Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

In Hyde Park Baptist Church v. Turner (No. 03-07-00437-CV), a case involving allegations that a young child suffered abuse at the hands of a church daycare worker, the Third Court of Appeals has affirmed a money judgment that included a significant award for future mental anguish.

The Court rejected the church's no-evidence challenge to that award after determining that the church failed to preserve error by timely objecting to plaintiff's expert testimony as unreliable.  The Court went on to review the evidence and concluded it was sufficient to support the award.

The Court also disagreed with the church's contention that, under City of Tyler v. Likes, future mental-anguish damages are not recoverable absent evidence of serious bodily injury, a "special relationship" between the parties, injuries of a shocking and disturbing nature, or intent or malice by the defendant.  In doing so, the Court concluded that "Likes does not set forth an exhaustive list of the types of cases in which future mental anguish damages are available."  In any event, the Court determined that the worker's actions involved a sufficient level of intent or malice to satisfy the proposed standard in light of the jury charge, which allowed the jury to consider both the church's and the worker's conduct in assessing damages.

The Court further rejected the church's challenges to the jury's award of future medical expenses and the allocation of responsibility between the church and the worker.

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In Austin Periodontal Associates, Inc. v. Husak (No. 03-07-00125-CV), a pre-House Bill 4 dental malpractice case, the Third Court of Appeals has affirmed a $503,923 judgment rendered after a jury trial.  The dentist and hisemployer challenged the judgment on several grounds, most of which involved evidentiary complaints.  This decision is noteworthy, however, because the trial court refused the defendants' proposed "bad result" instruction under former Article 4590i, Section 7.02:

A finding of negligence may not be based solely on evidence of bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judge of the weight, if any, to be given any such evidence.

Section 7.02 was limited to jury trials "involving a health care liability claim against a physician or hospital."  The court of appeals concluded that no abuse of discretion occurred in Husak because the dentist presented no evidence that he was a "physician," and his employer presented no evidence that it was a "hospital," as the former statute defined those terms.

The current version, Section 74.303(e) of the Civil Practice and Remedies Code, mandates a "bad result" instruction in "any action on a health care liability claim that is tried by a jury."  The jury may or may not have reached the same result had it been instructed under the current law, but the trial court could not have refused the instruction.

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In Barrigan v. MHMR Services for the Concho Valley, the Third Court of Appeals has held that failure to include an instruction on the burden of proof in the jury charge was harmless error because the jury was instructed about the proper burden when trial began and appellant's counsel emphasized the proper burden throughout the trial.

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