sosence of immediate medical attention could reasonably be expected to result cing the patient’s health in serious jeopardy, serious impairment to bodily stions, or serious dysfunction of any bodily organ or part. The term does not de medical care or treatment that occurs after the patient is stabilized and > capable of receiving medical treatment as a nonemergency patient or that is elated to the original medical emergency. Answer “Yes” or “No.” -\Answer: 2CESTION 2 Was “emergency medical care” provided by Dixon Hospital in the [emer- e.ney department] [obstetrical unit] [surgical suite immediately following the :. uluation or treatment in the hospital emergency department]? “Emergency medical care” means bona fide emergency services provided r the sudden onset of a medical or traumatic condition manifesting itself by e symptoms of sufficient severity, including severe pain, such that the 2osence of immediate medical attention could reasonably be expected to result > placing the patient’s health in serious jeopardy, serious impairment to bodily *.netions, or serious dysfunction of any bodily organ or part. The term does not elude medical care or treatment that occurs after the patient is stabilized and 105 EXHIBIT TsPIC 51.18 MEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency. Answer “Yes” or “No.” Answer: If you answered “Yes” to Question 1 [question establishing the provision of “nonemergency medical care”), then answer the following question. Other- wise, do not answer the following question, QUESTION 3 "Did the negligence, if any, involving “nonemergency medical care” of Dixo: Hospital proximately cause the [injury] [occurrence] in question? Answer “Yes” or “No.” Answer: If you answered “Yes” to Question 2 [question establishing the provision o7 “emergency medical care”’], then answer the following question. Otherwise, de not answer the following question. QUESTION 4 Did the willful and wanton negligence, if any, involving “emergency medi- cal care” of Dixon Hospital proximately cause the [injury] [occurrence] ir. question? “Willful and wanton negligence” means an act or omission— 1. which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and 2. of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. In answering this question, you shall consider, together with all relevant fac- tors— 1. whether the person providing care did or did not have the patient's medical history or was able or unable to obtain a full medical history, includ- ing the knowledge of preexisting medical conditions, allergies, and medica- tions; 106= i : : -{£DICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY PIC 51.18 2. the presence or lack of a preexisting physician-patient relationship r health care provider—patient relationship; 3. the circumstances constituting the emergency; and 4, the circumstances surrounding the delivery of the emergency medi- other acts or omissions of “emergency medical care” in that same location. This situation often arises when there are allegations that the hospital’s provision of emergency medical care” in a hospital emergency department or obstetrical unit or in irgical suite immediately following the evaluation or treatment of a patient in a hos- ual emergency department falls below the standard of care and there are also allega- ons that the hospital’s provision of “nonemergency medical care” in a hospital ergency department or obstetrical unit or in a surgical suite immediately following evaluation or treatment of a patient in a hospital emergency department falls below standard of care. Gross negligence. If gross negligence will be charged to the jury, it must be ensured, through predicate instructions or separate questions, that the jury answers any ross negligence question only as to those questions for which the jury unanimously answered “Yes” regarding negligence or willful and wanton negligence. Use of “injury” or “occurrence.” See PJC 51.1. Source of definition. Willful and wanton negligence found in Tex. Civ. Prac. & Rem. Code § 74.153 means gross negligence for trial purposes. Turner v. Franklin, 325 S.W.3d 771, 780-81 & n.12 (Tex. App.—Dallas 2010, pet. denied) (concluding that the willful and wanton standard required at trial is a gross negligence standard even when the trial is in the form of a summary judgment hearing); see also Christus Health Southeast Texas v. Licatino, 352 S.W.3d 556, 557, 562-63 (Tex. App.—Beau- mont 2011, no pet.) (“plaintiff must prove an extreme degree of negligence”; evidence 107PIC 51.18 MEDICAL MALPRACTICE—THEORIES OF DIRECT LIABILITY of “an entire want of care” and behavior that “supports an inference that the nurses consciously disregarded their patient’s welfare” is necessary to find willful and wan- ton negligence). But cf: Benish v. Grottie, 281 S.W.3d 184, 192 (Tex. App.—Fort Worth 2009, pet. denied) (declining to equate willful and wanton negligence with gross negligence when evaluating the sufficiency of chapter 74 preliminary expert reports). If emergency is not in issue. PJC 51.18E assumes the parties will not agree on whether both “nonemergency medical care” and “emergency medical care” have been provided in the hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergencs department. If, however, the parties agree that both types of medical care have been provided, then only Questions 3 and 4, without the accompanying predicate instruc- tions, should be submitted. When to omit jury instructions. Jury instructions 1-4 in Question 4 should not be used if the medical care or treatment is related to an emergency caused in whole or in part by the negligence of the defendant. Tex. Civ. Prac. & Rem. Code § 74.154(b)(3). a sina