Jesus Virlar, M.D. and Gmg Health Systems Associates, P.A., A/K/A and D/B/A Gonzaba Medical Group v. Jo Ann Puente

Supreme Court of Texas
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No. 20-0923
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Jesus Virlar, M.D. and GMG Health Systems Associates, P.A.,
a/k/a and d/b/a Gonzaba Medical Group,
Petitioners,
v.
Jo Ann Puente,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
═══════════════════════════════════════
Argued October 26, 2022
JUSTICE BUSBY delivered the opinion of the Court.
Justice Huddle and Justice Young did not participate in the
decision.
This medical malpractice case presents two principal questions
about how to calculate the trial court’s judgment: (1) whether to credit a
settlement by a family member under Chapter 33 of the Civil Practice
and Remedies Code; and (2) whether to order periodic payments of
damages for future medical expenses under Chapter 74—the Texas
Medical Liability Act (TMLA). The case involves a woman who suffered
brain injuries due to complications from gastric-bypass surgery; she and
her minor daughter sued several defendants. After the daughter settled
her claims for loss of services and loss of consortium against one
defendant, the woman nonsuited her claims against that defendant. A
jury later awarded the woman over $14 million against other
defendants. These defendants sought to apply the daughter’s
settlement against the award and to pay the future damages in periodic
payments. The trial court rejected these requests, and the court of
appeals largely affirmed the judgment.
We hold that Chapter 33 required a credit for the daughter’s
settlement because her claims were for her mother’s injury and that this
result does not violate the Open Courts provision of the Texas
Constitution. Further, on this record, the TMLA required the trial court
to order that at least some of the future damages be paid periodically.
We reverse the judgment in part and remand the case to the trial court
for further proceedings to form a proper judgment on these issues of
damages.
BACKGROUND
In 2011, respondent Jo Ann Puente underwent “Roux-en-Y”
gastric-bypass surgery performed by Dr. Nilesh Patel. After developing
complications, Puente was admitted to intensive care at Metropolitan
Methodist Hospital and ordered to take nothing by mouth. Petitioner
Dr. Jesus Virlar, who was employed by petitioner GMG Health Systems
Associates, P.A. (“Gonzaba”), assumed care for Puente. Evidence at trial
showed that, although nurses noted Puente’s difficulty walking,
dizziness, continued vomiting, and “fixed gaze,” Dr. Virlar did not read
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their notes and was unaware of the symptoms. Dr. Virlar failed to order
thiamine supplements, which Puente’s expert witness testified led her
to develop Wernicke’s disease, a brain dysfunction associated with
thiamine deficiency. Without the supplements, the disease progressed
to a more debilitating brain disorder, Korsakoff’s syndrome. Puente
died while this appeal was pending.
Puente, her minor daughter, C.P., and her mother, Maria Esther
Carr, sued Dr. Virlar, Gonzaba, Metropolitan Methodist Hospital, and
other health care providers. Puente sought damages for physical pain,
mental anguish, loss of earning capacity, and medical expenses. C.P.
and Carr sought damages for loss of services and loss of consortium.
Before trial, Carr and C.P. settled with all defendants except Dr. Virlar,
Gonzaba, and Dr. Manuel Martinez, another physician employed by
Gonzaba. Carr and C.P. nonsuited their remaining claims before trial
and ceased to be parties. Puente settled with Dr. Patel and his
associated defendants for $200,000 and nonsuited her claims against
some parties with whom C.P. and Carr had settled. The only claims
tried were Puente’s claims against Dr. Virlar, Gonzaba, and Dr.
Martinez.
The jury found Drs. Virlar and Patel negligent, and it found Dr.
Virlar 60% responsible and Dr. Patel 40% responsible for Puente’s
injuries; it failed to find Dr. Martinez negligent. The jury awarded
Puente $133,202 for past earnings lost, $888,420 for future earning
capacity lost, and $13,262,874.86 for future medical expenses.
Dr. Virlar and Gonzaba moved for a new trial, contending that
the trial court erred in two evidentiary rulings, but the court denied the
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motion. Dr. Virlar and Gonzaba also moved for a settlement credit,
arguing that C.P.’s $3.3 million settlement with Metropolitan Methodist
Hospital should reduce Puente’s recovery under Chapter 33. The trial
court rejected that argument, granting a credit of only $200,000 for
Puente’s settlement with Dr. Patel. The trial court also denied Dr.
Virlar and Gonzaba’s motion for periodic payment of the award for
future medical expenses. The judgment awarded Puente $14,109,349.02
in a lump sum.
The court of appeals, sitting en banc,1 revised its opinion twice in
response to motions for rehearing. The majority largely affirmed the
judgment, reversing only to suggest an $8,000 remittitur of the award
for lost future earning capacity for lack of evidence, which Puente
accepted. 613 S.W.3d 652, 662, 682–85 (Tex. App.—San Antonio 2020).
In particular, the majority affirmed certain evidentiary rulings by
the trial court, holding that it properly excluded one expert because his
testimony was conclusory and that the trial court’s allowance of
questions relating to Dr. Virlar’s loss of privileges was not harmful error.
Id. at 667–682. The majority also affirmed the denial of a settlement
credit, holding Chapter 33 unconstitutional as applied. Id. at 685–697.
Finally, the majority affirmed the denial of periodic payments under our
recent decision in Regent Care of San Antonio, L.P. v. Detrick, 610
S.W.3d 830 (Tex. 2020), holding that petitioners did not present
sufficient evidence for the trial court to grant payments. 613 S.W.3d at
1 Although the case was originally designated to be heard before a
panel, the court of appeals, on its own motion, withdrew the case from the
panel and heard the case en banc. No panel opinion was issued.
4
697–704. Chief Justice Marion and Justice Alvarez filed separate
opinions that concurred with the majority on most issues but dissented
as to the settlement credit, contending that its application would not
result in an Open Courts violation. Id. at 704–06. Dr. Virlar and
Gonzaba then filed a petition for review, which we granted.
ANALYSIS
Petitioners renew their challenge to the trial court’s two
evidentiary rulings, but they brief these issues last even though they
would offer the greater relief of a new trial if successful. Because we
conclude that overruling these issues does not require extended
discussion, we likewise address them last.
We begin instead with the judgment-formation issues, first
considering petitioners’ contention that Chapter 33 requires a credit for
the daughter’s settlement and that its application does not violate the
Texas Constitution. Next, we address whether the trial court was
required on this record to order that at least some of the damages
awarded for future medical expenses be paid periodically.
I. Chapter 33 requires a credit for the daughter’s
settlement, which does not violate the Texas
Constitution’s Open Courts provision.
The court of appeals held that applying Chapter 33 to reduce
Puente’s damages in this case would be unconstitutional. Because
Puente has not lost a common-law remedy, we conclude that the Open
Courts provision has not been violated and that C.P.’s settlement should
be credited against the judgment.
5
Although the court of appeals did not expressly address the
question whether Chapter 33 requires a credit for the daughter’s
settlement of her claims for loss of Puente’s consortium and services,
that statutory question must be answered first under principles of
constitutional avoidance. Phillips v. McNeill, 635 S.W.3d 620, 630 (Tex.
2021) (describing this rule as “not optional”). Based on petitioners’
election, Chapter 33 reduces the damages a claimant may recover by
“the sum of the dollar amount of all settlements.” TEX. CIV. PRAC. &
REM. CODE § 33.012(c). The statute includes in the definition of claimant
“any person who is seeking . . . recovery of damages for the injury . . . of
[another] person.” Id. § 33.011(1)(B). Thus, we must determine whether
C.P. was seeking to recover damages for the injury of Puente.
We have said that Chapter 33 is based on the one-satisfaction
rule. In re Xerox Corp., 555 S.W.3d 518, 523 (Tex. 2018). Puente argues
that under the common-law one-satisfaction rule, her daughter’s
settlement would not be credited against Puente’s damages. Our cases
provide some support for that position. See Whittlesey v. Miller, 572
S.W.2d 665, 669 (Tex. 1978); In re Labatt Food Servs., L.P., 279 S.W.3d
640, 646 (Tex. 2009). But we need not decide the question here because
Chapter 33 is not limited to the one-satisfaction rule.
The plain text of the statute, and our precedents interpreting it,
confirm that Chapter 33 credits go beyond the one-satisfaction rule’s
common-law contours. In a health care liability claim like this,
Chapter 33 requires that the court “reduce the amount of damages to be
recovered by the claimant” by an amount based on one of two methods
elected by the defendant. TEX. CIV. PRAC. & REM. CODE § 33.012(c). The
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defendant can choose a dollar-for-dollar credit for all settlements or a
percentage credit equal to each settling person’s percentage of
responsibility. Id. Here, Gonzaba chose the dollar-for-dollar credit.
“Claimant” is defined as
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, death of another person, or other harm to another
person, “claimant” includes: . . . (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).
Although Chapter 33 serves to limit plaintiffs to a single recovery,
it also “provides a framework for apportioning damages among
tortfeasors responsible for ‘causing or contributing to cause in any way
the harm for which recovery of damages is sought.’” Xerox, 555 S.W.3d
at 523 (quoting TEX. CIV. PRAC. & REM. CODE § 33.003(a)). Consistent
with the “fundamental tort-law principle that liability generally arises
only from one’s own injury-causing conduct,” id., Chapter 33 ensures
that a non-settling defendant is not “penalized for events over which it
has no control.” Utts v. Short, 81 S.W.3d 822, 829 (Tex. 2002). In
particular, we have explained that Chapter 33’s credit scheme prevents
collusive settlements that would release one tortfeasor at the expense of
another. See Utts, 81 S.W.3d at 829; Drilex Sys., Inc. v. Flores, 1 S.W.3d
112, 123 (Tex. 1999) (“Although such results may seem harsh, they are
mandated by the statutory language.”).
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In Drilex, the plaintiff Jorge Flores was severely injured on the
job, and he, his wife, and their three children sued several defendants.
They settled with one defendant, and the jury awarded damages to each
plaintiff in a trial against the remaining defendants. We held that even
though the settlement had been apportioned among the various
family-member plaintiffs, the remaining defendants were entitled to
have the total damages reduced by the total amount of the settlement
under Chapter 33. See Drilex, 1 S.W.3d at 122. As we explained, “[a]ll
of the Flores family members are seeking recovery of damages for injury
to Jorge. Thus, under the plain language of section 33.011(1), the term
‘claimant’ in section 33.012[] includes all of the family members.” Id.
Similarly here, C.P.’s claims are for injury to her mother, Puente.
C.P. sought damages for her loss of Puente’s services and consortium,
which resulted from the brain injuries to Puente. Thus, the claimant
here is C.P. as well as Puente, and Chapter 33 requires that the total
damages awarded to Puente be reduced by the dollar amount of C.P.’s
settlement with Metropolitan Methodist Hospital: $3.3 million. See id.
The court of appeals majority nevertheless declined to apply
Chapter 33, holding that doing so here would violate the Open Courts
provision. 613 S.W.3d at 685–697. Because Chapter 33 does not
withdraw a common-law remedy, we disagree.
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. We have held that the Open
Courts provision is implicated when the Legislature “withdraw[s]
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common-law remedies for well established common-law causes of
action.” Lebohm v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955).
If the Legislature does so, then the statute is “sustained only when it is
reasonable in substituting other remedies, or when it is [a] reasonable
exercise of the police power in the interest of the general welfare.” Id.;
accord Methodist Healthcare Sys. v. Rankin, 307 S.W.3d 283, 286 (Tex.
2010); Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d
259, 262 (Tex. 1994).2
The court of appeals majority observed that Puente’s claim for
medical malpractice is a common-law negligence cause of action long
recognized in Texas. 613 S.W.3d at 692. But the court did not address
the first part of the Lebohm test: whether the remedy for Puente’s claim
was withdrawn. We hold that it was not.
As explained above, the legal principles addressing settlement
credits and contribution—whether common-law or statutory—aim to
vindicate the one-satisfaction rule and prevent collusion in settlements.
Under common-law principles, Puente would recover less than she can
recover under Chapter 33. Thus, the application of Chapter 33 here does
not withdraw a remedy.
We held in Palestine Contractors v. Perkins that under the
common law, a plaintiff who settled with one defendant could recover
2 The court of appeals relied on Lucas v. United States, 757 S.W.2d 687(Tex. 1988), where we stated the test somewhat differently. Lucas said that a
statute restricting a cognizable common-law cause of action will not be upheld
if the statute is “unreasonable or arbitrary when balanced against the purpose”
of the statute. Id. at 690 (quoting Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.
1983)). Lucas is inapplicable because, as explained below, Chapter 33 does not
withdraw a common-law remedy.
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only half of his damages against the remaining defendant. 386 S.W.2d
764, 773 (Tex. 1964); see also Gattegno v. Parisian, 53 S.W.2d 1005, 1007
(Tex. 1932); cf. Owens–Corning Fiberglas Corp. v. Schmidt, 935 S.W.2d
520, 523–24 (Tex. App.—Beaumont 1996, writ denied) (addressing
differences between Chapter 33 and pro rata credit). Here, Puente
released her claims against Dr. Patel for a $200,000 settlement, and she
non-suited her claims against Metropolitan Methodist Hospital after it
settled with C.P. Each of these events would trigger the Palestine
Contractors rule, resulting in the jury’s damage awards being cut in half
to about $7 million. In comparison, Puente’s recovery under Chapter 33
after crediting Metropolitan Methodist’s settlement with C.P. would be
approximately $10.8 million.
Texas common law later evolved from a strict pro rata rule to a
percentage-contribution rule. Duncan v. Cessna Aircraft Co., 665
S.W.2d 414, 430 (Tex. 1984). Under this rule, a plaintiff could recover
from the non-settling defendant only for its percentage of responsibility.
Id.; see Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 107
n.7 (Tex. 2018) (discussing the history of contribution rules). Here,
Gonzaba is vicariously responsible for the 60% responsibility the jury
assigned to Dr. Virlar. Under the percentage-contribution rule,
therefore, Puente would be able to recover only 60% of the damages
awarded—about $8.5 million—from Gonzaba and Dr. Virlar.
Because the application of Chapter 33 gives Puente a greater
recovery than she would have obtained under the common law, she has
not lost a common-law remedy. Thus, we need not address in this case
whether or to what extent a reduction in an award of common-law
10
damages due to statutory settlement credits would amount to
withdrawal of a common-law remedy. In addition, because Puente has
not shown a lost common-law remedy, we need not reach the second part
of the Lebohm test.3
Accordingly, we reverse the court of appeals’ judgment in part and
hold that applying Chapter 33 to require a credit for C.P.’s settlement
does not violate the Open Courts provision. On remand, the trial court
should credit C.P.’s settlement against Puente’s recovery in forming its
judgment.4
II. On this record, the TMLA required the trial court to
order periodic payments.
Petitioners next contend that the trial court abused its discretion
by denying their request for periodic payments under Subchapter K of
the TMLA. This subchapter provides that “[a]t the request of a
defendant physician or health care provider or claimant, the court shall
3 The Attorney General as amicus questions the correctness of the
Lebohm line of cases. But the propriety of the Lebohm test has not been
addressed by the parties, and declining to apply it here would not change the
outcome of this case. See Powell v. City of Houston, 628 S.W.3d 838, 843 (Tex.
2021) (“Because no party has presented the issue raised by amici, it does not
provide grounds for reversal.”). Thus, we do not address the issue raised by
the Attorney General and intimate no view on the matter.
4 We agree with the court of appeals that Gonzaba sufficiently showed
the settlement amount for the trial court to credit. 613 S.W.3d at 687; see
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998) (requiring “only
that the record show, in the settlement agreement or otherwise, the settlement
credit amount”). Further, Puente offered a voluntary remittitur of $434,000 to
cover any benefit that Puente obtained from C.P.’s settlement. Because
Chapter 33 requires that the entire settlement amount be credited, Puente’s
offered remittitur does not cure the error.
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order that [future damages for] 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.” TEX.
CIV. PRAC. & REM. CODE § 74.503(a); see id. § 74.501(1) (clarifying that
the statute applies to awards of future damages for such services). The
award of at least partial periodic payments for future medical expenses
is mandatory if a defendant meets the statutory prerequisites. See id.
§ 74.503(a).
Puente first asserts that Gonzaba and Dr. Virlar never pleaded
for periodic payments and that making a motion after trial is too late.
But much like a damages cap, Subchapter K is not an affirmative
defense or an avoidance, so it need not be raised in a defendant’s answer
to apply. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155–57
(Tex. 2015) (holding statutory damages cap applies even if not originally
pleaded). In addition, although the statute does not specify when a
defendant must request periodic payments, it does provide that
Subchapter K does not become applicable until a verdict is rendered
exceeding $100,000. TEX. CIV. PRAC. & REM. CODE § 74.502.
Thus, when the defendant in Regent Care moved for periodic
payments after trial, we recognized that the trial court has discretion to
“receive additional evidence” as necessary to make the required
findings. 610 S.W.3d at 837; see TEX. CIV. PRAC. & REM. CODE § 74.503
(requiring trial court to find dollar amount of periodic payments and
specify interval and number of payments). And we recently explained
that “[t]he trial court’s duty to structure the jury award into periodic
payments or a lump sum . . . means that the statute . . . does not require
12
the jury to make those specific determinations,” though the court retains
discretion to submit jury questions that may assist it in discharging its
duty. Columbia Valley Healthcare Sys., L.P. v. A.M.A. ex rel. Ramirez,
654 S.W.3d 135, 142 (Tex. 2022). For these reasons, we hold that a
defendant may request periodic payments post-trial and that
petitioners’ motion was timely.5
The next issue is financial responsibility. “As a condition to
authorizing periodic payments of future damages, the court shall
require a defendant who is not adequately insured to provide evidence
of financial responsibility in an amount adequate to assure full payment
of damages.” TEX. CIV. PRAC. & REM. CODE § 74.505(a). Puente argues
that Dr. Virlar cannot make this showing and cannot rely on Gonzaba’s
assurance. We disagree. Because Gonzaba is vicariously liable for the
full damages awarded against Dr. Virlar, he can rely on Gonzaba’s
assurance of payment.
Puente points to the language of subsection (a), which requires
that “a defendant . . . provide evidence of financial responsibility.” Id.
(emphasis added). In her view, this language mandates that each
defendant show financial responsibility. Puente has a point in
situations involving unrelated joint tortfeasors, but that point does not
5 Puente asserts that allowing a motion for periodic payments to be
made post-trial would violate her constitutional right to have a jury determine
contested facts. We rejected this argument in Columbia Valley. 654 S.W.3d at
141. Here, the jury made the determination of liability and damages. The trial
court is merely being asked to structure payment of the damages in a manner
that must not be inconsistent with the jury verdict. Regent Care, 610 S.W.3d
at 837–38. “The Constitution does not require a jury to . . . allocate how or
when its award will be paid.” Columbia Valley, 654 S.W.3d at 141.
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apply in the case of vicarious liability. In a vicarious-liability situation,
either defendant’s evidence of financial responsibility is “adequate to
assure full payment of damages” that both are equally responsible to
pay. Id.
In addition, as the court of appeals recognized, following Puente’s
interpretation would lead to absurd results.6 613 S.W.3d at 701.
Gonzaba is vicariously liable to pay the judgment to the same extent as
its employee Dr. Virlar. Dr. Virlar was found 60% responsible, making
him jointly and severally liable for the entire judgment. See TEX. CIV.
PRAC. & REM. CODE § 33.013(b)(1). There is no dispute that Dr. Virlar
was acting within the scope of his employment with Gonzaba and that
Gonzaba is liable only as a result of vicarious liability; the jury was not
asked to find that Gonzaba was independently negligent. The statute
must apply in this scenario; otherwise, Puente could circumvent
Gonzaba’s request for periodic payments by immediately seeking to
enforce the judgment against Dr. Virlar, which Gonzaba would be
responsible to pay as his employer. We therefore hold that a defendant
whose liability is submitted to the jury and a defendant who is
vicariously liable for the same damages awarded against the submitted
defendant constitute a single defendant for purposes of applying
section 74.505(a).
This holding does not apply to unrelated joint tortfeasors. For
example, if a jury finds two doctors negligent and one doctor 51%
responsible and another 49% responsible for the plaintiff’s harm, the
6Even Puente’s counsel recognized the “ridiculous result” that comes
from her interpretation when she first presented it to the trial court.
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51% responsible doctor—even though he is jointly and severally liable
for the entire judgment—cannot provide financial assurance for the 49%
responsible doctor. But in this case, Gonzaba is only a vicariously liable
defendant, not a defendant found responsible for its own tortious
conduct. Under the doctrine of respondeat superior, the employer is
liable co-extensively with its employee. The financial responsibility
statute is designed to “assure full payment of damages awarded” against
Dr. Virlar, TEX. CIV. PRAC. & REM. CODE § 74.505(a), and Gonzaba’s
assurance accomplishes that.
Alternatively, Puente contends that Gonzaba itself did not show
sufficient financial responsibility to satisfy section 74.505(a). But
Gonzaba provided a balance sheet and testimony from Melissa Keller,
its controller. As discussed above, evidence of financial responsibility
can properly be presented after trial. See Regent Care, 610 S.W.3d at
837. Keller testified about Gonzaba’s balance sheet and the accounting
process used to prepare it. As controller, she testified that the balance
sheet showed Gonzaba could pay a $14 million judgment. We agree with
the court of appeals that Gonzaba demonstrated financial responsibility
under section 74.505. See 613 S.W.3d at 700.
Finally, Puente argues—and the court of appeals held—that
Gonzaba did not provide sufficient evidence for the trial court to craft
periodic payments that would comply with Chapter 74. See id. at 704.
The record shows, however, that the trial court was required to award
at least some periodic payments.
“When a trial court orders periodic payments, it ‘shall make a
specific finding of the dollar amount of periodic payments that will
15
compensate the claimant for the future damages’ and shall specify the
amount, number, timing, and recipient of those payments in its
judgment.” Regent Care, 610 S.W.3d at 837 (quoting TEX. CIV. PRAC. &
REM. CODE § 74.503(c)–(d)). The party requesting periodic payments
must “identify for the trial court evidence regarding each of the findings
required by section 74.503.” Id. The trial court has “no discretion to
craft its own award of damages inconsistent with the jury’s verdict.” Id.
at 838; see TEX. CIV. PRAC. & REM. CODE § 74.503(c) (requiring the trial
court to make a finding that the periodic payments “will compensate the
claimant for the future damages”).
The trial court considered petitioners’ request for periodic
payments at two post-verdict hearings. Initially, petitioners requested
that the trial court simply divide the amount of damages the jury
awarded for future medical expenses—almost $13.3 million—by
Puente’s 31-year life expectancy and order that amount paid each year.
This request was made without the benefit of our opinion in Regent Care,
which held that such a proposal does not satisfy the requirements of
section 74.503. As we explained, “simply ordering the jury’s
present-value damages award to be paid in periodic installments—
whether in whole or in part—would be an abuse of discretion . . . because
it would effectively ‘double discount’ the award, undercompensating [the
plaintiff] for the expenses he would incur in each future period.” Regent
Care, 610 S.W.3d at 838.
As the hearings continued, however, the trial court was provided
with evidence to support an award of some damages as periodic
payments consistent with the jury’s verdict. Puente requested that
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costs, attorney’s fees, and other expenditures to be incurred soon after
trial be payable immediately. As we noted in Regent Care, these are
factors a trial court may consider in deciding how much of an award
should be payable in a lump sum upon judgment, with the remainder to
be paid periodically. Id.; see also Columbia Valley, 654 S.W.3d at 143–
44.
In addition, petitioners pointed the trial court to evidence it could
use in structuring those periodic payments. The court had the life care
plan of Dr. Keith Fairchild, Puente’s expert at trial, which presented
projected future costs for Puente’s medical expenses each year over her
31-year life expectancy. The report also presented the present value of
each year’s costs using a discount rate of 2.03%—the only rate presented
at trial or to the court. The trial court reasonably could have relied on
the report’s undiscounted projections of future costs in determining the
dollar amount, timing, and number of the periodic payments that would
compensate Puente for her future damages.
Puente points out that the jury did not award the entire amount
in the life-care plan, but it cannot be the case that periodic payments
are impossible to structure unless the jury awards every last penny of
damages requested. Indeed, petitioners offered to use the balance of the
award not payable at judgment to purchase an annuity with an interest
rate sufficient to ensure that amounts paid in later years would grow to
meet Puente’s needs. The use of such annuities is contemplated by
Chapter 74. See TEX. CIV. PRAC. & REM. CODE § 74.505(b)(1).
In sum, a trial court must order an award of future damages to be
paid periodically in whole or in part when there is evidence to support
17
each of the findings required by section 74.503. Regent Care, 610 S.W.3d
at 837. As we have explained, the trial court was presented with
sufficient evidence here. Subchapter K “affords considerable discretion
to the trial court in structuring periodic-payment awards,” Columbia
Valley, 654 S.W.3d at 143; it does not require such granular evidence
that only one payment plan could be fashioned.
We note that this case presents a different issue than Regent
Care. There, we pointed out that the division between the amount of the
award payable in a lump sum upon judgment and the amount to be paid
periodically must be founded in the record, and we addressed whether
the trial court abused its discretion by not ordering a larger amount to
be paid periodically. Regent Care, 610 S.W.3d at 837–38. Here,
however, the trial court declined to order periodic payments at all. Thus,
the question is simply whether there was evidence to support the
findings required by section 74.503, thereby triggering the court’s
obligation to order periodic payments in whole or in part.
Because the record shows that the trial court could reasonably
craft a payment plan, it was required to do so. TEX. CIV. PRAC. & REM.
CODE § 74.503(a). The trial court’s failure to award any periodic
payments was error, and we reverse the portion of the judgment
awarding all of the damages for future medical expenses in a lump sum.
Given that Puente died during the pendency of this appeal, the
trial court should determine on remand how much of the award of future
medical expenses she should have received in a lump sum and how much
she was projected to incur periodically between the time of trial and her
death. Puente’s estate is entitled to recover those amounts.
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Subchapter K provides that periodic payments of future medical
expenses “terminate on the death of the recipient,” id. § 74.506(b), so the
court should not order petitioners to pay damages for any future medical
expenses Puente was projected to incur after the date of her death. See
Columbia Valley, 654 S.W.3d at 143.
III. Petitioners’ evidentiary challenges present no
reversible error.
Finally, petitioners seek a new trial, arguing that the trial court
erred by (1) excluding admissible expert testimony from Dr. Ralph
Kuncl, Puente’s expert witness, and (2) allowing irrelevant and
prejudicial questioning of Dr. Virlar regarding his loss of hospital
privileges (contrary to Rule of Evidence 403) and his treatment of
another patient (contrary to Rule 404). Regarding the first issue, the
court of appeals thoroughly reviewed Dr. Kuncl’s testimony and held it
was properly excluded as conclusory. 613 S.W.3d at 670–71. On the
second, the court held that petitioners largely failed to preserve their
complaints for appellate review, id. at 672–74, 676–680, and Puente
argues here that the remaining complaints also were not preserved.
Having independently reviewed these issues, we conclude they
present no error requiring reversal. The court of appeals’ judgment is
correct on these issues, and further discussion of them would not add to
the jurisprudence of the state. See Regent Care, 610 S.W.3d at 839.
CONCLUSION
We hold that the trial court improperly denied petitioners a credit
for C.P.’s settlement and an award of periodic payments for future
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medical expenses. We therefore reverse the judgment in part and
remand to the trial court for further proceedings to form a proper
judgment on these issues of damages.
J. Brett Busby
Justice
OPINION DELIVERED: February 17, 2023
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