Columbia Medical Center of Los Colinas v. Hogue,
No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright) (
HCLC, medical malpractice, damages for gross negligence by
hospital affirmed, contributory negligence, loss of inheritance damages, prejudgment interest, construction of the
phrase "subject to appeal")

HOLDING:  There is sufficient evidence to support the jury’s conclusion that Columbia
Medical acted with conscious indifference to an extreme risk of serious injury when it (1)
elected to outsource echo services without a guaranteed response time while providing
emergency services, (2) failed to communicate this limitation to its medical staff so they could
consider other options to treat critical care patients, and (3) delayed obtaining the echo in
spite of the serious risk to Hogue’s health.

We hold that there was insufficient evidence to support the jury’s award of loss of inheritance

from Dallas County; 5th district
(05-03-00279-CV, 132 SW3d 671, 04-13-04)   
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice
Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-D of which Justice Hecht and Justice Green joined.

Justice Brister opposed trifurcation of trial and delivered a concurring opinion, in which Justice Medina joined.
Green would reverse gross negligence damages against hospital and delivered an opinion concurring in
part and dissenting in part, in which Justice Hecht joined.  


Columbia Medical Center of Las Colinas v. Hogue (Tex. 2008)


Argued April 12, 2005

Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O’Neill,
Justice Brister, Justice Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-
D of which Justice Hecht and Justice Green joined.         

Brister filed a concurring opinion, in which Justice Medina joined.

Green filed an opinion concurring in part and dissenting in part,
in which Justice Hecht joined.

This is a medical malpractice case. In this appeal, it is undisputed that the hospital caused Bob Hogue’
s death. The jury made that finding at trial, the hospital does not challenge it in this Court, and the
dissenting justices acknowledge that the evidence supports that finding. The primary issue presented to
this Court is whether sufficient evidence was admitted at trial to support the jury’s finding that the
hospital was also grossly negligent in causing Hogue’s death.

On Monday, March 2, 1998, a seemingly healthy Bob Hogue had dinner with his college-aged sons in
Texas before traveling to Albuquerque, New Mexico for business. One week later, doctors struggled
unsuccessfully to save his life as his organ systems failed. His widow and sons brought this medical
malpractice action against the hospital to which Bob Hogue was initially admitted. The jury found the
hospital negligent and grossly negligent and awarded over $30 million in actual and exemplary
damages. The trial court reduced the exemplary damage award per chapter 41 of the Texas Civil
Practice and Remedies Code. The court of appeals affirmed the trial court’s judgment on exemplary
damages but concluded that the Medical Liability and Insurance Improvement Act capped actual
damages and reduced the total damages award to under $5 million. 132 S.W.3d 671.

The hospital petitioned this Court for review, challenging (1) the trial court’s submission of the patient’s
contributory negligence in an unusual third phase of the trial separate from the general liability question,
(2) the legal sufficiency of the evidence of the defendant’s gross negligence, (3) the legal sufficiency of
the evidence to support loss of inheritance damages, and (4) the application of the pre-2003 version of
the pre- and postjudgment interest statutes to this case. Because the hospital did not present legally
sufficient evidence of contributory negligence, we do not decide whether the unusual submission of the
contributory negligence question was error. We hold that the Hogues presented clear and convincing
evidence on which a jury could reasonably conclude that the hospital was grossly negligent. We also
hold that there is no evidence of loss of inheritance damages, and we conclude that the 2003
amendments to the Texas Finance Code, concerning interest on judgments, do not govern this case.
Therefore, we reverse the loss of inheritance damages, and affirm the remainder of the judgment.

I. Factual and Procedural Background

After dinner with his wife on Thursday, March 5, 1998, Bob Hogue complained that he had an upset
stomach and felt a little dizzy. The next morning, he felt tired. Thinking he might have caught the flu and
may not recover in time for scheduled business travel on Monday, Hogue’s wife Athena suggested he
see a doctor. Dr. Jay Story, who had never before examined Hogue, examined him around noon that
day. Dr. Story diagnosed Hogue with pneumonia and prescribed some medicine. Dr. Story also asked
Hogue to schedule a follow-up appointment for Monday morning before Hogue left town.

Hogue took the medication Dr. Story prescribed, but his symptoms continued through the weekend. On
Sunday evening, Hogue’s wife called Dr. Story’s office, concerned because Hogue coughed up pink-
tinged phlegm. The on-call doctor instructed her to take her husband to the emergency room if his
condition worsened, but otherwise just to return to Dr. Story’s office in the morning. By Monday morning,
Hogue’s condition had worsened. The Hogues traveled to Dr. Story’s office early and requested to see
a doctor immediately. Dr. Story x-rayed Hogue’s chest, advised him that his lungs were infiltrated with
fluid, and dispatched him to Columbia Medical Center of Las Colinas by ambulance. Dr. Story then
called Columbia Medical and alerted the emergency room (ER) doctor, Dr. Gregory Blomquist, that he
was sending over a patient he had diagnosed with pneumonia. Dr. Story advised Dr. Blomquist that he
did not have a medical history for the patient.

Shortly after 9:00 a.m., Dr. Blomquist met the Hogues at the emergency entrance. Hogue was
conscious but was in severe respiratory distress, breathing approximately once every second. Dr.
Blomquist recognized that Hogue was seriously ill. While beginning his physical exam of Hogue, Dr.
Blomquist asked Hogue basic questions about his symptoms and medical history. Hogue replied in the
negative to questions about chest pain, family history, and risk factors for heart disease, such as
smoking, high cholesterol, or high blood pressure. Hogue also “denie[d] any symptoms except
shortness of breath [for the preceding] three days, and a slight cough.” In response to a question about
having previously experienced similar symptoms, Hogue answered, “I’ve always been healthy.” No one
told the health care providers that Hogue had been previously diagnosed with a heart murmur, even
though in September 1996 Hogue reported a history of a heart murmur during a routine physical exam.
His family doctor, Dr. Richard Honaker, had confirmed the existence of a heart murmur and
recommended a follow-up with a cardiologist, which never occurred.

While questioning Hogue, Dr. Blomquist also evaluated his physical condition. Hogue was sweating and
struggling to breathe. He had a blue tint around his mouth, his fingernails, and his other extremities,
indicating that Hogue was not exchanging oxygen well. Dr. Blomquist’s physical exam revealed a
tachycardic (fast) heart rate, occasional skipped heartbeats, and an abnormal, extra heart sound in
each heartbeat, but Dr. Blomquist detected no heart murmur. Dr. Blomquist ordered an
electrocardiogram (EKG) and blood tests designed to identify acute heart injury markers. The results
from these tests were negative.

Within minutes of Hogue’s arrival, Dr. Blomquist called Dr. Timothy Schroeder, a critical care pulmonary
specialist and director of the intensive care unit (ICU) at Columbia Medical. Dr. Schroeder was not at
Columbia Medical because he was seeing patients at another hospital. During the conversation, Drs.
Blomquist and Schroeder agreed that Dr. Blomquist would “stabilize [Hogue] and make sure he was on
a breathing machine, make sure we tried to get his oxygenation up, make sure we got labs set up, those
types of things.” Dr. Blomquist then intubated Hogue and placed him on a ventilator.

By approximately 11:10 a.m., Dr. Blomquist had stabilized Hogue for transfer to the ICU and paged Dr.
Schroeder to inform him. Within a half hour, Dr. Schroeder returned the page and agreed that Hogue
would be admitted to the ICU under Dr. Schroeder’s care. Around 12:30 p.m., Dr. Blomquist transferred
Hogue to the ICU.

Dr. Schroeder arrived in the ICU between 1:10 and 1:30 p.m. and began his evaluation and examination
of Hogue. Dr. Schroeder conducted a number of tests, including one that identified abnormal chest
pressures in Hogue’s pulmonary arteries. Dr. Schroeder contacted cardiologist Dr. John Lawson for
help interpreting some of this data. By the end of the telephone conversation, the doctors decided that a
consult was necessary. Although Dr. Lawson was also not on-call at Columbia Medical that day, he
agreed to evaluate Hogue after he attended to his patients at other hospitals. He did not specify a time.
After conferring by phone with Dr. Lawson, around 3:35 p.m., Dr. Schroeder ordered an
echocardiogram (echo) of Hogue’s heart “now,” which he testified is equivalent to “stat.” Columbia
Medical’s list of medical abbreviations defined “stat” as immediately. An echocardiogram, which is a
cardiac ultrasound that produces images of the heart, is different from an EKG, which graphically
records the electrical activity of the heart. Cecil Essentials of Medicine 47, 55 (Thomas E. Andreoli, M.
D. et al. eds., 6th ed. 2004).

The hospital also played a prominent role in Hogue’s treatment. Although Columbia Medical did not
have in-house echo services, the hospital had contracted for those services from a third-party vendor,
but declined to exercise an option to guarantee an expedited response time for echocardiographic
studies. Dr. Schroeder ordered the stat echo at 3:35 p.m., but the radiology department did not page
the outsourcing echo service until approximately 4:10 p.m. The echo technician returned the page within
twenty minutes and discussed the doctor’s order with an ICU nurse. The technician was informed that a
stat echo had been ordered, but he testified that he was not given the impression that Hogue needed
urgent attention; rather, the ICU nurse stated that Hogue was stabilized on a ventilator and that his
condition was not heart-related. The technician arrived shortly after 6:00 p.m., set up the echo
equipment, and began the study. He immediately identified a severe leakage of Hogue’s mitral valve
and interrupted the study to alert a nurse. He finished the study around 6:30 p.m., approximately three
hours after the stat echo was ordered. The technician observed that at least one leaflet of the mitral
valve was almost completely unhinged and what we call flailed, meaning that it’s just flopping around in a
breeze with nothing to hold it in place . . . . And also, the size of some of the chambers on [Hogue’s]
heart in proportion to his body size suggested to [the tech] that this was an acute event and not
something that had been around a long time.

Based on the technician’s findings, cardiologist Dr. Phillip Hecht, one of Dr. Lawson’s partners, was
called. Dr. Hecht determined that Hogue required emergency surgery to repair his mitral valve and
needed to be transferred immediately to Baylor Irving Hospital. After Dr. Hecht ordered the transfer at
approximately 7:45 p.m., it took Columbia Medical an additional 20–25 minutes to arrange for the
ambulance transfer to Baylor Irving. Shortly after arriving at Baylor Irving at 8:46 p.m., more than two
hours after the echo study was completed, Hogue coded, and efforts to resuscitate him failed. Dr.
Lawson arrived at Columbia Medical after Hogue’s transfer to Baylor Irving.

Hogue’s wife and their two sons sued Columbia Medical, asserting survival and wrongful-death claims,
[1] and the case proceeded to trial in three phases. The first phase consisted of approximately two
weeks of evidence and argument, after which the court charged the jury to decide whether Columbia
Medical was negligent in Hogue’s treatment, and if so, whether it was grossly negligent. The jury
returned a finding adverse to Columbia Medical on both questions and awarded the Hogues
$9,196,155 in actual damages.

During the second phase of trial, the jury assessed punitive damages of $21,000,000 against Columbia
Medical based on the gross negligence finding in the first phase. During the third phase of trial, the jury
heard further argument but no additional evidence, and the trial court instructed the jury to consider
whether Hogue contributed to his injury when he did not inform his treating physicians that he had been
diagnosed with a heart murmur. The jury did not find that Hogue was contributorily negligent. The trial
judge capped the punitive damages pursuant to chapter 41 of the Civil Practice and Remedies Code,
but did not cap the actual damages pursuant to the Medical Liability and Insurance Improvement Act

Columbia Medical appealed. The court of appeals reversed the trial court on the applicability of the
MLIIA to actual damages, capped actual damages at $1,471,405.20, and affirmed the remainder of the
trial court’s judgment, including exemplary damages of $3,356,296. 132 S.W.3d 671. Columbia
Medical petitioned this Court for review.

II. Discussion

Columbia Medical asserts that the trial court committed reversible error by submitting the contributory
negligence question in the third phase of trial instead of with the general liability question. We first
consider whether contributory negligence should have been submitted to the jury.

A. Contributory Negligence

In this case, the jury found Columbia Medical negligent because it failed to timely provide necessary
services to diagnose Hogue. Columbia Medical asserts that Hogue was contributorily negligent for
failing to disclose his previous heart murmur diagnosis. The Hogues counter that there is no evidence of
causation or evidence that the hospital would have done anything different if it had known of Hogue’s
heart murmur. Therefore, they contend that failure to submit the contributory negligence question in the
first phase of the trial was not error.

Admittedly, physicians at Columbia Medical began treating Hogue without the benefit of his complete
medical history. The record indicates that Hogue failed to inform not only the doctors at Columbia
Medical of his heart murmur, but also Dr. Story before Hogue was in acute medical distress. Dr. Story
shared his tentative diagnosis of pneumonia with Dr. Blomquist at Columbia Medical. Failure to
respond fully and accurately to a doctor’s questions could hamper a doctor’s diagnosis, could delay
appropriate treatment, and in the proper case, might raise a fact issue concerning a patient’s possible
contributory negligence. See Elbaor v. Smith, 845 S.W.2d 240, 245 (Tex. 1992) (recognizing a patient’s
duty of cooperation); see also
Jackson v. Axelrad, 221 S.W.3d 650, 654 (Tex. 2007) (discussing the
duty of a patient to cooperate in his health care). But here, we need not identify the parameters of such a
duty between lay patients and treating physicians. Cf. Jackson, 221 S.W.3d at 655-57 (observing that,
for purposes of a contributory negligence inquiry in a medical malpractice case, a physician patient’s
specialized knowledge may be relevant to the ordinary care standard).

Negligence arises when an actor breaches a legal duty in tort, and the breach proximately causes
damages. IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); D. Houston, Inc.
v. Love, 92 S.W.3d 450, 454 (Tex. 2002).

Assuming, without deciding, that Hogue owed and breached a duty to disclose his prior heart murmur
diagnosis, Columbia Medical must present some evidence that Hogue’s nondisclosure proximately
caused his injury. Proximate cause includes both cause in fact and foreseeability. Mason, 143 S.W.3d
at 798-99; Love, 92 S.W.3d at 454. Proximate cause cannot be satisfied by mere conjecture, guess, or
speculation. Mason, 143 S.W.3d at 799; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,
477 (Tex. 1995). In particular, cause in fact requires that the allegedly negligent act or omission
constitute “a substantial factor in bringing about the injuries, and without it, the harm would not have
occurred.” Mason, 143 S.W.3d at 799. Columbia Medical’s proof of causation to support its contributory
negligence submission must rise above mere conjecture or possibility. See Mason, 143 S.W.3d at 798-
99; Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Columbia Medical claims that Hogue negligently
failed to disclose his heart murmur and that Hogue’s omission delayed proper treatment by the

There is no evidence that the diagnosing doctors at Columbia Medical would have acted differently if
Hogue had disclosed his heart murmur diagnosis. Dr. Blomquist, the ER doctor, testified that, if Hogue
had disclosed his heart murmur diagnosis, it “would have perhaps moved a cardiac source higher” on
his differential diagnosis and he “would have searched perhaps more diligently for a cardiac source” of
the illness. (Emphasis added). Dr. Blomquist’s testimony further suggests that even if a cardiac source
had been higher on his differential diagnosis, he would not necessarily have behaved differently:

Q: And if you would have considered [a] cardiac cause higher on [your differential diagnosis], would that
have meant you would have considered obtaining a consultation of a cardiologist?

A: Possibly.

Q: Would that have meant that you would have considered requesting an echocardiogram?

A: Possibly. (Emphasis added).

“Perhaps” and “possibly” indicate conjecture, speculation or mere possibility rather than qualified
opinions based on reasonable medical probability. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.
2d 706, 729-30 (Tex. 1997) (stating that “can” and “could” do not indicate reasonable medical
probability); see also Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex. 1999). While the
specific words “reasonable medical probability” need not be used, the testimony must demonstrate
conduct that to a reasonable degree of medical certainty would have occurred. See Otis Elevator Co. v.
Wood, 436 S.W.2d 324, 331-32 (Tex. 1968). The testimony on causation proffered by Columbia
Medical is insufficient to raise a question of fact on proximate cause.

In addition, the testimony of Hogue’s second treating physician also fails to raise a question on whether
Hogue’s nondisclosure of a heart murmur diagnosis caused his injury. When asked if he would have
wanted or needed information about a prior heart murmur, Dr. Schroeder responded that he did not ask
for that information and that he would not have found that information useful in an initial history.

Q: Would [the information that Hogue had previously been advised that he had a heart murmur] been the
kind of information doctor, that you would have wanted to have included in or known about in Mr. Hogue’
s history?

A: It’s not something that I routinely ask about.

Q: Okay. Would . . . history of heart murmur . . . be the kind of symptom that you as a critical care
specialist would want to know about of a patient?

A: . . . I don’t usually ask about heart murmurs, and that’s not a bit of information that I would find useful in
an initial history.

Because the physicians testified that knowing of Hogue’s heart murmur would not have been useful or
changed their course of treatment, there is no evidence that Hogue’s nondisclosure of the condition
caused his injury.

While the Hogues are correct that the physicians’ opinions constitute no evidence of causation, they
incorrectly imply that those statements are attributable to Columbia Medical. “A hospital is ordinarily not
liable for the negligence of a physician who is an independent contractor.” Baptist Mem’l Hosp. Sys. v.
Sampson, 969 S.W.2d 945, 948 (Tex. 1998). However, because Columbia offers no evidence of
causation (other than to erroneously rely on the physicians’ statements), Columbia Medical failed to
support its position that nondisclosure of the heart murmur diagnosis in reasonable medical probability
contributed to Hogue’s injury. Thus, it was not error for the trial court to refuse to submit the contributory
negligence question in the first phase of the trial. Although we do not approve of submitting contributory
negligence to the jury in the third phase of trial, we need not reach the issue of whether this unusual
approach in submitting the charge would constitute reversible error in a case warranting a contributory
negligence submission.

B. Gross Negligence

On appeal, Columbia Medical next challenges the legal sufficiency of the evidence supporting gross
negligence. Columbia Medical does not, however, challenge the quantum of exemplary damages. See
Tex. R. App. P. 53.2(f) (“The petition must state concisely all issues or points presented for review.”).
The Hogues argued to the jury that Columbia Medical was grossly negligent in a number of ways,
including Columbia Medical’s failure to provide stat echo availability.[2]

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:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court
conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment
means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. This does not mean that a court must disregard all evidence that does not support the
finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence.
Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005) (quoting In re J.F.C., 96 S.
W.3d 256, 266 (Tex. 2002)). We review all the evidence in this case to determine whether the jury could
have formed a firm belief or conviction that Columbia Medical’s conduct deviated so far from the
standard of care as to create an extreme risk and that Columbia Medical was subjectively aware of, but
consciously indifferent to, this risk.

The Hogues argue Columbia Medical was grossly negligent in its decision not to provide
echocardiogram services on a stat basis for its emergency medical services and in its failure to advise
the physicians of the lack of stat echo capability. Columbia Medical asserts that there is insufficient
evidence under the law that the failure to provide an echocardiogram on a stat basis created an
extreme risk to others. We review all the evidence in the light most favorable to the jury’s findings to
determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.

Before its opening in 1997, Columbia Medical determined that it would require echocardiographic
capability to support its emergency department. Because it believed it would need a low volume of
these essential services, however, Columbia Medical decided to outsource the echo services rather
than provide them in-house. Scott Montgomery, Columbia Medical’s Director of Clinical Outpatient
Services, was responsible for negotiating a contract for these services. Montgomery testified that it was
“obvious” and “elementary” that a hospital emergency department would need echocardiograms on a
stat, or urgent, basis. However, it is undisputed that Columbia Medical did not obtain stat, or urgent,
echo capability with its outside provider, nor did its contract guarantee a response time for
echocardiographic studies. The contract with Cardiovascular On-Call Specialists for echo services
included a “stat” fee of $85 for any procedure that was ordered after hours (defined in the contract as
after 5:00 p.m. and before 8:00 a.m., on weekends, or on holidays). In addition, the contract provided
Columbia Medical with an option to guarantee a response time during certain time periods by paying an
“on-call” fee of $3 per hour, in addition to the base fee for services. The contract did not guarantee a
response time during business hours, and Columbia Medical did not exercise the option to guarantee a
response time for echocardiographic studies. As a result, On-Call Specialists was under no obligation
to provide echo services within a specified time period, and Columbia Medical elected not to ensure
the provision of urgent echo services to its critical care patients, which stands in contrast to Columbia
Medical’s decision to obtain guaranteed response times for vascular studies from On-Call Specialists.
Morton Graham, proprietor of On-Call Specialists, called Montgomery on a couple of occasions to
discuss the guaranteed response option for echo studies, but Montgomery appeared uninterested and
never engaged those services until after Hogue’ death. In addition, Graham explained that Montgomery
never inquired what response time could be expected under the contract, and Montgomery
acknowledged that he never consulted any physician concerning what an appropriate response time
would be.

Dr. Ira Korman, Columbia Medical’s expert and professional consultant on hospital administration,
testified that there is no requirement that a hospital provide echocardiography services, nor a
requirement that if a hospital does provide such services, that the hospital must provide the services
within a certain period of time. He also opined that Columbia Medical acting as a reasonably prudent
hospital would, in the same or similar circumstances, enter into the contract for the provision of echo
services, even though it did not provide for services on an urgent basis. Dr. Korman’s testimony was
contradicted by the hospital. Montgomery, director of those services for Columbia Medical, testified that
stat echo services were necessary at Columbia Medical. Although Montgomery testified that the
medical staff had reported that they were satisfied that patient care needs were being met under the
contract, he admitted that he did not know if an echo had been needed on a stat basis from the August
1997 opening of the medical center to the time of Hogue’s treatment in the emergency department at
Columbia Medical.

Peter Bastone, the Hogues’ expert on the hospital’s standard of care and Chief Executive Officer of a
hospital in California, testified that when a hospital contracts to outsource a patient service, “there
should be specific guidelines in terms of how quickly that contracted service will come in and provide
that service” and that “its staff need[s] to be aware of how to order this procedure.” Similarly,
Montgomery and Pat Sullivan, a registered nurse who was Columbia’s Chief Operating Officer, testified
that it was prudent and necessary for the hospital to have communicated to the physicians whether they
would be able to get an echo on a stat basis. Furthermore, Montgomery testified that he did not inform
Columbia Medical’s medical staff that an echocardiogram could not be provided on a stat basis and
that he was not aware if anyone communicated this information to them. In fact, both Drs. Blomquist and
Schroeder (director of the ICU), physicians who treated Hogue, testified that they did not know that the
echo services were outsourced or that there was no effective procedure to ensure the availability of
echo services on a stat basis to treat their patients, prior to March 9, 1998. This vital information was
not even contained in Columbia Medical’s Health Care Plan, which Sullivan testified is the method by
which the hospital communicates to the medical staff the capabilities the hospital has to support patient

There is some evidence that the nursing staff was informed before March 9, 1998 that echo services
were outsourced, and Dr. Schroeder discovered that fact for the first time when he ordered the stat echo
for Hogue on March 9. There is clear and convincing evidence that Columbia Medical had actual
knowledge of the necessity for emergency echo services in this case, declined to make such services
available, and failed to communicate the limitation on its echo services to the physicians or nursing staff.
This evidence shines a different light on Montgomery’s statement that the medical staff was satisfied
that patient care needs were being met because the critical deficiency in the hospital’s provision of
necessary emergency medical capabilities did not become apparent to the treating physicians until it
tragically manifested in Hogue’s case.

When the evidence establishes the necessity for certain urgent services for critical care, the experts
explained that the need may be met by timely transferring a patient to a nearby facility that provides the
service. Bastone testified that “once the patient’s assessed and hopefully stabilized, and it’s
knowledgeable that you don’t have the technology or the specialist available to do the kind of
intervention that’s necessary, then transferring that patient as quickly as possible is key.” The Hogues’
causation expert, Dr. Sidney Levitsky, a cardiothoracic surgeon, Harvard Medical School professor,
and senior vice chairman of the department of surgery at Beth Israel Deaconess Medical Center in
Boston, also testified that, ideally, a patient should be transferred “as quickly as possible to the best
facility able to take care of their illness, particularly, if the local facility doesn’t have the wherewithal to do
it.” In fact, Dr. Blomquist, one of Hogue’s treating physicians, testified that he had an “obligation” to
transfer a patient if he had determined that the hospital could not care for that patient. And Montgomery
admitted that if a patient needed a stat echo, the patient should be transferred to another facility with
stat echo capabilities. However, in this case, because the hospital did not communicate the hospital’s
inability to ensure the availability of emergent echo services, the physicians had no opportunity to
adequately assess the risks and benefits of transferring Hogue to another hospital in lieu of waiting to
obtain echo services.

The dissenting Justices suggest that the doctor who ordered Hogue’s echo, Dr. Schroeder, was
informed about the length of time it would take to get an echo and chose to wait rather than transfer
Hogue or attempt to obtain diagnostic services elsewhere:

Despite the echo technician having told Hogue’s nurse that it would probably take up to two hours for
him to get to the hospital, Dr. Schroeder’s echo order remained in place, and Hogue’s treating
physicians chose to wait rather than immediately transfer Hogue to another hospital, which could have
been done under the hospital’s policies. ___ S.W.3d at ___ (Green, J., concurring and dissenting). The
quoted passage implies that Dr. Schroeder was informed about the extent of the delay and exercised
medical judgment in deciding to wait nearly three hours for the study, but that is contrary to the evidence
at trial. The record shows that Dr. Schroeder appreciated both the gravity of the situation and that time
was of the essence. When Dr. Schroeder phoned the radiology department to order the echo, he
learned for the first time that echo services were outsourced and that a technician would have to be
called in from another location. Given this information, Dr. Schroeder testified that he informed the
radiology department that he wanted the echo “now.” He testified unequivocally that he was never told
when the echo could be expected. The evidence does not suggest that Dr. Schroeder was aware that it
would take one hour for the hospital to communicate with the echo technician and another two hours to
get the echo study. In fact, Dr. Schroeder testified that he expected to get an echo “within 30 to 60

There is considerable other evidence in this case that such a significant delay was not expected.
Indeed, all the evidence offered regarding the appropriate stat echo response time in this case
establishes that Columbia Medical clearly breached the standard of care. Dr. John Lawson, the
cardiologist who recommended the stat echo for Hogue, testified that, in his opinion, “stat” meant “within
an hour or two.” In addition, Montgomery testified that, as applied to an order for an echocardiogram,
“stat” means that the “procedure needs to be prioritized higher than . . . routine orders and it needs to be
done as soon as possible,” but that it would not necessarily be possible to perform an echo
immediately. However, Montgomery acknowledged that Columbia Medical’s internal list of abbreviated
terms defines “stat” as “immediately.” Bastone, the Hogues’ expert on hospital administration, testified
that the standard of care for stat echo response time is a thirty minute response. He opined that
Columbia Medical’s response time in this case fell below that standard. Dr. Levitsky, the Hogues’
causation expert, testified that the emergency rooms and intensive care units he had been affiliated with
had echo response times that ranged from fifteen to thirty minutes. He testified that the three hours it
took to obtain an echo study for Hogue was too long.

In terms of the degree of risk, experts testified that echocardiograms are ordered on a stat basis only
when necessary, which is uncommon. However, Dr. Levitsky testified that it is still important to be able
to perform an echocardiogram on a stat basis because “many times a patient’s life is in immediate
danger, or shortly will begin to decompensate if one misses the diagnosis.” He testified that, in this
case, Hogue would have had a ninety-percent chance of survival if he had been diagnosed and
transferred to Baylor Irving earlier.

Experts for both the plaintiffs and the defendant testified that a health care facility that provides
emergency cardiogenic services must have stat echo capability, whether provided by staff or on a
contract basis. As previously detailed, several medical experts testified that the response time for a stat
echo was fifteen to sixty minutes. Dr. Schroeder, the physician who primarily treated Hogue at Columbia
Medical that day, testified that an echo on a stat basis should be obtained in under an hour. Columbia
Medical’s Director of Clinical Outpatient Services confirmed that stat echo ability was necessary for
Columbia Medical’s emergency department, and it was Columbia Medical’s policy that a “stat” echo
should be provided “immediately” or as soon as possible. Notwithstanding this knowledge, Columbia
Medical elected not to secure echo capability on a stat basis, even after Morton Graham advised the
hospital to do so on more than one occasion.

Importantly, Columbia Medical failed to advise the physicians on staff that it did not provide echo
services on an emergency basis. Because the hospital had not informed its emergency medical staff of
the lack of stat echo capability, Hogue was without a timely, emergency echocardiogram at Columbia
Medical and was not transferred to obtain one.

Furthermore, although the stat echo was ordered at 3:35 p.m., Columbia Medical’s nurses did not call
the echo technician service until 4:10 p.m. Morton Graham returned the call at 4:30 p.m., but advised the
ICU nurse that he would not be able to arrive until approximately two hours later. After arriving at
Columbia Medical shortly after 6:00 p.m., Graham explained, he had to spend time setting up the room
to perform the echo. The stat echo study was not completed until 6:30 p.m., three hours after the
emergency echo was ordered.

Columbia Medical argues that the inability of the on-call service to respond sooner than the two-hour
guaranteed response time option provided in the contract negates proximate causation. We disagree.
Graham affirmed that if Columbia Medical had wanted stat echo capabilities, he would have been
willing to negotiate terms for an urgent response time, but Columbia Medical was not interested in
guaranteeing a response time.[3] Although Graham provided a two-hour response option, Columbia
Medical did not exercise that option. Nevertheless, Graham testified that (1) he actually got to the
hospital within two hours of being paged in Hogue’s case, which is all he would have been able to
guarantee under the terms of the contract, and (2) he could not have gotten there any sooner on that day.
Graham made it clear, however, that the terms of the contract with Columbia Medical did not obligate
him to obtain the resources to be able to respond in less than two hours. Graham testified that he would
always come as quickly as he possibly could, but he was not obligated to do so and, therefore, could not
guarantee that he would be able to do so at any given time. Tragically for Hogue, Graham was unable to
get there any earlier than he did, but that does not negate proximate cause. To the contrary, it is the lack
of an effective procedure for getting these critical services on a stat basis—in two hours or less, as all
the experts testified was required—that supports the jury’s gross negligence finding. As Dr. Schroeder
stated, if he and Dr. Hecht had obtained the echo within 30 or 60 minutes, he “would have started the
process to transfer” at that point, increasing the opportunity to save Hogue’s life.

In sum, there is sufficient evidence to support the jury’s conclusion that Columbia Medical acted with
conscious indifference to an extreme risk of serious injury when it (1) elected to outsource echo services
without a guaranteed response time while providing emergency services, (2) failed to communicate this
limitation to its medical staff so they could consider other options to treat critical care patients, and (3)
delayed obtaining the echo in spite of the serious risk to Hogue’s health. Although the jury was
presented with some conflicting evidence, we conclude that the jury could have resolved disputed facts
in favor of the Hogues to form a firm belief or conviction that Columbia Medical breached the standard
of care, that such a departure created an extreme degree of risk of serious injury, and that Columbia
Medical had actual, subjective awareness but acted in a manner that exhibited conscious indifference to
this risk. Garza, 164 S.W.3d at 621, 627 (holding that an elevated burden of proof at trial requires a
correspondingly elevated standard of review); In re J.F.C., 96 S.W.3d at 266. Because we conclude that
the Hogues presented legally sufficient evidence of gross negligence based on the hospital’s failure to
provide stat echo capability without communicating the lack of such services to the physicians and
nurses, we need not reach the other bases of gross negligence the Hogues raised. We therefore affirm
the court of appeals’ judgment affirming the award of exemplary damages capped by the MLIIA.

We do not hold that Texas law requires all hospitals to provide all services to all patients. Different
hospitals may provide some services but not others without necessarily breaching the standard of care,
depending, of course, on the circumstances. The standards are established under the common law by
qualified experts. In this case, the hospital knew of the “obvious” necessity for potentially life-saving stat
echo capabilities in connection with the emergency medical services it decided to provide.
Notwithstanding that knowledge, the hospital failed to obtain an appropriate response time for critical
support services, failed to advise the medical staff of that limitation so they could properly and timely
treat patients in acute distress or transfer them to another facility, and failed to provide an effective
procedure to respond appropriately to Hogue’s life-threatening situation. Under those circumstances, a
jury could properly conclude the hospital acted with conscious indifference.

C. Loss of Inheritance Damages

Columbia Medical next argues that the Hogues presented insufficient evidence to support the jury’s loss
of inheritance damages award. The jury was asked to award loss of inheritance damages, if any,
defined as “the loss of the present value of the assets that the deceased, in reasonable probability,
would have added to the estate and left at natural death to the [Hogues].” The legal sufficiency standard
for loss of inheritance damages is whether there is more than a scintilla of evidence to enable a
reasonable person to reach a conclusion. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex.
2002). We resolve all disputed evidence in favor of the jury’s finding, but may not disregard undisputed
evidence if a reasonable jury could not. Id. at 519-20. Columbia Medical does not argue that inheritance
damages are unrecoverable or cannot be submitted as a separate item of damages. Therefore, we
review for legal sufficiency only under the charge as submitted to the jury. See Osterberg v. Peca, 12 S.
W.3d 31, 55 (Tex. 2000).

We previously held in Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 633 (Tex. 1986), and again in
C&H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322-24 (Tex. 1994) (superseded by statute and
abrogated on other grounds by Battaglia v. Alexander, 177 S.W.3d 893, 909 (Tex. 2005)), that loss of
inheritance damages may be recovered in appropriate circumstances.

When loss of inheritance damages are recoverable, a plaintiff must prove that the decedent’s earnings
less his expenditures would have left an estate for his beneficiaries to inherit and that the beneficiaries
would have outlived the decedent. C&H, 903 S.W.2d at 323-24; Yowell, 703 S.W.2d at 633. In Yowell,
we held that there was sufficient evidence of loss of inheritance damages when the plaintiff
beneficiaries valued the estate by introducing evidence as to “the decedents’ salaries, expected raises,
expected promotions and salary increases, earning capacities, enforced savings through pension
plans, spending habits, age, health, and relationship with the wrongful death beneficiaries.” 703 S.W.2d
at 634. In C&H, we clarified that although loss of inheritance damages are allowed and are to an extent
indeterminate, “the willingness of the law to accommodate some indeterminacy in assessing damages
does not mean there are no limits.” 903 S.W.2d at 323. If a plaintiff proves loss of inheritance damages,
the beneficiary is entitled to the present value of the beneficiary’s share of what the decedent’s estate
would have been if the decedent had died a natural death. Yowell, 703 S.W.2d at 633.

Columbia Medical challenges the loss of inheritance damages on three grounds. First, Columbia
Medical argues that the evidence did not establish that Hogue’s wife would have outlived him. Next,
Columbia Medical argues that the evidence did not establish that Hogue’s future earnings would have
exceeded his expenditures. Finally, Columbia Medical challenges the competency of the Hogues’
financial expert, Dr. Allen Self.

The Hogues did not present legally sufficient evidence to support either that Hogue’s wife would have
outlived her husband, if he had died a natural death, or that he would have had an estate left after his
passing to bequeath to his beneficiaries. To prove that Hogue’s wife would have outlived Hogue, the
Hogues presented evidence that she was three years younger than him, that life expectancy tables
showed her outliving her husband by nearly seven years, and that the jury observed her appearance and
demeanor in court. There was also testimony regarding her employment. Columbia Medical opines that
this evidence is insufficient and that expert testimony was required to prove her medical condition. We
will not, as Columbia Medical prompts, require proof that Hogue’s wife would have no health problems
in the future, but we do require at least some evidence of the beneficiary’s health. See Yowell, 703 S.W.
2d at 634 (“The plaintiffs also produced evidence of the age and health of the wrongful death
beneficiaries.”). Asking a jury to ascertain Hogue’s wife’s health based on her age or from simply
observing her in court is not sufficient.

There was also insufficient evidence to prove the present value of what Hogue’s estate would have been
at his natural death. The jury awarded Hogue’s wife $306,393 in loss of inheritance damages, the figure
advanced by the Hogues’ expert, Dr. Self. Dr. Self testified that in arriving at the lost inheritance
damages, he considered, inter alia, Hogue’s savings accounts, stock portfolio, equity in the marital
home, and estimated future earnings based on past earnings and work expectancy tables. While this
evidence goes a long way toward proving loss of inheritance damages, to the extent they are
recoverable, it does not cross the finish line under Yowell and C&H.

Yowell and C&H emphasize that in arriving at the present value of the decedent’s estate, the figures
used in the analysis must be specific to the decedent. See C&H, 903 S.W.2d at 323; Yowell, 703 S.W.
2d at 634. Some of the data Dr. Self utilized in his economic calculation came from Hogue’s past work
history, earnings, and savings. However, Dr. Self’s work expectancy age of seventy years old, from
which he calculated Hogue’s remaining years in the workforce, did not account for the additional factors
of Hogue’s health after his operative procedure (had it been successful), post-operative recuperation
time, or likely future medical expenses. Instead, Dr. Self based his calculations on an “average person,”
and he extracted a working expectancy of seventy years old from the work expectancy table. Thus, Dr.
Self’s calculations improperly failed to account for the health of the decedent. See Yowell, 703 S.W.2d
at 634.

Moreover, figures used in determining how much of Hogue’s earnings would go towards family
expenses were based on assumptions contrary to undisputed facts. The value of the remaining estate
was based on the assumption that the Hogues’ home mortgage would have been paid off before Hogue’
s death, leaving no mortgage payment and therefore greater discretionary income. However, Dr. Self
admitted that he did not know that Hogue’s wife was still making monthly mortgage payments on the
home or that at Hogue’s passing, the Hogues were building a new home. Importantly, Dr. Self’s analysis
did not consider the impact of a new home on the family’s finances in terms of equity or cost. For the
reasons stated above, we hold that there was insufficient evidence to support the jury’s award of loss of
inheritance damages.

D. Pre- and Postjudgment Interest

The final issue on appeal is the rate of pre- and postjudgment interest applicable to the judgment.
Pursuant to Texas Finance Code section 304.103, prejudgment interest is awarded at the same rate as
postjudgment interest. For that reason, we will refer to the pre- and postjudgment interest rates
collectively as “interest rate.”

House Bills 2415 and 4 lowered the floor interest rate to five percent from ten percent, and the ceiling
interest rate to fifteen percent from twenty percent, effective June 20, 2003 and September 1, 2003. Act
of June 2, 2003, 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex. Gen. Laws 2097; Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 862, 899. The amendments applied to final judgments
that are “signed or subject to appeal on or after the effective date of this Act.” § 2(a), 2003 Tex. Gen.
Laws 2097; § 6.04, 2003 Tex. Gen. Laws 862. The trial court signed the amended final judgment in this
case on December 3, 2002, before either effective date. However, Columbia Medical argues that the
amendments apply because the case was “subject to appeal” on or after the amendments’ effective

In interpreting section 304.003 of the Texas Finance Code, we “‘determine and give effect to the
Legislature’s intent’” from the plain and common meaning of the statute. McIntyre v. Ramirez, 109 S.W.
3d 741, 745 (Tex. 2003) (quoting Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).
The Court must not interpret the statute in a manner that renders any part of the statute meaningless or
superfluous. City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006) (citing City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)).

Columbia Medical’s plain language argument rests on its assertion that if the Legislature had wanted to
limit applicability of the amendments to judgments “capable of being appealed,” the Legislature would
have used those words. Under Columbia Medical’s logic, therefore, courts must apply the amended
section 304.003 to every case in the trial court or the appellate process as of the amendments’ effective
dates. This interpretation is too broad.

Columbia Medical argues that the phrase “subject to appeal” essentially means “pending on appeal,”
thereby reducing the interest award. Under this position, the amendments would apply to all cases
pending in the trial court and lower courts of appeals on the amendments’ effective date. The Hogues
counter that the amendments only apply to judgments that became appealable after the effective date of
the amendments.

The plain and ordinary meaning of “subject to appeal,” when modifying a judgment, is “capable of being
appealed,” whether that is a final judgment disposing of all parties and issues or an interlocutory appeal.
Hosts of other statutes also indicate that the plain and common meaning of “subject to appeal” is
capable of being appealed. See, e.g., Tex. Bus. & Com. Code § 15.10(j) (“Any final order is subject to
appeal.”); Tex. Civ. Prac. & Rem. Code § 36.002(a) (applying section 36 to a foreign country judgment
that is final where rendered “even though an appeal is pending or the judgment is subject to appeal”);
Tex. Educ. Code § 28.0214(b) (declaring a school district board of trustees’ determination as to grades
not “subject to appeal”); Tex. Fam. Code § 52.015(c) (making a directive to apprehend a child not
“subject to appeal”); Tex. Human Res. Code § 36.101(m) (“[A] final order issued by a district court under
[the section dealing with attorney general action investigation of Medicaid fraud] is subject to appeal to
the supreme court.”). Interpreting the plain and common meaning of “subject to appeal” to mean “on
appeal” instead of “capable of being appealed” renders the above examples absurd. See Tex. Dep’t of
Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177-79 (Tex. 2004).

Therefore, contrary to Columbia Medical’s urging, we interpret the plain language of House Bills 2415
and 4 to apply section 304.003 to judgments that became final after their effective dates. In doing so, we
apply the plain and common meaning of the words “subject to appeal.” Because the appeal of the
judgment in this case could not have been initiated after the effective dates of the amendments, House
Bills 2415 and 4 do not apply. We affirm the court of appeals on this point.

III. Conclusion

Although we have serious reservations about the trial court’s decision to trifurcate the trial, we affirm the
court of appeals’ holding on the contributory negligence issue because Columbia Medical did not raise
a fact question on causation necessary to support the submission of the question to the jury. We affirm
the award of actual damages and gross negligence damages awarded to the Hogues because the
proffered evidence satisfies the standard for recovery. We reverse the portion of the judgment awarding
loss of inheritance damages. Finally, we affirm the court of appeals’ holding that the 2003 amendments
to Texas Finance Code section 304.003 do not apply to cases that were either actually appealed or
capable of being appealed before the amendments’ effective dates.

J. Dale Wainwright

OPINION DELIVERED:     August 29, 2008


[1] The lawsuit originally named several doctors and professional associations, but these defendants, by way of settlement,
nonsuit, or summary judgment, are no longer parties to the suit.

[2] The Hogues also argue that Columbia Medical was grossly negligent due to its failure to have an on-call list by specialty and for
misleading advertising. For the reasons that follow, we need not reach these additional bases.

[3] Graham testified that, if Columbia Medical had wanted to secure expedited echo services, even “30 minutes to 45 minutes,” he
would have done “everything” to secure the resources required to service the hospital’s needs. But because Columbia Medical
declined to consider expedited echo services, he lacked the resources to guarantee expedited response times.