                                    NO. 07-08-0359-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL E

                                   JULY 28, 2010
                          ______________________________

                  THI OF TEXAS AT LUBBOCK I, LLC, D/B/A
            SOUTHWEST REGIONAL SPECIALTY HOSPITAL, APPELLANT

                                             V.

            MARIO PEREA, INDIVIDUALLY AND AS REPRESENTATIVE
                OF THE ESTATE OF JACOB PEREA, DECEASED;
           MAX PEREA;TONY PEREA; AND GEORGE PEREA, APPELLEES
                    _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2005-533.287; HONORABLE RUBEN REYES, JUDGE
                        _______________________________


Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.1

                      CONCURRING AND DISSENTING OPINION

       I agree with the Court’s discussion of appellant THI of Texas at Lubbock I, LLC’s

issues challenging denial of its proposed jury instruction on negligence (issue one); the

trial court’s allowing the Pereas to amend their petition during trial (issue two); exclusion

of THI’s proffered testimony (issue six) and the trial court’s failure to apply liability caps

on damages set out in sections 41.008(b) and 74.301(b) of the Civil Practice and
       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov=t Code Ann. ' 75.002(a)(1) (Vernon 2005).
Remedies Code (issue seven). With regard to its issues challenging the sufficiency of

the evidence supporting the jury’s findings of negligence and gross negligence (issues

three, four and five), I agree with the Court that legally and factually sufficient evidence

supports the jury’s negligence finding with regard to the negligence of THI’s nurses. I

disagree,      however,    that   any   evidence    supports    the   Pereas’    “negligent

credentialing/hiring” theory of THI’s negligence.


          As the Court holds, expert testimony was required to establish that THI failed to

act as a reasonably prudent hospital would act in the same or similar circumstances

with regard to its decision to hire Leonard Espinoza. The Court relies primarily on the

testimony of Dr. Haines with regard to the hospital’s hiring actions. He said that, when

hiring nurses, administrators “should look at” the applicant’s past employment record

and determine whether the applicant “had problems or troubles at prior nursing

facilities,” and that administrators “had a duty to research the background of people they

hired.”


          But neither Dr. Haines nor any other expert testified that THI did not take those

actions when it hired Espinoza. No one said that THI’s nursing director Connie Long or

any other THI administrator hired Espinoza without review of his employment record or

a determination whether he had “problems or troubles” during a prior employment. The

record contains no expert testimony of THI’s breach of the standard of care Dr. Haines

described. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46(Tex. 2004)

(negligent credentialing). The Court seems to assume that no reasonably prudent

hospital would have hired Espinoza as a registered nurse knowing of his discipline by



                                              2
the Colorado authorities under his licensure in that state as a licensed vocational nurse,

but no expert said as much. Nor did any expert testify that THI’s breach of a duty to act

as a reasonably prudent hospital when it hired Espinoza proximately caused the injury

to Mr. Perea. See, e.g., Denton Regional Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950

(Tex. App.—Fort Worth 1997, no pet.). To the degree the Court concludes otherwise, I

respectfully dissent.


       For the same reason, I must dissent from the Court’s conclusion sufficient

evidence supported the jury’s finding THI was “reckless in employing” Espinoza, and

thus was grossly negligent.2 The jury heard no expert testimony demonstrating that THI

was reckless in employing Espinoza. No expert was even asked to express an opinion

whether THI acted in a less than prudent manner by hiring him.


       Despite    my    disagreement     with    my   colleagues    on    the   “negligent

credentialing/hiring” issue, I concur with Court’s judgment affirming the award of punitive

damages against THI, because I agree that such an award is supported by evidence

THI’s acknowledged vice-principal, director of nursing Connie Long, ratified or approved

Espinoza’s negligent act. See Shamrock Communs., Inc. v. Wilie, No. 03-99-00852-

CV, 2000 Tex.App. LEXIS 8284, *14 (Tex.App.—Austin 2000, pet. denied.) (mem. op.)

(not designated for publication), citing Prunty v. Arkansas Freightways, Inc., 16 F.3d


       2
         The jury charge authorized the jury to find THI was grossly negligent because of
an act by Espinoza if he was “unfit” and THI “was reckless in employing him,” or THI or
its vice-principal ratified or approved the act. No objection was raised to this aspect of
the jury charge, so we examine the sufficiency of the evidence in light of the unobjected-
to charge. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000); Soto v.
Seven Seventeen HBE Corp., 52 S.W.3d 201, 204 (Tex.App.—Houston [14th Dist.]
2000, no pet.).


                                             3
649, 653 (5th Cir. 1994) (case law provides that ratification may occur when the

employer confirms, adopts, or fails to repudiate the acts of its employee). The record

includes Espinoza’s assertion he was never disciplined for authorizing the

administration of Ativan to Mr. Perea and Long’s admission that Espinoza remained

employed for the year following this incident. Such testimony is evidence of Long’s

failure to repudiate Espinoza’s negligent act of authorizing administration of Ativan.


       Accordingly, I dissent from the Court’s discussion of the plaintiffs’ “negligent

credentialing/hiring” theory but concur in the judgment.



                                                               James T. Campbell
                                                                    Justice




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