East Texas Medical Center D/B/A East Texas Medical Center Emergency Medical Services v. Jody Delaune Individually and as Personal Representative of the Estate of Crystal Delaune, and as Next Friend of D. D., D. D. and D. A. D., Minors ( 2015 )

ACCEPTED
12-15-00014-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/3/2015 10:40:18 AM
CATHY LUSK
CLERK
NO. 12-15-00014-CV
______________________________________________________________________________
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
FOR THE TWELFTH DISTRICT OF TEXAS 7/3/2015 10:40:18 AM
AT TYLER CATHY S. LUSK
Clerk
______________________________________________________________________________
East Texas Medical Center d/b/a East Texas Medical Center
Emergency Medical Services
Appellant
v.
Jody Delaune, Individually and as Personal Representative of the Estate
of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune,
Destiny Delaune and Dee Ann Delaune, Minors
Appellees
______________________________________________________________________________
APPEAL FROM CAUSE NO. 13-0984-A
IN THE DISTRICT COURT OF SMITH COUNTY, TEXAS
7th JUDICIAL DISTRICT
HON. KERRY L. RUSSELL
______________________________________________________________________________
BRIEF OF APPELLEES
______________________________________________________________________________
RYAN KREBS, M.D., J.D.
State Bar No. 00792088
805 W. 10th Street, Ste. 300
Austin, Texas 78701
(512) 478-2072
Counsel for Appellees
Jody Delaune, Individually; and as personal representative of the Estate of Crystal Delaune,
Deceased; and as Next Friend of Dalton Delaune, Destiny Delaune, and Dee Ann Delaune
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES …………………………………………………………...ii
REQUEST FOR ORAL ARGUMENT………………………………………………..iv
SUMMARY OF THE ARGUMENT…………………………………………………..2
ARGUMENT……………………………………………………………………………4
I. Whether Judgment in Favor of Appellees Should be Reversed Because There
is Legally Insufficient Evidence of Proximate Cause Against ETMC
II. Whether Judgment In Favor Of Appellees Should Be Reversed Because
There Is Legally Insufficient Evidence Of The Applicable Standard Of Care
And Breach By ETMC
CONCLUSION………………………………………………………………………..31
PRAYER……………………………………………………………………………….32
CERTIFICATE OF COMPLIANCE………………………………………………..34
CERTIFICATE OF SERVICE………………………………………........................33
APPENDIX…………………………………………………………………………....Index Tab
A. December 23, 2014 Final Judgment
B. November 24, 2014 Charge of Court completed by jury
C. July 28, 2014 Order Granting Defendants Moore and Spurgers’ Motions for
Summary Judgment
i
INDEX OF AUTHORITIES
Case Law
TEXAS SUPREME COURT CASES:
Cash America v. Bennett,
35 S.W.3d 12, 16 (Tex. 2000) …………………………………………………………….7, 11, 12
City of Keller v. Wilson,
168 S.W.3d 802,813 (Tex. 2005) …………………………………………………………25, 26
In Re Merrill Lynch,
235 S.W.3d 185, 188 (Tex. 2007) ………………………………………….......................13
Tanner v. Nationwide Mutual,
289 S.W.3d 828, 830 (Tex. 2009) ………………………………………………………...31
Wansey v. Hole,
379 S.W.3d 246 (Tex. 2012) ……………………………………………….................9, 10, 11, 13
TEXAS COURTS OF APPEALS CASES:
Aguilera-Sanchez,
2003 Tex. App. LEXIS 4846 at *17 ………………………………………………………12
Air Shields, Inc. v. Spears,
590 S.W.2d 574, 581 (Tex. App. – Waco 1979, writ ref, nre) ……………………………7
Carney v. Roberts Investment Co.,
837 S.W.2d 206, 211 (Tex. App. – Tyler 1992, writ denied) ……………………………..9
Chesser v. LifeCare Mgmt. Servs., L.L.C.,
356 S.W.3d 613, 629 (Tex. App. – Fort Worth 2011, pet. denied) ……………………….6, 12
Ching v. Methodist Children’s Hospital,
134 S.W.3d 235, 241 (Tex. App. – Amarillo 2003, pet. denied) ………………………….30, 31
Clark v PFPP Ltd. Partnership,
455 S.W.3d 283, 287 (Tex. App. – Dallas 2015, no pet.) …………………………………10, 13
Columbia North Hills Hospital v. Alvarez,
2011 Tex. App. LEXIS 5908 *12-13 (Tex. App. – Fort Worth 2011, no pet.) ……………30
ii
Denton Reg’l Med. Ctr. V. LaCroix,
947 S.W.2d 941, 950 (Tex. App. – Fort Worth 1997, pet. denied) ……………………7, 8, 9, 13
Doege v. Sid Peterson Memorial Hospital,
2005 Tex. App. LEXIS 4964 *21 (Tex. App. – San Antonio June 29, 2005, pet. denied) ..12
Dunlap v. Young,
187 S.W.3d 828, 836 (ex. App. – Texarkana 2006, no pet.) ……….....................................5
Durham Transportation, Inc. v. Valero,
897 S.W.2d 404, 413 (Tex. App. – Corpus Christi 1995, writ denied) …………………....30, 31
Gonzalez v. Willis,
995 S.W.2d 729, 739 (Tex. App. – San Antonio 1999, no pet.) ………………………10, 11, 12
Greater Houston Transportation v. Zrubek,
850 S.W.2d 579, 591-92 (Tex. App. – Corpus Christi 1993, writ denied) …………………30, 31
Latimer v. Memorial Hermann Hospital System,
2011 Tex. App. LEXIS 423 (Tex. App. – Houston [14th Dist.] Jan. 20, 2011 no pet.) ……..8
Leake v. Half Price Books,
918 S.W.2d 559, 563 (Tex. App. – Dallas, no writ) ………………………………………...10, 13
McCombs v. Children’s Med. Ctr.,
1 S.W.3d 256, 259 (Tex. App. – Texarkana 1999, pet. denied) …………………………….7
The Methodist Hospital v. German,
369 S.W.3d 333, 349-50 (Tex. App. – Houston [1st Dist.] 2011, pet. denied) ……………..10
Mills v. Angel,
995 S.W.2d 262, 269 (Tex. App. – Texarkana 1999, no pet.) ………………........................7, 30
Tenet Health Ltd. V. Zamora,
13 S.W.3d 464, 471 (Tex. App. – Corpus Christi 2000, pet. dism’d w.o.j.) ………………..6, 12
Whitehead v. Tobias,
7 S.W.3d 658, 662 (Tex. App. – Texarkana 1999, no pet.) …………………........................13
CASE LAW FROM OTHER JURISDICTIONS:
Moser v. Heistand,
681 A.2d 1322, 1326 (Pa. 1996) ……………………………………………………………..8
iii
Statutes
Texas Good Samaritan Statute, Tex. Civ. Prac. & Rem. Code §74.152..2, 3, 4, 5, 6, 11, 12, 13, 32
Texas Medical Liability Act, Tex. Civ. Prac. & Rem. Code §74.351 ……….........................23
Other
Dorsaneo, 20 Texas Litigation Guide §321.11[1][a]; ………………………………………..7
Edgar, Sales, Texas Torts & Remedies §4.01[4][d] …………………………………………10
Griffith & Johnson, Texas Hospital Law – Liability And Damages §3.3 (3d ed. 2003); ……7
Penick, Medical Malpractice, 44 Texas Practice Series §1:27 (2010) ……………………….7
Perdue, Direct Corporate Liability Of Hospitals, 24 S. Tex. L.J. 773 (1983) ..........................7
Prosser & Keeton On The Law Of Torts §30, at 165 (5th ed. 1984) ………………………….11
Tottenham, Current Hospital Liability in Texas, 28 S. TEX. L. REV. 1, 10 (1987) …………7, 8
REQUEST FOR ORAL ARGUMENT
The Plaintiffs-Appellees respectfully request oral argument, to assist the Court to more
easily understand the factual and legal issues involved in this case, as described in this Brief.
iv
NO. 12-15-00014-CV
______________________________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
AT TYLER
______________________________________________________________________________
East Texas Medical Center d/b/a East Texas Medical Center
Emergency Medical Services
Appellant
v.
Jody Delaune, Individually and as Personal Representative of the Estate
of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune,
Destiny Delaune and Dee Ann Delaune, Minors
Appellees
______________________________________________________________________________
APPEAL FROM CAUSE NO. 13-0984-A
IN THE DISTRICT COURT OF SMITH COUNTY, TEXAS
7th JUDICIAL DISTRICT
HON. KERRY L. RUSSELL
______________________________________________________________________________
TO THE HONORABLE TWELFTH COURT OF APPEALS:
Plaintiffs-Appellees, Jody Delaune, Individually; and as personal representative of the
Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny Delaune,
and Dee Ann Delaune file this brief requesting that the Trial Court’s judgment against Appellant
East Texas Medical Center d/b/a East Texas Medical Center Emergency Medical Services
(“ETMC”) be upheld. Appellees would respectfully show:
1
SUMMARY OF THE ARGUMENT
Ours is a case arising from the death of Crystal Delaune, who was allowed to exit the
back of a moving ambulance operated by ETMC, while Ms. Delaune was under the care of
emergency medical service providers (“EMS Providers”) employed by ETMC. Appellees
originally brought claims against both the EMS Providers and ETMC, but Appellant sought and
was granted partial summary judgment as to the EMS Providers, based on the Trial Court’s
finding that – under the Texas Good Samaritan Statute – the EMS Providers themselves could
not be held personally liable for damages, absent a showing that their actions had been willful
and wanton, and not merely negligent.
Thereafter, Appellees proceeded to trial on the theory that ETMC had violated the duty of
care ETMC itself owed directly to Ms. Delaune, by failing to properly formulate, implement and
enforce policies regarding the restraint of psychotic and/or delusional patients such as Ms.
Delaune. The evidence produced at trial demonstrated that the EMS Providers continually
sought to control Crystal Delaune solely by use of verbal techniques, despite Delaune’s
escalating agitation. Such agitation featured i) being forcibly tackled by a deputy sheriff; ii)
screaming accusations that the attending EMS Provider was Satan, and intended to murder the
ambulance driver; iii) demanding that the attending EMS Provider begin speaking in tongues;
and iv) no less than three attempts by Ms. Delaune to exit the ambulance, including one while in
motion, before the last and fourth exit to her death.
Throughout these cascading events, ETMC’s EMS Providers fully recognized the danger
that Ms. Delaune might attempt to jump out the ambulance’s doors, and at one point stopped the
ambulance to call for backup. Nonetheless, consistent with their training received from ETMC,
the EMS Providers ultimately determined that Ms. Delaune’s situation exhibited no need for
2
physical restraints, right up until the moment she jumped to her death. On the basis of such
evidence, the jury found that EMTC’s negligent implementation and enforcement of its restraint
policies proximately caused Ms. Delaune’s death, and awarded Appellees damages.
Now, Appellant has mounted an insufficient evidence challenge to the Trial Court
verdict, focusing on two issues. First, Appellant asserts that – in granting partial summary
judgment on its motion that the EMS Providers’ behavior had not been willful and wanton
(hence rendering them personally immune to liability, under the Good Samaritan Statute) – the
Trial Court somehow also determined that the EMS Providers were likewise not guilty of merely
ordinary negligence, as a matter of law. This representation is clearly false, as shown both by the
relief requested by Appellant’s own partial summary judgment motion, and the Trial Court’s
Order granting that motion.
Appellant then goes on to argue that, on proximate cause grounds, this supposed “no
negligence” ruling likewise frees ETMC from all liability, citing a line of negligent hiring cases
holding that an employer cannot be held directly liable unless its employee committed an
“actionable tort”. However, Texas case law makes clear that when hospitals like ETMC breach
their policy-making duties, they can be held directly liable, even in the absence of any
negligence by the hospital personnel carrying out such policies. Moreover, Appellees
demonstrate herein that even if such “actionable tort” negligent hiring cases were applicable,
these cases require only that – when a plaintiff sues an employer for the employer’s own actions
– the plaintiff must demonstrate that the employer’s actions caused plaintiff to suffer an injury
recognized in the common law. Such workplace cases do not additionally require the plaintiff
obtain a freestanding jury finding establishing the negligence of the involved employees.
3
Appellant’s second insufficient evidence challenge asserts that i) the expert testimony
supplied by Appellees’ expert Dr. Marvin Wayne failed to establish the applicable training-
policy standard of care, while ii) other evidence in the Trial Court record established that ETMC
did in fact teach its EMS Providers about other, non-verbal forms of restraint, and otherwise
provided sufficient training regarding patient restraint issues generally. However, as shown by
the testimony set forth herein, the common answer to both these challenges is that the specific
defect plaguing ETMC’s training policies was that they failed to ensure that its EMS Providers
knew when to escalate to the use of physical restraints, as demonstrated by the tragic events of
this case.
ARGUMENT
I. Whether Judgment in Favor of Appellees Should be Reversed Because There is
Legally Insufficient Evidence of Proximate Cause Against ETMC
The first issue presented by Appellant consists of its argument that i) ETMC cannot be
held liable for any failure to train its EMS Providers, unless such employees committed an
“actionable tort”, and ii) the Trial Court granted summary judgment as to Appellees’ claims
against the EMS Providers, such that iii) any failure-to-train by ETMC could not constitute a
proximate cause of Crystal Delaune’s death.
In response, Appellees would begin by pointing out that Appellant’s entire “proximate
cause” argument is premised upon Appellant’s repeated, false assertion to this Court that “the
trial court ruled prior to trial that the EMS Providers were not negligent as a matter of law”. See
pages 16, 23 and 32 of Appellant’s Brief. The Trial Court did nothing of the sort; rather, by the
very act of providing emergency care to Crystal Delaune, the ETMC employees in this case were
found by the Trial Court to qualify for protection under the so-called ‘Good Samaritan Statute’,
4
Tex. Civ. Prac. & Rem. Code §74.152. The relevant text of the Good Samaritan Statute provides
that:
emergency medical service personnel [such as the EMS Providers were found to be] are
not liable for civil damages for an act performed in administering the care unless the act
is willfully or wantonly negligent.
Unsurprisingly, Appellant sought to utilize the Good Samaritan Statute to dispose of
Appellees’ claims against its EMS Providers, by filing a motion explicitly titled “Defendants’
Traditional and No-Evidence Motions for Summary Judgment Regarding Wilful and Wanton
Negligence” (“PSJ Motion”). In its PSJ Motion, Appellant made no claim whatsoever that its
EMS Providers were not guilty of garden-variety “ordinary” negligence, but rather that the Good
Samaritan Statute reflected a public policy decision to impose a “higher liability threshold of
‘wilful and wanton negligence’ rather than the standard threshold of ordinary negligence.” (1
CR 42, 60) Elsewhere, Appellant’s PSJ Motion repeatedly equates the ‘wilful and wanton’
standard to that of “gross negligence” (1 CR 46, 52), and states that such higher statutory
standard reflected a public policy decision aimed at preventing emergency caregivers from being
penalized for ‘judgment calls’ made under the hectic conditions endemic to emergency care. (1
CR 48, 60). Accordingly, Appellant’s PSJ Motion requested – and the Trial Court granted – a
take-nothing judgment as to the EMS Providers, solely on the grounds that they were not
willfully and wantonly negligent as a matter of law. (1 CR 60-61; 2 CR 365).
Yet, Appellant now seeks to argue that its PSJ Motion somehow gave rise to a finding
that the EMS Providers were likewise determined to be not guilty of ordinary negligence as well.
Appellees will not belabor the obvious distinctions between ordinary negligence and ‘wilful and
wanton negligence’, given that Appellant thoroughly addressed such at page 11 of its PSJ
Motion (1 CR 46), citing Dunlap v. Young, 187 S.W.3d 828, 836 (Tex. App. – Texarkana 2006,
5
no pet.). Appellees would only point out that the Good Samaritan Statute says nothing
whatsoever to the effect that emergency medical service personnel are somehow magically
prevented from acting in a manner constituting ‘ordinary negligence’; rather, the Statute holds
only that such personnel cannot be held liable for damages unless their errors rise to the level of
‘wilful and wanton negligence’.
Thus, the Trial Court record contains no finding whatsoever that the EMS Providers
employed by Appellant were not guilty of ordinary negligence in their care of Crystal Delaune.
Instead, the Trial Court found only that the EMS Providers did not exhibit the conscious
indifference that is the hallmark of the higher, gross negligence standard. The record likewise
shows no effort on the part of Appellant to require a jury finding as to the express issue of
whether the EMS Providers were guilty of ordinary negligence. Finally, at no time did Appellant
argue that ETMC-as-entity was likewise a beneficiary of the Good Samaritan Statute, or that
ETMC’s policies themselves were formulated, implemented or enforced under emergency
conditions.
To repeat, then, at p.16 of its Brief, Appellant explicitly premised its entire proximate
cause argument on the Trial Court’s supposed finding that “the EMS Providers were not
negligent”. Given that such canard has been conclusively shown to be untrue, exactly what
remains of Appellant’s ‘proximate cause’ argument? The short answer is: not much.
To begin with, Texas courts have repeatedly and consistently recognized that corporate
health care entities such as the Appellant ETMC may be held directly liable for injuries arising
from the negligent performance of their duties owed directly to a patient. Chesser v. LifeCare
Mgmt. Servs., L.L.C., 356 S.W.3d 613, 629 (Tex. App. – Fort Worth 2011, pet. denied); Tenet
Health Ltd. v. Zamora, 13 S.W.3d 464, 471 (Tex. App. – Corpus Christi 2000, pet. dism’d
6
w.o.j.); McCombs v. Children’s Med. Ctr., 1 S.W.3d 256, 259 (Tex. App. – Texarkana 1999, pet.
denied); Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997,
pet. denied); Air Shields, Inc. v. Spears, 590 S.W.2d 574, 581 (Tex. App. – Waco 1979, writ ref,
nre); and Perdue, Direct Corporate Liability Of Hospitals, 24 S. Tex. L.J. 773 (1983). Such
duties owed by Appellant ETMC directly to its patients include those sued upon by Appellees,
i.e. a duty to use reasonable care in formulating, implementing and enforcing the policies and
procedures which govern its employees, such as the EMS Providers. McCombs, 1 S.W.3d at 256;
Mills v. Angel, 995 S.W.2d 262, 269 (Tex. App. – Texarkana 1999, no pet.); Penick, Medical
Malpractice, 44 Texas Practice Series §1:27 (2010).
Given that the common law provides Appellees a direct cause of action to recover from
ETMC, this Court must proceed carefully in reviewing Appellant’s argument that such common
law cause of action is automatically cut-off by the heightened protections which the Good
Samaritan Statute extends only to the EMS Providers. As noted in Cash America v. Bennett, 35
S.W.3d 12, 16 (Tex. 2000), abrogating a common law cause of action by reason of statutory
enactments is disfavored, and such statutes will not be extended beyond their plain meaning.
Moreover, a necessary corollary to the common law’s imposition of direct corporate
liability upon healthcare entities such as Appellant is the principle that such hospital’s direct
liability is not dependent on a finding of negligence on the part of any other healthcare provider.
LaCroix, 947 S.W.2d at 950; Tenet, 13 S.W.3d at 471; Dorsaneo, 20 Texas Litigation Guide
§321.11[1][a]; Griffith & Johnson, Texas Hospital Law – Liability And Damages §3.3 (3d ed.
2003); and Tottenham, Current Hospital Liability in Texas, 28 S. TEX. L. REV. 1, 10 (1987).
Indeed, the oft-cited LaCroix opinion explores this issue at length, in the course of upholding a
jury finding that a hospital had negligently breached its duty to formulate policies regarding the
7
provision of anesthesia, despite the fact that (unlike the present dispute) the jury in LaCroix
expressly found that the involved anesthesiologists and nurse had not been negligent; i.e., did not
cut off causation.
Appellant’s cursory attempts – at pp. 23-24 of its Brief – to distinguish the LaCroix result
fall as flat as its assertion that Appellees somehow sued exclusively upon Appellant’s ‘failure-to-
train’ the EMS Providers specifically, rather upon Appellant’s general failure:
to formulate, implement, and enforce a policy requiring patients like Ms. Delaune, who
are at risk of harming themselves and/or others, to be continuously restrained physically
and/or chemically during transport.
See 9.02 of Appellees’ Second Amended Petition (1 CR 32). Likewise, Appellant’s straight-
faced attempt to argue – at p. 24 of its Brief – that this Court should be guided instead by the
“instructive and persuasive authority” in Latimer v. Memorial Hermann Hospital System, 2011
Tex. App. LEXIS 423 (Tex. App. – Houston [14th Dist.] Jan. 20, 2011, no pet.) is frankly
embarrassing. Latimer is an unpublished two page opinion standing for nothing more than the
proposition that a non-patient who is merely spoken to by a janitor while using a hospital’s
public toilet is not entitled to a million dollars.
As has been shown above, the result in LaCroix – i.e. that a hospital can be held directly
liable for its failure to implement and enforce policy, even in the absence of negligence of any
additional party – is no kind of isolated aberration, but is instead a necessary corollary to Texas’s
unquestioned adoption of the direct corporate liability doctrine, as discussed in the 1987
Tottenham law review article, written an entire decade before LaCroix was issued. 28 S. TEX.
L. REV. at 10. See also Moser v. Heistand, 681 A.2d 1322, 1326 (Pa. 1996):
A cause of action under corporate liability is based on the breach of non-delegable duties
that a hospital owes directly to its patients, and is independent of the negligence of the
hospital’s employees or ostensible agents…The cause of action arises from the policies,
8
actions or inaction of the institution itself rather than the specific acts of individual
hospital employees.
Nonetheless, Appellant argues at p. 24 of its Brief that the result in LaCroix should be
treated as having been effectively overruled by the Texas Supreme Court’s 2012 opinion in
Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012), which Appellant interprets as requiring that an
employer cannot be held liable unless its employee is likewise held liable for an “actionable
tort”. We begin by noting that i) Wansey is confined to a negligent hiring context, ii) Wansey
itself makes no mention whatever of LaCroix, iii) the tort alleged in Wansey is not a failure to
formulate and/or enforce policy, much less training policy, iv) Wansey does not involve a
healthcare setting, nor the ‘direct corporate liability’ doctrine applicable to health care entities
such as Appellant; and v) no court has subsequently applied Wansey in any such relevant
manner. For these reasons, Appellees would argue that this Court should resist facile applications
of employer-liability concepts in the healthcare context, where scope-of-duty questions regarding
hospitals routinely involve (literally) life-and-death issues more serious than whether Wansey’s
driving school instructor flirted with a teenage student. See Carney v. Roberts Investment Co.,
837 S.W.2d 206, 211 (Tex. App. – Tyler 1992, writ denied), recognizing that an employer’s duty
to ensure the proper training of his employees applies with heightened force “where engaged in
an occupation which could be hazardous to life and limb and requires skilled to experienced
servants.”
Caution is especially appropriate in our “failure to implement and enforce policy”
context, where it is hardly difficult to imagine numerous scenarios – such as those involving
policies relating to improper training, or insufficient staffing – which could proximately result in
dire injuries to the patient, even though the actionable negligence lay diffused among the
hospital’s policymakers, and not those undertrained or understaffed hospital workers who
9
actually dealt with the injured patient. If, for example, a hospital seeking to cut costs placed a
novice nurse in sole charge of its neonatal ICU, and an infant died as a result, would a novice
unwillingly thrust into such role be personally liable for negligence and, if not, should the
hospital thereby be allowed to evade all liability for the hazard its own policies created?
Moreover, even assuming this court does sees fit to apply Wansey to the present
healthcare dispute, the court’s careful review will find that Wansey simply does not stand for
what Appellant claims it does. That is, Appellant repeatedly asserts that ETMC cannot be held
liable for any failure to implement and enforce proper policies regarding patient restraint, unless
its EMS Providers committed an “actionable tort” while caring for Ms. Delaune. However, in
reviewing both Wansey and the innumerable cases cited by Appellant at pp. 20-21, it is seen that
in requiring an “actionable tort”, Texas courts have consistently focused not upon the employee’s
culpability, but rather upon requiring a showing that i) the plaintiff suffered a genuine, legally
recognized injury, and ii) that that injury directly resulted from the employer’s failure to take the
action complained of. Wansey, 378 S.W.3d at 247-48; Gonzalez v. Willis, 995 S.W.2d 729, 739
(Tex. App. – San Antonio 1999, no pet.); The Methodist Hospital v. German, 369 S.W.3d 333,
349-50 (Tex. App. – Houston [1st Dist] 2011, pet. denied). Accord, Edgar, Sales, Texas Torts &
Remedies §4.01[4][d], at p. 4-10: “Without an actionable tort, the plaintiff has not been injured
in the eyes of the law. Therefore, the employer’s negligence did not cause a legally compensable
injury” (emphasis added). Indeed, Appellant’s own Clark v. PFPP Ltd. Partnership, 455 S.W.3d
283, 287 (Tex. App. – Dallas 2015, no pet.) holds that “Negligent hiring, supervision, and
retention claims focus on the employer’s own negligence, not the negligence of the employee”,
citing Leake v. Half Price Books, 918 S.W.2d 559, 563 (Tex. App. – Dallas, no writ).
10
In short, the true focus of these “actionable tort” cases is establishing a proximate
causality between the employer’s behavior and the plaintiff’s harm. Had ETMC’s policies
strictly required that its ambulances be painted yellow, for example, yet Ms. Delaune died while
exiting one that was painted red, there would obviously be a fatal disconnect between the
unenforced policy provision, and the harm sued upon. See Prosser & Keeton On The Law Of
Torts §30, at 165 (5th ed. 1984), as cited by the Gonzales court, 995 S.W.2d at 739. Appellees in
no way question this need for a valid causal link between Appellant’s failure to implement and
enforce a proper restraint policy, and Ms. Delaune’s death. Indeed, in the next section of this
Brief, Appellees extensively highlight the evidence in the Trial Court record which establishes
such causal link.
Appellant, on the other hand, desires Wansey and the accompanying “actionable tort”
cases to say something they do not say, i.e. that ETMC itself cannot be held liable unless the
Appellees secure a specific jury finding that the EMS Providers were themselves negligent, and
is awarded damages against the EMS Providers. More specifically, under the facts our case,
what Appellant appears to be arguing is that ETMC itself cannot be held liable – for the injuries
the jury found its policy implementation and enforcement failures to have inflicted upon Crystal
Delaune – solely because a special Good Samaritan Statute gave Appellant’s employees (but not
Appellant itself) limited immunity protection from damages resulting from those employees’
actions. However, Appellant wholly fails to cite any case law espousing the principle that
statutory damage-immunity prevents an “actionable tort” from occurring, whereas as Cash
America v. Bennett, 35 S.W.3d at 16, argues directly against such result.
Indeed, Appellants’ own cases repeatedly make clear that the heart of the “actionable
tort” requirement is a showing that, via the instrumentality of the employee’s acts, the plaintiff
11
suffered an injury recognized at common law. Aguilera-Sanchez, 2003 Tex. App. LEXIS 4846
at *17; Gonzalez, 995 S.W.2d at 740. See also Doege v. Sid Peterson Memorial Hospital, 2005
Tex. App. LEXIS 4964 *21 (Tex. App. – San Antonio June 29, 2005, pet. denied). There can be
no serious question that the harm suffered by Crystal Delaune constitutes an injury recognized in
common law, even if a special statutory enactment bars Appellees’ ability to recover damages
for such harm from the EMS Providers themselves. Chesser, 356 S.W.3d at 629; Tenet Health
Ltd., 13 S.W.3d at 471. As already noted, Texas disfavors any finding that a statutory tightening
of Appellees’ right-to-recover against the EMS Providers (via the Good Samaritan Statute)
should also abrogate its common law right to recover from ETMC. Cash America, 35 S.W.3d at
16.
Last, conscience requires Appellees to take issue with Appellant’s contention – at p. 23 of
its Brief – that because the Good Samaritan Statute shields ETMC’s EMS Providers from
damages for paramedical ‘judgment calls’ made in extremis, Appellant itself, in implementing
and enforcing its policies at its leisure, should likewise be free to subject its patients to all
degrees of negligence short of the willful and wanton variety, by reason of the lesser “standard
of care” supposedly established by the Good Samaritan Statute; i.e., Appellant argues it can get
away with more. However, Appellant has advanced no rationale as to why ETMC’s policy-
related actions should likewise be protected under the Good Samaritan Statute’s “willful and
wanton” standard, whereas the law is clear that the policy-related duty of care owed by ETMC
directly to its patients is measured under a stricter, ordinary negligence standard. Chesser, 356
S.W.3d at 629; Tenet Health Ltd., 13 S.W.3d at 471. Thus, as Appellant seeks to clothe itself – by
proxy – in the Good Samaritan immunity extended only to its EMS Providers, Appellees would
again point out that Appellant’s own authorities hold that the courts should properly “focus on
12
the employer’s own negligence, not the negligence of the employee”. Clark, 455 S.W.3d at 287;
Leake, 918 S.W.2d at 563.
Ultimately then, ours is a case where Appellant itself submitted the special issue under
which the jury found ETMC guilty of negligence which proximately caused the death of Crystal
Delaune, with the accompanying instructions making clear that the “ordinary care” required of
ETMC referred to the manner in which it implemented and enforced its policies. (2 CR 375)
There can be no question that under Texas law i) a corporate entity such as ETMC can only act
through its human agents, and ii) an event can have more than one proximate cause. In Re
Merrill Lynch, 235 S.W.3d 185, 188 (Tex. 2007); and Whitehead v. Tobias, 7 S.W.3d 658, 662
(Tex. App. – Texarkana 1999, no pet.). Accordingly, Appellees are unaware of any need for any
additional, specific findings as to the ordinary negligence of the EMS Providers who treated
Crystal Delaune, in order to establish the ‘proximity’ already found by the jury.
Although the Trial Court did indeed determine on summary judgment that the EMS
Providers were not guilty of ‘wilful and wanton’ conduct, ETMC’s own policy-related duties
owed to Crystal Delaune incorporate an ordinary negligence standard, such that there is no
relevant ‘dissonance’ between the summary judgment findings as to the EMS Providers, and jury
findings as to ETMC. Had the EMS Providers, in fact, been found not guilty of ordinary
negligence, then this Court might have been required to examine more closely the interaction
between the LaCroix and Wansey precedents discussed above. Even then, the proximate cause
of Crystal Delaune’s death was the negligent failure by ETMC to train its EMS Providers when
to use physical restraints. However, the short and definitive answer to Appellant’s opening
“proximate cause” challenge is that the EMS Providers were never deemed absolved of ordinary
negligence, and therefore their protection under the Good Samaritan Statute in no way liberates
13
their employer ETMC from the consequences of the jury’s finding that Appellant negligently
failed to fulfill its own policy-related duties owed directly to Crystal Delaune.
II. Whether Judgment In Favor Of Appellees Should Be Reversed Because There Is
Legally Insufficient Evidence Of The Applicable Standard Of Care And Breach By ETMC
The second issue presented by Appellant consists of its argument that Appellees supplied
legally insufficient evidence that ETMC failed to implement and enforce policies regarding the
use of restraints by its EMS Providers when dealing with psychotic and/or delusional patients
such as Crystal Delaune. In connection with such ‘insufficient evidence’ argument, Appellant
advances three distinct sub-arguments: i) Appellees’ expert Dr. Wayne offered only conclusory
statements; ii) the evidence at trial supposedly established that the EMS Providers knew about
the use of restraint; and iii) the testimony of Appellees’ expert Dr. Wayne supposedly involved
improper ‘inference stacking’. In responding to this issue, it will be helpful to review the
operative sequence of events, the trial testimony of the attending EMS Provider Linda Moore,
and the testimony of Appellees’ expert witness, Dr. Wayne.
OPERATIVE SEQUENCE OF EVENTS
Ours is a case where the EMS Providers intentionally chose not restrain their patient
Crystal Delaune, in favor of relying exclusively on the “talk down” technique, despite an ever-
escalating series of warning signs that Crystal Delaune intended to exit a speeding ambulance.
That is, as regards the eleven minutes between Crystal’s first meeting with Appellant’s EMS
Providers, and her leap that resulted in her death, evidence was presented that:
Prior to arrival, the EMS Providers had already been informed by their dispatcher that
Crystal Delaune was exhibiting abnormal behavior (3 RR 100, 101);
Upon first encountering her, the EMS Providers found Crystal Delaune confined in a
sheriff’s car (3 RR 101);
14
As the EMS Providers attempted to escort her from the sheriff’s car to the ambulance,
Crystal Delaune intentionally fell to the ground (3 RR 107, 192);
Prior to departure, Crystal Delaune twice attempted to escape from the ambulance (3 RR
109, 121; 5 RR 145-46);
In response to one such escape, the sheriff placed a chokehold on Crystal Delaune and
violently threw her to the ground (3 RR 109, 194-95);
The EMS Providers admitted they never succeeded in establishing a “reality base” with
Crystal Delaune (2 RR 240; 3 RR 206);
The EMS Providers believed that Crystal Delaune was confused, delusional and suffering
from psychosis (2 RR 239, 241; 3 RR 97, 108, 119, 188);
The attending EMS Provider thought Crystal Delaune was “out of her head and just
basically didn’t know what she was doing” (3 RR 124);
The attending EMS Provider agreed that Crystal Delaune’s psychosis caused her to
alternate between communicating rationally and spouting “crazy stuff”;
(2 RR 241)
Approximately four miles from the pickup point, Crystal Delaune unbuckled her straps
in the moving ambulance, sat on the edge of the stretcher, and announced that she wanted
to get out of the ambulance (3 RR 114-15, 117, 121, 196-97);
In response to Crystal Delaune’s third attempt to exit the speeding ambulance, the EMS
Providers locked the ambulance’s rear doors to slow any attempted exit by Crystal
Delaune (2 RR 236; 3 RR 117-18, 121);
In response to Crystal Delaune’s third attempt to exit the speeding ambulance, the EMS
Providers stopped the ambulance and called the sheriff for backup, but later chose to
proceed without such help (3 RR 116-17);
Crystal Delaune began loudly accusing the attending EMS Provider of being Satan, of
intending to murder her fellow EMS Provider, and demanded that such attending EMS
Provider begin speaking in tongues (3 RR 97, 118-19, 197-98);
Crystal Delaune began jabbing her hand into the face of the attending EMS Provider, and
screaming that she is going to go to hell (3 RR 118-20);
Having never been restrained, Crystal Delaune got off the stretcher, unlocked the doors
of the speeding ambulance and jumped out to her death (3 RR 121-23).
15
Thus, despite this wealth of indicators that Crystal Delaune intended to forcibly exit the
ambulance, the EMS Providers testified that the actions, or more accurately, inaction taken by
them in not physically restraining Crystal Delaune were entirely consistent with the training they
received from ETMC.
Accordingly, at issue in the trial was the very narrow question of whether ETMC had
properly implemented and enforced policies as to when its EMS Providers should have
abandoned the “talk down” approach used exclusively upon Crystal Delaune, and advanced to
applying physical restraints which would have prevented her death.
RELEVANT EXCERPTED TESTIMONY OF EMS PROVIDER LINDA MOORE
Linda Moore, the EMS Provider who attended Crystal Delaune during the ambulance
ride, testified to the following:
Q How were you trained as to when to use the talk-down technique?
A At all times.
Q So not only at the scene, but when you are transporting, correct?
A Correct.
(2 RR 239)
Q Okay. Do you agree that what you told me in your deposition, when I took it, was
that you are going to keep trying the verbal or talk-down until it completely doesn’t
work; just keep trying – keep trying that, right?
A Yes, sir.
Q And that’s because of the way you were trained?
A Correct.
(3 RR 98)
Q I think you told me in your deposition, “I’ve been taught to use verbal commands
all the way through.” Right?
A Correct.
16
(3 RR 99)
[After Crystal Delaune removed her seat belts, swung to the side of her stretcher in the
moving ambulance and announced she was going to exit the ambulance, the EMS
Providers locked the rear doors to prevent Crystal Delaune’s escape, and made a call for
assistance. Nonetheless, the EMS Providers continued to rely on the talk-down technique
exclusively.]
Q Because that’s the way you’d been trained, isn’t it?
A Yes.
Q You thought that was working?
A Yes.
Q So keep doing it, because that’s the way you were trained?
A Yes sir.
(3 RR 116)
Q In your training, going back to the ‘70s, were you ever taught that there was any
number of times after which you stopped the verbal technique, the talk-down technique
first?
A No, sir.
(3 RR 149-50)
Q What was your training and your understanding as to when and how to restrain
patients?
A It’s been the same. You talk to the patient first. Always.
Q Okay. And then when do you go to restraints?
A When they become physical to you or themselves.
(3 RR 163)
[Appellant’s counsel questioned Linda Moore concerning Crystal Delaune’s condition
after her third attempt to escape the ambulance, and her loud accusations that Linda
Moore was Satan and intended to kill the ambulance driver.]
Q Up to this point in time, based on your training and education, experience from
ETMC and before, can you tell the ladies and gentlemen if, in your opinion, she was
being cooperative with you?
17
A She was cooperative the whole time with me.
Q And up to this point in time, based on your training and education, experience,
even before ETMC, was she responding to the verbal first technique?
A She responded to verbal commands each time.
(3 RR 200)
Q -- in your opinion, did you attend to Ms. Delaune in a manner that you believe to
be consistent with ETMC’s behavioral disorder’s protocol?
A Yes, sir.
(3 RR 202)
[Appellees’ counsel further questioned Linda Moore as follows]
Q …way back when Mr. Thiebaud asked you about how you were trained by East
Texas Medical Center EMS, you answered – and maybe even slipped a little bit – but you
said, “Talk-down at any cost”. Didn’t you?
A Yes, sir. Probably did.
(3 RR 210)
In short, EMS Provider Linda Moore repeatedly testified that – pursuant to the training
she received from ETMC – her continued reliance solely upon the “talk-down” technique was
fully appropriate. Moore further testified that pursuant to her training, no escalation to physical
restraints was called for, despite i) Crystal Delaune’s psychotic state; ii) her repeated attempts to
exit the ambulance, including while the ambulance was speeding, iii) her declaration that she
would exit the ambulance, and iv) the fact that Linda Moore foresaw that Crystal Delaune could
quickly injure herself by exiting the speeding ambulance. Rather, the testimony supplied by
Linda Moore indicated that she had been trained to continuously rely on the talk-down technique
in essentially “amnesiac” fashion, that is with no regard whatsoever to a psychotic patient’s
immediate history of escalating noncooperation, nor to the dangers presented by a moving
ambulance.
18
Q Does that mean one time; and then after that you’re off to physical and chemical
restraints?
A Verbal is every time that you can talk with them and get them to calm down.
Q Each time?
A Each time.
(See 3 RR 189)
At 3 RR 204-05, Appellees’ attorney walked EMS Provider Linda Moore through the
entire history of Crystal Delaune’s psychotic and noncooperative behavior on the night of her
death, in an attempt to determine “How many verbal firsts do you get?”, before physical
restraints become necessary. Moore replied that “[t]here were verbal firsts every time that was
appropriate”, until Crystal Delaune made her final, fatal lunge out the ambulance’s backdoor:
“At that time, the verbal was me asking her to stop, and, no, she did not stop”. (3 RR 205)
RELEVANT EXCERPTED TESTIMONY OF APPELLEES’ EXPERT DR. WAYNE
In reading EMS Provider Linda Moore’s earlier deposition testimony, Appellant’s expert
witness Dr. Wayne had been struck by the very same “repetitive focus” on the use of talk-down
technique exclusively, as would be again demonstrated in the EMS Provider’s trial testimony
highlighted above. In his own trial testimony, Dr. Wayne stated the following:
If you read their [EMS Providers] depositions, they repetitively talk about a single
therapy or therapeutic approach – process approach to a behavioral emergency. If that’s
the only basis and understanding they have, then, clearly, their education has failed them.
(3 RR 20-21)
So clearly, in reading their depositions, the only thing that repetitively came up was: We
talk them down. And the question was raised to them: “Well what happens if you talk
them down and they’re not doing” –
“Well we continue to talk them down”
So, to me, the next two steps that should have occurred, they did not possess and were not
clearly tested that they had received and understood that knowledge of the critical next
steps when talking down didn’t work.
19
(3 RR 22)
Q Okay. And when talking-down is not working, what’s the next step.
A Little bit depends. It depends on, if that patient’s going to be transported, who’s
going to transport that patient … assuming that you, as the EMS provider, are going to
transfer the patient, the next step is to place the patient into some form of a restraint.
(3 RR 23)
Q Let me ask you, at this point, if Crystal Delaune had had restraints on during that
ambulance transport, would she be alive today?
A Presuming that no other cause would have harmed her, the answer is yes.
(3 RR 25)
Q In reviewing the testimony of Linda Moore and Lindy Spurgers, did they ever
indicate that they were trained on when restraints are needed or necessary according to
this policy?
A Well, as stated there in the report and in their deposition, they repetitively
mentioned the process of using talk-down. They never described any other technique for
handling the behavioral emergency.
So while this may be presumptuous, I think it’s honest in saying that if they didn’t
discuss any other methodology when they were queried in their deposition, I would
assume that they didn’t have the intrinsic knowledge, the ability to know to go to the next
step.
(3 RR 29)
Q Okay. Now, with respect to the standard of care, did the standard of care yet
require restraints of the time Crystal had tried to get out of the ambulance twice there at
Running Rudy’s parking lot?
A In my interpretation, yes.
(3 RR 33-34)
[Dr. Wayne stated that Crystal Delaune should have been put in four-point restraints
after she got off the stretcher while the ambulance was moving.]
Q And in terms of Linda Moore’s training, why didn’t that happen?
A: Well, I can’t read her mind, but I can only state what she said in her deposition.
She said, “I was taught to talk-down. Keep talking-down and keep talking-down.”
And there’s nowhere in her deposition where she states that she was taught anything
beyond talk-down.
20
Q Was it well below the standard of care for East Texas Medical Center to not train
Linda Moore and Lindy Spurgers to restrain Crystal at this point?
A Well, the answer is “yes”, but it has two facts to it.
Q: What are those –
A: Okay. Fact one is what your pieces of paper say and what you teach. Fact two is
assessing that those people have understood that knowledge. So I don’t doubt that East
Texas Medical Center’s documentation that we all saw is what their documentation is.
My concern is that – and my feeling where the failure of standard of care occurred is that
if the EMS providers only knew to talk-down, they had not been taught. The paper says
that’s why you do, but the education wasn’t there to validate that piece of paper.
(3 RR 35-36)
Q So based on the testimony of Linda Moore and Lindy Spurgers, do you have an
opinion on whether East Texas Medical Center EMS deviated from the standard of care
by not properly training Linda Moore and Lindy Spurgers on when to use restraints on
patients like Crystal Delaune?
A Well, based on the information provided in their depositions and the events that
occurred, I would have to say yes.
Q Okay. So what is your opinion?
A My opinion is – again, we have a paper here saying: This is what we teach. We
had actions and testimony from certainly honest EMS providers, “That’s not what we
knew.”
Q Okay. This is similar, but I need to ask this question. Based on the testimony of
Linda Moore and Lindy Spurgers, do you have an opinion on whether East Texas
Medical Center EMS failed to use ordinary care by not properly training Ms. Moore and
Ms. Spurgers on when to use restraints on patients like Crystal Delaune?
A Well, since I’m not sure the difference is – the answer would still be yes.
Q Okay. And so what is the opinion?
A My opinion is, again, we have the discrepancy between performance and teaching
– or at least paper education. I mean – and I’m not being disrespectful to East Texas
Medical Center. I’m sure they’re good people – good, caring people. The paperwork
says: This is what we teach. The knowledge based by two EMS providers – not one but
two – say, “That’s not what we knew.” So based on those pieces of information, I would
say, yes, they fell below the standard of care.
21
Q All right. And let me ask you, based on the testimony of Linda Moore and Lindy
Spurgers, do you have an opinion on whether East Texas Medical Center EMS was
negligent in failing to properly train Ms. Moore and Ms. Spurgers on when to use to use
restraints on patients like Crystal Delaune?
A I think we’re going to have to get a definition of “negligent”. But I understand
we’re in a court. I understand the terminology –
Q So let me ask you to assume that “negligent” means failure to use ordinary care or
a deviation from the standard of care.
A And the answer there would be yes, with that definition.
Q Okay. So just so we’re clear for the record, what is your opinion?
A My opinion is that if we’re defining negligence in this case as failure to
appropriately educate so they had the predicate knowledge to know what to do beyond
talk-down, the answer is yes.
(3 RR 41-44)
Q Okay. Was it foreseeable to an ordinarily prudent EMS provider, such as East
Texas Medical Center EMS, that if it didn’t properly train its EMTs and paramedics
regarding when to use restraints on its patients, that harm might reasonably come to the
EMTs or paramedics, a patient like Crystal Delaune, or the public?
A I’ve got to walk through that in my mind for a second.
Q Okay.
A I think we’re really saying the same thing again. Education didn’t match
knowledge. And in that case the answer is yes.
Q And with respect to that harm, was it foreseeable to an ordinarily prudent EMS
provider, such as East Texas Medical Center EMS, that if it didn’t properly train its
paramedics, that harm could include something like what happened in this case? Patient
could go out the back of an ambulance?
A Well, let me predicate that by saying that’s why we teach people to follow the
pathways to protect the patients and themselves; so, therefore, the answer is yes.
(3 RR 44-45)
Q Do you have an opinion, in reasonable medical probability, on whether the failure
of East Texas Medical Center EMS to properly train Linda Moore and Lindy Spurgers on
when to use restraints caused Linda Moore and Lindy Spurgers not to restrain Crystal
Delaune?
22
A Again, here’s what I’m using for the predicate to give my answer: Their
depositions, where they continually only talked about the talk-down approach and never
discussed alternative therapies; and based on that fact, the answer would be yes.
Q Okay. And so then the next step is: Do you have an opinion…in reasonable
medical probability on whether the failure by East Texas Medical Center EMS to
properly train Linda Moore and Lindy Spurgers, that failure then led to Crystal Delaune
to be able to go out the back of the ambulance to her death?
A Yes.
Q And what is that opinion?
A Yes.
Q Okay. Let me ask you then, do you have an opinion on had East Texas Medical
Center EMS properly trained Linda Moore and Lindy Spurgers about when to use
restraints, is it probable Crystal Delaune would not have been able to go out the back of
the ambulance to her death?
A Yes, that is probable.
(3 RR 45-46)
At pp. 26-27 of its Brief, Appellant asserts that the trial testimony supplied by Appellees’ expert
Dr. Wayne supposedly failed to meet the applicable evidentiary burden of demonstrating the
actual, factual specifics of the duty of care ETMC owed to its patient Crystal Delaune, in
implementing and enforcing its policies regarding training its EMS Providers on the use of
restraints when caring for psychotic and/or delusional patients such as Crystal Delaune.
In support of this alleged ‘heightened specificity’ standard, however, Appellant almost
entirely relies upon cases where one litigant sought to dispose of a case prior to trial based solely
upon the contents of a physician’s CPRC §74.351 report, such as when i) a party seeks summary
judgment, or ii) where a court scrutinizes whether the plaintiff’s initial CPRC §74.351 expert
report (statutorily required to be submitted in all healthcare liability cases) satisfies the
requirements of the governing Texas Medical Liability Act, CPRC §74.351. Long story short,
the cases cited in its Brief give no support whatsoever to Appellant’s assertion that an expert
23
witness’s live trial testimony is held to any heightened specificity requirement concerning the
applicable standard of care.
Moreover, even if such a specificity requirement did apply here, the excerpted Wayne
testimony set out immediately above clearly indicates that under the applicable standard of care,
the training policies implemented and enforced by ETMC should have made sure that its EMS
Providers learned when and how to advance to the next step (i.e. physical restraints) after their
initial verbal, “talk-down” technique ceased to be appropriate. (3 RR 22, 29, 44) Dr. Wayne
further testified that – in Crystal Delaune’s case – such talk-down technique ceased to be
appropriate when Delaune twice exited the parked ambulance (3 RR 33), and became
unquestionably inappropriate once Delaune made a third attempt to exit the ambulance as it sped
down the highway (3 RR 35).
Next, at pp. 27-28 of its Brief (and again at 36-37), Appellant once again cites a mish-
mash of irrelevant workplace injury cases in support of its assertion that Appellees were required
to prove that ETMC should have supplied training beyond what it actually provided to its EMS
Providers. Ours is hardly a case where Appellees’ expert blandly concluded, without more, that
ETMC had failed to properly train its EMS Providers. Rather, Dr. Wayne’s testimony explicitly
identified the relevant defect in ETMC’s implementation and enforcement of its policies, i.e. that
they should have ensured that its EMS Providers knew when to employ physical restraints after
initial “talk-down” efforts ceased to be appropriate (3 RR 22, 29, 44). Dr. Wayne likewise
identified at what precise junctures in their dealings with Crystal Delaune, the EMS Providers’
training should have alerted them to the fact that physical restraints were now required (3 RR 33,
35). The cases cited by Appellant’s Brief require nothing more.
Conclusory Testimony And Inference Stacking
24
Next, at pp. 29-30 of its Brief, Appellant complains that the testimony of Appellees’
expert Dr. Wayne should be deemed legally insufficient because it is i) “conclusory and ipse
dixit in nature”, and ii) involves “one inference stacked on other inferences”.
First, Appellant complains that – in determining that the EMS Providers’ training had
improperly left such Providers fixated on the talk-down component of restraining psychotic
patients, with no effective knowledge of when to escalate to physical restraints – Dr. Wayne
improperly relied upon the depositions of such EMS Providers. Appellant’s Brief cites to no
portion of these depositions which contradict Dr. Wayne’s testimony. Instead, at pp. 33-34,
Appellant argues that if only different questions had been asked at such depositions (including by
Appellant’s own counsel), the EMS Providers might have supplied answers favorable to
Appellant.
Appellees do not wish to engage in any such speculative game of “what if”; rather,
Appellees would simply point out that the above-excerpted trial testimony of EMS Provider
Linda Moore emphatically and repeatedly confirms every ‘inference’ supposedly made by Dr.
Wayne from the EMS Providers’ earlier deposition testimony. That is, Linda Moore repeatedly
testified at trial that her actions, or inactions leading to Crystal Delaune’s death were entirely
consistent with the training she had received from ETMC, and that such training stressed an
unending reversion to talk-down techniques, regardless of the patient’s psychotic condition,
escalating history of misbehavior, or proximity to harm (2 RR 239; 3 RR 98, 99, 116, 149-50,
189, 200, 202, 204-05, 210).
Next, to the extent that Appellant asserts at p.31 that the City Of Keller case entitles it to
introduce additional evidence supposedly illustrating how Dr. Wayne gleaned improper
inferences from the EMS Providers’ depositions, Appellees fully welcome a review of such
25
additional evidence. City Of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005). As already
noted, the trial testimony of EMS Provider Linda Moore amply confirmed her earlier deposition
statements indicating that her training left her unprepared to know when to employ any restraint
technique other than mere talk-down.
Likewise, the undisputed facts of the case themselves undeniably support Dr. Wayne’s
conclusions regarding the inadequacy of the EMS Providers’ training, given that the EMS
Providers continued to abjure restraining Crystal Delaune, despite her admitted psychotic state,
repeated escape attempts (sufficient to cause the EMS Providers to halt the ambulance, and call
for but then cancel assistance), and explicit recognition that Ms. Delaune might seek to exit the
speeding ambulance (as shown by Moore’s ineffective locking of the rear door, in response to
Delaune’s third attempt). Note that in his testimony, Dr. Wayne stated that he based his
conclusion not only on the EMS Providers’ depositions, but also on “the events that occurred”
(33 RR 141).
At pp. 32-33 of its Brief, Appellant attempts to argue that the EMS Providers’ failure to
restrain Ms. Delaune merely reflected an independent ‘exercise of judgment’ that physical
restraints were not called for, rather than any deficiencies in training. However, EMS Provider
Linda Moore repeatedly testified that all actions taken by her were consistent with the training
provided by ETMC (3 RR 98, 99, 116, 149-50, 163, 200, 202, 210). Likewise, Appellees would
ask that the Court note the manner in which Appellant’s counsel led their employee Linda Moore
through her testimony, repeatedly seeking to confirm that that her failure to restrain Crystal
Delaune was fully in accordance with ETMC’s policy of “verbal first”, until required by the Trial
Court to halt such leading questions (3 RR 188-89, 193, 195, 197, 199-200). Finally, although
Dr. Wayne did indeed testify that the decision to escalate to physical restraints involved the
26
exercise of judgment (3 RR 73), he immediately went on to clarify that an EMS Provider cannot
properly exercise such judgment unless her training has supplied the underlying knowledge (3
RR 74), which Wayne asserted ETMC’s training failed to effectively do.
Next, Appellant’s Brief asserts at p. 30 that the essence of Appellees’ case is that “the
EMS Providers only knew talk-down and were not taught about the use of restraints”, and then
responds at p. 35 with a flurry of record cites indicating that restraint training did in fact occur.
Unfortunately for Appellant, Appellee’s expert Dr. Wayne identified a much more specific flaw
that was not addressed by ETMC’s generalized restraint policies, and which led to Crystal
Delaune’s death: that is, by reason of ETMC’s policies, the EMS Providers:
“did not possess … knowledge of the critical next steps when talking down didn’t
work”(3 RR 22)
“didn’t have the intrinsic knowledge, the ability to know to go to the next step.”
(3 RR 29)
Thus, the negligence alleged in this case – and upheld by Dr. Wayne’s testimony – is not
whether ETMC’s policies generically covered the topic of restraints, nor whether the EMS
Providers knew that other restraint levels existed beyond talk-down. Rather, the critical issue is
whether such training was effective in educating the EMS Providers as to WHEN it was
appropriate to advance beyond verbal to physical restraints. See Dr. Wayne’s testimony at 3 RR
41-46, where he indicates no less than seven times that the ultimate issues in our case involved
whether ETMC had “properly train[ed] Ms. Moore and Ms. Spurgers on when to use restraints
on patients like Crystal Delaune” (emphasis added).
By way of a homely example, a police department’s policy may well be to train its
officers not to immediately draw their firearms upon encountering a suspect, but to wait until
physical harm is threatened. All well and good, but if a policeman (and his partner) – in
27
compliance with such policy, at a real-world crime scene – thereafter indicates that he did not see
fit to draw his gun until the suspect’s weapon actually injured that policeman, then it would
hardly seem a stretch to find that the departmental training policy was deficient. And this would
be so despite the fact that i) the officer might have had ample use-of-force training, and ii) such
training had clearly informed the officer that he was entitled to use deadly force; the only defect
would lie in the all-important question of “when” to do so.
Though Appellant’s Brief repeatedly accuses Dr. Wayne of engaging in improper
“inference stacking” in reaching his conclusion, such stacking allegation is directly linked to
Appellant’s misrepresentation that their negligence lies in a wholesale failure to provide any
training, or their EMS Providers’ total ignorance of physical restraints. As shown above, Dr.
Wayne testified that ETMC’s training was deficient solely in educating their EMS Providers to
know when physical restraint was called for, and such opinion was based both on “the events
that occurred” (33 RR 141) and on the EMS Providers’ depositions, with any such deposition-
inferences being repeatedly confirmed by the very same Linda Moore trial testimony that
Appellant urges this Court to review. Thus, no “stacking” occurred, and Appellant has failed to
back his allegations with any concrete examples.
Failure To Understand What Is Taught
Finally, at pp. 37-43 of its Brief, Appellant takes issue with Dr. Wayne’s testimony that
the actionable defect in ETMC’s training – i.e. regarding “when” to switch over from verbal to
physical restraints – lay not in what was put down on paper, but the ignorance demonstrated by
both EMS Providers in their depositions.
A: Okay. Fact one is what your pieces of paper say and what you teach. Fact two is
assessing that those people have understood that knowledge. So I don’t doubt that East
Texas Medical Center’s documentation that we all saw is what their documentation is.
28
My concern is that – and my feeling where the failure of standard of care occurred is that
if the EMS providers only knew to talk-down, they had not been taught. The paper says
that’s why you do, but the education wasn’t there to validate that piece of paper.
(3 RR 36)
A My opinion is, again, we have the discrepancy between performance and teaching
– or at least paper education. I mean – and I’m not being disrespectful to East Texas
Medical Center. I’m sure they’re good people – good, caring people. The paperwork
says: This is what we teach. The knowledge based by two EMS providers – not one but
two – say, “That’s not what we knew.” So based on those pieces of information, I would
say, yes, they fell below the standard of care.
(3 RR 43)
Appellees would begin by noting that there is no evidence or allegation in the Trial Record –
from either side – that the EMS Providers departed from their training in failing to know how to
restrain Crystal Delaune, and so prevent her death. Rather, Linda Moore repeatedly testified –
often with encouragement of Appellant’s counsel – that her actions were fully congruent and in
compliance with ETMC’s policy implementation and enforcement (training) of “verbal first”;
i.e., in ETMC’s negligent failure to train when to restrain.
Yet, Appellant apparently now seeks to argue that as long as its restraint policy said all
the right things, it is wholly irrelevant if – after decades of receiving such training – its EMS
Providers actually understood when and how to properly apply ETMC’s restraint policies in the
real world, when caring for troubled human beings. Elsewhere, Appellant’s Brief repeatedly
refers to the relevant tort in this case as a “failure to train” employees, but seemingly now seeks
to claim that such tort should instead be deemed a “failure to draft training manuals”. Appellees,
in turn, would remind the Court that they have at all times asserted that the relevant tort was
ETMC’s breach of its duty:
to formulate, implement, and enforce a policy requiring patients like Ms. Delaune, who
are at risk of harming themselves and/or others, to be continuously restrained physically
and/or chemically during transport.
29
See 9.02 of Appellees’ Second Amended Petition (1 CR 32). Accord, Mills v. Angel, 995 S.W.2d
at 269: “courts have recognized a duty to use due care in enforcing such policies and procedures
and in ensuring that they are not violated”; Columbia North Hills Hospital v. Alvarez, 2011 Tex.
App. LEXIS 5908 *12-13 (Tex. App. – Fort Worth 2011, no pet.).
In short, there is no question that ETMC owed a direct duty to Crystal Delaune to not
only adopt appropriate policies affecting its care of her, but to likewise see that such policies
were implemented and enforced, i.e. actually carried out by its employees while actually caring
for patients. See Durham Transportation, Inc. v. Valero, 897 S.W.2d 404, 413 (Tex. App. –
Corpus Christi 1995, writ denied), citing Greater Houston Transportation v. Zrubeck, 850 S.W.2d
579, 591-92 (Tex. App. – Corpus Christi 1993, writ denied). Therefore, ETMC’s duty to
“implement and enforce” its policies necessarily correlates with a requirement that ETMC ensure
that its policies effectively convey the desired information, as measured by the trained
employees’ subsequent knowledge of, and conduct in conformance with, the training imparted
by ETMC pursuant to its policies. Any assertion by Appellant that its training-related duties did
not extend to making sure that the EMS Providers actually understood what ETMC taught them
must fail, because the common law duties owed by ETMC to Crystal Delaune likewise
encompass a duty “to periodically monitor and review the competency of the members of its
medical staff.” Ching v. Methodist Children’s Hospital, 134 S.W.3d 235, 241 (Tex. App. –
Amarillo 2003, pet. denied).
In applying this duty to “implement and enforce” to our present facts, Appellees would
cite the ancient legal maxim that “the proof is in the pudding.” It is beyond question that,
pursuant to its relevant policies, the purpose of training EMS Providers when and how to
properly respond to restraint scenarios is to improve their care of actual patients such as Crystal
30
Delaune. Here, not only was Ms. Delaune fatally injured while in the care of ETMC’s EMS
Providers, but Linda Moore explicitly testified – at the behest of Appellant’s counsel – that such
disastrous real-world result was fully congruent with Moore’s understanding of the “verbal first”
training she had received from ETMC. Such testimony is entirely consistent with the fatal flaw
in ETMC’s implementation and enforcement of its policies, as specifically identified by Dr.
Wayne.
Once again, then, the proof is in the pudding, and the tragic results of ETMC’s transport
of Crystal Delaune speak for themselves. The efficacy of a hospital’s implementation and
enforcement of its policies must be measured by how well it succeeds in preparing its personnel
to respond to known hazards, and not by how comprehensive the syllabus appears on paper.
Valero, 897 S.W.2d at 413; Zrubeck, 850 S.W.2d at 591-92; and Ching, 134 S.W.3d at 241. The
cases cited by Appellant on pp. 39-43 of its Brief say nothing to the contrary. As with our “gun-
shy police officer” hypothetical, all the training policies in the world are of no use if the
employer does not implement and enforce such by ensuring that the employees possess sufficient
knowledge to know when to usefully apply such training.
CONCLUSION
As set out at p. 18 of its Brief, Appellant has chosen to base its appeal solely on grounds
that Appellees’ evidence was supposedly legally insufficient to support the verdict and judgment
against it, as to two issues. As Appellant’s own authorities show, the applicable standard of
review is a steep one, requiring this Court to first “credit favorable evidence if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not”, and secondly to
“uphold the jury’s finding if more than a scintilla of competent evidence supports it”. Tanner v.
Nationwide Mutual, 289 S.W.3d 828, 830 (Tex. 2009).
31
Tasked, then, with essentially demonstrating that “no evidence” supports the verdict in
Appellees’ favor, Appellant stumbles badly. As to its first issue, Appellant centers its argument
upon the false claim that – in extending the protections of the Good Samaritan Statute to the
EMS Providers only – the Trial Court somehow also ruled that their care of Crystal Delaune
categorically could not have constituted negligence, by themselves or by their employer ETMC.
As demonstrated herein, the Trial Court made no such ruling, and Texas law provides no
grounds for excusing employers from their direct liabilities owed to plaintiffs who are actually
injured via their employees’ actions.
As to Appellant’s second issue, Appellant advances an equally bogus claim that the trial
testimony of Appellees’ expert Dr. Wayne did not adequately establish the requisite elements of
Appellees’ claim. However, the above-listed excerpts from Dr. Wayne’s testimony amply refute
all such allegations made by Appellant. Moreover, the above-cited testimony of EMS Provider
Linda Moore only serves to confirm – in spades – the validity of the jury’s findings regarding the
“negligent training” (implementation and enforcement of policies) claims brought against
ETMC.
PRAYER
For the foregoing reasons, Appellees Jody Delaune, Individually and as Personal
Representative of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton
Delaune, Destiny Delaune and Dee Ann Delaune, Minors request that:
1) the Trial Court’s Final Judgment in favor of Appellees be upheld in all respects;
2) that all costs of court and other relief granted Appellees under the Trial Court’s Final
Judgment be likewise upheld; and
3) Appellees further request all other relief to which they may be entitled, at law or in
equity.
32
RESPECTFULLY SUBMITTED:
RYAN KREBS, M.D., J.D.
805 W. 10th Street, Ste. 300
Austin, Texas 78701
(512) 478-2072
(512) 494-0420 -Facsimile
ryan@ryankrebsmdjd.com
___________________________________
RYAN KREBS
State Bar No. 00792088
Counsel for Appellees
CERTIFICATE OF SERVICE
On July 3, 2015, in compliance with Texas Rule of Appellate Procedure 9.5, I hereby
certify that a copy of the foregoing Appellees’ Brief was served upon all other parties to the trial
court’s judgment by first-class United States mail, properly posted and deliverable as follows:
THIEBAUD REMINGTON THORNTON BAILEY, LLP
Russell G. Thornton
State Bar No. 19982850
4849 Greenville Avenue, Suite 1150
Dallas, Texas 75206
(214) 954-2200
(214) 754-0999 -Facsimile
rthornton@trtblaw.com
___________________________________
Ryan Krebs
33
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)
I certify that this document contains nine thousand, one hundred twenty-three (9,123)
words, as indicated by the word-count function of the computer program used to prepare it, and
excluding the caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix, as provided by Appellate Rule 9.4(i).
___________________________________
Ryan Krebs
Counsel for Appellees
34
APPENDIX
APPENDIX “A”
DEC-23-2014 15:51 From:9035901641
Cause No. 13-0984-A
JODY DELAUNE, Individually; and §
11s Personal Representative of the Estate §
of CRYSTAL DELAUNE, Deceased; §
nnd as Next Friend of DAL TON §
DELAUNE, DESTINY DELAUNE, §
and DEE ANN DELAUNE, Minors, §
§
Plaintiffs, §
§
v. § SMITH COUNTY, TEXAS
§
•~AST TEXAS MEll!CAL CENT•:R §
D/BfA EAST TEXAS MEDICAL CENTER §
EMERGENCY MEDICAL SERVICES, §
§
Ii
§
§
Defendant. § 7th JUDICIAL DISTRICT
FINAL JUDGMENT
The Court finds that the jury's verdict in this healthcare liability claim is supported by the
evidence and thel'efore rendel's judgment against Defendant and for Plaintiffs as follows:
I. The Court orders that Plaintiff, Jody Delaune, Individually recovers from Defendant, the sum
of:
a.) $7,500.00 for pecuniary loss sustained in the past;
b.) $36,000.00 for pecuniary loss in the future;
The Court orders that Plaintiff, Jody Delaune, as Ne11:t Friend of Dalton Delaune recovers
from Defendant, the sum of:
c.) $7,500.00 for pecuniary loss sustained in the past;
d.) $20,000.00 for pecuniary loss in the future;
e.) $2,500.00 for loss of compruiionship and society it1 the past;
f.) $2,500.00 for loss of companionship and society in the furore;
g.) $2,500.00 for mental ani;,"Uish in the past;
DEC-23-2014 15:51 From:9035901641 Paoe: 3/5
h.) $2,500.00 for mental anguish in the future;
The Court orders that Plaintiff, Jody Delaune, as Next Friend of Destiny Delaune recovers
from Defendant, the sum of:
i.) $7,500.00 for pecuniary loss sustained in the pnst;
j.) $26,000.00 for pecuniary loss in the future;
k.) $2,500.00 for loss of companionship and society in the past;
1.) $2,500.00 for loss of companionship and society in the future;
m.) $2,500.00 for mental ani,'Uish in the past;
n.) $2,500.00 for mental anguish in the future;
The Court orders that Plaintill; Jody Delaune, as Next Friend of Dee Ann Delaune recovers
from Defendant, the sum of:
o.) $7,500.00 for pecuniary loss sustained in the past;
p.) $36,000.00 for pecuniary loss in the future;
q.) $2,500.00 for loss of companionship and society in the past;
r.) $2,500.00 for loss of companionship 1111d society in the future;
s.) $2,500.00 for mental anguish in the past;
t.) $2,500.00 for mental anguish in the future;
The Cowt orders that Plaintiff, Jody Delaune, as Personal Representative of the Estate of
Crystal Delaune recown; from Dctlmdant, the sum of;
u.) $3,000.00 for funeral and burial expenses.
Ibe totaljudb'llJCilt for a - u above is $181,000.00.
The judgment for "past damages" for items a, c, e, g, J, k, m. o, q and s is $45,000.00.
Plaintiff is entitled to recover prajudgment interest on the $45,000.00 in "past damages." TI1e
prejudgment interest rate on these past damages is equivalent to the post judgment interest
rate of 5%. Tex. Fin. Code§ 304.103 (Vernon Supp. 2002). Pursuant to Texas Finance Code
section 304.007, the Court hereby takes judicial notice of the fact that at the time of the
rendition of this judgment, the post judgment interest rate as set by the Consumer Credit
Commission and published in the Texas R~gistcr is 5 percem (5%). Pre-judgment interest in
a health care liability claim begins accruing on the earlier of the 180'" day after the date
Defendant received written notice of the claim or the date suit is filed and ends on the date
before the judgment is signed. Defendant received written notice of the claim on November
DEC-23-2014 15:52 From:9035901641
8, 2012. See Exhibit B attached to Plaintiffs' First A.mended Motion for Judgment on the
Verdict. (Plaintiffs' Original Petition was filed April 15, 2013). 180 days ftom November 8,
2012 is May 7, 2013. May 7, 2013 to December 21, 2014, the day before sii.,'lling of the
judgment on Dcc~'tllbcr 22, 2014 is 594 days or 1.63 years (594/365 ~ 1.63). Using these
calculations, the Court finds that prtj udgment interest of 5% simple interest on the
$45,000.00 in "past damages" accruing 1.63 years is $3,661.64 (.05 x 1.63 x 45,000 ~
3,661.64).
2. Tue Court orders that Plaintiffs, Jody Delawie, Individually; and as Personal R~'Pfcscntative
of the Estate of Crystal Delaune, Deceased; and as Next Friend of Dalton Delaune, Destiny
Delaune, and Dee Ann Delaune, Minors, recover from Defendant t=hle court costs in the
amount of $7,377.48 from Defendant. See Exhibit C attached to Plaintiffs' First Amended
Motion for Judgment an the Verdict.
3. The Court orders that the total judgment for damages recoverable by Plaintiffs from
Dcfrndant as reO~cl<: