Opinion issued December 22, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00399-CV
                           ———————————
    CHRISTUS HEALTH GULF COAST D/B/A CHRISTUS ST. JOHN
                   HOSPITAL, Appellant
                                       V.
                          JAY HOUSTON, Appellee


                   On Appeal from the 55th District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-01306


                         MEMORANDUM OPINION

      This is a medical-malpractice case. Christus Health Gulf Coast contends

that the trial court improperly excluded expert testimony, miscalculated damages,

and failed to order periodic payments. We modify and affirm.
                                   Background

      Following surgery on his shoulder, plaintiff-appellee Jay Houston sued

defendant Dr. Marston Holt (the orthopedic surgeon who performed the surgery)

and defendant-appellant Christus Health Gulf Coast (the hospital where the surgery

was performed).     During the surgery, Houston’s axiliary artery was cut, and

Houston lost about 1,500–2,000 cubic centimeters of blood. Dr. Holt applied

pressure until the bleeding stopped. Because the bleeding stopped, he did not call

in a vascular surgeon.

      Sometime after the surgery, the axillary artery occluded resulting in an

ischemia—i.e., blood stopped circulating to Houston’s arm and hand.           In his

petition, Houston alleged that Dr. Holt and the hospital nurses “failed to detect and

correct the occluded artery and failed to properly monitor and manage Mr.

Houston’s post-operative course, resulting in the injury going undetected until

permanent damage was done to the nerves and muscles of the Plaintiff’s left arm.”

      Houston settled with Holt and proceeded to trial on his claim against

Christus for its nurses’ alleged post-surgery negligence.

A.    Dr. Gomez

      Christus designated Dr. Miguel Gomez, a cardiovascular and thoracic

surgeon, as a trial expert. According to Christus, Dr. Gomez planned testify that (1)

Dr. Holt breached the standard of care by not immediately calling in a vascular


                                          2
surgeon during the surgery, and (2) Houston almost certainly suffered nerve

damage during the original shoulder surgery—before the ischemia—and that this

caused some or all of the harm to Houston. Houston filed a pre-trial motion to

exclude Gomez’s testimony, which the trial court denied.

      During trial, Houston renewed his objection to Gomez’s testimony, and a

lengthily hearing was held outside the presence of the jury. Specifically, Houston

argued that Gomez was not qualified to testify that the harm to Houston occurred

during the original surgery and not the after-care and, alternatively, that there was

no foundation for that opinion. Throughout that hearing, the trial court expressed

concern about allowing Gomez to testify as to whether Houston’s injury was

caused during the original surgery, as opposed to during the care following the

surgery:

             Q. Part of your testimony in this case is that this nerve injury to
      Mr. Houston happened at the time of the original laceration of the
      artery by Dr. Holt, correct?
             A. Yes.
            Q. Explain to Court what the basis of that opinion is. How do
      you believe that on why -- what is your foundation?
             ....
             A. . . . .[B]ecause of where the injury occurred and the artery.
      Like I stated earlier, there’s is multiple nerves, and it’s almost
      virtually impossible to injure an artery without – with a significant
      injury that the patient had without also involving the nerves in that
      area. And the patient since the moment of the operation had no
      function in that extremity, it’s reasonable to ascertain that he had
      nerve injury since the time of his first surgery.

                                          3
       Q. Dr. Martin this morning said that the base -- the reason that
he knew that it wasn’t a nerve injury was because after he restored the
vascular artery to his arm, that it immediately pinked up and he was
able to move his fingers. Why is that not a reasonable explanation?
       A. Because -- just ‘cause a hand returned blood flow and you
can see that it went from dusty to pink, that’s not an assessment of the
nerve function of that extremity. And from the injuries that he’s had
from the initial operation, he never had complete regain – he did not
retain all of his nerve function from the initial surgery. And so there
almost impossible to determine what part was due to the injury during
the first surgery and what was due to ischemia. It’s – it’s impossible
to know.
      Q. How would it ever be possible to know – I mean, would it
ever be possible?
      A. No.
       Q. So part of your opinion is there is no way to separate out
whether the nerve injury was completely done at the time of the first
surgery due to a nerve injury or was a combination of a nerve injury
of the first surgery and ischemia caused by the thrombosis?
      A. Right.
      ....
      ***
      Q. Just that how much – you tell him. I can’t.
       A. The radial nerve injury is was what occurred at the time of
the operation. And the other -- the median never, the ulnar nerve, it’s
difficult to tell whether that occurred at the time of the surgery or that
occurred from the ischemia. Nobody can know that, but the radial
never, I think, without a doubt, it’s out from the site of the injury all of
the way down the arm.
       THE COURT: What damage does relate? What damages that
result in?
      ....
      A. Well, that’s difficult to ascertain. I mean, how much of it--
he would have recovered if – the injuries were so large by the time
they operated on him on Monday that the -- vascular surgeon decided

                                     4
       not to address the injury and just to bypass it. So he never looked at
       the spot where he was injured because it was so big he didn't think he
       could handle it. If he would have called the vascular surgeon at the
       time of surgery, it would have been much less. So -- and the vascular
       surgeon might have decided to approach where the artery was injured
       and fix the artery right there at that time.
              But, I mean, it’s hard to tell. I mean, it’s hard to know.
        Ultimately, the trial court ruled that Dr. Gomez could testify that Holt

breached the standard of care by not immediately calling in a vascular surgeon

during the surgery, but the court excluded his testimony about the second topic,

i.e., the opinion that nerve damage during the original shoulder surgery—before

the ischemia—is what caused some or all of all of the actual long-term injury to

Houston. The court explained, “What weighed on me is it was outside of his

expertise. And, second, is that he couldn’t directly link it to a damage, because he

kept saying, well, I’m not sure if that’s what caused it, maybe partial. I don’t know

if it was. So I strike it.”

       Christus did not end up calling Gomez live because of scheduling issues.

Portions of Gomez’s deposition testimony, however, were then played for the jury,

during which he testified that he was board certified in general, cardiovascular and

thoracic surgery, and that about 30% of his practice is dedicated to vascular

surgery.    He opined that Holt deviated from the standard of care during the

surgery:

             Q. Are you going to offer any opinions regarding the orthopedic
       care of Dr. Holt in this case?

                                            5
      A. In how he handled the vascular injury, I would say yes.
      Q. Well, have you formulated any opinions that anyone in this
case deviated from the standard of care?
      A. I think Dr. Holt did.
      Q. In what way?
       A.     I think a surgeon that experiences a major bleed of
greater than two liters on a patient during an operation that usually
does not cause much bleeding, and that patient requires blood
transfusions, and that patient at the time of his discharge is not having
a functioning extremity and is still discharged home and the surgeon
doesn't have any suspicions or curiosity to investigate further where
all that bleeding came from, I don’t think that’s the standard of care. I
think most doctors would investigate that further.
      Q. If Dr. Holt investigated further or immediately obtained a
vascular surgeon and repaired the axillary artery during the operation,
do you have an opinion as to what the change or what the cause, the
casual effect would have been on Mr. Houston?
      A. It’s difficult to say.
     Q. So you don’t have an opinion within a reasonable degree of
medical probability?
      A. It’s difficult to say how -- I mean...
      Q. Let me ask it this way.
      A. I mean, it’s -- how much of his nonfunctioning of his arm is
nerve versus muscle and skin, I am not an expert to testify to. So if the
artery was repaired immediately, he might have not had as much
muscle and skin damage to his extremity. How much nerve damage
would have been saved, it’s hard to tell.
      Q. Let’s break it down. You’ve testified that discharging Mr.
Houston by Dr. Holt with a nonfunctioning left extremity was a
deviation of the standard of care?
      A. Yes.
       Q. Okay. If he didn’t discharge and complied with the standard
of care, would there be -- do you have an opinion within a reasonable
degree of medical probability whether or into that would have caused
any difference in the outcome of this case?

                                    6
      A. It’s possible.
      Q. So you’re a vascular – you’re a cardiothoracic surgeon, a
vascular surgeon, correct?
      A. Correct.
      Q. Vascular integrity is your expertise, correct?
      A. Correct.
      Q. Okay. Are you going to offer the opinion that Dr. Holt
deviated from the standard of care for not seeing Mr. Houston in the
PACU?
       A. I would say yes. I would say most surgeons, if they have an
extraordinary amount of bleeding during the case, that they usually
would go check on that patient in the PACU and make sure that there
is not more bleeding going on, there is not a major injury that needed
to be addressed that they missed in the OR.
      Q. No, no. Let me rephrase the question. The question is: If Dr.
Holt was in surgery the entire time that doctor -- or that Mr. Houston
was in the PACU –
      A. Uh-huh.
     Q. -- and didn’t have an opportunity to leave the operating
room to see Mr. Houston prior to him being discharged to the floor,
would you still fault Dr. Holt for not seeing Mr. Houston in the
PACU?
      A. If you have a patient that you’re concerned about because
there has been a major bleed during the operation and they’re in the
PACU after your operation, I -- most doctors, if they can’t come to the
bedside at least to look at the patient, would at least call back there to
see how their patient is doing and talk to the nurse, “Is everything
okay?”
     Q. You say most doctors would have seen a patient such as Mr.
Houston in the PACU?
      A. If they can, yes.




                                    7
B.    The Jury’s Verdict and the Trial Court’s Judgment

      The jury found that the negligence of both Dr. Holt and Christus’s nurses

proximately caused Houston’s injuries. It assigned 40% responsibility to Holt and

60% of the responsibility to Christus. The jury also found that Houston’s injury

was not the result of gross negligence. It awarded a total of $1,610,000.00 in

damages, as follows:

             a.   Past pain and mental anguish                 $130,000.00

             b.   Future pain and mental anguish               $225,000.00

             c.   Future loss of earning capacity              $450,000.00

             d.   Past disfigurement                             $25,000.00

             e.   Future disfigurement                         $150,000.00

             f.   Past physical impairment                       $50,000.00

             g.   Future physical impairment                   $100,000.00

             h.   Past household services                              $0.00

             i.   Future household services                    $175,000.00

             j.   Future medical care                          $305,000.00



      Following extensive briefing by the parties on the topics of settlement

credits, interest, costs, and Christus’s request that a portion of the judgment be

made periodically in the future, the trial court signed its first final judgment, “after

applying settlement credits and statutory limitations on noneconomic damages,”

                                           8
awarding a total of $1,427,826.76, plus prejudgment interest, post-judgment

interests, and costs, against Christus as follows:

             1.   Noneconomic damages                        $497,826.76

             2.   Earning capacity in the future             $450,000.00

             3.   Household services in the future           $175,000.00

             4.   Medical care in the future                 $305,000.00

      Following a round of post-judgment briefing, the trial court signed an

amended final judgment reducing the award of damages to a total of $1,180,000.00

plus prejudgment interest, post-judgment interests, and costs, against Chrisus as

follows:

             1.   Noneconomic damages                        $250,000.00

             2.   Earning capacity in the future             $450,000.00

             3.   Household services in the future           $175,000.00

             4.   Medical care in the future                 $305,000.00

      Christus timely appealed.

                               ISSUES ON APPEAL
      Christus raises the following issues:

      1.     It was reversible error to exclude Dr. Gomez, defendant’s vascular
             surgery expert, because it deprived defendant of a fair trial and caused
             the rendition of an improper judgment.

      2.     The amended final judgment is defective because it contains errors of
             law.


                                           9
                   EXCLUSION OF EXPERT TESTIMONY

      In its first issue, Christus contends that the trial court erred by excluding

portions of Dr. Gomez’s expert testimony.

A.    Standards for admissibility of expert testimony

      The standards for admissibility of expert testimony arise from Rule 702 of

the Texas Rules of Evidence. See TEX. R. EVID. 702. “Rule 702 contains three

requirements for the admission of expert testimony: (1) the witness must be

qualified; (2) the proposed testimony must be ‘scientific . . . knowledge’; and (3)

the testimony must ‘assist the trier of fact to understand the evidence or to

determine a fact in issue.’” E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923

S.W.2d 549, 556 (Tex. 1995).

      Whether an expert is qualified is, under Rule 104(a), a preliminary question

to be decided by the trial court. Gammill v. Jack Williams Chevrolet, Inc., 972

S.W.2d 713, 718 (Tex. 1998). The party offering the expert’s testimony has the

burden of showing that the witness is qualified under Rule 702. Id. “The offering

party must demonstrate that the witness possess[es] special knowledge as to the

very matter on which he proposes to give an opinion.” Id.

      “In order to constitute scientific knowledge which will assist the trier of fact,

the proposed testimony must be relevant and reliable.” Id. at 720. The relevance

requirement is met if the expert testimony is “sufficiently tied to the facts of the


                                          10
case that it will aid the jury in resolving a factual dispute.” Exxon Pipeline Co. v.

Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). Evidence that has no relationship to any

issue in the case does not satisfy rule 702 and is thus inadmissible under rule 702.

Id.

      When the reliability of an expert’s testimony is challenged, the trial court

must “gauge” the expert’s reliability by ensuring “that the opinion comports with

applicable professional standards outside the courtroom.” Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). If expert testimony is not reliable, it is

not evidence. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 721–29 (Tex.

1997).

B.    Standard of review

      We review a trial court’s ruling on the admissibility of expert testimony

under Rule 702 for abuse of discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 578 (Tex. 2006). “We will uphold a trial court’s evidentiary ruling excluding

expert testimony if a legitimate basis for the ruling exists. We reverse only if the

trial court acted arbitrarily, unreasonably, or without reference to any guiding rules

or principles.” Wilson v. Shanti, 333 S.W.3d 909, 912 (Tex. App.—Houston [1st

Dist.] 2011, pet. denied). “Thus, a trial court enjoys wide latitude in determining

whether expert testimony is admissible.” Harris Cty. Appraisal Dist. v. Kempwood

Plaza Ltd., 186 S.W.3d 155, 157 (Tex. App.—Houston [1st Dist.] 2006, no pet.).


                                         11
C.    The excluded testimony

      Here, the trial court excluded the portion of Gomez’s expert opinion that the

injury to the nerves surrounding the axillary artery that Holt invariably caused

during the shoulder surgery was responsible for at least a portion of Houston’s

disability. The trial court excluded this testimony based on Gomez’s hearing

testimony that he really could not say how much, if any, of the disability was

caused by the surgery:

      Q:    So part of your opinion is there is no way to separate out
            whether the nerve injury was completely done at the time of the
            first surgery due to a nerve injury or was a combination of a
            nerve injury of the first surgery and ischemia caused by the
            thrombosis?

      A:    Right.

      The trial court explained that he was bothered by the equivocation of the

testimony, and that it was not based on reasonable medical certainty:

      [H]e couldn’t directly link it to a damage, because he kept saying,
      well, I’m not sure if that’s what caused it, maybe partial. I don’t know
      if it was. So I strike it.
      In other words, the trial court concluded that Gomez’s testimony that

Houston’s injuries were caused by the initial surgery as opposed to after-care

would not assist the trier of fact because Dr. Gomez himself admitted that, while

he was certain that some nerve injury was caused during the surgery, it was


                                        12
impossible to differentiate the effects of the surgical nerve injury from the effects

of the post-surgical ischemia in causing Houston’s disability.

      Christus argues that the “weakness of facts in support of an expert’s opinion

generally goes to the weight of the testimony rather than the admissibility.” (citing

LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 478 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied)). It contends that, rather than excluding testimony,

‘[r]igorous cross-examination is a tried and true method to discredit hired guns

disguised as experts.”

      While it is true that [t]he trial court’s gatekeeping function under Rule 702

does not replace cross-examination as the traditional and appropriate means of

attacking shaky but admissible evidence, . . . neither does the availability of cross-

examination relieve the trial court of its threshold responsibility under Rule 702 of

ensuring that an expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand.” Gammill, 972 S.W.2d at 728.

      In contending the trial court abused its discretion, Christus asserts that “Dr.

Gomez used both the relevant facts of the case and his personal medical experience

in order to formulate an informed conclusion as to the timing of [Houston]’s

injuries.” In its reply brief, it also argues that it “is well settled that a defendant

may introduce evidence—typically an expert opinion—regarding another

‘plausible cause’ of the plaintiff’s injury and the plaintiff must then exclude that


                                          13
cause with reasonable certainty” because “[p]roximate cause . . . is the Plaintiff’s

burden and Defendant is not encumbered to prove it.” Thus, Christus argues,

Gomez was “not required to quantify the degree of causation or assign a

percentage of causation as Plaintiff asserts.”

      Christus arguments are premised on its assertion that “Dr. Gomez was

prepared to testify that in his expert opinion at the time that Mr. Houson’s axillary

artery was injured, multiple nerves were also injured, causing or contributing to

Mr. Houston’s permanent nerve damage.” This assertion is, however, contrary to

Gomez’s actual testimony during the hearing that it was in fact “impossible to

know” whether Houston’s disability—the ultimate injury complained of—was

caused by nerve injury during the surgery or by negligent follow-up care. In light

of this testimony at the hearing, and given the trial court’s gatekeeping role and

broad discretion in evidentiary matters (as well as the fact that the jury ultimately

found Holt 40% responsible for Houston’s injuries), we cannot conclude that the

trial court abused its discretion in ruling that Gomez could not offer testimony to

the jury that Houston’s disability flowed from Dr. Holt’s actions in the initial

surgery and not from the care of Chrisus’s nurses post-surgery.         Contrary to

Christus’s argument, the trial court did not exclude a portion of Gomez’s testimony

because he could not assign a specific percentage causation to Houston’s disability;

rather, the court excluded the portion of Gomez’s testimony that Gomez himself


                                          14
stated he did not have an opinion, i.e., not whether nerve injury was caused during

the surgery, but whether that nerve injury or post-injury care caused Houston’s

disability. It was not an abuse of the trial court’s discretion to exclude a portion of

expert testimony for which the expert himself acknowledges he does not have any

basis to opine.

      We overrule Christus’s first issue.

              CALCULATION AND PAYMENT OF DAMAGES

      In its second issue, Christus argues that the amended final judgment is

defective in several respects.

A.    Settlement Credit

      We next consider whether a settlement must be offset before or after

applying the damages cap on non-economic damages. TEX CIV. PRAC & REM.

CODE ANN. § 33.012(b) provides: “If the claimant has settled with one or more

persons, the court shall further reduce the amount of damages to be recovered by

the claimant with respect to a cause of action by the sum of the dollar amounts of

all settlements.”1 Before the trial of this case, Houston settled with Dr. Holt for


1
      Although no election is contained in the record, section 33.012 of the Texas Civil
      Practice and Remedies Code provides that, in a case involving a health care
      liability claim, damages should be reduced by the amount of all settlements or by
      the percentage of each settling party’s responsibility as determined by the trier of
      fact. If no election is made before the case is submitted to the jury, any remaining
      defendant is deemed to have elected to have the claimant’s recovery reduced by
      settlement credits rather than the percentage of responsibility of the settling party.
      TEX. CIV. PRAC. & REM. CODE ANN. § 33.012(d).
                                            15
$99,000.00.   The trial court’s amended final judgment calculated damages as

follows:

Damages              Verdict       Settlement        Christus    §74.301 cap
                                     credit                     applied to non-
                                                                  economic
                                                                   damages
Economic          $ 930,000.00                     $930,000.00    $930,000.00
Non-economic      $ 680,000.00 <99,000.00>         $581,000.00    $250,000.00
TOTAL            $1,610,000.00                    $1,511,000.00 $1,180,000.00

      Christus argues that, by the trial court’s applying Holt’s settlement credit

before applying the $250,000.00 cap on non-economic damages, it was deprived of

any benefit from Holt’s settlement. Christus argues that the trial court instead

should have added together the economic damages and the cap on the non-

economic damages ($930,000.00 + $250,000.00 = $1,180,000.00), and then

applied the settlement credit ($1,180,000.00 - $99,000.00) to reach a total award

of $1,081,000.00. (citing TEX CIV. PRAC. & REM. CODE ANN. § 33.013 (b) (“each

liable defendant is. . . jointly and severally liable for the damages recoverable by

the claimant under Section 33.012 with respect to a cause of action” (emphasis

added)); id. § 74.301(b) (“In an action on a health care liability claim where final

judgment is rendered against a single health care institution, the limit of civil

liability for noneconomic damages inclusive of all persons and entities for which

vicarious liability theories may apply, shall be limited to an amount not to exceed

$250,000 for each claimant.”); id. § 33.012(c) (“if the claimant in a health care

                                        16
liability claim filed under Chapter 74 has settled with one or more persons, the

court shall further reduce the amount of damages to be recovered by the claimant

with respect to a cause of action by an amount equal to one of the following, as

elected by the defendant: (1) the sum of the dollar amounts of all settlements . . . .”

(emphasis added)).

      Finally, Christus also complains that “applying the credit before reducing the

non-economic damages by the statutory cap has the effect of only applying the

credit to non-economic damages, which was not set out in the settlement

agreement between Plaintiff and Dr. Holt.”

      In response, Houston cites the supreme court’s decision in Edinburgh

Hospital Authority v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997). That case involved

application of the Tort Claims Act’s damages cap, which limits recoverable

damages against a governmental unit to a total of $250,000.00. Id. at 81 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 101.023’s waiver of governmental

immunity up to a limit of $250,000 in damages for certain types of injuries). The

plaintiff in that case settled with a responsible doctor for $44,000 pre-trial, and the

jury awarded $750,000 against the remaining municipal hospital defendant. Id.

The trial court applied the settlement credit first, and then reduced the total award

to the $250,000 cap. Id. The supreme court held this was correct, reasoning that

“[w]hen a plaintiff suffers an injury that falls within the Tort Claims Act, the


                                          17
Legislature has agreed to hold the government liable up to a specified dollar

amount” but that “a plaintiff may have settled with some defendants does not affect

the degree of waiver of sovereign immunity that the Legislature has prescribed.”

Id. at *81–82.

       A settlement with one tortfeasor should thus be offset before the
       verdict against the governmental unit is reduced to the statutory
       maximum. A contrary rule, taken to its logical end, would completely
       bar recovery against a tortfeasing municipal hospital authority when a
       plaintiff settles with another defendant for more than the hospital
       authority's damages cap. Such a result cannot be the intent of the
       Legislature.

Id. at 82.

       Christus argues that Edinburgh is distinguishable in that it involved a

$250,000 on total damages rather than a $250,000 cap on only non-economic

damages, as this case does. Compare TEX. CIV. PRAC. & REM. CODE § 101.023

(limiting damages against governmental entity to $250,000), with id. § 74.301(b)

(limiting non-economic damages against heath care institution to $250,000).

       Because the settlement amount was not limited to payment for non-

economic damages, the trial court had no basis for applying the $99,000.00

settlement credit only to the non-economic damages awarded against Christus

before applying the $250,000 cap on non-economic damages. We do not agree,

however, that the non-economic cap applies, as Christus insists, before application




                                        18
of the settlement credit offsets.      We instead apply Edinburgh to hold that

settlement credits should be applied first. Edinburgh, 941 S.W.2d at 81.

      Because the settlement credit should not have been restricted to only non-

economic damages, we reform the trial court’s damages calculation to reduce each

category of damages proportionally as follows:

             Trial Court’s Calculation Applying Settlement Credit to
                          Non-economic Damages Only

Damages              Verdict        Settlement        Christus      §74.301 cap
                                      credit                           applied
Economic          $ 930,000.00                       $930,000.00     $930,000.00
Non-economic      $ 680,000.00 <99,000.00>           $581,000.00     $250,000.00
TOTAL            $1,610,000.00                      $1,511,000.00   $1,180,000.00


                   Proportionate Settlement Credit Allocation

Damages         Verdict           Settlement credit allocation       Settlement
                                                                    credit applied
                               (930,000/1,610,000) x                   930,000.00
Economic        $ 930,000                $99,0000 = $57,186.34          -57,186.34
                                                                      $872,813.66
Non-                           (680,000/1,610,000) x                   680,000.00
economic        $ 680,000                $99,0000 = $41,813.66          -41,813.66
                                                                      $638,186.34
                                                                    > $250,000.00

                                                                     $250,000.00
                                                                       cap applies
TOTAL          $1,610,000              less            $99,000.00   $1,122,813.66


      Because the judgment on the jury’s verdict should have been $1,122,813.66

rather than $1,180,000.00, we sustain the portion of appellant’s second issue
                                          19
complaining that it was error to apply the entire settlement credit to non-economic

damages. We overrule the portion of appellant’s second issue contending that the

settlement credit should be applied after the non-economic damages cap is applied.

B.    Prejudgment Interest

      Christus next contends that the trial court erred in its calculation of

prejudgment interest. It argues that, “[o]ver objection, the Court simply accepted

Plaintiff’s calculation of prejudgment interest in the amount of $31,789.04.”

Because prejudgment interest cannot be awarded on future damages, TEX. FIN.

CODE ANN. § 304.1045 (West 2006), Christus notes that “the calculation must be

based on the jury’s award of past damages for pain and suffering, disfigurement,

and loss of household services, which totaled $205,000.00,” and it begins accruing

“the earlier of the 180th day after the date the defendant receives written notice of

a claim or the date the suit is filed and ending on the day preceding the date

judgment is rendered.” Id. § 304.104.

      Christus contends that the prejudgment interest began accruing on January 7,

2011 (the date Houston filed suit2) and that it ran through February 12, 2014.

Houston does not dispute in his brief that this is the relevant time period for

calculation of pre-judgment interest, or that it is computed at 5% as simple, non-

compounding interest.

2
      This is earlier than 180 days after Houston’s December 21, 2010 written notice to
      Christus.
                                          20
      Christus’s argument is two-fold. First, it takes issue with the trial court’s

calculation, noting that applying the principal*rate*time=interest formula—i.e.,

$205,000 * 5% * 3.09 years = $31,672.50—(rather than the $31,789.04 awarded

by the court). But accepting that dates that Christus does not quibble with (that the

beginning and ending dates for accruing prejudgment interest of January 7, 2011

through February 12, 2014), equates 3.101369 years, rather than 3.09 years as used

by Christus’s formula. Applying Christus’s formula to the correct time period

demonstrates no error in the trial court’s prejudgment interest calculation of

$31,789.04.

      Next, Christus argues that the “proper and more fair calculation of pre-

judgment interest should begin with an evaluation of how much of the capped non-

economic damages are past damages and thus subject to prejudgment interest.”

According to Christus, because $205,000 (total amount of awarded past damages)

constitutes 30% of the total non-economic damages awarded by the jury, $680,000,

prejudgment interest should be applied to the same percentage of the capped

damages.”     Accordingly, it argues, “it is only appropriate that pre-judgment

interest be assessed on 30% of the total capped past-non-economic damages, which

would be on $75,000, and not the total amount of past damages of $205,000.”

      Christus cites no authority for its argument, and we have located no

authority in support. “Prejudgment interest is pecuniary in nature, because it does


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not fall within the definition of noneconomic damages provided by the legislature

in chapter 74, and because section 74.301’s plain language limits only civil

liability for noneconomic damages, . . . prejudgment interest is not included in

section 74.301’s limit on civil liability for noneconomic damages.” Chesser v.

LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 641 (Tex. App.—Fort Worth

2011, pet. denied).3 Christus has not demonstrated that the trial court erred in its

prejudgment interest calculation. We overrule that portion of appellant’s second

issue complaining that it was error for the trial court to award pre-judgment interest

on the entire $205,000 past damages awarded.

C.    Periodic Payments

      Finally, Christus argues that the trial court abused its discretion in denying

its request to make periodic payment of future damages. Specifically, Christus

filed a motion requesting that all awarded future medical expenses, $305,000.00,

be made in periodic future payments. In contrast, Houston requested that only

$50,000.00 of the future medical be reserved for future payments. The trial court

granted Christus’s request in part, ordering Christus to make a present payment of

$200,000.00 with the remaining $105,000.00 to be made in periodic payments over

the next ten years.

3
      In contrast, prejudgment interest is “subject to the overall damage limit imposed
      by § 74.303.” THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 589 (Tex.
      App.—Amarillo 2010, pet. denied) (citing Columbia Hosp. Corp. v. Moore, 92
      S.W.3d 470, 475 (Tex. 2002) (interpreting subchapter K of former article 4590i)).
                                         22
      This decision was within the trial court’s discretion.   Section 74.503(a) of

the Texas Civil Practice and Remedies Code makes it mandatory, at the request of

a heath care provider, to order some or all of future medical expenses be made in

periodic payments. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(a) (“At the

request of a defendant physician or health care provider or claimant, the court shall

order that medical, health care, or custodial services awarded in a health care

liability claim be paid in whole or in part in periodic payments rather than by a

lump-sum payment.” (emphasis added)); Lee v. U.S., 765 F.3d 521, 529 (5th Cir.

2014) (“[T]he court does not have discretion as to whether it must order periodic

payments for at least a portion of the damages for medical care.” TEX. CIV. PRAC.

& REM. CODE § 74.503.). There was evidence of at least $142,000 in medical

expenses that Houston will incur in less than six years.          Christus has not

demonstrated an abuse of discretion in the trial court’s ordering an immediate

payment of $200,000.00 for future medical expenses.

      Christus also requested that other future damages—including pain and

suffering, disfigurement, physical impairment, household services, and lost

wages—be made through future periodic payments. The trial court denied this

request. Unlike future medical expenses, a trial court’s decision whether to make

these other types of payments to compensate for future damages periodic rather

than lump-sum is completely discretionary. TEX. CIV. PRAC. & REM. CODE §


                                         23
74.503(b) (“At the request of a defendant physician or health care provider or

claimant, the court may order that future damages other than medical, health care,

or custodial services awarded in a health care liability claim be paid in whole or in

part in periodic payments rather than by a lump sum payment.” (emphasis added)).

There was evidence that Houston’s current pain and impairment was affecting his

ability to continue his employment and, and testimony that he and his ex-wife had

to hire help to perform household tasks because of Houston’s limitations. Given

this evidence, Christus’s argument that Houston’s damages were anticipated to

occur far off in the future does not establish an abuse of discretion.           We

accordingly overrule Christus’s arguments that the trial court erred in refusing to

order certain future payments.

                                 CONCLUSION

      We modify the trial court’s amended final judgment by reallocating,

proportionately, the credit for Houston’s settlement with Holt to reflect an award of

$ 872,813.66 in economic damages and $250,000.00 in non-economic damages,

for a total damages award of $1,122,813.66. We affirm the trial court’s judgment

as herein modified.




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                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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