Cunningham v. Haroona

¶1concurring and dissenting.

¶2I respectfully join in the result reached by the majority opinion, and I also join the majority opinion’s conclusions that charge error was preserved and that the one-satisfaction rule imposes an impediment to showing harm from charge error committed by the trial court sufficient to require a new trial.

¶3However, I cannot agree with the majority’s conclusion that appellants were not entitled to submission of the issue of Mrs. Cunningham’s pre-death, nonfatal injury because of insufficient evidence of nonfatal injury, i.e., pain and suffering while alive. The conclusion asserted by the majority— that neither Dr. Naarden nor Dr. Varón “provided any testimony that any negligence of Dr. Haroona was a proximate cause ... of nonfatal injuries to [Mrs. Cunningham] before her death” — is contrary to its own recitation of evidence of “pain and suffering” endured by Mrs. Cunningham before she died, e.g., that “brain *516injury from the episodes of hypoxia as well as ... breathing difficulties, air hunger, and choking sensations constituted evidence of pain and suffering.” There is other testimony and evidence of pain and suffering, examples of which I highlight.1

¶4Dr. Haroona knew Mrs. Cunningham was breathing fast, was agitated, and was removing her oxygen mask. He knew that patients with trigeminal neuralgia could .not tolerate a BiPAP mask “if [in his words] the pain is active at that point in time.” He also knew Mrs. Cunningham was in hypoxic respiratory failure on June 2 when he received the first call from the ICU nurse, Nurse Koch, at 11:00 p.m. Nurse Koch’s note at 12:45 on June 3 notes, “The patient pulled off the BIPAP despite restraints. Agitated, pulling at restraint, yelling, T don’t want that on. It’s too tight. I can’t breathe.’ Sats down to 52. Color dusky to blue. Respiration 50’s. Heart rate 140’s.” By 1:00 a.m. she was incontinent, aphasic, and could not talk. And finally, when Mrs. Cunningham’s husband was called and arrived around 3:10 a.m. the morning of June 3, he testified that she was blue and barely breathing with only four to five respirations per minute.

¶5Dr. Varón, one of appellants’ experts and also a board certified physician in internal medicine, pulmonary medicine, critical care medicine,, and geriatric medicine, compared Mrs. Cunningham’s dysp-nea, or air hunger, to someone being choked: “[J]ust imagine if somebody is choking you with their hands.... ” “She is begging for air.” “[S]he is really hungry for air.” “[S]he is confused. She is not a hundred percent oriented.... ” He believed she had a hypoxic brain injury in the early morning hours of June 3 and described the effects of a hypoxic brain injury such as brain swelling and sepsis (which likely caused her DIC — a blood clotting disorder — that probably occurred between June 3 and June 5). He based this upon her clinical appearance; she was bleeding from every orifice and had bruising.

¶6Furthermore, Dr. Varón observed that Mrs. Cunningham’s admitting problem was “severe pain as it pertains to the trigemi-nal neuralgia,” which included her inability to eat the week before admittance. On admission, Mrs. Cunningham identified the pain as a “10” on the scale of 1-10. She had been on pain medication up until June 2.

¶7Dr. Varón also said, “[I]n somebody that has trigeminal neuralgia, more likely than not they are going to have pain as you put that pressure [from a BiPAP on].... ” This was confirmed by one of Mrs. Cunningham’s respiratory therapists, Michael Hicks, who stated that a patient who cannot tolerate a facial mask would unlikely be able to tolerate a BiPAP mask because it fits so tight. Additionally, Nurse Koch testified that a patient will remove any breathing mask if it is painful or uncomfortable. Mrs. Cunningham’s daughter, Robin, also testified that when her mother was having an episode with her trigeminal neuralgia, she would grab her jaw or her mouth, and Robin could tell she was in a lot of pain.

¶8One of the defense experts, Dr. Lennard Nadalo, testified that Mrs. Cunningham’s hypoxic brain injury could have caused her unresponsiveness. At that point, her body was so swollen that her skin began to split open on her arms, and she had gangrene in all of her extremities; her skin was black from the knees down. Dr. Varón testified that Mrs. Cunningham had been *517“tachypneic, or breathing fast, had been hyperventilating for an extensive period of time,” and was “very short of breath.” Dr. Yaron also testified that had she received proper food or nutrition, such as enteral feeding, as late as the evening of June 2, she would have survived or more successfully battled the pneumonia she developed. According to him, Mrs. Cunningham was eating an ineffective portion of food to maintain her respiratory function. Additionally, the thromboembolic injury (stroke) she suffered on or about June 4 caused mental changes, changes in communication capacity, decreased consciousness, and agitation. Dr. Varón related all these pre-death conditions to the lack of nutrition, including the bacterial translocation and multisystem organ failure.

¶9Furthermore, Nurse Koch testified that arterial sticks to test the blood gases are very painful, and Mrs. Cunningham had several of these tests, two during Koch’s June 2-3 shift.

¶10Despite this and other evidence, the majority concludes that the source of pre-death pain and suffering cannot be the same as those injuries that cause death— that they are mutually exclusive. As a result, the majority opinion eviscerates the statutorily-created cause of action for survival damages. See Tex. Civ. Prae. & Rem.Code Ann. §§ 71.001-.004, .021 (West 2008). This we cannot and should not do.

¶11Survival statutes permit a decedent’s heirs to recover for the personal injuries the decedent suffered pre-death. Id. § 71.021; THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 567 (Tex.App.Amarillo 2010, pet. denied). “The difference between the [survival and wrongful death] statutes is the nature of the damages that may be recovered and who may collect them. The purpose of the Texas Survival Statute is ‘to continue a decedent’s cause of action beyond death to redress ... decedent’s injuries that occurred before he died.’ ” THI, 329 S.W.3d at 568.

¶12We also know that conscious pain and suffering may be established by circumstantial evidence, and here there was both expert testimony as well as lay testimony — direct evidence from witnesses who observed Mrs. Cunningham’s pain and suffering during appellee’s care. See Mariner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 211 (Tex.App.-Houston [1st Dist.] 2010, no pet.). “Once the existence of some pain and suffering has been established ... there is no objective way to measure the adequacy of the amount awarded as compensation.” Id.Therefore, I would have concluded that there was sufficient evidence of pain and suffering to submit the question on survival damages and that the trial court erred by failing to submit the question.

¶13However, because appellants here concede that damages awarded by the jury already included damages for pain and suffering, there is no harm and therefore no right to a new trial. See Tex.R.App. P. 44.1(a) (stating omission of instruction is harmful and reversible only if it caused rendition of an improper judgment); see also THI, 329 S.W.3d at 567-68. Therefore, I agree there is no basis to grant a new trial.