                                         NO. 12-13-00311-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

WINNA WILSON,                                             §       APPEAL FROM THE 7TH
APPELLANT

V.                                                        §       JUDICIAL DISTRICT COURT

EAST TEXAS MEDICAL CENTER
AND ROBERT G. CREATH M.D.,
APPELLEES                                                 §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Winna Wilson appeals from the trial court‟s judgment against her and in favor of East
Texas Medical Center (ETMC).1 Wilson raises two issues on appeal. We affirm.


                                                 BACKGROUND
       On June 25, 2011, Wilson felt pain in her back and chest and numbness in her right arm.
She went to ETMC‟s emergency room to have the pain diagnosed. A physician, who is not a
party to this appeal, ordered diagnostic tests.                He then diagnosed Wilson‟s condition as
bronchitis, prescribed medications for her, and sent her home.
       After two days, Wilson‟s symptoms had not improved.                          She returned to ETMC‟s
emergency room on June 27, 2011. Another physician ordered more diagnostic tests. He then
diagnosed Wilson‟s condition as pneumonia, prescribed additional medications for her, and sent
her home.
       Wilson‟s condition continued to deteriorate. She returned to ETMC‟s emergency room
the following day, and was seen in the emergency room by Robert G. Creath, M.D. By this time,
her legs were numb. Wilson was admitted into ETMC as an inpatient, on what is known as the

       1
           Wilson does not contest the trial court‟s judgment in favor of Robert G. Creath, M.D.
“floor.” She continued to complain about the numbness in her legs to the nurses providing her
care. Eventually, Wilson was seen by a doctor, who ordered additional diagnostic tests and
requested assistance from a neurologist. It took the neurologist some time to see Wilson. After
the additional delay, the diagnostic tests were performed, and the neurologist discovered that
Wilson had an abscess on her spinal cord. Wilson underwent surgery to drain the abscess.
However, even after the surgery, Wilson could not move her legs.
       Wilson believed that her paralysis was the result of the delay in her receiving treatment.
She sued ETMC, Dr. Creath, and Stasha Gorminak, M.D., the neurologist who treated her.
Wilson settled her claims with Dr. Gorminak.              Her claims against Dr. Creath and ETMC
proceeded to trial.
       The trial court submitted the case to the jury. The jury was charged that negligence in the
emergency room setting required Wilson to prove that Dr. Creath or ETMC rendered medical
care with “willful and wanton” negligence.2 The charge defined willful and wanton as


       an act or omission by the provider, (i) which when viewed objectively from the standpoint of the
       provider at the time of its occurrence involves an extreme degree of risk, considering the
       probability and magnitude of the potential harm to others; and (ii) of which the provider has
       actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious
       indifference to the rights, safety, or welfare of others.


The jury also was asked whether ETMC‟s negligence after Wilson‟s admission to the hospital on
the “floor” proximately caused her injuries. In this question, the jury was not asked whether
ETMC‟s negligence was “willful and wanton,” because the standard of proof for inpatient claims
arising from negligence on the “floor,” as opposed to the emergency room, is the ordinary
negligence standard in a healthcare liability claim.3
       Despite these instructions, after a few hours of deliberations, the jury told the trial court
in a note, “Redefine „negligence‟ as it pertains to the E.R. v. the floor. The jury recalls that
„negligence‟ on the floor is the same as „willful + wanton‟ in the E.R.”                     The trial court
responded, “The Court, under the law, is not permitted to answer the question which you have
presented.      Please consider only the instructions which have already been given you, and the
evidence admitted before you during the trial of this cause, and continue your deliberations.” All

       2
           See TEX. CIV. PRAC. & REM. CODE ANN. § 74.153 (West 2011).
       3
           See id.


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parties agreed to the trial court‟s instruction and its being provided in writing to the jury before it
was delivered.
         The jury then deliberated for several more hours before returning a verdict. The jury
answered “no” for both Dr. Creath and ETMC to the question of whether their negligence in the
emergency room was a proximate cause of Wilson‟s injuries. The jury further answered “no” for
ETMC to the question of whether its negligence on the “floor” was a proximate cause of
Wilson‟s injuries.
         Based on the note from the jury, Wilson had doubts that the jury applied the proper
standard of negligence to its deliberations as to whether ETMC‟s negligence on the floor was a
proximate cause of Wilson‟s injuries. Wilson contacted the jurors and obtained affidavits from
several jurors regarding the standard of negligence that the jury applied to ETMC‟s treatment of
Wilson that occurred after she had been admitted to the hospital. Wilson then filed a motion for
partial new trial in which she argued that the jury had applied the wrong standard of negligence
during its deliberations. ETMC objected to the affidavits as improperly delving into the jury‟s
deliberations. The trial court sustained ETMC‟s objections and denied Wilson‟s motion for
partial new trial. Wilson then filed a motion for reconsideration and second motion for partial
new trial that was not ruled upon by the court. Wilson timely filed a notice of appeal to this
court.
         In this appeal, Wilson challenges only that portion of the trial court‟s judgment in favor
of ETMC relating to Wilson‟s claim that ETMC was negligent after Wilson was admitted to the
hospital on the “floor.”


           TRIAL COURT’S INSTRUCTION IN RESPONSE TO QUESTION FROM THE JURY
         In her first issue, Wilson contends that the trial court gave an improper instruction in
response to a question from the jury.
Standard of Review and Applicable Law
         The standard of review for jury charge error is abuse of discretion. Shupe v. Lingafelter,
192 S.W.3d 577, 579 (Tex. 2006) (per curiam). A trial court abuses its discretion if it acts
arbitrarily or unreasonably or without reference to guiding rules or principles.           Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).                 A trial court has no




                                                  3
discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992).
       The rules of civil procedure require the trial court to submit the cause upon broad form
questions when feasible and to submit such instructions and definitions as shall be proper to
enable the jury to render a verdict. TEX. R. CIV. P. 277. The goal of the charge is to submit to
the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely.
Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). The trial court is afforded
broad discretion so long as the charge is legally correct. Id. After the jury has retired for
deliberations, the trial court may supplement its instructions “touching any matter of law.” See
TEX. R. CIV. P. 286. The trial court may supplement its instructions in response to a question
from a jury note. See id.
       To preserve error in the charge in a civil matter, the objecting party must distinctly
designate the error and the grounds for the objection. See TEX. R. APP. P. 33.1(a); TEX. R. CIV.
P. 272, 274; Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005,
pet. denied) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 267 (Tex. 1992)) (stating that “to
preserve charge error, appellant must comply with Texas Rules of Civil Procedure Rules 271
through 279”). Any complaint pertaining to an instruction is waived unless specifically included
in the objections. Abell, 157 S.W.3d at 891; see also TEX. R. CIV. P. 272. The requirement for a
timely objection applies to an instruction from the court to the jury in response to a question
from the jury during their deliberations. See, e.g., Standley v. Sansom, 367 S.W.3d 343, 349-50
(Tex. App.—San Antonio 2012, pet. denied); Haygood v. Chandler, No. 12-02-00239-CV, 2003
WL 22480560, at *8 (Tex. App.—Tyler Oct. 31, 2003, pet. denied) (mem. op.); Davidson v.
Dennis, No. 01-96-01102-CV, 1999 WL 274976, at *1 (Tex. App.—Houston [1st Dist.] May 6,
1999, pet. denied) (not designated for publication).
       In sum, a party objecting to an instruction from the court to the jury must point out
distinctly the objectionable matter and the grounds of the objection. See Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (quoting TEX. R. CIV. P. 274). Objections to the
charge and requests for instructions must comport with the arguments made on appeal. See
Isaacs v. Bishop, 249 S.W.3d 100, 113 n.13 (Tex. App.—Texarkana 2008, pet. denied); Coke v.
Coke, 802 S.W.2d 270, 275 (Tex. App.—Dallas 1990, writ denied). In the absence of an




                                                 4
objection at trial that matches the complaint on appeal, nothing has been preserved for our
review. Isaacs, 249 S.W.3d at 113 n.13 (citing TEX. R. APP. P. 33.1).
Discussion
         Wilson argues that in its response to the jury note, the trial court should have clarified the
definition of “negligence” with respect to her care on the “floor” at ETMC. She urges that its
failure to do so led to a verdict based on the incorrect standard of proof—the “willful and wanton
standard.”
         However, Wilson never objected to the trial court‟s response to the jury‟s question. In
fact, Wilson acquiesced to the trial court‟s response. As such, nothing has been preserved for
our review. See, e.g., Standley, 367 S.W.3d at 349-50 (recognizing that party must make
complaint known to trial court that it should clarify meaning of legal term in charge in response
to jury note). Because Wilson waived any error in the trial court‟s response to the question
received from the jury, we overrule Wilson‟s first issue.


                         MOTION FOR NEW TRIAL – JUROR MISCONDUCT
         In her second issue, Wilson contends that the trial court erred in denying her motion for
new trial because she established that the jury‟s verdict was the result of juror misconduct.
Standard of Review and Applicable Law
         We review a trial court‟s decision on a motion for new trial under an abuse of discretion
standard.    See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987).                 The trial court‟s
determination of the facts as to whether jury misconduct occurred is binding on the appellate
courts and will be reversed only where a “clear abuse of discretion is shown.” Pharo v.
Chambers Cnty., Tex., 922 S.W.2d 945, 948 (Tex. 1996) (citing State v. Wair, 351 S.W.2d 878,
878 (Tex. 1961)). The determination of whether jury misconduct occurred is a question of fact
for the trial court. Id. If there is conflicting evidence on jury misconduct, the trial court‟s
determination must be upheld on appeal. Id. Unless the trial court made a finding to the
contrary, we assume that the trial court made all findings supporting its decision to deny the
motion for new trial. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.
2000).
         To be entitled to a new trial based on jury misconduct, the movant must establish that (1)
the misconduct occurred, (2) the misconduct was material, and (3) the misconduct probably



                                                   5
caused injury. Id. The trial court hears evidence from the jury or others in open court and will
grant a new trial if there is a material, erroneous, or incorrect answer on voir dire examination, or
a material act of misconduct that probably resulted in injury to the complaining party. See TEX.
R. CIV. P. 327(a); Golden Eagle Archery, Inc., 24 S.W.3d at 372. However, a juror may not
testify as to events occurring during the course of the jury‟s deliberations. See TEX. R. CIV. P.
327(b); TEX. R. EVID. 606(b). “Deliberations” means formal jury deliberations, which occur
“when the jury weighs the evidence to arrive at a verdict.” See Golden Eagle Archery, Inc., 24
S.W.3d at 371. It does not include informal discussions during a trial break before the close of
evidence. Id. However, where there is an indication that jurors have been discussing the case
while on breaks during deliberations, that discussion is considered the same as formal
deliberations. See, e.g., Chavarria v. Valley Transit Co., 75 S.W.3d 107, 111 (Tex. App.—San
Antonio 2002, no pet.).
Discussion
       Wilson argues that the jury‟s note to the trial court revealed that the jury was under the
false impression that the “willful and wanton” standard applied to her care on the “floor.”
Consequently, her argument continues, the note itself and the affidavits of the jurors showed that
the jury failed to correctly apply Texas law and that it went outside the instructions set forth in
the charge, resulting in misconduct.
       Here, the trial court properly sustained ETMC‟s objections to Wilson‟s affidavits. See
TEX. R. CIV. P. 327(b); TEX. R. EVID. 606(b). Without the affidavits, Wilson‟s only evidence of
juror misconduct was the note from the jury, and the jury‟s note is not conclusive evidence that
misconduct occurred. The jury simply communicated its understanding of the law and requested
clarification. The trial court then provided that clarification by an instruction that, at the time at
least, was proper according to all the parties. We presume that jurors follow the instructions
provided them. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.
2009). Accordingly, Wilson has not met her burden to establish that the trial court abused its
discretion in denying her motion for partial new trial. See Pharo, 922 S.W.2d at 948. We
overrule Wilson‟s second issue.




                                                  6
                                                    DISPOSITION
         Having overruled Wilson‟s first and second issues, we affirm the judgment of the trial
court.


                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered August 27, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




                                                           7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 27, 2014


                                          NO. 12-13-00311-CV


                             WINNA WILSON,
                                Appellant
                                   V.
          EAST TEXAS MEDICAL CENTER AND ROBERT G. CREATH M.D.,
                                Appellees


                                  Appeal from the 7th District Court
                          of Smith County, Texas (Tr.Ct.No. 12-0404-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, WINNA WILSON, for which execution may issue, and that this decision
be certified to the court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
