                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00306-CV

ST. JOSEPH REGIONAL HEALTH CENTER,
                                                          Appellant
v.

MIKE HOPKINS AND DAVID HOPKINS AS
HEIRS OF ELIZABETH DEAVERS,
                                                          Appellees


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 10-000742-CV-85


                                     OPINION

      Elizabeth Deavers, now deceased, sued St. Joseph Regional Health Center for

negligence and requested damages that included the cost of future custodial care. On

February 14, 2011, the jury returned a verdict for Deavers that included $411,936 in

future custodial care expenses. On March 4, 2011, before a judgment was rendered on

the jury’s verdict, Deavers died.     The trial court substituted Deavers’ heirs, Mike

Hopkins and David Hopkins, as plaintiffs in the proceeding and rendered judgment on

the jury’s verdict. St. Joseph appeals; and we affirm.
       When a party to a jury trial dies between verdict and judgment, judgment shall

be rendered and entered as if all parties were living. TEX. R. CIV. P. 156. This has been

the law in Texas since 1846. Act of May 13, 1846, 1st Leg. § 37, 1846 Laws of Texas 1678.

After the verdict but before Deavers’ death, St. Joseph requested that the trial court

order future custodial care expenses awarded by the jury be paid in periodic payments.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(a) (West 2011). Subchapter K of the Texas

Medical Liability Act creates this option, applicable only if requested, concerning the

payment of future damages. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.501-74.507

(West 2011). If and when requested, the trial court “shall” order periodic payments,

rather than a lump sum, for future damages, such as custodial care services, awarded in

a health care liability claim.       Id. § 74.503(a). Periodic payments for custodial care

services, however, terminate on the plaintiff’s death. Id. § 74.506(b). Further, future

damages, if any, that are not set up as periodic payments remain as traditional lump

sum amounts in the judgment. See id. § 74.503(a). After Deavers’ death, St. Joseph

withdrew its request for periodic payments under the Texas Medical Liability Act.

       In one issue, St. Joseph contends the trial court erred in awarding judgment on

the verdict for future custodial care expenses that, it alleges, will never be incurred.

With this issue, St. Joseph seeks to dissolve 166 years of Texas law. Although St. Joseph

initially requested periodic payments of the future custodial care expenses awarded by

the jury, which would have then terminated upon Deavers’ death, St. Joseph withdrew

its request for periodic payments. Because St. Joseph withdrew its request for periodic

payments, subchapter K of the Medical Liability Act no longer applies, and payment of

St. Joseph Regional Health Center v. Hopkins                                        Page 2
future custodial care is not terminated. What remains is 166 years of law currently

embodied in Rule 156 which requires a judgment to be rendered as if all parties were

living. Because the trial court followed Rule 156, it did not err in rendering judgment

on the jury’s verdict. Accordingly, St. Joseph’s sole issue is overruled.

       The trial court’s judgment is affirmed.



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 6, 2012
[CV06]




St. Joseph Regional Health Center v. Hopkins                                     Page 3
