                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                                    OPINION

                                               No. 04-18-00118-CV

      Jesus VIRLAR, M.D. and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba
                                    Medical Group,
                                       Appellants

                                                           v.

                                                 Jo Ann PUENTE,
                                                     Appellee

                        From the 131st Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2014-CI-04936
                               Honorable Norma Gonzales, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Concurring and Dissenting Opinion by: Patricia O. Alvarez, Justice

Sitting: 1          Sandee Bryan Marion, Chief Justice
                    Patricia O. Alvarez, Justice
                    Luz Elena D. Chapa, Justice
                    Irene Rios, Justice
                    Beth Watkins, Justice
                    Liza A. Rodriguez, Justice

Delivered and Filed: February 5, 2020

AFFIRMED IN PART ON CONDITION OF REMITTITUR, REVERSED AND REMANDED
IN PART

           This appeal arises from a medical malpractice action filed by Jo Ann Puente against Dr.

Jesus Virlar and GMG Health Systems Associates, P.A., a/k/a and d/b/a Gonzaba Medical Group



1
    Justice Rebeca C. Martinez has recused herself from this appeal.
                                                                                      04-18-00118-CV


(“Gonzaba”). A jury found Dr. Virlar liable for Puente’s injuries, and judgment was rendered in

favor of Puente and against Dr. Virlar and his employer, Gonzaba. On appeal, Dr. Virlar and

Gonzaba bring five issues:

       (1) whether the trial court erred in excluding the expert testimony of Dr. Ralph W.
           Kuncl;

       (2) whether the trial court erred in admitting evidence of Dr. Virlar’s loss of
           privileges and alleged extraneous bad acts in treating other patients in violation
           of Texas Rule of Evidence 403;

       (3) whether the evidence is legally and factually sufficient to support the jury’s
           award of $888,429.00 in future loss of earning capacity;

       (4) whether the trial court erred in refusing to apply a settlement credit in the
           amount of the hospital’s settlement with Puente’s minor daughter; and

       (5) whether the trial court erred in failing to order that future damages should be
           paid in whole or in part in periodic payments rather than by lump sum pursuant
           to section 74.503 of the Texas Civil Practice and Remedies Code.

With respect to the first and second issues, we find no error on the part of the trial court. With

respect to the third issue, we hold the evidence was legally and factually sufficient to support loss

of future earning capacity in the amount of $880,429.00, but not in the full amount awarded

($888,429.00). We therefore suggest a remittitur decreasing the award for loss of future earning

capacity by $8,000.00. See TEX. R. APP. P. 46.3. We affirm the judgment in part conditioned on a

remittitur of damages in the amount of $8,000.00. Regarding the fourth issue, we remand the cause

for the trial court to conduct a benefits analysis pursuant to Utts v. Short, 81 S.W.3d 822 (Tex.

2002). Finally, we find no abuse of discretion by the trial court in failing to award periodic

payments for future loss of earning capacity under section 74.503(b) of the Texas Civil Practice

and Remedies Code. However, with respect to future medical care expenses, we hold that because

the trial court did not order any part of the amount awarded for future medical care expenses to be


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paid in periodic payments, it abused its discretion under section 74.503(a). We therefore reverse

the trial court’s judgment in part and remand the cause for the trial court (1) to conduct a benefits

analysis pursuant to Utts and apply an appropriate settlement credit, if any; (2) to make a

determination under section 74.503 (c) and (d) of the amount of damages awarded for future

medical care expenses that should be paid in periodic payments; and (3) to sign a new judgment

in conformity with this court’s opinion.

                                           BACKGROUND

       On November 28, 2011, Appellee Jo Ann Puente underwent “Roux-en-Y” gastric bypass

surgery, which was performed by Dr. Nilesh Patel. On December 24, 2011, she began having

complications from her surgery, including nausea and vomiting. She reported to Dr. Patel that

when she attempted to eat solids, she vomited but was able to keep liquids down. On January 11,

2012, Dr. Patel performed an outpatient dilation procedure for a suspected stricture related to the

bypass surgery. On January 13, 2012, Puente went to Dr. Patel’s clinic in Del Rio, Texas, and was

treated for dehydration. The next day, January 14, 2012, Puente went to the emergency room at

Metropolitan Methodist Hospital in San Antonio, Texas, where her main complaint was vomiting.

She reported she had just had a dilation outpatient procedure and was not better. In the six weeks

since her bariatric surgery, Puente had lost 100 pounds. While she was at the emergency room, the

results of a CAT scan raised concerns she was suffering from an esophageal rupture. She was

admitted to the intensive care unit on the orders of Dr. Manuel Martinez, a hospitalist and employee

of Gonzaba, and placed under his care. Dr. Martinez diagnosed Puente with pancreatitis and

dehydration. Puente’s medical records reflect that she was awake, alert, and able to follow

commands. She did not have any “deficit of movement” to her upper or lower extremities.

       Because of the possible esophageal rupture, Dr. Martinez ordered Puente to take nothing

by mouth and ordered all the medications Puente had been taking since her surgery, including


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vitamins, to be stopped during her hospitalization. A nutritional assessment was performed by the

hospital’s nutritional dietician, who noted that Puente was at nutritional risk; the dietician

recommended that “alternate support with TPN needs to be considered.” 2

        On January 16, 2012, Appellant Dr. Jesus Virlar, also a hospitalist and Gonzaba employee,

assumed Puente’s care and treated her until she was discharged on January 26, 2012. On January

16th, medical records indicate Puente was having trouble walking, even with help of the nurses.

The nurses noted that Puente complained of dizziness, “tingles” in her fingers, and tight muscles

in her shoulder. She was still vomiting. The nurses further noted that Puente had lost control of her

bowels; after being helped to the bathroom, Puente did not respond to questions, and her gaze

became “fixed.” The nurses also noted that Puente needed “additional fall risk elements,” including

a “tether device,” because of an “unsteady gait.”

        Dr. Virlar noted in Puente’s medical records that Puente had “refused” to ambulate and

wrote “MAT evaluate for depression?” According to Dr. Virlar, he wrote “MAT,” or Mental

Assessment TEAM, because he was considering getting a consultation for Puente’s mental state.

Dr. Virlar testified he thought she might have “a psychological issue” and that she “need[ed] to try

harder to walk.” Dr. Virlar testified, “Based at the time, under those circumstances, to me, she was

depressed and possibly something else [was] going on. I just couldn’t put it together.” When asked

why he did not find significant the nurses’ notes that Puente had fixed gaze and was not responding

to questions, Dr. Virlar responded, “It was not reported to me.” Dr. Virlar admitted that he did not

read the nurses’ notes. He was asked at trial whether it was true that he never read any of the

nurses’ notes during the time of Puente’s hospitalizations. Dr. Virlar replied, “Not every single

one. Maybe I read one or two. I don’t recall a specific number, but the majority of the nurses’


2
  TPN, or total parenteral nutrition, is a method of giving nutrients intravenously to a person. TPN may or may not
include thiamine based on the physician’s orders.


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notes, no, I did not read, sir.” Later during his testimony, Dr. Virlar clarified that he “did not look

at the nurses’ notes.” He was then asked if he wished now that he had reviewed them; Dr. Virlar

replied, “No, because that’s–it’s their subjective interpretation. Somebody’s weakness of level of

4, to me may be a level of 3, part of that assessment.”

        On January 20, 2012, a second nutritional assessment was performed. Since her admission,

Puente had been without food and had had nothing by the mouth; the only fluid Puente had

received intravenously was saline. Puente was also still vomiting, a condition which started before

she was hospitalized. The dietician again recommended TPN. That same day, Puente was put on

a trial of clear fluids, but was not able to tolerate the fluids by mouth. Dr. Virlar returned her status

to nothing by mouth.

        On January 21, 2012, Puente’s surgeon, Dr. Patel, wrote in her medical records to “start

TPN”; however, Puente was not started on TPN that day. Dr. Patel testified he relied on the

hospitalist, Dr. Virlar, to write the appropriate orders. That same day, the physical therapist’s

progress note stated that Puente was feeling nauseated and vomited “clear spital” in the trash. The

physical therapist wrote in the medical records that Puente was demonstrating “Trendelenburg

gait,” which is a gait seen with people who have weakness in the pelvic muscles. On January 23,

2012, nurses’ notes reflected that Puente was still complaining of dizziness and that she was

exhibiting right eye nystagmus. On January 24, 2012, Puente said she was having nausea when

she opened her eyes.

        On January 26, 2012, Puente was discharged with orders for administration of TPN through

home health care. Dr. Virlar’s discharge diagnosis was (1) “intractable nausea and vomiting”; (2)

“obesity”; and (3) “obstructive sleep apnea.” Puente never received intravenous vitamins,

including any supplemental thiamine, while she was admitted in the hospital. Further, the TPN

order written by Dr. Virlar was a custom TPN order, which did not provide for the supplementation


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of thiamine. 3 The TPN ordered by Dr. Virlar contained nutrients, including glucose. At trial, Dr.

Virlar admitted that if a patient is given glucose before thiamine, the patient’s thiamine levels will

diminish more rapidly because the thiamine will be “used for the metabolism.” According to Dr.

Virlar, he learned this fact after he was served with this lawsuit. He admitted that at time of

Puente’s hospitalizations, he did not know giving glucose to a patient without knowing the

patient’s thiamine level could be devastating to the patient. Dr. Virlar also admitted at trial that he

did not know Wernicke’s syndrome 4 was a risk in a post-bariatric patient suffering from

“intractable vomiting.”

        On January 27, 2012, the day after she was discharged, Puente had blood drawn based on

orders from Dr. Patel’s office; the results showed she had an “abnormal, very abnormally low”

level of vitamin B-1 thiamine. 5 Dr. Patel, Puente’s surgeon, testified the results were not sent to

his office, and he did not see them. On January 31, 2012, Puente went to the emergency room at

Val Verde Regional Hospital but was not admitted. On February 2, 2012, she returned to Val Verde

Regional Hospital and was admitted. On February 3, 2012, she was transferred to Metropolitan

Methodist Hospital in San Antonio and admitted on Dr. Virlar’s orders.

        Puente’s medical records reflect that upon being admitted the second time to Metropolitan

Methodist Hospital, she was not responding to stimuli. She became progressively more confused


3
  The “premix” TPN, which was not ordered by Dr. Virlar, did contain thiamine. At trial, Dr. Altman testified that
giving supplemental thiamine is “very safe” and “very cheap.” It should be given to any patient who might be at risk
for thiamine deficiency because “the consequences can be devastating and permanent.” Puente’s treating neurologist,
Dr. David Wenzell, also confirmed that there is no downside to giving thiamine because a patient who receives more
than they need excretes the surplus in her urine. When asked why he did not give Puente thiamine, especially
considering there was “no downside,” Dr. Virlar responded that there “was no indication at the time based on my
clinical judgment.”
4
  Wernicke’s syndrome, or Wernicke’s encephalopathy, is brain dysfunction associated with thiamine deficiency and
is “usually associated with chronic alcoholism or other causes of severe malnutrition.” TABER’S CYCLOPEDIC
MEDICAL DICTIONARY 761, 2495 (Donald Venes ed., 21st ed. 2009).
5
  According to Dr. Altman, “the reference range–every lab has its own reference range, or normal range,” and “in this
case, the normal range for their thiamine level would be anywhere from 87 on the low end to 280 on the high end,
nanomoles per liter–that’s a concentration. And, in this case, Jo Ann [Puente]’s results were 30 nanomoles. So, in
other words, less–well less than half of the low end of that reference range.”


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and her mental status declined. She ultimately needed respiratory support and was put on a

ventilator to help her breathe. She experienced weakness in all four extremities and continued to

have eye movement abnormalities. On February 11, 2012, a neurosurgeon’s diagnostic impression

was “encephalopathy 6 of unknown etiology . . . with normal MRI and CT scan of the brain . . . and

in the face of [Puente’s] history of a prior bariatric surgery, the suspicion is malnutrition related

encephalopathy, such as Wernicke encephalopathy 7 as a consideration.” On February 13, 2012,

Puente’s medical records show that thiamine was finally added to her TPN orders.

         Puente was discharged on March 9, 2012 and began receiving care at long-term care

facilities. She suffered permanent brain damage. Dr. David Wenzell, her treating neurologist,

testified Puente was later diagnosed as suffering from Wernicke’s syndrome, which progressed to

Korsakoff’s syndrome. According to Dr. Wenzell, “Wernicke’s syndrome is the acute presentation

of the illness, and if it persists, it’s called Korsakoff’s syndrome.” “When patients initially

experience acute thiamine deficiency, they have Wernicke’s syndrome. And if the problem is not

dealt with, if it’s not treated appropriately, then it progresses into Korsakoff’s syndrome.”

Wernicke’s syndrome can be reversed if the patient receives timely thiamine supplements

intravenously.




6
  One of the experts at trial described encephalopathy as inflammation or irritation of the brain. Encephalopathy is
defined as “[g]eneralized brain dysfunction marked by varying degrees of impairment of speech, cognition,
orientation, and arousal.” TABER’S CYCLOPEDIC MEDICAL DICTIONARY 761 (Donald Venes ed., 21st ed. 2009). “In
mild instances, brain dysfunction may be evident only during specialized neuropsychiatric testing; in severe instances
(e.g., the last stages of hepatic encephalopathy), the patient may be unresponsive even to unpleasant stimuli.” Id.
7
  Wernicke encephalopathy is caused by thiamine deficiency. At trial, Dr. David Joseph Altman, a board certified
neurologist, testified symptoms of Wernicke’s encephalopathy include “ataxia, or problems with coordination;
confusion, which is also called encephalopathy; and eye movement abnormalities, things like nystagmus where the
eyes move rapidly or problems where the eyes are not moving together.” Dr. Altman testified thiamine deficiency
caused Puente to develop “changes in her mental state, causing confusion [and] behavioral changes.” “It caused
problems with her coordination . . . as well as strength issues in her upper and lower extremities. And it also affected
her eye movements, such that they were not moving together. She was experiencing jittery movements, called
nystagmus of her eyes. All of those are classic for Wernicke’s encephalopathy.”


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         On March 26, 2014, Puente 8 and her mother 9 sued Dr. Virlar, Gonzaba, and numerous

other healthcare providers involved in Puente’s care. 10 With regard to Dr. Virlar and his employer,

Gonzaba, Puente and Carr sued them for negligence in diagnosing, monitoring, and treating

nutritional deficiencies of Puente during her hospitalization at Metropolitan Methodist Hospital in

January 2012. Puente sought damages for physical pain and mental anguish; she also alleged that

she incurred loss of earnings in the past, loss of earning capacity in the future, and medical

expenses in the past and future. Puente’s minor daughter alleged that as a result of her mother’s

injuries, she had suffered damages in the past, and will incur damages in the future, for “loss of

parental consortium, emotional trauma, and loss of care, maintenance, labor services, kindness,

affection, protection, emotional support, attention, services, companionship, care, advice, and

counsel.” Puente’s mother, Carr, alleged that she had suffered loss of services as a result of her

daughter’s injuries.

         Before trial, Carr, individually and as guardian of Puente’s minor child, settled with or non-

suited all defendants, including nonsuiting the claims against Dr. Virlar, Dr. Martinez, and

Gonzaba. Puente settled with or non-suited her claims with all defendants except Dr. Virlar, Dr.

Martinez, and Gonzaba. Thus, at the time of trial, the remaining claims were Puente’s claims

against Dr. Virlar, Dr. Martinez, and Gonzaba.

         At trial, Puente’s experts testified the failure of Dr. Virlar, Dr. Martinez, and Dr. Patel to

recognize the risks or symptoms of Wernicke’s encephalopathy and to replenish thiamine

proximately caused Puente’s permanent brain injury and neurological deficits for which Puente



8
  During the proceeding, the trial court appointed guardians ad litem for Puente and her minor daughter, respectively.
9
  Maria Ester Carr brought suit individually and as guardian of Puente’s minor daughter.
10
   These healthcare providers were Dr. Nilesh Patel; James Houston, P.A.; Angela Garcia, R.D.; NITYA Surgical
Associates, PLLC d/b/a Texas Bariatric Specialists, LLC; Manuel Martinez, M.D.; Methodist Healthcare System of
San Antonio, Ltd. d/b/a Metropolitan Methodist Hospital; and “JKD” (an unknown registered dietician identified only
by initials on medical records).


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will require twenty-four-hour care for the rest of her life. According to Puente’s experts, her

thiamine deficiency was reversible from the time of her admission on January 14, 2012 until her

discharge on January 26, 2012. However, after January 26th, her injuries were permanent.

         Dr. Virlar and Gonzaba’s defense at trial was that Puente had never suffered from

Wernicke’s encephalopathy but was suffering some other condition that no health care provider

could have foreseen or prevented. 11 They emphasized that over two dozen healthcare providers

had seen or treated Puente since her surgery, but none diagnosed her with Wernicke’s until after

January 26, 2012. Dr. Virlar testified that he took no responsibility for Puente’s injuries, stating

that he did his “best with the team” and they did what they “could under the circumstances.” Dr.

Virlar testified, “And I still agree that it is not Wernicke’s encephalopathy–that she suffered a

stroke.”

         The jury returned a verdict in favor of Puente; it found that Dr. Patel was 40% responsible;

Dr. Virlar was 60% responsible; and Dr. Martinez was 0% responsible. 12 The jury awarded Puente

$133,202.00 for past loss of earning capacity; $888,429.00 for future loss of earning capacity; and

$13,263,874.86 for future medical expenses. Dr. Virlar and Gonzaba then filed a motion for

settlement credit, arguing that the settlement paid to Puente’s minor daughter by the hospital



11
   Defense expert, Dr. Darryl S. Camp, a neurologist, testified that after reviewing Puente’s medical records, he
believed she was suffering from Guillain-Barre syndrome. Puente’s experts, on the other hand, testified she could not
have been suffering from Guillain-Barre syndrome. According to Dr. Wenzell, the “typical presentation for Guillain-
Barre syndrome is gradual evolution over several days to two weeks of ascending–meaning starting at the bottom and
moving up–symptoms of numbness and weakness in the extremities, sometimes people can have eye movement
abnormalities as well, and the diagnosis is confirmed by the presence of elevated protein [in] the spinal fluid and by
certain electrical abnormalities where the nerves are tested.” Dr. Wenzell testified Puente had no elevated spinal fluid
protein and no “abnormality of nerve conduction studies.” According to Dr. Wenzell, there was no support in Puente’s
medical records for a diagnosis of Guillain-Barre syndrome. Similarly, Dr. Altman testified that Puente was not
suffering from Guillain-Barre syndrome because “Guillain-Barre doesn’t cause mental confusion”; “by definition” it
“affects only the peripheral nerves” and “has no effect on the central nervous system, the brain.” Thus, it does not
“cause confusion, behavioral changes, things of that nature.” “Also, it’s not going to be associated with spasticity,”
which was one of Puente’s problems–“she’s spastic in her arms and legs.”
12
   During Puente’s January 2012 hospitalization, Dr. Martinez saw Puente for only the first two days of the two-week
window in which her condition could have been reversed.


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should be applied as a credit against the judgment. Dr. Virlar and Gonzaba also filed a motion for

order of periodic payments. After a hearing, the trial court denied both motions. The trial court

then signed a judgment against Dr. Virlar and Gonzaba, awarding Puente $14,109,349.02 in

damages. 13

        Dr. Virlar and Gonzaba then filed post-judgment motions, including a motion for new trial,

motion for remittitur, motion for judgment notwithstanding the verdict, and motion to modify the

judgment. The trial court denied all their motions. They then appealed.

                                    EXCLUSION OF EXPERT TESTIMONY

        In their first issue, Dr. Virlar and Gonzaba argue the trial court erred in excluding

deposition testimony from Dr. Ralph W. Kuncl, who would have testified about the liability of

responsible third parties. “We review a trial court’s exclusion of an expert witness’s testimony for

an abuse of discretion.” Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018). “A trial court abuses

its discretion by failing to follow guiding rules and principles.” Id. “To reverse a trial court’s

judgment based on the exclusion of evidence, we must find that the trial court did in fact commit

error, and that the error was harmful.” Id.

        Here, Dr. Virlar and Gonzaba argue that Dr. Kuncl’s testimony was relevant to responsible

third parties in this case. Section 33.004 of the Texas Civil Practice and Remedies Code permits a

defendant to seek to designate a person as a responsible third party by filing a motion for leave to

designate that person on or before the 60th day before the trial date. TEX. CIV. PRAC. & REM. CODE

ANN. § 33.004(a). Section 33.003(a) requires a jury to determine, as to each cause of action

asserted, “the percentage of responsibility, stated in whole numbers,” for each claimant, each


13
   The jury awarded $14,285,505.86 in compensatory damages, of which $133,202.00 was for damages incurred in
the past. The trial court awarded prejudgment interest, but also reduced the award by a $200,000.00 settlement credit
relating to Puente’s settlement with Dr. Patel. The net judgment was for $14,109,349.02. The judgment also awarded
Puente court costs and post-judgment interest at the annual rate of 5% compounded annually.


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                                                                                     04-18-00118-CV


defendant, each settling person, and “each responsible third party who has been designated under

[s]ection 33.004.” Id. § 33.003(a). Section 33.003(b), however, “does not allow a submission to

the jury of a question regarding conduct by any person without sufficient evidence to support the

submission.” Id. § 33.003(b).

       Dr. Virlar and Gonzaba pled the alleged responsibility of twenty-six different health-care

providers. Pursuant to section 33.003(b), they were not entitled to a jury submission on the conduct

of these twenty-six alleged responsible third parties unless at trial there was “sufficient evidence

to support the submission.” Id. Dr. Virlar and Gonzaba argue on appeal they were denied that

opportunity because the trial court excluded their evidence in the form of Dr. Kuncl’s deposition

testimony.

       A. Standards for Expert Testimony in Medical Malpractice Cases

       “Recovery in a medical malpractice case requires proof to a reasonable medical probability

that the injuries complained of were proximately caused by the negligence of a defendant.”

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex. 2009). “Proximate

cause includes two components: cause-in-fact and foreseeability.” Id. “Proof that negligence was

a cause-in-fact of injury requires proof that (1) the negligence was a substantial factor in causing

the injury, and (2) without the act or omission, the harm would not have occurred.” Id. “Thus, to

satisfy a legal sufficiency review in such cases, plaintiffs must adduce evidence of a ‘reasonable

medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence

of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm

or condition resulted from such negligence.” Gunn, 554 S.W.3d at 658 (quoting Bustamante v.

Ponte, 529 S.W.3d 447, 456 (Tex. 2017)). “In medical-malpractice cases, the general rule is that

expert testimony is necessary to establish causation as to medical conditions outside the common

knowledge and experience of jurors.” Id. (citations omitted).


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         A person is qualified to give opinion testimony concerning the causal relationship between

the alleged injury and the alleged departure from the applicable standard of care only if the person

meets the requirements of section 74.402 of the Texas Civil Practice and Remedies Code and is

otherwise qualified to render opinions on that causal relationship under the Texas Rules of

Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402; Diagnostic Res. Group v. Vora, 473

S.W.3d 861, 868 (Tex. App.—San Antonio 2015, no pet.). To be so qualified under Texas Rule of

Evidence 702, an expert must have “knowledge, skill, experience, training, or education, regarding

the specific issue.” TEX. R. EVID. 702; see Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996).

Further, the expert’s testimony must be reliable. See E.I. du Pont de Nemours & Co. v. Robinson,

923 S.W.2d 549, 555 (Tex. 1995) (“To constitute ‘scientific knowledge,’ the proffered testimony

must be reliable.”). In determining whether expert testimony is reliable, courts may consider the

nonexclusive factors set out in Robinson regarding scientific theories and techniques, 14 as well as

the expert’s experience. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). When

the Robinson factors do not readily lend themselves to a review of the expert’s opinion, expert

testimony is unreliable if there is simply too great an “analytical gap” between the foundational

data and the opinion proffered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726-

27 (Tex. 1998).

         Finally, an expert’s testimony cannot be conclusory. “An expert’s testimony is conclusory

if the witness simply states a conclusion without an explanation or factual substantiation.”

Bustamante, 529 S.W.3d at 462. “If no basis for the opinion is offered, or the basis offered provides




14
   Robinson’s list of nonexclusive factors include (1) the extent to which the theory has been or can be tested, (2) the
extent to which the technique relies upon the subjective interpretation of the expert, (3) whether the theory has been
subjected to peer review and/or publication, (4) the technique’s potential rate of error, (5) whether the theory or
technique has been generally accepted as valid by the relevant scientific community, and (6) the non-judicial uses
which have been made of the theory or technique. Robinson, 923 S.W.2d at 557.


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no support, the opinion is merely a conclusory statement and cannot be considered probative

evidence, regardless of whether there is no objection.” Id. “It is not enough for an expert simply

to opine that the defendant’s negligence caused the plaintiff’s injury.” Jelinek v. Casas, 328

S.W.3d 526, 536 (Tex. 2010). “The expert must also, to a reasonable degree of medical probability,

explain how and why the negligence caused the injury.” Id. “Stated differently, an expert’s simple

ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of the

statements to link the conclusions to the facts.” Bustamante, 529 S.W.3d at 462.

         B. Did the offer of proof presented by Dr. Virlar and Gonzaba meet these standards?

         Dr. Kuncl, a neurologist, was an expert designated and retained by Puente, and not by Dr.

Virlar or Gonzaba. Even though Dr. Kuncl was not their retained witness, Dr. Virlar and Gonzaba

argued at trial that Dr. Kuncl’s deposition testimony was relevant to the breach of standard of care

(1) in failing to recognize the signs and symptoms of thiamine deficiency, and (2) in failing to

order thiamine replenishment. Puente objected, arguing that Dr. Kuncl, as a neurologist, was not

qualified to testify about the standard of care required of the twenty-six different healthcare

providers, including nurses and emergency room physicians, who did not practice in the area of

neurology. Further, Puente argued Dr. Kuncl’s deposition testimony was too general and not

sufficiently specific because his testimony did not address the standard of care and breach for each

responsible third party. The trial court sustained Puente’s objections. Dr. Virlar and Gonzaba then

made an offer of proof. 15 The offer of proof included an Amended Designation of Deposition and




15
  Puente contends Dr. Virlar and Gonzaba have failed to preserve error on this issue because they withdrew Dr. Kuncl
as a witness. In reviewing the record, we conclude that counsel for Dr. Virlar and Gonzaba did not withdraw Dr. Kuncl
as a witness. Instead, counsel was merely recognizing that the trial court had already sustained two objections made
by Puente to Dr. Kuncl being qualified to testify about the liability of other physicians, i.e. the responsible third parties.
Defense counsel was recognizing that based on the trial court’s rulings, it did not make sense to continue line by line
through Dr. Kuncl’s deposition testimony. Thus, he “withdrew” the remaining deposition excerpts and made an offer
of proof of what Dr. Kuncl would have testified about. We find no waiver by Dr. Virlar and Gonzaba.


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Video Testimony of Ralph W. Kuncl, Ph.D., M.D., and the actual excerpts from Dr. Kuncl’s

deposition testimony.

       On appeal, Dr. Virlar and Gonzaba point to excerpts of Dr. Kuncl’s deposition testimony

in support of their argument that the trial court erred in excluding his testimony. They refer to

where Dr. Kuncl testified he was “critical of every physician, every nurse, every dietician, every

member of the team that cared for Ms. Puente.” However, Dr. Kuncl could not explain those

criticisms. When asked about a specific physician, Dr. Kuncl admitted that he had not reviewed

the records related to that physician, so he could not comment on that physician’s care.

Nevertheless, when asked whether he would be “critical” of that physician for failing to recognize

the risk of thiamine deficiency and to order replacement thiamine if that physician had seen Puente

during her hospital admissions on January 14 and February 3, 2012, Dr. Kuncl replied, “Yes.”

According to Dr. Kuncl, he would have the same criticisms of emergency room physicians who

saw Puente “[i]f they knew that she had altered anatomy and nausea and vomiting.” Dr. Kuncl

testified that his “criticisms extend to, virtually, everyone who was involved as a team caring for

her and all who saw her, because every one of them had the chance that they missed to recognize

the risk and the curative benefit of thiamine and the zero risk of administering thiamine.” The

attorney questioning Dr. Kuncl during the deposition pointed out that Dr. Kuncl’s statements

constituted a “general response”:

       Q:      And I appreciate your general response, but I want to go through each
               physician. So, you are critical and believe Dr. Lindsey, the emergency room
               physician or the physician at Val Verde Regional Medical Hospital, was
               negligent and below the standard of care?

       A:      Yes, if you’d allow me a caveat. Obviously, some physicians and therapists
               had vanishing little time to spend with her, so I can’t tell you how long that
               Dr. Lindsey spent with Jo Ann Puente. But every person who had a moment
               or a hand on her had a chance to reverse an otherwise fatal disease. I’m



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                                                                                        04-18-00118-CV


                 guessing that there are going to be levels of liability dependent on the nature
                 of the continuing care provided and how integral a part of the team, the
                 bariatric surgical team, they were. So, you’ll list a lot of names and I’m
                 going to say they’re all responsible in a way because they all had a chance
                 to give her repletion doses of thiamine.

(emphasis added). Dr. Kuncl later testified again he was “critical” of every physician who saw

Puente during her admissions in January and February 2012 “with the caveat that her stays at Val

Verde were very short.” (emphasis added).

       The above testimony by Dr. Kuncl is general in nature and does not explain how and why

a specific physician breached the applicable standard of care and proximately caused Puente’s

injuries. See Bustamante, 529 S.W.3d at 462. Dr. Kuncl admitted this general response cannot

apply to all the healthcare providers. Although Dr. Kuncl testified that all the physicians were

liable for Puente’s injuries because they were part of a “team,” he then admitted that some

physicians had “vanishing little time to spend with her” and he was “guessing that there are going

to be levels of liability dependent on the nature of the continuing care provided and how integral

a part of the team, the bariatric surgical team, they were.” (emphasis added). Thus, Dr. Kuncl gave

general statements of every member of the “team” being held responsible, while also admitting

that some members of the team would have different “levels of liability” based on the

circumstances presented. Dr. Kuncl, however, does not go through these circumstances and

specifically explain the standard of care applicable to each alleged responsible third party and how

that alleged responsible third party breached the standard and proximately caused Puente’s

injuries. Thus, the above testimony by Dr. Kuncl is general and conclusory; it is therefore not

considered “probative evidence, regardless of whether there is no objection.” Bustamante, 529

S.W.3d at 462.




                                                  - 15 -
                                                                                        04-18-00118-CV


       Dr. Virlar and Gonzaba also point to where Dr. Kuncl was asked whether he believed “all

the physicians should have been aware of . . . the high risk for thiamine deficiency” to Puente. Dr.

Kuncl, replied, “Yes, because the literature and common medical knowledge in the era of post-

bariatric surgery always lists such patients, especially those with malabsorption surgery like Roux-

en-Y procedure, as those being listed to be at high risk for thiamine depletion.” (emphasis added).

Thus, Dr. Kuncl testified that all physicians should be aware of the high risk posed to Puente, but

did not specifically detail how the alleged responsible third parties in question failed to appreciate

that risk. Dr. Kuncl admitted that the amount of time spent with Puente would be a “caveat” to his

answer. Again, Dr. Kuncl’s testimony is general and conclusory. See Bustamante, 529 S.W.3d at

462.

       Dr. Virlar and Gonzaba also point to where Dr. Kuncl in a conclusory fashion agreed to

the following statements:

           •   And you’re critical of all of those physicians and their failure to replete the
               thiamine?
           •   And do you believe that their failure to do was a cause, in fact, of Mrs. Puente’s
               neurological deficits and current condition?
           •   If Dr. Silva was at the bedside on January 18th, would you be critical of him for not
               diagnosing Wernicke’s encephalopathy?
           •   Are you critical of the ophthalmologist who saw her as an outpatient specifically
               evaluating this presentation to include ocular disorders?

In response to all these statements, Dr. Kuncl simply replied, “Yes.” His agreement with these

conclusory statements cannot be considered probative evidence. See Bustamante, 529 S.W.3d at

462.

       With respect to hospital staff, nurses, or dieticians, Dr. Kuncl testified that he did not expect

the nurses or dieticians to make the diagnosis of Wernicke’s encephalopathy; he did expect them

“to be aware of the risk factors and the need to prophylax to prevent it.” Thus his “criticism” was

they did not recognize the risk factors or “make a recommendation to replete.” Once again, Dr.


                                                 - 16 -
                                                                                       04-18-00118-CV


Kuncl’s testimony is general and conclusory, and does not constitute probative evidence. See

Bustamante, 529 S.W.3d at 462.

       Given that the excerpts from Dr. Kuncl’s deposition testimony presented in the offer of

proof do not constitute probative evidence, Dr. Virlar and Gonzaba have failed to show the trial

court erred in excluding Dr. Kuncl’s deposition testimony.

                             TEXAS RULES OF EVIDENCE 403 AND 404

       In their second issue, Dr. Virlar and Gonzaba argue the trial court abused its discretion by

allowing questions and admitting evidence regarding (1) Dr. Virlar’s loss of privileges in violation

of Texas Rule of Evidence 403; and (2) prior acts in treating other patients in violation of Texas

Rule of Evidence 404.

       A. Rule 403: Loss of Privileges

       According to Dr. Virlar and Gonzaba, Puente was allowed to ask Dr. Virlar repeatedly

whether he had lost his privileges at Methodist Hospital, which they contend was “clearly intended

to mislead the jury into believing Dr. Virlar had lost his privileges as a result of Puente’s care.”

               1. Did Dr. Virlar and Gonzaba preserve error for appeal?

       Puente argues that Dr. Virlar and Gonzaba did not preserve this issue for appeal. In

response, Dr. Virlar and Gonzaba contend they did preserve error and point to the portion of the

reporter’s record where the trial court ruled on motions in limine. A ruling on a motion in limine,

however, does not preserve error for appeal. It “is designed solely to require an offering party to

approach the bench and inquire into the admissibility of the evidence at issue before introducing

that evidence to the jury.” Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d

509, 520 (Tex. App.—El Paso 2004, pet. denied). Accordingly, a ruling on a motion in limine “has

no bearing on the ultimate admissibility of the evidence,” id., and “preserves nothing for review”,

Kaufman v. Comm’n for Lawyer Discipline, 197 S.W.3d 867, 873 (Tex. App.—Corpus Christi–


                                                - 17 -
                                                                                       04-18-00118-CV


Edinburg 2006, pet. denied). Dr. Virlar and Gonzaba’s argument that portions of the reporter’s

record relating to the motion in limine show they preserved error is without merit. See id.

       Once trial began, the record reflects that during Dr. Virlar’s testimony, Puente’s attorney

informed the trial court outside the presence of the jury that he was “going to get into [Dr. Virlar’s]

loss of privileges.” Puente’s attorney noted that defense counsel had been allowed to ask his expert

witnesses, who were physicians, whether they had privileges at hospitals. Defense counsel

objected and argued the question was unfair to Dr. Virlar because he was barred by peer privilege

from explaining why his privileges had been revoked. Defense counsel argued the question, “Do

you have privileges now at Methodist?” was “[p]robably an appropriate question,” because it “does

not get into the peer review process.” However, the question, “Were your privileges revoked?” did

get into “an action by a peer review committee.” Defense counsel then made an objection pursuant

to rule 403:

       And, Judge, in addition to privilege, let me add something else. Under the rule–and
       I’m– I believe, in this case, prejudicial effect of this line of inquiry far exceeds any
       probative value it may have in this case. If he asks the question: “Did you lose
       privileges?”, and I do not respond with a question like, “Did it have anything to do
       with this case?”–which it–manifestly did not. It was two years later–if I don’t ask
       that question, the jury is going to speculate about why he lost his privileges, and
       certainly going to speculate that it had something to do with his care of Ms. Puente.
       So you have a huge prejudicial effect out of a simple small question there. If he
       answers then, “No, it had nothing to do with this case,” arguably, I’m opening the
       door for [Puente’s attorney] to come back and say, “Well, what did it have to do
       with?”, and then we’re back to the race going into things that the doctor is not
       permitted to talk about.

       Puente’s counsel then informed the trial court that he was “looking at Dr. Virlar’s board of

medical examiner site,” and the information online showed Dr. Virlar “entered into an agreed order

publicly reprimanding himself and requiring him to go back and complete 24 hours of continuing

medical education, 8 hours in risk management, 8 hours in ethics, 8 hours in professional



                                                 - 18 -
                                                                                      04-18-00118-CV


communications, and pay an administrative fee.” According to Puente’s counsel, all the

information was public record. The trial court then stated to defense counsel, “I hear your

argument, but if it’s something we can look up, how can we say that’s privileged information and

can no longer be discussed?” The trial court overruled defense counsel’s objection.

       Puente’s counsel then stated that he was “not going to ask [Dr. Virlar] what it arose out

of.” He was “just going to ask [Dr. Virlar] . . . [whether he has] any privileges at any hospitals

now?” Defense counsel replied that Dr. Virlar presently had privileges at two hospitals.

       COURT: Well, then, if the doctor has regained his privileges, then he regained his
           privileges. He can talk about that. But I don’t want the trial–I don’t want to
           try that case. And the actual intricate workings of the peer review of how
           the physician is not going to be–well, we don’t know any of that
           information. We’re not going to talk about that. We’re not going to try that.
           I mean, we’ve got to keep it clean. You know, it’s just have you–did you
           subsequently lose– and then they are going to come back and say, since
           then, you have gained it at some other hospitals. I’m going to give him some
           room to explain, if he feels like he wants to, you know, explain his–

       PLAINTIFF: Okay. But I just want to make everyone aware, if you open the door
            and try to explain it away, I’m going to get into the fact that he agreed to be
            disciplined.

       DEFENSE: And, again, it’s not admissible. The facts in there are not admissible.

       In the presence of the jury, Puente’s attorney began questioning Dr. Virlar about privileges:

       Q:      Okay. Doctor, what are privileges? When a hospital grants you privileges,
               what does that mean?
       A:      It is a courtesy by the hospital that allows you to go into a hospital setting
               to evaluate patients.
       Q:      Do you have to apply for those?
       A:      Yes, sir.
       Q:      Have you ever lost your privileges?
       A:      Yes, sir.
       Q:      How many times have you lost your privileges from hospitals?
       A:      Once.



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                                                                                      04-18-00118-CV


       Q:      And that was in 2014?
       A:      December of 2013.

Until this point in Dr. Virlar’s testimony, any error has been preserved for appeal. Dr. Virlar’s

testimony was within the ruling of the trial court about what was admissible–that is, what Puente

would be allowed to question Dr. Virlar about. See TEX. R. EVID. 103(b) (“When the court hears a

party’s objections outside the presence of the jury and rules that evidence is admissible, a party

need not renew an objection to preserve a claim of error for appeal.”); see also Bay Area

Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007) (explaining that at a

bench conference, the trial court ruled it would allow questions “about the prior patient’s treatment

to the extent that his statements concerning that treatment were inconsistent with his trial

testimony,” but that the cross-examination “went well beyond that limitation,” thus requiring the

attorney to object again to preserve the issue for appeal).

       Puente’s attorney then asked the question that is the basis of Dr. Virlar and Gonzaba’s

complaints on appeal:

       Q:      December of 2013. So right after you took care of Jo Ann?

               DEFENSE: Objection, Your Honor. Can we approach?

               PLAINTIFF: I’ll withdraw that, Your Honor.

(emphasis added). Puente’s attorney then continued his questioning about another subject without

further comment by the defense. Thus, there was no evidence admitted here, and the trial court

never ruled on the objection. If Dr. Virlar and Gonzaba believed the mere asking of the question

was prejudicial, to preserve error, they needed to obtain a ruling on their objection, and if that

objection was sustained, move for the trial court to instruct the jury to disregard the question. See

TEX. R. APP. P. 33.1. They needed to request relief from the trial court at a point in the proceedings

when the trial court could have cured any alleged error. See O’CONNOR’S TEXAS RULES–CIVIL


                                                - 20 -
                                                                                      04-18-00118-CV


TRIALS, ch. 8, § 5, at 839 (2019) (explaining that (1) “[g]enerally, an improper question that is not

answered by the witness does not constitute reversible error,” (2) “[i]n most cases, the error in

asking a prejudicial question can be cured by an instruction to the jury to disregard the question”;

and (3) when the trial court sustains an objection, “to preserve error, the party should pursue an

adverse ruling”). Thus, whether this question was unduly prejudicial is not preserved on appeal.

       Finally, Dr. Virlar and Gonzaba point to where Puente’s attorney again questioned Dr.

Virlar about privileges:

       Q:      Which hospital did you lose your privileges at?
       A:      Methodist.
       Q:      The one where you had taken care of–the one where Ms. Puente was?
       A:      The Methodist Healthcare System.
       Q:      Do you have those back?
       A:      No, sir.

This evidence is within the ruling by the trial court and thus the rule 403 objection was preserved

here. See McShane, 239 S.W.3d at 235-36.

       In summation, the complained of testimony that has been preserved on appeal consists of

testimony that Dr. Virlar lost his privileges, once, in December 2013, at Methodist Hospital and

does not have those privileges back.

               2. Did the trial court abuse its discretion in ruling this testimony did not violate
                  Rule 403?

       Texas Rule of Evidence 403 permits a trial court to exclude relevant evidence if its

probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID.

403. Thus, “testimony is not inadmissible on the sole ground that it is ‘prejudicial’ because in our

adversarial system, much of a proponent’s evidence is legitimately intended to wound the

opponent.” Diamond Offshore Servs. Ltd v. Williams, 542 S.W.3d 539, 549 (Tex. 2018) (quoting



                                                - 21 -
                                                                                       04-18-00118-CV


McShane, 239 S.W.3d at 234). “Rather, unfair prejudice is the proper inquiry.” Id. (emphasis in

original). “‘Unfair prejudice’ within its context means an undue tendency to suggest decision on

an improper basis, commonly, though not necessarily, an emotional one.” Id. (citations omitted).

“When determining the admissibility of evidence under rule 403, trial judges must balance the

probative value of the evidence against relevant countervailing factors.” JBS Carriers, Inc. v.

Washington, 564 S.W.3d 830, 836 (Tex. 2018).

       We review a trial court’s admission of evidence for abuse of discretion. See Williams, 542

S.W.3d at 542; Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). A trial court abuses its

discretion when it acts without regard for any guiding rules. Caffe, 487 S.W.3d at 142.

       In arguing this testimony was unduly prejudicial under rule 403, Dr. Virlar and Gonzaba

contend “[e]vidence of credentialing or the loss of privileges of a defendant physician to practice

at a hospital are matters irrelevant and unduly prejudicial to that physician in a medical malpractice

claim arising out of alleged negligence in the care and treatment of an unrelated patient.” For

support, they point to an unpublished opinion: Neeble v. Sepulveda, No. 01-96-01253-CV, 1999

WL 11710, at *6 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). In Neeble, the appellant

argued the trial court erred because (1) it ordered a separate trial on the negligent credentialing and

failure to monitor claims against the hospital from the negligence claims against the doctors; and

(2) it ordered the appellant not to inform the jury of the claims against the hospital and of previous

medical malpractice lawsuits against the appellee doctor. Id.

       The court of appeals explained that “[t]he admission of evidence of previous claims and

lawsuits is governed in part by Texas Rule of Evidence 404(b),” which precludes “a party from

using evidence of other acts to prove a person acted in conformity with that past conduct.” Id. The

court concluded that “[t]he evidence of previous medical malpractice lawsuits against [appellee

doctor] was, therefore, inadmissible in the current negligence action against him.” Id. However,


                                                 - 22 -
                                                                                      04-18-00118-CV


the evidence was “admissible to prove the negligent credentialing and failure to monitor claims

against” the hospital. Id. According to the court of appeals, “[b]ecause trying both claims

simultaneously would have unduly prejudiced” appellee doctor, the trial court did not abuse its

discretion in ordering separate trials and in ordering appellant to not inform the jury of the claims

against the hospital and of previous medical malpractice lawsuits against appellee doctor. Id.

       The facts presented in this appeal are distinguishable from those in Neeble. Here, there was

no evidence of previous medical malpractice claims and lawsuits—the trial court explicitly limited

the scope of the questions to just whether Dr. Virlar had lost his privileges and whether he had

them now.

       Further, Puente points out that Dr. Virlar testified as an expert witness on his own behalf.

And, she emphasizes that the “qualifications of a medical expert include the nature and extent of

his or her practice, including the existence or lack of hospital privileges.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.401 (requiring expert witness testifying about accepted standards of medical

care to be “qualified on the basis of training or experience,” which includes whether the witness

“has other substantial training or experience in an area of medical practice relevant to the claim”

and “is actively practicing medicine in rendering medical care services relevant to the claim”);

Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 472 (Tex. App.—Corpus Christi–Edinburg 2000,

pet. dism’d w.o.j.) (explaining that “bestowment of hospital privileges does not mean a physician

has an unlimited right to practice medicine in a particular hospital, but rather whether he is

qualified to practice there according to the scope of the privileges”) (emphasis in original). Indeed,

as noted by Puente, defense counsel at trial acknowledged that he had asked all his experts about

whether they have privileges. In reviewing the record, we hold that the trial court did not abuse its

discretion in ruling Dr. Virlar’s testimony that he had lost his privileges, once, in December 2013,




                                                - 23 -
                                                                                        04-18-00118-CV


at Methodist Hospital and did not have those privileges back was not unduly prejudicial under rule

403.

       B. Rule 404: Prior Acts

       In their second issue, Dr. Virlar and Gonzaba also complain that the trial court allowed

Puente’s attorney to question Dr. Virlar about “whether he had a history of not reading a patient’s

charting or examining the patient before administering treatment” in violation of rule 404. Puente

again argues this issue is not preserved for appeal.

       To preserve error for appellate review, the complaining party must (1) make a timely

objection to the trial court that “state[s] the grounds for the ruling that the complaining party

s[eeks] from the trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context,” and (2) obtain an adverse ruling. See

TEX. R. APP. P. 33.1.

       In support of their argument that they did preserve error for appeal, Dr. Virlar and Gonzaba

point to objections they made during a motion in limine:

       DEFENSE: Briefly, Your Honor, we would like to make an oral motion in limine
            relating to the testimony of Dr. Virlar. We would ask that the Court instruct
            counsel not to go into two issues. One is Dr. Virlar’s prior lawsuit. . . . And
            the second thing is Dr. Virlar, in December of 2013, lost his privileges at
            Methodist Hospital. . . .

       [discussion about loss of privileges]

       COURT: What about the prior lawsuit?

       PLAINTIFF: The prior lawsuit, I intend to question him about a bunch of answers
            he gave in that deposition. I was not going to say “This is a case where you
            got sued and I was the lawyer for the plaintiff” or whatever. I was going to
            say, “Is it true you have given prior testimony regarding other patients? For
            example, in this other patient, you did X, Y, and Z, which is pretty much
            the same that [you] did here.” And so, you know, that’s what I’m going to
            do with it. I’m going to be asking about specific answers he gave in his
            deposition back then.



                                                 - 24 -
                                                                                       04-18-00118-CV


          DEFENSE: Judge, this is going into a completely different character trait. If he is
               asking specific questions about the care of a patient during a prior lawsuit,
               then we’re going to end up retrying the entire lawsuit, I mean, because then
               all that was done in that has to be re-justified, giving me another half a day
               that I’ve got to go into it. If he gives an answer to a question about this case
               that is contradicted by his answer on previous sworn testimony, that would
               certainly be permissible.

          COURT: Well, obviously, we’re not going to try the other lawsuit. You can talk
              about it. But I think – I mean, it’s sworn testimony. It’s got to be relevant in
              some sense to this one.

          PLAINTIFF: It will be, Judge.

          COURT: And so why don’t you, I guess, on both of these issues – Mr. Anderson,
              do you have any case law about this that the defense would not be able to
              go into the loss of privileges at a hospital?

          DEFENSE: Nothing directly on it. There is nothing. I can promise the Court I have
               looked. It’s just general that all peer review is protected and privileged; and,
               therefore, we can’t get to the records. We can’t find out what was done or
               why, whether he did it voluntarily, or whether they were lost due to a
               problem totally unrelated to anything relevant to this case.

          COURT: But your client can testify as to his understanding. I mean, if he lost his
              privileges or if he voluntarily, you know, decided not to practice at the
              hospital anymore. And then on the prior lawsuit, Mr. Rhodes [Puente’s
              counsel], why don’t we approach at that point when you get to the point?

(emphasis added). As noted previously, a ruling by the trial court on a motion in limine “does not

preserve error on evidentiary rulings at trial because it does not seek a ruling on admissibility;

rather, the purpose of such a motion ‘is to prevent the asking of prejudicial questions and the

making of prejudicial statements in the presence of the jury’ without seeking the trial court’s

permission.” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015) (quoting

Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963)). Thus, the above

portions of the reporter’s record do not show Dr. Virlar and Gonzaba preserved any complaint for

appeal.


                                                  - 25 -
                                                                                    04-18-00118-CV


       The parties continued their argument to the trial court:

       PLAINTIFF: Let me give you an example: “Isn’t it true that you have a history of
            prescribing to patients without seeing them or looking at the records?”
            That’s one of the questions.

       DEFENSE: Judge, it’s totally irrelevant. There is no allegation that he did anything
            improper in prescribing to this patient. Th[ese are] other bad acts that are
            irrelevant to this case, and that kind of evidence is simply not permissible.

       PLAINTIFF: He never read the records in this case. It’s totally relevant. He has a
            history of it. He didn’t read the records.

       DEFENSE: Okay.

       PLAINTIFF: So how is that not relevant?

       DEFENSE: What are you contending he prescribed that hurt her?

       PLAINTIFF: The prescription – he treated the patient in a way that injured the
            patient without looking at the patient or looking at the records.

       DEFENSE: That’s a prior bad act, Judge. It’s one. There is no showing that it’s a
            substantially similar circumstance. That kind of evidence should not be
            permitted.

       COURT: When you get to that point, Mr. Rhodes [Puente’s counsel], please
           approach.

(emphasis added). The trial court thus again made a ruling on a motion in limine; no error was

preserved for appeal. See Kaufman, 197 S.W.3d at 873.

       Dr. Virlar and Gonzaba also point to the following portions of Dr. Virlar’s testimony at

trial to show they preserved error for appeal:

       PLAINTIFF: Can we approach, Your Honor?

       COURT: Yes.




                                                 - 26 -
                                                                                                      04-18-00118-CV


         PLAINTIFF: I’m going to – this is where I want to ask him about his history of not
              looking at records and not examining patients before he prescribes treatment
              or renders treatment.

         DEFENSE: And, again, Judge, it’s past acts. 16 He has got one. There is no evidence
              of a history. It’s just trying to get into some dirt that has no relevance to this
              case whatsoever -- one prior act that may be simple -- he hasn’t established
              that he didn’t examine the patient before he treated. So right now, it’s not
              even relevant.

         COURT: I mean, I’m going to allow you to try to lay a proper predicate. 17

         PLAINTIFF: Thank you.

         Q. (By Plaintiff): Doctor, do you have a history in the past of–

                  DEFENSE: Excuse me, Your Honor. Can we approach? I’m sorry. I’m
                  sorry. He is going to go to the history part of it going into a prior act. I
                  thought what the Court said was that he could lay a predicate by establishing
                  its relevancy in the presence. He can’t do that by referring to the history.
                  The question is, in this case, did he do what he is now saying he did in the
                  past; and he hasn’t established that yet. There is no predicate for that line of
                  questioning.

                  PLAINTIFF: Your Honor, we have already laid the predicate, the fact that
                  I asked him the question about the standard of care requiring him to look at
                  the test and to look at the chart.

                  DEFENSE: He has not established that he didn’t yet. That question and
                  answer has not yet been had.

                  PLAINTIFF: Well, it’s one of the two.

                  COURT: I need you to rephrase the question, a history of, you know. 18




16
   Defense counsel appears to be objecting under Texas Rule of Evidence 404.
17
   This statement by the trial court is not a ruling on the admissibility of the evidence. The trial court was merely
allowing Puente’s counsel to lay a predicate.
18
   Similarly, this statement by the trial court is not an adverse ruling on the admissibility of the evidence. The trial
court was merely asking Puente’s counsel to rephrase the question for purposes of laying a predicate.


                                                         - 27 -
                                                                                                       04-18-00118-CV


                  PLAINTIFF: Yes, Your Honor. I will rephrase it.

                  DEFENSE: Thank you.

         Q. (By Plaintiff): Doctor, given your possibilities on the nutritional assessment that
                you either ignored it or you didn’t look at it, do you sometimes, in other
                patients, not read the chart or examine the patient before you render
                treatment?

         A. No, sir, usually we go through all the tabs to get the information that we need
                that’s available at the time.

         Q. Do you remember Charlotte Watson?

         A. Yes, I do, sir.

         Q. Isn’t it true that you rendered treatment to her – that you rendered treatment to
                 her without ever seeing her or without ever looking at her chart? That was
                 a patient that was in the hospital for a knee surgery.

                  DEFENSE: Excuse me. Doctor, at this point, without going back into the
                  old case, could you simply answer the question, please? 19

                  WITNESS: Okay.

         A. Can you repeat the question, please?

         Q. (By Plaintiff) Did you render treatment to her, over the telephone from your
               couch, without looking at her or looking at her chart? 20

         A. Based on the information that the nurse provided to me over the phone regarding
                her clinical state and the clinical information that she had available at her
                disposal, yes, I did.

                  PLAINTIFF: Objection, nonresponsive, Your Honor. 21

                  COURT: Sustained.


19
   Defense counsel did not object to the question; instead, he instructed his client to answer the question.
20
   Defense counsel did not object.
21
   Defense counsel did not object. The objection sustained was made by Puente’s counsel.


                                                         - 28 -
                                                                                               04-18-00118-CV


Thus, defense counsel did not object to the question about whether Dr. Virlar treated Charlotte

Watson “over the phone, without looking at her or looking at her chart.” And, any error based on

Dr. Virlar’s answer is not preserved for appellate review.

        The questioning continued:

        Q. (By Mr. Plaintiff): Did you render treatment to her from your couch at home
               without seeing the patient or looking at her chart, “yes” or “no”?

        A. Yes.

        Q. Thank you. Do you do that a lot?

                 DEFENSE: Your Honor, objection, this goes –

                 COURT: I didn’t hear the comment.

                 PLAINTIFF: The question was: Does he do it a lot?

                 DEFENSE: Your Honor, we’re now opening up the entire practice. 22

                 COURT: Overruled.

        Q. (By Plaintiff) Do you do that a lot?

        A. No, sir.

Thus, defense counsel obtained an adverse ruling to the question regarding whether Dr. Virlar

treats patients “a lot” without looking at their chart or seeing them. However, Dr. Virlar responded

that he did not practice that way. As Dr. Virlar did not agree with the question, any error from the

asking of the question is harmless.

        Puente’s counsel continued his questioning of Dr. Virlar:

        Q. Because that’s not the way you’re supposed to practice medicine, is it? Is it?


22
  Defense counsel did not specifically object under rule 404. From the context, we can assume counsel meant rule
404.


                                                     - 29 -
                                                                                            04-18-00118-CV


        A. Is that a question?

        Q. Yes. That’s not the way you’re supposed to practice medicine, is it?

        A. Which way?

        Q. Where you render treatment to a patient without seeing the patient or looking at
              the chart. 23

        A. We render care of the patient based on the evaluation of the patient, and
             sometimes that may be via many means. Now, with social media, there is
             electronic means, over the phone. There is PubHelp. We may not have the
             chart at our disposal at the time.

        Q. But you didn’t have any of that with regard to Charlotte Watson, did you, none?
               You just rendered treatment over the phone without seeing her chart and
               without seeing the patient.

        A. Yes, sir. 24

        Q. And you know what that resulted in, don’t you?

                DEFENSE: Your Honor, we’re going well outside –

                COURT: Sustained.

Thus, defense counsel obtained a ruling by the trial court to the question “And you know what that

resulted in, don’t you?” However, defense counsel did not obtain an adverse ruling. After the trial

court sustained the objection made by defense counsel, Puente’s counsel moved on to another

topic. To preserve error, defense counsel would have needed to move to instruct the jury to

disregard, and if the trial court complied, he would have then needed to move for a mistrial. See

TEX. R. APP. P. 33.1.




 No objection was made by defense counsel.
23
24
  No objection was made by defense counsel. Further, Dr. Virlar had already testified without objection about
Charlotte Watson.


                                                   - 30 -
                                                                                                        04-18-00118-CV


         Dr. Virlar and Gonzaba point to no other portions of the record. Therefore, we find no

abuse of discretion by the trial court.

         C.       Harmless Error

         Even if we were to assume that the trial court erred in admitting the above evidence, any

error was harmless. “Erroneous admission of evidence requires reversal only if the error probably

(though not necessarily) resulted in an improper judgment.” Nissan Motor Co. v. Armstrong, 145

S.W.3d 131, 144 (Tex. 2004); see TEX. R. APP. P. 44.1(a). “We review the entire record and require

the complaining party to demonstrate that the judgment turns on the particular evidence admitted.”

Nissan, 145 S.W.3d at 144.

         “Clearly, erroneous admission is harmless if it is merely cumulative.” Id. “But beyond that,

whether erroneous admission is harmful is more a matter of judgment than precise measurement.”

Id. “In making that judgment, we have sometimes looked to the efforts made by counsel to

emphasize the erroneous evidence and whether there was contrary evidence that the improperly

admitted evidence was calculated to overcome.” Id.

         In arguing the evidence about the loss of hospital privileges was harmful, Dr. Virlar and

Gonzaba point to statements made by Puente’s counsel during closing argument. 25 While Puente’s

counsel did refer to Dr. Virlar’s loss of privileges, the focus of his closing argument was on the

facts of this particular case and the symptoms exhibited by Puente during her hospitalizations.

Further, in considering the entire record, we conclude this case did not turn on whether Dr. Virlar

lost his privileges once and whether he had those privileges back at Methodist Hospital. This case



25
   Puente’s counsel stated during closing argument, without objection, that the jury could “believe it when [Dr. Virlar]
says he lost his privileges at every hospital in San Antonio and cannot practice in any hospital in this city.” Dr. Virlar
testified he was currently employed at Doctors Hospital of Laredo as a full-time hospitalist and also “as a local at Fort
Duncan in Eagle Pass.” He testified he also worked at a clinic in San Antonio. Thus, Dr. Virlar testified that he had
“admitting privileges at Doctors Hospital in Laredo and Fort Duncan in Eagle Pass.” When he is in San Antonio, he
is “in the clinic and at the nursing facilities.”


                                                          - 31 -
                                                                                                      04-18-00118-CV


turned on whether Dr. Virlar breached the standard of care by failing to treat Puente for a thiamine

deficiency.

         Similarly, with regard to the evidence that Dr. Virlar rendered treatment to another patient

over the phone without reviewing her chart, this case did not turn on that evidence, but instead

turned on whether Dr. Virlar in Puente’s case had failed to realize she was exhibiting signs of

thiamine deficiency because he admittedly did not review nurses’ notes or notes from the dietician

and physical therapist.

         At trial, Puente’s counsel presented evidence from witnesses and Puente’s medical records

proving that during her hospitalizations, Puente exhibited classic signs of thiamine deficiency.

Although nurses and the physical therapist wrote notes in her medical records documenting those

symptoms and although a dietician recommended twice in her medical records to supplement her

nutrition, Dr. Virlar admitted at trial he did not read those notes at the time and was thus unaware

of Puente’s many symptoms. He testified the symptoms were “not reported” to him. For example,

Dr. Virlar admitted he had not read the nurses’ notes regarding Puente not responding to

questioning, having a “fixed gaze,” and exhibiting abnormal eyeball movement. Dr. Virlar testified

that when he was on the hospital floor, “it was never reported to [him]” and that if he had observed

any nystagmus in her eyes during his exam, he would have documented it. Thus, while Dr. Virlar

emphasized a “team approach” 26 to the medical professionals treating Puente, he admitted to not

reading notes written by nurses, her physical therapist, and the dietician. For example, Dr. Virlar

admitted he never looked at the progress note by the physical therapist reporting that Puente had

exhibited a Trendelenburg gait. Dr. Virlar testified if the gait had been reported to him, he would


26
  When asked who was the “captain” of the team, Dr. Virlar testified that he was the “admitting attending physician,”
but then claimed “there is no real captain.” “We work as a team. Basically, there is no like, hey, man, I’m the captain,
you do what I say. It doesn’t work that way.” When pressed who was the physician of record, Dr. Virlar stated, “I
was.”


                                                         - 32 -
                                                                                      04-18-00118-CV


have looked into the symptom. Later during his testimony, Dr. Virlar admitted that at the time of

Puente’s hospitalization, he had not known what a Trendelenburg gait was and only recently

learned about it.

       Further, while Dr. Virlar claimed he would have documented a significant observation like

nystagmus, he also claimed to have had a “general conversation” with Dr. Patel that he did not

document in Puente’s records. According to Dr. Virlar, he brought up putting Puente on TPN with

Dr. Patel, but Dr. Patel wanted to keep advancing her oral diet: “I would discuss my concerns

regarding the nutrition with Dr. Patel, who then advised me, based on his expertise, to basically

give him more time to work on her diet.” When asked why this conversation was not documented

in Puente’s medical records, Dr. Virlar testified that “[s]imply because it is not documented doesn’t

mean it was not discussed or considered.” Puente’s counsel responded, “What are you taught in

medical school? If it ain’t documented, it wasn’t done, correct?” Dr. Virlar replied, “Yes and no.

We cannot document every concern in the chart on every patient. The documentation is for billing

purposes.” (emphasis added). Puente’s counsel attempted to clarify Dr. Virlar’s testimony: “Your

understanding is the notes you are recording in your progress notes are just for billing?” Dr. Virlar

responded,

       No. The progress note serves two purposes. It is a diary of my actions, for me to
       document what I consider important and relevant, plus whatever other purpose my
       entry may serve for me. In addition, it also serves the purpose as a billing record to
       basically ensure to payers that I did see the patient at that time and that it is
       appropriate for me to bill for that visit.

Puente’s counsel then asked, “Is one of the purposes of charting patient’s care the continuity of

care?” Dr. Virlar admitted that “[i]t helps with the continuity of care.”

       Not only had Dr. Virlar not documented this conversation with Dr. Patel regarding Puente’s

nutrition in her medical records, but Dr. Virlar also failed to mention it during his deposition. He



                                                - 33 -
                                                                                       04-18-00118-CV


was asked during his deposition whether he recalled “[u]p until the time of discharge” “any specific

conversations” he had with Dr. Patel about Puente. At the deposition, Dr. Virlar responded, “No.”

At trial, he claimed that after reviewing Puente’s chart in preparation for his testimony, he had

remembered the conversation with Dr. Patel. Puente’s counsel then asked him whether he had

reviewed Puente’s chart before his deposition. Dr. Virlar testified he had not, but then admitted he

could not recall. Dr. Virlar then clarified, “But I do remember the conversation with Dr. Patel.”

       Dr. Virlar’s inconsistent testimony was so significant that defense counsel addressed the

matter during closing argument:

       I need to do something now, and this is pretty painful for me. Dr. Virlar testified to
       conversations that he now remembers that he did not remember at the time of his
       deposition. One of two things is true. Either, as he said, that as he went through
       these records over and over again in the three weeks leading up to trial, he
       remembered some things that he had not remembered at the time of his deposition.
       The other thing that you could conclude and that I suspect [Puente’s counsel] will
       suggest when he does the rebuttal portion is that Dr. Virlar made up some of those
       conversations. I can’t read your minds. I don’t know which way you’re thinking
       about this. I will tell you if you believe he made up those conversations, that was
       wrong, and you have every right to be angry about that, because you’re not
       supposed to do that under oath. And I can’t endorse that, and I can’t even try and
       defend that, and I won’t. But recall your oath. What did you swear to do? Render a
       true verdict. The court is asking you, did the negligence, if any, of those doctors
       proximately cause the injury? Your concern with the evidence is five years ago, not
       what happened here last week. Five years ago. What you are entitled to do, and the
       court has told you this, you are the sole judges of the credibility of a witness. If you
       believe that Dr. Virlar was not reliable in his testimony, it is your right and indeed
       your duty to give no weight to anything that he said on that witness stand, no weight.
       That is your—that is the ability you have. What you cannot do consistent with your
       oath is to decide this case on the fact that you believe he did not tell you the truth.

       Finally, Dr. Virlar testified without objection that he no longer works for his previous

employer: “I was given two options: one to basically be terminated or one to resign. I took the

termination letter so that they wouldn’t be able to enforce the non-compete. If I had taken a

resignation letter, I wouldn’t have been able to practice in the hospitals in San Antonio.”


                                                - 34 -
                                                                                      04-18-00118-CV


       Given this entire appellate record, we cannot conclude that any error in the admission of

evidence complained of by Dr. Virlar and Gonzaba “probably caused the rendition of an improper

judgment.” TEX. R. APP. P. 44.1(a). Thus, even if the trial court had erred in allowing the evidence,

any error was harmless.

                              LOSS OF FUTURE EARNING CAPACITY

       In their third issue, Dr. Virlar and Gonzaba argue the judgment for loss of future earning

capacity was supported by legally and factually insufficient evidence. “Lost earning capacity is an

assessment of what the plaintiff’s capacity to earn a livelihood actually was and the extent to which

that capacity was impaired by the injury.” Hospadales v. McCoy, 513 S.W.3d 724, 742 (Tex.

App.—Houston [1st Dist.] 2017, no pet.). “Loss of past earning capacity is a plaintiff’s diminished

ability to work during the period between the injury and the date of trial.” Id. “Loss of future

earning capacity is the plaintiff’s diminished capacity to earn a living after trial.” Bituminous Cas.

Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex. App.—Amarillo 2006, no pet.); see Tagle v.

Galvan, 155 S.W.3d 510, 519 (Tex. App.—San Antonio 2004, no pet.). “In order to support such

a claim, the plaintiff must introduce evidence from which a jury may reasonably measure in

monetary terms [her] earning capacity prior to injury.” Bituminous, 223 S.W.3d at 491. “If the

plaintiff’s earning capacity is not totally destroyed, but only impaired, the extent of [her] loss can

best be shown by comparing [her] actual earnings before and after [her] injury.” Id. “Because the

amount of money a plaintiff might earn in the future is always uncertain, the jury has considerable

discretion in determining this amount.” Id.; see Tagle, 155 S.W.3d at 519 (same).

       To support an award of damages for loss of future earning capacity, the plaintiff can

introduce evidence of (1) past earnings; (2) the plaintiff’s stamina, efficiency, and ability to work

with pain; (3) the weakness and degenerative changes that will naturally result from the plaintiff’s

injury; and (4) the plaintiff’s work-life expectancy. Perez v. Arredondo, 452 S.W.3d 847, 862


                                                - 35 -
                                                                                         04-18-00118-CV


(Tex. App.—San Antonio 2014, no pet.); Tagle, 155 S.W.3d at 519. “There must be some evidence

that the plaintiff had the capacity to work prior to the injury, and that [her] capacity was impaired

as a result of the injury.” Tagle, 155 S.W.3d at 520.

        In considering whether the evidence is legally sufficient to support the jury’s finding of

loss of future earning capacity, we examine the record for evidence and inferences that support the

jury’s finding and disregard all contrary evidence and inferences. See id. at 517. If there is more

than a scintilla of evidence to support the jury’s finding, the evidence is legally sufficient to support

the jury’s finding. See id. at 518.

        With regard to whether the evidence is factually sufficient to support the jury’s finding of

loss of future earning capacity, we consider all the evidence in the record, both for and against the

jury’s finding. See id. The evidence is factually insufficient if the jury’s finding “is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. As the trier of

fact, the jury “determines the credibility of the witnesses and the weight to be given their testimony,

decides whether to believe or disbelieve all or any part of the testimony, and resolves any

inconsistencies in the testimony.” Id. Thus, when there is conflicting evidence, we defer to the jury

as the trier of fact. Id.

        Dr. Virlar and Gonzaba argue the evidence is legally and factually insufficient to support

the jury’s award of damages for loss of future earning capacity because the only evidence to

support such an award was the testimony of Dr. Keith Fairchild, Puente’s economist. Dr. Fairchild

valued Puente’s past and future loss of earning capacity, including her loss of employee benefits,

at $1,013,631.00. The jury, however, awarded Puente $1,021,631.00, which is $8,000.00 more

than Dr. Fairchild’s valuation.

        Dr. Fairchild testified that in making his calculations of Puente’s loss of earning capacity,

he assumed an average life expectancy based on vital statistics tables published by the Centers for


                                                  - 36 -
                                                                                       04-18-00118-CV


Disease Control and Prevention. He projected Puente to live until February 23, 2062. According

to Dr. Fairchild, Puente could live longer than this average life span or she could live less than this

average life span. Dr. Fairchild also assumed an inflation rate of 2.29 percent per year and a

discount rate based on a seven-year U.S. Treasury bond, which he testified was a “middle of the

road” investment model. He also projected the remaining work-life expectancy to be May 21,

2038, at which time Puente will be sixty-two years of age. According to Dr. Fairchild, he based

Puente’s work-life expectancy on average statistics reported by the government, including the

Bureau of Labor Statistics, which take into account gender and educational level. He projected

Puente’s loss of future earning capacity to be $880,429.00. He testified his opinions were based

on a reasonable degree of economic and financial probability. The jury awarded Puente

$888,429.00 for loss of future earning capacity, which exceeds the range of Dr. Fairchild’s

testimony by $8,000.00.

       In response, Puente argues that Dr. Virlar and Gonzaba incorrectly assert Dr. Fairchild’s

testimony was the only evidence of her loss of future earning capacity. She states that Dr. Altman,

Dr. Gavi, and “appellants’ own damage witness testified to various aspects of Jo Ann Puente’s

impairment, its duration, her life expectancy, and the composite of factors that may affect a

person’s capacity to earn, such as pain, weakness, and diminished functional ability.” Puente,

however, does not cite to the record where these witnesses gave testimony. See TEX. R. APP. P.

38.1(i). Nor does Puente explain how the testimony from these witnesses would affect Dr.

Fairchild’s calculations. It is undisputed that Puente was employed as an administrative assistant

with the San Felipe Consolidated School District earning approximately $26,000 per year at the

time of her injuries. It is also undisputed that due to her permanent injuries, she is wholly incapable




                                                 - 37 -
                                                                                                    04-18-00118-CV


of working. 27 Thus, the extent of her impairment is really not at issue on appeal. See Bituminous,

223 S.W.3d at 491 (explaining that if a plaintiff’s earning capacity is not totally destroyed, but

only impaired, the extent of her loss is relevant). Further, the testimony in this case was Puente

will have a longer life expectancy than her work-life expectancy. See Plainview Motels, Inc. v.

Reynolds, 127 S.W.3d 21, 38 (Tex. App.—Tyler 2003, pet. denied) (noting that work-life

expectancy is a retirement age of 65 less the plaintiff’s age). Therefore, whether Puente has a

shorter or longer life expectancy does not affect the calculations regarding her work-life

expectancy.

         The jury’s award of $888,429.00 exceeded the range of loss described by Dr. Fairchild, the

expert witness, by $8,000. There is no other evidence in the record to support an award for this

$8,000. A jury’s award may not be based on conjecture and “must be based upon such facts as are

available in the particular case” and “‘proved with that degree of certainty of which the case is

susceptible.’” Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 2002, pet.

denied) (quoting McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943)). Thus, “where the

plaintiff seeks special damages for loss of his earning capacity in a particular business or

profession, the amount of his earnings or the value of his services in that business must be shown

with reasonable certainty.” Id. at 52 (quoting McIver, 169 S.W.2d at 712). Here, by awarding

damages in excess of the range of evidence, the jury abused its discretion. See id.




27
  We note that Puente also makes an invited error argument in her brief. She points to Dr. Fairchild’s testimony about
the discount rate he used and Dr. Fairchild’s acknowledgment that some economists use discount rates lower than the
one he used in making his calculations. Puente then points to defense counsel’s statements during closing argument
where he stated to the jury: “With regards to the investment part and using T-bills, again use your common sense.”
Puente argues that defense counsel “invited the jury to use its own ‘common sense’ in choosing between putative
investments and discount rates.” According to Puente, the testimony “from over a dozen witnesses about [Puente]’s
physical limitations and life expectancy, there was sufficient evidence to support the jury’s judgment and any alleged
error was invited and waived.” We, however, find no invited error by defense counsel through the statement made
during closing argument. Further, any statement made by defense counsel is not evidence.


                                                        - 38 -
                                                                                                04-18-00118-CV


        We therefore hold there was sufficient evidence of loss of future earning capacity in the

amount of $880,429.00, but not in the full amount awarded ($888,429.00).

                                           SETTLEMENT CREDIT

        Under a confidential settlement, Puente’s minor daughter, C.P., received a sum of money

from the hospital. 28 Puente, C.P., and Carr (Puente’s mother) then dismissed all their claims against

the hospital. On appeal, Dr. Virlar and Gonzaba argue that the dollar amount of the settlement paid

to C.P. should be deducted from the amount awarded to Puente pursuant to chapter 33 of the Texas

Civil Practice and Remedies Code. In response, Puente argues that Dr. Virlar and Gonzaba did not

meet their burden of proving they were entitled to the settlement credit because they did not

introduce evidence of the settlement amount. Puente further argues that even if they did show the

settlement amount, the amount of her daughter’s settlement for her daughter’s independent

damages should not reduce her award for injuries she suffered as a result of Dr. Virlar and

Gonzaba’s negligence.

        A. Chapter 33’s Settlement Credit Provisions

        Section 33.012(c) of the Texas Civil Practice and Remedies Code provides that if a

claimant in a health care liability claim has settled with one or more persons, the amount recovered

by the claimant should be reduced “by an amount equal to one of the following, as elected by the

defendant: (1) the sum of the dollar amounts of all settlements; or (2) a percentage equal to each

settling person’s percentage of responsibility as found by the trier of fact.” TEX. CIV. PRAC. & REM.

CODE ANN. § 33.012(c). “Claimant” is defined as




28
  Because the settlement amount is part of a confidential settlement, we do not refer to the exact amount in this
opinion.


                                                     - 39 -
                                                                                       04-18-00118-CV


       a person seeking recovery of damages, including a plaintiff, counterclaimant, cross-
       claimant, or third-party plaintiff. In an action in which a party seeks recovery of
       damages for injury to another person, damage to the property of another person,
       the death of another person, or other harm to another person, “claimant” includes:
               (A) the person who was injured, was harmed, or died or whose property was
                   damaged; and
               (B) any person who is seeking, has sought, or could seek recovery of
                   damages for the injury, harm, or death of that person or for the damage
                   to the property of that person.

Id. § 33.011(1) (emphasis added). A “settling person” is “a person who has, at any time, paid or

promised to pay money or anything of monetary value to a claimant in consideration of potential

liability with respect to the personal injury, property damage, death or other harm for which

recovery of damages is sought.” Id. § 33.011(5).

       B. Same Burden Under Chapter 33 and One-Satisfaction Rule

       Chapter 33 is based on the one-satisfaction rule, a common-law doctrine, but it is more

narrowly applied. See In re Xerox Corp., 555 S.W.3d 518, 523 (Tex. 2018) (orig. proceeding)

(explaining that “chapter 33’s proportionate-responsibility scheme . . . incorporates the one-

satisfaction rule”); see also TEX. CIV. PRAC. & REM. CODE ANN. § 33.002(a) (applying only to a

“cause of action based on tort in which a defendant, settling person, or responsible third party is

found responsible for a percentage of the harm for which relief is sought” or an action brought

under the DTPA “in which a defendant, settling person, or responsible third party is found

responsible for a percentage of the harm for which relief is sought”). The one-satisfaction rule is a

common law rule providing that “a plaintiff is entitled to only one recovery for any damages

suffered.” Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 106 (Tex. 2018). This is true

even though “more than one wrongdoer contributed to bring about his injuries.” Id. at 107

(citations omitted). The “fundamental consideration in applying the one-satisfaction rule is

whether the plaintiff has suffered a single, indivisible injury—not the causes of action the plaintiff



                                                - 40 -
                                                                                      04-18-00118-CV


asserts.” Id. (emphasis added). Thus, the one-satisfaction rule “applies both when the defendants

commit the same act as well as when defendants commit technically differing acts which result in

a single injury.” Id. (citations omitted). This rule applies to settlement credits for nonsettling

defendants because the “plaintiff should not receive a windfall by recovering an amount in court

that covers the plaintiff’s entire damages, but to which a settlement defendant has already partially

contributed.” Id. (citations omitted). “The plaintiff would otherwise be recovering an amount

greater than the trier of fact determined would fully compensate for the injury.” Id. (citations

omitted).

       Because chapter 33 is silent about which party has the burden to prove the settlement

amount, the supreme court has looked to the common law’s one-satisfaction rule. See Utts v. Short,

81 S.W.3d 822, 828 (Tex. 2002); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998).

Under the common law’s one-satisfaction rule, “a defendant seeking a settlement credit has the

burden of proving its right to such a credit.” Ellender, 968 S.W.2d at 927. This burden “includes

proving the settlement credit amount.” Id. In applying this common-law burden to chapter 33, the

supreme court has held that a defendant meets this burden if “the record show[s], in the settlement

agreement or otherwise, the settlement credit amount.” Utts, 81 S.W.3d at 828.

       “Once the nonsettling defendant demonstrates a right to a settlement credit, the burden

shifts to the plaintiff to show that certain amounts should not be credited because of the settlement

agreement’s allocation.” Sky View, 555 S.W.3d at 107 (citing Utts, 81 S.W.3d at 828). “The

plaintiff can rebut the presumption that the nonsettling defendant is entitled to settlement credits

by presenting evidence showing that the settlement proceeds are allocated among defendants,

injuries, or damages such that entering judgment on the jury’s award would not provide for the

plaintiff’s double recovery.” Id. at 107-08 (citations omitted) (emphasis added). “A written




                                                - 41 -
                                                                                       04-18-00118-CV


settlement agreement that specifically allocates damages to each cause of action will satisfy this

burden.” Id. at 108.

       The supreme court has explained that a “nonsettling party should not be penalized for

events over which it has no control.” Id. (quoting Utts, 81 S.W.3d at 829). “Thus, this burden-

shifting framework, based on the presumption that the nonsettling defendant is entitled to a

settlement credit after it introduces evidence of the plaintiff’s settlement, is appropriate because

the plaintiff is ‘in the best position’ to demonstrate why rendering judgment based on the jury’s

damages award would not amount to the plaintiff’s double recovery.” Id. “If the plaintiff fails to

satisfy this burden, then the defendant is entitled to a credit equal to the entire settlement amount.”

Id.

       C. Did Dr. Virlar and Gonzaba meet their burden of showing the amount of the
          settlement credit?

       Puente argues Dr. Virlar and Gonzaba did not meet their burden to show entitlement to the

settlement credit, because the settlement amount is not in the record, was not offered in evidence,

and was not stipulated to by the parties. In response, Dr. Virlar and Gonzaba point to the supreme

court’s opinion in Ellender, 968 S.W.2d at 927, where the court recognized chapter 33 did not

require proof of a settlement “by a judicial admission, a stipulation, judicial notice, or properly

admitted documents or testimony.” Id. According to the court, “neither chapter 33 nor existing

case law demand[ed] such proof.” Id. For the defendant to meet its burden, the record need only

“show, in the settlement agreement or otherwise, the settlement credit amount.” Id. (emphasis

added). In reviewing its appellate record, the supreme court concluded the defendant had met its

burden of showing a settlement amount:

       The record here shows that [the defendant] first informed the trial court of the
       $500,000 settlement amount when the [plaintiffs’] attorneys announced the
       settlement in open court during trial. Later, [the defendant’s] written opposition to


                                                 - 42 -
                                                                                                        04-18-00118-CV


           the [plaintiffs’] motion for judgment included the settlement amount. The
           [plaintiffs] did not contest the $500,000 settlement amount. Thus, we conclude that
           by placing the uncontested settlement amount in the record, [the defendant] met its
           burden of proof on the settlement amount.

Id.

           Similarly, here, at the November 2, 2017 hearing, defense counsel informed the trial court

that the hospital had settled with C.P. for a specified amount, 29 and “[a]ll the people suing [the

hospital had] dismissed [their claims] with prejudice.” Puente’s counsel objected to defense

counsel revealing the confidential amount in open court but did not dispute the amount was

accurate. Because the amount placed in the record was uncontested by Puente, we conclude Dr.

Virlar and Gonzaba met their burden of showing the settlement amount of C.P.’s settlement with

the hospital. We thus must consider whether Puente’s award should be reduced by the amount of

C.P.’s settlement.

           D.        Post-Verdict Motion for Settlement Credit and Puente’s Response

           On October 20, 2017, Dr. Virlar and Gonzaba filed a post-verdict motion for settlement

credit, arguing the amount of C.P.’s settlement with the hospital should be credited against

Puente’s award. On October 31, 2017, Puente filed a written response to the motion, arguing the

amount of C.P.’s settlement should not be credited against her award for the following reasons:

(1) because C.P.’s cause of action was separate and independent of Puente’s common law medical

malpractice action, section 33.012(c) did not apply; and (2) even if section 33.012(c) did apply,

“any attempt to reduce one person’s claim or cause of action by the amount received by another

person on a separate and independent cause of action violates not only relevant statutes and

common law, but also [Puente]’s rights under the Texas and U.S. Constitutions, including their




29
     The record reflects that defense counsel informed the trial court of the exact amount of the settlement.


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                                                                                      04-18-00118-CV


respective due process, due course of law, equal protection, equal rights, jury trial, and open courts

provisions.” After hearing all the arguments of counsel, the trial court denied Dr. Virlar and

Gonzaba’s motion for settlement credit without stating its reasoning.

       On appeal, Dr. Virlar and Gonzaba argued in their appellants’ brief that section 33.012(c)

applied to the facts of this case and that the constitutional objections raised by Puente in the trial

court were meritless because section 33.012(c) “was a valid exercise of the Legislature’s police

power.” We conclude, however, that as applied to the facts raised in this appeal, application of

section 33.012(c) violates the open courts provision of the Texas Constitution.

       1. The Texas Supreme Court first holds a statutory damages cap violates the Open
          Courts Provision in Lucas.

       The Open Courts Provision of the Texas Constitution provides that “[a]ll courts shall be

open, and every person for an injury done him, in his lands, goods, person or reputation, shall have

remedy by due course of law.” TEX. CONST. art. I, § 13. In Lucas v. United States, 757 S.W.2d

687, 687 (Tex. 1988), the Texas Supreme Court first recognized that a statute may violate the Open

Courts Provision by restricting a plaintiff’s recovery of damages in a medical malpractice action.

In Lucas, a fourteen-month-old infant was paralyzed as the result of a federal army medical center

improperly giving him a shot of antibiotics. Id. at 688. The child’s parents brought a lawsuit in

their individual capacities and as next friend of their son. Lucas v. United States, 811 F.2d 270,

271 (5th Cir. 1987). After a trial, the federal district court awarded the parents economic damages

for medical expenses they had incurred and would incur until their son reached eighteen years of

age. Id. The district court also awarded the son the following economic damages: “$350,000 as the

present value of future medical expenses he will incur after his eighteenth birthday, and $600,000

as the present value of the impairment of his future earning capacity.” Id. As for noneconomic

damages, the district court awarded the son “$1.5 million for pain and suffering.” Id. With respect



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                                                                                     04-18-00118-CV


to the parents’ individual claims, the district court “made no findings concerning the parents’

claims for their own mental anguish and loss of companionship.” Id. Then, the “district court

reduced the total award of damages against the United States by the $400,000 paid by Wyeth

Laboratories to the Lucases in settlement of the state court suit.” Id. On appeal, the Fifth Circuit

certified the following question to the Texas Supreme Court: whether under these facts, application

of former article 4590i’s damages cap provision would be consistent with the Texas Constitution.

Lucas, 757 S.W.2d at 688.

       The supreme court explained that “there is no provision in the federal [C]onstitution

corresponding to [the Texas] [C]onstitution’s ‘open courts’ guarantee.” Id. at 690. According to

the court, the “open courts” “guarantee is embodied in Magna Carta and has been a part of our

constitutional law since our republic.” Id. The supreme court noted that in previously construing

the Open Courts Provision, it had required a litigant to first show that he had “a cognizable

common law cause of action that is being restricted.” Id. (quoting Sax v. Votteler, 648 S.W.2d 661,

666 (Tex. 1983)). “Second, a litigant must show that the restriction is unreasonable or arbitrary

when balanced against the purpose and basis of the statute.” Id. (quoting Sax, 648 S.W.2d at 666).

       With regard to the first prong, the supreme court explained that “Texas courts have long

recognized that victims of medical negligence have a well-defined common law cause of action to

sue for injuries negligently inflicted upon them.” Id. Thus, according to the court, “the remaining

inquiry [was] whether the restriction on Lucas’ right of recovery ‘is unreasonable or arbitrary when

balanced against the purpose and basis of the statute.’” Id. (quoting Sax, 648 S.W.2d at 666)

(emphasis in original).

       In reviewing the statute’s language, the supreme court expressed its “first concern” was

“that the legislature has failed to provide Lucas any adequate substitute to obtain redress for his

injuries.” Id. The court “reject[ed] any argument that the statute may be supported by alleged


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                                                                                       04-18-00118-CV


benefits to society generally.” Id. While some may argue there was “a societal quid pro quo in that

loss of recovery potential to some malpractice victims is offset by ‘lower insurance premiums and

lower medical care costs for all recipients of medical care,’” the court emphasized “[t]his quid pro

quo does not extend to the seriously injured medical malpractice victim and does not serve to bring

the limited recovery provision within the rationale of the cases upholding the constitutionality of

the Workmen’s Compensation Act.” Id. (citation omitted). And, in looking to other jurisdictions

where statues restricting the recovery of damages were upheld, the supreme court found

“significant” that in those jurisdictions, “alternative remedies were provided,” a fact which

“weighed heavily in the decisions.” Id. at 691. The supreme court noted that former article 4590i

had been “based on recommendations of the Texas Medical Professional Liability Study

Commission, sometimes referred to as the Keeton Report.” Id. “Dean Keeton, in a separate

statement, recommended a victim’s compensation fund as a statutory substitute for limitations

upon recovery.” Id. The supreme court stressed that “[t]he legislature [had] chose[n] not to follow

this recommendation.” Id.

       The supreme court then considered “whether the restrictions in sections 11.02 and 11.03

[of former article 4590i were] reasonable when balanced against the purposes and bases of the

statute.” Id. The court reasoned that “[t]he legislature, in enacting [former] article 4590i,

apparently did not intend to strike at frivolous malpractice suits for it found in section 1.02(a)(2)

that ‘the filing of legitimate health care liability claims in Texas is a contributing factor affecting

medical professional liability rates.’” Id. (quoting former article 4590i, § 1.02(a)(2)) (emphasis in

original). The court noted “[t]he legislature did find that a ‘medical malpractice insurance crisis’

had been created and that ‘satisfactory insurance coverage . . . [was] often not available at any

price,’ but it then stated that ‘adoption of certain modifications in the medical, insurance, and legal

systems . . . may or may not have an effect on the rates charged by insurers for medical professional


                                                 - 46 -
                                                                                       04-18-00118-CV


liability coverage.’” Id. (quoting former article 4590i, § 1.02(a)(5), (10), (12)) (alterations in

original). The supreme court concluded,

       In the context of persons catastrophically injured by medical negligence, we believe
       it is unreasonable and arbitrary to limit their recovery in a speculative experiment
       to determine whether liability insurance rates will decrease. Texas Constitution
       article I, section 13, guarantees meaningful access to the courts whether or not
       liability rates are high. As to the legislature’s stated purpose to “assure that awards
       are rationally related to actual damages,” section 1.02(b)(2), we simply note that
       this is a power properly attached to the judicial and not the legislative branch of
       government. TEX. CONST. art. II, § 1.

Lucas, 757 S.W.2d at 691 (emphasis in original). The supreme court thus held that it was

“unreasonable and arbitrary for the legislature to conclude that arbitrary damages caps, applicable

to all claimants no matter how seriously injured, will help assure a rational relationship between

actual damages and amounts awarded.” Id.

       In support of its holding, the supreme court pointed to language found in an opinion by the

Supreme Court of Florida:

       Access to the court is granted for the purpose of redressing injuries. A plaintiff who
       receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress
       of injuries if the legislature statutorily, and arbitrarily, caps the recovery. Nor, we
       add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving
       the constitutional benefit of a jury trial as we have understood that right. Further, if
       the legislature may constitutionally cap recovery at $450,000, there is no
       discernible reason why it could not cap the recovery at some other figure, perhaps
       $50,000, or $1,000, or even $1.

Lucas, 757 S.W.2d at 692 (quoting Smith v. Dep’t of Ins., 507 So.2d 1080, 1088-89 (Fla. 1987)).

While the supreme court in Lucas understood “the legislature’s concern in attempting to solve the

health care problems it perceived during the middle of the 1970s,” the court nevertheless concluded

it was “simply unfair and unreasonable to impose the burden of supporting the medical care

industry solely upon those persons who are the most severely injured and therefore most in need

of compensation.” Id. (quoting Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 837 (1980)).

Accordingly, the supreme court held that “the restriction [was] unreasonable and arbitrary and that


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                                                                                       04-18-00118-CV


[former] article 4590i, sections 11.02 and 11.03, unconstitutionally limit[ed] Lucas’ right of access

to the courts for a ‘remedy by due course of law.’” Id. at 690 (quoting TEX. CONST. art. I, § 13)

(emphasis in original). Therefore, the supreme court’s answer to the Fifth Circuit’s certified

question was “that the limitation on medical malpractice damages in TEX. REV. CIV. STAT. ANN.

art. 4590i, §§ 11.02 and 11.03, is inconsistent with and violative of article I, section 13, of the

Texas Constitution.” Lucas, 757 S.W.2d at 692.

       2. The Texas Supreme Court does not extend its holding in Lucas to statutory claims.

       Two years after its holding in Lucas, the supreme court “again consider[ed] the

constitutionality of the damages provisions of the Medical Liability and Insurance Improvement

Act, TEX. REV. CIV. STAT. ANN. art. 4590i, §§ 11.02 and 11.03 . . ., this time in the context of a

wrongful death action.” Rose v. Doctors Hosp., 801 S.W.2d 841, 842 (Tex. 1990). The court

explained that in Lucas, it had held “statutory damages limitations are unconstitutional when

applied to damages in common law medical malpractice actions.” Id. (citing Lucas, 757 S.W.2d

at 692). However, according to the court, its holding in Lucas “did not extend to wrongful death

actions.” Id. The court emphasized its “traditional distinction between common law personal injury

and statutory wrongful death claims.” Id. at 845. The court explained that it had “recognized this

distinction in Lucas, restating the traditional rule that the [O]pen [C]ourts [P]rovision of our

constitution applies only to common law claims.” Rose, 801 S.W.2d at 845. According to the court,

had it “faced a wrongful death claim in Lucas, [it] could not have reached the same conclusion,

for the [O]pen [C]ourts [P]rovision does not apply to statutory claims.” Rose, 801 S.W.2d at 845.

       In applying the required two prong-analysis, the supreme court first considered whether

the plaintiffs’ remedy was “based upon a cognizable common law cause of action.” The court

explained that “[l]ike all actions based upon theories of negligence, the [wrongful death plaintiffs’]

cause of action was a common law claim [that] would have died with [the decedent] had it not


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been preserved by the legislature in the wrongful death statute.” Id. The plaintiffs’ “remedy,

therefore, was conferred by statute, not by the common law.” Id. According to the court, because

the plaintiffs did “not seek a common law remedy, the [O]pen [C]ourts [P]rovision [did] not apply

to their wrongful death claim.” Id.

         Similarly, in Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000), the

supreme court held the damages cap provision under former article 4590i did not violate the Open

Courts Provision because the plaintiff had brought a claim under the survival statute. The supreme

court explained that “all negligence actions are common-law claims” and that at common law, “no

personal injury cause of action survived a victim’s death.” Id. The court concluded that “[b]ecause

wrongful-death and survival actions would not exist absent legislative enactment, they are derived

not from the common law but from a statute.” Id. Thus, wrongful-death and survival claimants

“cannot establish an open-courts violation because they ‘have no common law right to bring

either.’” Id. (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)).

         3. An amendment to the Texas Constitution permits limitation of noneconomic
            damages in suits against healthcare providers.

         In June 2003, the legislature enacted the Medical Malpractice and Tort Reform Act of

2003, otherwise known as House Bill 4, which provided for a statutory limitation on

noneconomic 30 damages in medical malpractice lawsuits. See Act of June 2, 2003, 78th Leg., R.S.,

ch. 204, 2003 Tex. Gen. Laws 847; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.301 (limiting

noneconomic damages as provided for by House Bill 4). Later that year, the Texas Constitution

was amended to permit the Texas Legislature to cap noneconomic damages in civil lawsuits


30
  Economic damages are damages intended to compensate the claimant for actual economic or pecuniary loss. TEX.
CIV. PRAC. & REM. CODE ANN. § 41.001(4). They do not include exemplary or noneconomic damages. Noneconomic
damages are damages awarded to compensate the claimant for physical pain and suffering, mental or emotional pain
or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society,
inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses other than exemplary
damages. Id. § 41.001(12).


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                                                                                      04-18-00118-CV


against healthcare providers. See TEX. CONST. art III, § 66. However, the amendment expressly

did not apply to economic damages, which were defined as “compensatory damages for any

pecuniary loss or damage” but did “not include any loss or damage, however characterized, for

past, present, and future pain and suffering, mental anguish and suffering, loss of consortium, loss

of companionship and society, disfigurement, or physical impairment.” Id. § 66(a). Thus, Lucas

and its progeny remain good law with respect to the recovery of economic damages; that is,

pursuant to the Open Courts Provision of the Texas Constitution, the legislature may not restrict

the recovery of economic damages in a common law medical malpractice action. See Lucas, 757

S.W.3d at 690-93 (explaining why limitation on recovery of damages in common-law medical

malpractice action violates the open courts provision of Texas Constitution); see also

Horizon/CMS, 34 S.W.3d at 903 (Tex. 2000) (explaining causes of action created by statute do not

implicate open courts provision of constitution).

       4. Open Courts Analysis to Puente’s Common-Law Medical Malpractice Action

       In applying the two-prong open courts analysis, we first note that Puente brought a medical

malpractice cause of action against Dr. Virlar and Gonzaba, which is a common law cause of action

that “Texas courts have long recognized.” Lucas, 757 S.W.2d at 688. Thus, she has met the first

prong. See Horizon/CMS, 34 S.W.3d at 902; Weiner v. Wasson, 900 S.W.2d 316, 317 (Tex. 1995);

Rose, 801 S.W.2d at 842; Lucas, 757 S.W.2d at 690. With regard to the second prong, Dr. Virlar

and Gonzaba point to the fact that chapter 33’s settlement credit provisions were enacted as part

of House Bill 4’s tort reform efforts to reduce costs to the health care industry. See Act of June 2,

2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847. However, in Lucas and its progeny, the

supreme court has clearly stated that restricting economic damages awarded to victims of medical

malpractice for the general goal of attempting to reduce overall costs to the healthcare industry

violates the Open Courts Provision of the Texas Constitution. See Horizon/CMS, 34 S.W.3d at


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                                                                                       04-18-00118-CV


902; Rose, 801 S.W.2d at 842; Lucas, 757 S.W.2d at 692; see also TEX. CONST. art III, § 66

(permitting restriction of noneconomic damages in common-law medical malpractice actions). In

doing so, the supreme court emphasized that the legislature had not provided a plaintiff who

suffered injuries in excess of the damages cap “any adequate substitute to obtain redress for his

injuries.” Lucas, 757 S.W.2d at 690. According to the supreme court, “It is simply unfair and

unreasonable to impose the burden of supporting the medical care industry solely upon those

persons who are the most severely injured and therefore most in need of compensation.” Lucas,

757 S.W.2d at 692 (quoting Carson, 424 A.2d at 837). Today, there is still no adequate substitute

for a plaintiff who has suffered economic injuries in excess of a legislative restriction. See id.

       Further, we note that chapter 33 is titled “Proportionate Responsibility” and provides “a

proportionate responsibility framework for apportioning percentages of responsibility in the

calculation of damages.” MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 499 (Tex. 2010); see

TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.001-.017. Chapter 33 requires the trier of fact to

determine “the percentage of responsibility, stated in whole numbers, for” “each claimant,” “each

defendant,” “each settling person,” and “each responsible third party who has been designated.”

TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). It reduces the damages awarded by the trier of

fact “by a percentage equal to the claimant’s percentage of responsibility.” Id. §§ 33.001,

33.012(a). Further, it provides for settlement credits to be applied to a claimant’s recovery in a

health care liability claim. See id. § 33.012(c). Thus, “chapter 33 embodies the fundamental tort-

law principle that liability generally arises only from one’s own injury-causing conduct and, as a

result, liability for damages is commensurate with fault.” In re Xerox, 555 S.W.3d at 523. “Chapter

33’s proportionate responsibility scheme also incorporates the one-satisfaction rule—a tort

concept that limits a plaintiff to only one recovery for any damages suffered because of an injury.”

Id. (emphasis added). “The one-satisfaction rule’s purpose is to make the plaintiff whole, but not


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                                                                                                      04-18-00118-CV


more than whole, for [her] injuries.” Home Ins. Co. v. McClain, No. 05-97-01479-CV, 2000 WL

144115, at * 7 (Tex. App.—Dallas 2000, no pet.). This purpose of making the plaintiff whole, but

not more than whole, is not consistent with restricting a plaintiff from recovering less than the full

amount of her economic damages. Thus, we conclude that application of a settlement credit under

chapter 33 that has the effect of preventing Puente from recovering the full amount of her economic

damages violates the Open Courts Provision of the Texas Constitution.

         Here, all the damages awarded by the jury to Puente are economic damages. 31 Thus,

applying chapter 33’s settlement credit provisions and reducing Puente’s award in an amount equal

to C.P.’s settlement results in Puente recovering less than the full amount of her economic

damages. The supreme court has clearly held the legislature may not restrict the recovery of the

full amount of economic damages in a common-law medical malpractice action like the one

brought by Puente in this case. See Horizon/CMS, 34 S.W.3d at 902; Weiner, 900 S.W.2d at 317;

Rose, 801 S.W.2d at 842; Lucas, 757 S.W.2d at 690. We recognize that Lucas and its progeny

involved statutes that “capped” damages while chapter 33 relates to the application of settlement

credits to a jury’s award; however, whether the statute involves a damages cap or whether it

involves a settlement credit, the result is the same as applied to the facts of this case—application

of the statute would prevent a plaintiff in a common-law medical malpractice action from

recovering the full amount of her economic damages. Compare TEX. CIV. PRAC. & REM. CODE

ANN. §§ 33.011(1), 33.012(c), with Horizon/CMS, 34 S.W.3d at 902; Weiner, 900 S.W.2d at 317;

Rose, 801 S.W.2d at 842; Lucas, 757 S.W.2d at 690. Under either scenario, the statute




31
  The jury found that Puente was entitled to the following: (1) $133,202 in loss of earning capacity sustained in the
past; (2) $888,429 in loss of earning capacity that in reasonable probability Puente will sustain in the future; and (3)
$13,263,874.86 in medical care expenses that in reasonable probability Puente will incur in the future.


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                                                                                                       04-18-00118-CV


impermissibly restricts a cognizable common law action by preventing a plaintiff in a common-

law medical malpractice action from recovering the full amount of her economic damages. 32

         We note that Dr. Virlar and Gonzaba argue that Puente and her daughter C.P. are one

“claimant” under chapter 33 and thus have not received less than the full amount of their economic

damages. However, the legislature cannot circumvent the Open Courts Provision by simply

statutorily changing the definition of “claimant” and thereby restricting a common law cause of

action protected by the Open Courts Provision. As noted previously, the Texas Supreme Court has

held that a medical malpractice cause of action like Puente’s is a cognizable common law cause of

action that “Texas courts have long recognized.” Lucas, 757 S.W.2d at 688. And, in such a

common-law cause of action, the legislature may not statutorily restrict a plaintiff’s right to recover

the full amount of her economic damages. See Horizon/CMS, 34 S.W.3d at 902; Rose, 801 S.W.2d

at 842; Lucas, 757 S.W.2d at 692; see also TEX. CONST. art III, § 66 (permitting restriction of

noneconomic damages in common-law medical malpractice actions). The supreme court also

recognized that under the common law, a child’s claim for loss of consortium, like the one brought


32
   As noted previously, the supreme court in Lucas answered the certified question posed by the Fifth Circuit by
explaining why the Texas statute capping damages impermissibly restricted the common-law medical malpractice
cause of action. 757 S.W.2d at 691-92. We recognize that in the background section of its opinion, the supreme court
mentioned that the federal district court had applied a settlement credit to the amount awarded to the plaintiffs. See id.
at 688. However, the supreme court did not analyze whether application of this settlement credit would violate the
Open Courts Provision as no such question was posed to it. See id. at 688-92. We note that in considering the facts
presented in Lucas under current caselaw interpreting the Open Courts Provision, application of the settlement credit
in Lucas would not have resulted in the child recovering less than the full amount of his economic damages. The
child’s parents in Lucas, 811 F.2d at 271, brought a lawsuit in their individual capacities and as next friend of their
son. Id. After a trial, the federal district court awarded the parents economic damages for medical expenses they had
incurred and would incur until their son reached eighteen years of age. Id. However, with respect to their individual
claims, the district court “made no findings concerning the parents’ claims for their own mental anguish and loss of
companionship.” Id. The district court also awarded the son the following economic damages: “$350,000 as the present
value of future medical expenses he will incur after his eighteenth birthday, and $600,000 as the present value of the
impairment of his future earning capacity.” Id. As for noneconomic damages, the district court awarded the son “$1.5
million for pain and suffering.” Id. The district court then “reduced the total award of damages against the United
States by the $400,000 paid by Wyeth Laboratories to the Lucases in settlement of the state court suit.” Id. Because
the son was awarded $1.5 million in noneconomic damages, an amount that far exceeded the amount of the $400,000
settlement credit, he necessarily received the full amount of his economic damages even after application of the
settlement credit. Thus, reducing his award by the amount of the settlement credit did not violate his rights under the
Open Courts Provision.


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                                                                                      04-18-00118-CV


by C.P. in this case, is a “separate and independent claim[] distinct from the underlying action.”

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex. 2009) (emphasis added). The supreme

court has also rejected the argument that allowing a party to recover damages for loss of consortium

while also allowing the injured party to recover damages would result in a “double recovery.” See

Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex. 1978). According to the supreme court, “there is

no duplication of recovery” and no violation of the one-satisfaction rule. Id. For example, in the

context of (1) an injured spouse and (2) a spouse seeking recovery for loss of consortium, the

supreme court has explained that “[e]ach spouse recovers for losses peculiar to the injury sustained

by each of them.” Id. (emphasis added). “On the one hand, the impaired spouse recovers for those

distinct damages arising out of the direct physical injuries.” Id. “On the other hand, the recovery

for the loss of consortium by the deprived spouse is predicated on separate and equally distinct

damages to the emotional interests involved.” Id.

       Applying this reasoning by the supreme court to the facts presented here, under the

common law, any damages suffered by C.P. for loss of consortium are her own; such damages

would not constitute a double recovery and would not violate the one-satisfaction rule. See In re

Labatt Food Serv., L.P., 279 S.W.3d at 646; Whittlesey, 572 S.W.2d at 669. Because any damages

suffered by C.P. for loss of consortium are her own, any credit applied pursuant to chapter 33

against Puente’s award in an amount equal to C.P.’s damages would necessarily result in Puente

failing to recover the full amount of her economic damages. Thus, application of chapter 33’s

settlement credit provision under the facts of this case is an impermissible statutory restriction of

Puente’s right to recover 100% of her economic damages under her common-law claim.

       Finally, we note that Dr. Virlar and Gonzaba argue on appeal that Puente failed to meet her

burden in the trial court of raising an open courts challenge, arguing that “Puente provided no

analysis of how applying a settlement credit for C.P.’s settlement to Puente’s recovery violates the


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                                                                                        04-18-00118-CV


state and federal Constitutions.” Dr. Virlar and Gonzaba, however, cite no authority that an open

courts challenge must be “analyzed” in response to a post-verdict motion for settlement credits. It

appears that no court has addressed the burden of a party asserting an open courts challenge in the

context of responding to a post-verdict motion for settlement credits under chapter 33. In other

contexts, courts have held that the party relying on the open courts provision has the burden to

plead and prove the violation. See Boyd v. Kallam, 152 S.W.3d 670, 676 (Tex. App.—Fort Worth

2004, pet. denied). Here, by focusing on Puente’s lack of “analysis,” Dr. Virlar and Gonzaba do

not argue that she failed to meet any evidentiary burden. Indeed, the facts on which Puente relied

for her open courts challenge are undisputed, obviating any need to present evidence to prove the

relevant facts. We therefore must determine whether Puente adequately pled an open courts

challenge in her response to Dr. Virlar and Gonzaba’s post-verdict motion for settlement credits.

        Dr. Virlar and Gonzaba have not provided any authority as to the appropriate pleading

standard for an open courts challenge. Generally, the purpose of a pleading is to “give fair notice

of the nature and basic issues so the opposing party can prepare a defense.” Bos v. Smith, 556

S.W.3d 293, 305-06 (Tex. 2018). There is no apparent reason why a heightened pleading standard

should apply to open courts challenges. “When, as here, no special exception is made, we liberally

construe the pleadings in the pleader’s favor.” Id. at 306. “Even so, a liberal construction does not

require a court to read into a petition what is plainly not there.” Id. (citation omitted). Here, Puente

stated in her response to Dr. Virlar and Gonzaba’s post-verdict motion for settlement credits the

following:

        In the alternative, Plaintiff would show that any attempt to reduce one person’s
        claim or cause of action by the amount received by another person on a separate
        and independent cause of action violates not only relevant statutes and common
        law, but also Plaintiff’s rights under the Texas and U.S. Constitutions, including
        their respective due process, due course of law, equal protection, equal rights, jury
        trial, and open courts provisions.



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Although there is no lengthy legal argument in Puente’s response, an open courts challenge is

plainly there. See Bos, 556 S.W.3d at 306. Her response refers to the Open Courts Provision and

provides the factual basis upon which her constitutional challenge is based. Her constitutional

challenge stated the nature of the basic issue she was raising. Thus, we conclude Dr. Virlar and

Gonzaba had fair notice of her open courts challenge as a bar to application of the settlement credit

as argued by Dr. Virlar and Gonzaba in their post-verdict motion for settlement credits.

       5. Remand for Hearing Pursuant to Utts

       While we have concluded that applying a dollar-for dollar credit in the amount of C.P.’s

settlement against Puente’s award pursuant to chapter 33 would violate the Open Courts Provision

of the Texas Constitution, we note that at the trial court and on appeal, Dr. Virlar and Gonzaba

have argued that C.P.’s settlement was a “sham settlement,” pointing to testimony by the guardian

ad litem from the prove-up hearing for C.P.’s settlement. In Utts v. Short, 81 S.W.3d 822, 824

(Tex. 2002), the supreme court considered whether a pretrial settlement by a family member in a

medical malpractice action should be applied to amounts awarded by the jury to the nonsettling

family members. The supreme court explained that a defendant seeking a settlement credit has the

burden of proving his right to such a credit. Id. at 828. According to the court, “the common law

requires only that the record show, in the settlement agreement or otherwise, the settlement credit

amount.” Id. (citing First Title Co. v. Garrett, 860 S.W.2d 74, 78-79 (Tex. 1993), which explained

that under the common law, a defendant is entitled to seek a settlement credit under the one-

satisfaction rule). “Once the nonsettling defendant demonstrates a right to a settlement credit, the

burden shifts to the plaintiff to show that certain amounts should not be credited because of the

settlement agreement’s allocation.” Utts, 81 S.W.3d at 828.

       In Utts, the defendant contended the pretrial settlement by one family member was a

“sham” transaction to avoid application of chapter 33’s settlement-credit scheme to the other


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nonsettling family members. Utts, 81 S.W.3d at 829. In discussing the burden a defendant has to

raise the issue of a “sham” settlement, the supreme court noted that “when a case involves facts

suggesting that a nonsettling plaintiff may have benefited from the proceeds of another plaintiff’s

settlement, the nonsettling defendant must raise this allegation to the trial court–not the jury–and

present evidence of the benefit as part of its burden in electing for a dollar-for-dollar credit.” Id.

The court noted that a defendant did not have to present evidence before the case was presented to

the jury but could “urge its settlement-credit motion and introduce evidence” in a post-verdict

motion. Id. “If the evidence shows such a benefit, then the trial court should apply the settlement

credit reflecting that benefit unless the nonsettling plaintiff presents evidence that he or she did not

benefit from the settlement.” Id. “In other words, once the nonsettling defendant presents evidence

of the nonsettling plaintiff’s benefit from a settlement, the trial court shall presume the settlement

credit applies unless the nonsettling plaintiff presents evidence to overcome this presumption.” Id.

       In applying this law to the facts presented in Utts, the supreme court explained that the

nonsettling defendant had placed the amount of the settlement with the settling family member

(who was no longer a party at the time of trial) in the record. Id. at 830. The nonsettling defendant

further offered evidence that the nonsettling family members (who were plaintiffs at the time of

trial) benefitted from the settling family member’s settlement. Id. The supreme court concluded

the record evidence raised a presumption that the nonsettling defendant may be entitled to a

settlement credit but that the record did not establish the amount. Id. The supreme court thus

remanded the cause to the trial court to allow each family member an opportunity to present

evidence to show that he or she did not receive any benefit from the settling family member’s

settlement. See id. (explaining that to avoid the settlement credit, each nonsettling family member

on remand must “present evidence showing why the settlement credit should not apply”).




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         Similarly, here, Dr. Virlar and Gonzaba argued in their post-verdict motion that Puente

benefited from C.P.’s settlement with the hospital. As evidence, they submitted the reporter’s

record from the prove-up hearing for C.P.’s settlement and pointed to testimony from C.P.’s

guardian ad litem. They also stressed that after C.P. settled with the hospital, Puente and her mother

(Carr) dismissed all their claims against the hospital with prejudice. We conclude Dr. Virlar and

Gonzaba presented evidence raising a presumption that they may be entitled to a settlement credit

under the common law. See Utts, 81 S.W.3d at 829; First Title Co., 860 S.W.2d at 79 (application

of settlement credit under common law’s one-satisfaction rule). In response to the motion, Puente

filed an affidavit by her counsel disputing that Puente received a benefit from C.P.’s settlement

with the hospital. The trial court then denied Dr. Virlar and Gonzaba’s motion for settlement credit

but did not have an opportunity to make an evidentiary finding as to any benefit Puente received

from C.P.’s settlement. Thus, as in Utts, we remand the case to the trial court so that it may conduct

an evidentiary hearing.

                                             PERIODIC PAYMENTS

         In their final issue, Dr. Virlar and Gonzaba argue the trial court erred in failing to award

future damages payable in periodic payments. Chapter 74 of the Texas Civil Practice and Remedies

Code permits periodic payments when the award of future damages exceeds a present value of

$100,000.00. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.502. 33 Section 74.503 provides,

         (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.




33
  Section 74.502 provides that “[t]his subchapter applies only to an action on a health care liability claim against a
physician or heath care provider in which the present value of the award of future damages, as determined by the
court, equals or exceeds $100,000.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.502.


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       (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.

       (c)     The court shall make a specific finding of the dollar amount of periodic
               payments that will compensate the claimant for the future damages.

       (d)     The court shall specify in its judgment ordering the payment of future
               damages by periodic payments the:
               (1) recipient of the payments;
               (2) dollar amount of the payments;
               (3) interval between payments; and
               (4) number of payments or the period of time over which payments must
                       be made.

Id. § 74.503 (emphasis added). Thus, section 74.503 has both discretionary and mandatory

language.

       With regard to future damages other than medical, health care, or custodial services, the

trial court has discretion to order periodic payments. See id. § 74.503(b) (stating the trial court

“may” order periodic payments). However, with regard to future medical, health care, or custodial

services awarded, upon the request “by a defendant physician or health care provider, a trial court

must order that medical, health care, or custodial services awarded” “be paid in whole or in part

in periodic payments.” Gunn v. McCoy, 554 S.W.3d 645, 679 (Tex. 2018) (discussing subsection

(a)) (emphasis added). “When periodic payments are ordered, the court must make specific

findings as to the amount of periodic payments, and the court’s judgment must specify the amount,

the timing of payments, and the number of payments or time period over which payments are to

be made.” Id. (discussing subsections (c) and (d)).

       In a post-trial motion, Dr. Virlar and Gonzaba filed a Motion for Order on Periodic

Payments, requesting that the full amount of Puente’s award for future medical expenses in the




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amount of $13,263,874.86 and future loss of earning capacity in the amount of $888,429.00 (minus

any applicable settlement credits) be payable in periodic payments instead of a lump sum payment.

According to Dr. Virlar and Gonzaba, because Dr. Altman testified Puente’s reasonable life

expectancy was thirty-one years, the trial court should divide the amount of the awards for future

damages by thirty-one. 34 After a hearing, the trial court denied the motion for periodic payments.

        To the extent our determination of this issue involves statutory construction, statutory

construction is a “legal question we review de novo.” City of Rockwall v. Hughes, 246 S.W.3d

621, 625 (Tex. 2008). “In construing statutes, we ascertain and give effect to the Legislature’s

intent as expressed by the language of the statute.” Id.

        A. Waiver?

        According to Puente, Dr. Virlar and Gonzaba waived any right they had to periodic

payments under section 74.503 because they “never pleaded this matter of defense and avoidance,”

and “did not object to the court submitting the damages question to the jury in the usual form of

‘what sum if paid now in cash.’” Instead, they filed a post-trial motion. Section 74.503, however,

makes no mention of when a defendant must make the request for periodic payments. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.503. And, we agree with Dr. Virlar and Gonzaba that

requesting periodic payments is not a matter “in avoidance” or an affirmative defense. See Zorrilla

v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015); MAN Engines & Components, Inc. v.

Shows, 434 S.W.3d 132, 136 (Tex. 2014). That is, section 74.503 is not a bar to recovery but

merely a method of how recovery will be paid.



34
   Below and on appeal, Puente argued that such a calculation would constitute a “double discount.” That is, the jury
awarded, as instructed by the court, the value of future damages reduced to the present value of money. This was the
first discount. Puente contends that Dr. Virlar and Gonzaba’s formula of dividing this present value award for future
damages by Puente’s life expectancy of thirty-one years would constitute yet another discount of the value of money
—hence, a “double discount.” At oral argument, defense counsel acknowledged that such a formulation would be a
discount of the jury’s award.


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         Further, section 74.503 provides that the trial court, not a jury, shall make the specific

finding of the dollar amount of periodic payments that will compensate the claimant for the future

damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(c). It further requires the trial court,

not the jury, to specify the interval between the payments, and “the number of payments or the

period of time over which payments must be made.” Id. § 74.503(d). Finally, section 74.503 does

not become applicable until a jury awards future damages, and the court determines that the present

value of that award equals or exceeds $100,000.00. See id. § 74.502 (“This subchapter applies only

to an action on a health care liability claim against a physician or health care provider in which the

present value of the award of the award of future damages, as determined by the court, equals or

exceeds $100,000”) (emphasis added). Given that the trial court, and not the jury, is making the

appropriate findings, there is no reason why it cannot do so at a post-trial hearing. 35 We therefore

find no waiver by Dr. Virlar and Gonzaba in filing their request for periodic payments post-trial

but before judgment was signed by the trial court.

         B. Evidence of Financial Responsibility

         Pursuant to section 74.505, before the trial court may authorize periodic payments of future

damages, it must require “a defendant who is not adequately insured to provide evidence of

financial responsibility in an amount adequate to assure full payment of damages awarded by the




35
   We note that Puente also argues that if section 74.503 allows for a request for periodic payments to be made post-
trial, then her rights to due process and due course of law under the Texas Constitution, along with the separation of
powers doctrine, would be violated. Puente’s argument is based on the assumption that no additional evidence can be
brought to the trial court at the hearing on the motion for periodic payments. Puente argues that the trial court will
have to engage in “speculation” to make the appropriate findings. However, given that chapter 74 presents a post-trial
proceeding and the trial court is required to make fact findings, we find nothing in chapter 74 that would prevent the
trial court from hearing additional evidence on matters like discount rates and the plaintiff’s near and future financial
expenses. Thus, we do not believe Puente has shown any constitutional violation. See Walker v. Gutierrez, 111 S.W.3d
56, 66 (Tex. 2003) (explaining that courts presume a statute is constitutional and the “party challenging the
constitutionality of a statute bears the burden of demonstrating that the enactment fails to meet constitutional
requirements”).


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judgment.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.505(a) (emphasis added). The judgment must

then provide for payments to be funded by

       (1) an annuity contract issued by a company licensed to do business as an insurance
           company, including an assignment within the meaning of Section 130, Internal
           Revenue Code of 1986, as amended;
       (2) an obligation of the United States;
       (3) applicable and collectible liability insurance from one or more qualified
           insurers; or
       (4) any other satisfactory form of funding approved by the court.

Id. § 74.505(b).

       Puente argues that the trial court did not err in not ordering periodic payments because Dr.

Virlar and Gonzaba never showed evidence of financial responsibility under section 74.505(a).

Subsection (a) requires a defendant to provide evidence of financial responsibility in an amount

adequate to assure full payment of damages awarded. Id. § 74.505(a). As noted, when construing

a term in a statute, we ascertain and give effect to the Legislature’s intent as expressed by the

language used in the statute. City of Rockwall, 246 S.W.3d at 625. When the statute does not define

a particular term, we construe the term according to its “plain and common meaning,” “unless a

contrary intention is apparent from the context” or “unless such a construction leads to absurd

results.” Id. Chapter 74 does not define “provide”; thus, we look to its plain and common meaning.

See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(b) (“Any legal term or word of art

used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent

with the common law.”). The plain meaning of “provide” is “to supply” or “to furnish.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1827 (1981).

       At the post-trial hearings on Dr. Virlar and Gonzaba’s motion for periodic payments, they

provided evidence of Gonzaba’s financial responsibility in the form of a balance sheet and




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testimony from Melissa Keller, Gonzaba’s controller. 36 In reviewing the balance sheet and

testimony, we hold Gonzaba provided evidence of financial responsibility in an amount adequate

to assure full payment of damages awarded. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.505(a).

        Even if Gonzaba provided evidence of financial responsibility, Puente emphasizes that Dr.

Virlar did not. According to Puente, both Dr. Virlar and Gonzaba are required to provide evidence

of financial responsibility under subsection (a). Subsection (a), by its plain language, requires “a

defendant . . . to provide evidence of financial responsibility.” Id. We disagree with Puente.

        When, as here, both defendants are jointly and severally liable for the full amount of the

judgment, the practical ramifications of Puente’s interpretation would frustrate the intent of the

Legislature. “A party who is jointly and severally liable for the judgment is liable not only for its

own share of the judgment but also, as between itself and the plaintiff, for the shares of the

judgment attributable to other defendants.” 5 TEX. PRAC. GUIDE: PERSONAL INJURY 2d § 16:49

(2019). “If one or more defendants are insolvent, the jointly and severally liable defendant can be

made to pay the portion of the judgment attributable to those defendants.” Id. “Further, the plaintiff

can collect the entire amount of a joint and several judgment against any defendant jointly and

severally responsible, and leave it to that defendant to collect contribution for any overpayments

from the other defendants.” Id. Assuming the facts of this case—that is, assuming Gonzaba

provided evidence of financial responsibility but its employee, Dr. Virlar, did not— under Puente’s

interpretation of subsection (a), Gonzaba could be granted its requested relief of making periodic

payments but, in practicality, be denied that relief because Puente could seek to collect the entire

amount of the joint and several judgment from Gonzaba when Dr. Virlar did not pay the lump sum


36
  Puente argues in her brief that she objected to Keller’s testimony “because [Keller] had never been designated as
an expert witness or even a person with knowledge of relevant facts.” Puente’s argument refers to pretrial discovery.
As we have previously explained, Dr. Virlar and Gonzaba properly moved for periodic payments in a post-trial
proceeding.


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                                                                                                  04-18-00118-CV


in full. We conclude the Legislature could not have intended such a result. Therefore, under the

facts of this case, we hold that only one jointly and severally liable defendant was required to

provide evidence of financial responsibility under subsection (a).

        C. Subsection (b)’s Periodic Payments at Discretion of Court

        Dr. Virlar and Gonzaba first argue that the trial court erred in failing to order periodic

payments in accordance with section 74.503(b). Subsection (b) allows the trial court at its

discretion to order “future damages other than medical, health care, or custodial services awarded

in a health care liability claim” to “be paid in whole or in part in periodic payments rather than by

a lump sum payment.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(b) (providing that at the

request of the defendant, the court “may” order “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”).

        Here, Puente was awarded $888,429.00 in damages for loss of future earning capacity. 37

Unlike future medical expenses, a trial court’s decision whether to order periodic payments to

compensate for future loss of earning capacity is completely discretionary. See id. Dr. Virlar and

Gonzaba’s briefing in this appeal focuses on subsection (a)’s mandatory language and the fact that

the trial court failed to order any amount to be paid in periodic payments. Dr. Virlar and Gonzaba,

however, in their briefs do not adequately argue why the trial court erred under subsection (b). See

TEX. R. APP. P. 38.1(i). Given that the trial court “may” order periodic payments under subsection

(b), Dr. Virlar and Gonzaba were required to bring forth an argument explaining why the trial court

abused this discretion. See id. We therefore hold they waived any error relating to subsection (b).




37
  As noted previously, we have determined there is legally and factually sufficient evidence of $880,429.00 and have
thus suggested a remittitur decreasing the award for loss of future earning capacity by $8,000.00.


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Further, in reviewing the record, we find no abuse of discretion by the trial court in failing to award

periodic payments for future loss of earning capacity.

       D.      Subsection (a)’s Periodic Payments Mandatory

       Unlike subsection (b), subsection (a) requires a trial court, at the request of a defendant

health care provider, defendant physician, or claimant, to order “medical, health care, or custodial

services awarded in a health care liability claim [to] be paid in whole or in part in periodic

payments rather than by a lump-sum payment.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(a)

(providing that trial court “shall” order periodic payments in whole or in part). “The clear language

of [subsection (a)] demonstrates that its application is mandatory.” Regent Care Ctr. of San

Antonio, L.P. v. Detrick, 567 S.W.3d 752, 770 (Tex. App.—San Antonio 2018, pet. granted).

However, while it is mandatory that the trial court order some of the medical, health care, or

custodial services awarded to be paid in periodic payments, see TEX. CIV. PRAC. & REM. CODE

ANN. § 74.503(a) (“in whole or in part”), the “determination of the amount to be paid periodically

is within the trial court’s discretion,” Regent Care, 567 S.W.3d at 770.

       In this case, Puente was awarded $13,263,874.86 in damages for future medical care

expenses. The trial court did not order any part of this amount to be paid in periodic payments. By

not awarding any amount of the future medical care expenses to be paid in periodic payments, the

trial court abused its discretion. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.503(a) (stating trial

court “shall” order periodic payments of future medical expenses at request of defendant); Id.

§ 74.503(c) (requiring the trial court to “make a specific finding of the dollar amount of periodic

payments that will compensate the claimant for the future damages”); Lee v. United States, 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.”). We therefore reverse

in part and remand so that the trial court can make a determination under subsections (c) and (d)


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                                                                                     04-18-00118-CV


of the amount of damages awarded for future medical care expenses that should be paid in periodic

payments.

                                          CONCLUSION

       We hold the trial court did not err in excluding the expert testimony of Dr. Kuncl or in

admitting evidence of Dr. Virlar’s loss of privileges and alleged extraneous bad acts. We further

hold the evidence was legally and factually sufficient to support the jury’s award of loss of future

earning capacity in the amount of $880,429.00, but not in the full amount awarded ($888,429.00).

We therefore suggest a remittitur decreasing the award for loss of future earning capacity by

$8,000.00. See TEX. R. APP. P. 46.3. We affirm the judgment in part conditioned on a remittitur of

damages in the amount of $8,000.00. We do not disturb any other damages awarded by the jury.

Additionally, we find no error by the trial court in failing to award periodic payments for future

loss of earning capacity under section 74.503(b). However, because the trial court did not order

any part of the amount awarded for future medical care expenses to be paid in periodic payments,

it abused its discretion under section 74.503(a). Finally, with respect to any applicable settlement

credit from C.P.’s settlement with the hospital pursuant to the common law’s one-satisfaction rule,

we conclude a benefits analysis should be conducted pursuant to Utts v. Short, 81 S.W.3d 822

(Tex. 2002). Therefore, we reverse the judgment in part and remand the cause for the trial court

(1) to conduct an evidentiary hearing on any benefit received by Puente from C.P.’s settlement

with the hospital pursuant to Utts and apply an appropriate settlement credit, if any; (2) to make a

determination under section 74.503(c) and (d) of the amount of damages awarded for future

medical care expenses that should be paid in periodic payments, and (3) to sign a new judgment

in conformity with this opinion.


                                                  Liza A. Rodriguez, Justice



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