Phillips MD v. Bramlett, No. 07-0522 (Tex. Mar. 6, 2009)(Medina)(insurance law, Stowers doctrine,
liability cap)
BENNY P. PHILLIPS, M.D. v. DALE BRAMLETT, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRAPTOR OF
THE ESTATE OF VICKI BRAMLETT, DECEASED, SHANE FULLER AND MICHAEL FULLER; from Lubbock
County; 7th district (07-05-00456-CV, 258 SW3d 158, 03-19-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Medina delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Johnson,
and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Hecht, and Justice Green
joined.
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Benny P. Phillips, M.D. v. Bramlett (Tex. 2009)
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Argued April 22, 2008
Justice Medina delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Johnson,
and Justice Willett joined.
Justice O’Neill filed a dissenting opinion, in which Chief Justice Jefferson, Justice Hecht, and Justice Green
joined.
We granted the petition for review in this case to consider the relationship between two provisions of the Medical
Liability and Insurance Improvement Act of 1977, now repealed. See Tex. Rev. Civ. Stat. art. 4590i.[1] The first
provision caps the liability of physicians (and other health care providers) above a fixed amount, adjusted for
inflation, while the second creates an exception to this cap when the physician’s insurer has negligently failed to
settle within the meaning of the Stowers Doctrine, that is, has negligently failed to settle a claim within the limits
of the physician’s liability policy.
The trial court here applied the Stowers exception to permit the rendition of a judgment against the physician in
excess of the statutory cap. The court of appeals, in a divided decision, affirmed, concluding that the excess
judgment was permissible because there was evidence that the insurer negligently failed to settle the claim
against its insured, the physician. 258 S.W.3d 158. In other words, the court concluded that the statutory
Stowers exception waived the liability cap for both the insurer and the insured physician. We disagree that this
exception applies to the physician and accordingly reverse the court of appeals’ judgment and remand the case
to the trial court.
* * *
In summary, we conclude that the Stowers exception of article 4590i, section 11.02(c), expressly applies to
insurers only and does not waive the liability cap of section 11.02(a) generally. We further conclude that any
probable harm caused by the asserted improper remarks in this case could have been cured by an instruction
or retraction. No ruling, however, was requested or obtained, and the party’s objection was not alone sufficient
to preserve the alleged error.
The court of appeals’ judgment is reversed and the cause is remanded to the trial court for it to apply the cap
and render judgment consistent with our opinion.
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OPINION BELOW: Benny P. Phillips, M.D. v. Bramlett, No. 07-05-00456-CV, 258 SW3d 158, (Tex.App. -
Amarillo, March 19, 2007, pet. granted)
We suggest a remittitur in the amount of $220,000 as to both Shane and Michael on the issue of future
pecuniary loss. If within 30 days of the date of this opinion, Shane and Michael make a remittitur of that amount,
our judgment reforming the trial court's judgment to reduce Shane and Michael's damages in the sum of
$220,000 will issue. If Shane and Michael do not accept the remittitur, we will reverse the trial court judgment,
except that portion herein rendered, and remand the cause for a new trial. Tex. R. App. P. 46.3 If remittitur is
made as suggested above, the judgment of the trial court will be reformed to so reflect. In all other respects, we
affirm the judgment of the trial court.