Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright)
(HCLC med-mal gross negligence damages, contributory negligence, trifurcation)
Two elements comprise gross negligence. First, viewed objectively from the actor’s standpoint, the act or
omission complained of must depart from the ordinary standard of care to such an extent that it creates an
extreme degree of risk of harming others. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784-86 (Tex.
2001); Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex. 1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d
10, 21-22 (Tex. 1994); see also Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993)
(holding that gross negligence must involve an “objectively higher risk than ordinary negligence”). “Extreme
risk” is not “a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of
serious injury to the plaintiff.” Moriel, 879 S.W.2d at 22 (quoting Alexander, 868 S.W.2d at 327); see also
Harrison, 70 S.W.3d at 785. And the risk must be examined prospectively from the perspective of the actor,
not in hindsight. Moriel, 879 S.W.2d at 23. Second, the actor must have actual, subjective awareness of the
risk involved and choose to proceed in conscious indifference to the rights, safety, or welfare of others.
Harrison, 70 S.W.3d at 785; Ung, 904 S.W.2d at 641; Moriel, 879 S.W.2d at 23.
Gross negligence must be proven by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code § 41.003
(a)(3); see Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (noting that “whenever the standard
of proof at trial is elevated, the standard of appellate review must likewise be elevated”). Because of this
heightened burden of proof, we apply a heightened standard of review: