Opinion issued February 1, 2007.
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 01-CV-121459.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
Appellant, Christus Health/St. Joseph Hospital, appeals a judgment in favor of appellee, Angela Price, that was entered in accordance with the jury's verdict. The hospital sued Price to attempt to reverse a determination by the Texas Workers' Compensation Commission (TWCC), which had found that Price sustained a compensable injury in the course and scope of her employment with the hospital. The sole issue submitted to the jury was whether Price had received a compensable injury. The jury agreed with the determination by the TWCC. The trial court rendered judgment that the hospital take nothing in its suit against Pricec and awarded Price her attorney's fees and costs before the trial court and appellate attorney's fees in the event of an unsuccessful appeal by the hospital. In three issues, the hospital contends that (1) the trial court erred by excluding medical records obtained by a deposition on written questions, (2) the trial court erred by allowing Price's expert witness to testify, and (3) the evidence was legally and factually insufficient to support the jury's verdict that Price sustained a compensable injury. We affirm the judgment of the trial court.
On June 30, 1994, Price was working as a certified nursing assistant for the hospital. While attempting to draw blood from a patient with human immunodeficiency virus (HIV) who had developed Acquired Immune Deficiency Syndrome (AIDS), Price was stuck in her finger by a needle she had used on the patient. Price immediately reported the needle stick to her supervisors and went to the hospital's emergency room. Price tested negative for HIV on the date of the incident. As was the hospital's protocol after an employee was exposed to HIV, Price was tested several times over the following months. Price tested negative for HIV in August 1994, December 1994, and April 1995.
In December 1998, as part of a physical examination while applying for life insurance, Price tested positive for HIV. Price filed a claim for worker's compensation benefits, alleging that she contracted HIV from the needle stick. The hospital denied her claim. After a contested case hearing before the TWCC, the hearing officer found that the needle stick was a compensable injury that Price incurred on June 30, 1994, in the course and scope of her employment for the hospital. The hospital appealed the hearing officer's decision to an appellate panel of the TWCC, which affirmed the decision of the hearing officer. To challenge the TWCC's determination that the hospital was liable for Price's injury, the hospital filed this suit, seeking judicial review of the TWCC's determination.
Sufficiency of the Evidence
In its third issue, the hospital contends that the evidence is legally and factually insufficient to support the jury's verdict that the needle stick was a compensable injury. Specifically, the hospital contends that "Dr. Salvato's testimony does not meet the requirements for expert testimony and is no evidence and/or insufficient evidence to support" the jury's verdict. Because this was an appeal from a TWCC determination, the hospital bore the burden of proving, by a preponderance of the evidence, that Price did not receive a compensable injury. See Tex. Lab. Code Ann. §§ 410.301(a), 410.303 (Vernon 2006).
The jury was asked a single question:
Do you find from a preponderance of the evidence that ANGELA PRICE did not sustain a compensable injury, HIV (human immunodeficiency virus), in the course and scope of her employment with CHRISTUS HEALTH/ST. JOSEPH HOSPITAL on June 30, 1994?
Answer: Yes, if she was "not injured"
No, if she was "injured"
The jury answered "no."
As a preliminary matter, we review the record to determine whether the hospital preserved error. To preserve for appeal a complaint of legal insufficiency of the evidence, a party must have specifically raised its complaint in (1) a motion for instructed verdict, (2) an objection to the submission of a jury question, (3) a motion for judgment notwithstanding the verdict, (4) a motion to disregard the jury's answer to a vital fact question, or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Here, the hospital did not move for an instructed verdict. The hospital did not object to the submission of a jury question. The hospital did not move for judgment notwithstanding the verdict or to have the trial court disregard the jury's answer to a vital fact question. The hospital did move for a new trial. However, the motion for new trial does not complain about the legal sufficiency of the evidence to support the jury's verdict. Accordingly, we conclude that the hospital has not preserved the issue of the legal sufficiency of the evidence.
When the trial court presented the charge to the parties for a final review, the hospital stated, "Plaintiff agrees, no objection."
With respect to the factual-sufficiency complaint, rule 324 of the Texas Rules of Civil Procedure, "Prerequisites of Appeal," provides:
(a) Motion for New Trial Not Required. A point in a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or a nonjury case, except as provided in subdivision (b).
(b) Motion for New Trial Required. A point in a motion for new trial is a prerequisite to the following complaints on appeal:
. . .
(2) A complaint of factual insufficiency of the evidence;
. . . .
Tex. R. Civ. P. 324. The hospital's motion for new trial did not raise the issue of factual insufficiency of the evidence. Accordingly, we conclude that the hospital's factual-sufficiency complaint has not been preserved. See Marshall, 95 S.W.3d at 411-12.
We overrule the hospital's third issue.
Exclusion of Medical Records
In its first issue, the hospital asserts that the trial court erred by excluding medical records obtained by a deposition on written questions. The records that were excluded by the trial court were the records of Dr. Meredith, which purportedly show that in November 1995, approximately 17 months after the needle stick, an HIV screening performed on Price was negative. When the hospital offered the medical records at trial, Price objected to the medical records on the grounds that they were business records that had not been on file with the court for more than 14 days before trial. The trial court sustained the objection. On appeal, the hospital contends that the trial court erred because the 14-day filing requirement applies only to affidavits from a custodian of the records, not to records obtained through a deposition on written questions. The hospital further asserts that the exclusion of these records was harmful error because the doctors who testified at trial stated that a negative HIV test performed 17 months after exposure would raise their confidence in concluding that the exposure did not result in the person contracting HIV. Price responds that the error, if any, was harmless because the evidence was cumulative and not controlling on a material issue dispositive of the case.
"The admission and exclusion of evidence is committed to the trial court's sound discretion." Benavides v. Cushman, Inc., 189 S.W.3d 875, 878-79 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). "To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause, and probably did cause, `rendition of an improper judgment.'" Benavides, 189 S.W.3d at 879 (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). In conducting this harm analysis, we review the entire record. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Alvarado, 897 S.W.2d at 754; Benavides, 189 S.W.3d at 879. Evidentiary rulings do not usually cause reversible error unless the appellant can demonstrate that the judgment turns on the particular evidence that was admitted or excluded. Able, 35 S.W.3d at 617; Alvarado, 897 S.W.2d at 753-54; Benavides, 189 S.W.3d at 879. Reversal is required if the erroneously excluded evidence "is both controlling on a material issue and not cumulative." Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994); see also Benavides, 189 S.W.3d at 880 (holding that there was no harm in excluding expert's testimony regarding incidents similar to incident that injured plaintiff because jury heard evidence concerning other incidents from other sources).
Assuming that the exclusion of the evidence was error, the hospital must still show that it was harmful. See Able, 35 S.W.3d at 617; Alvarado, 897 S.W.2d at 753; Benavides, 189 S.W.3d at 879. Although Dr. Meredith's test results were excluded, substantially the same evidence was introduced through Dr. Seibert, one of the hospital's experts. Dr. Seibert testified that the HIV screening test performed on Price 17 months after the needle stick was negative. Dr. Seibert also testified that a negative test 17 months after a needle stick would make it almost impossible that the HIV resulted from the needle stick. We conclude that even if the trial court improperly excluded Dr. Meredith's medical records, substantially the same evidence was before the jury because Dr. Seibert testified that Price tested negative for HIV 17 months after the needle stick. Further, the hospital's experts testified that Price tested negative in August 1994, December 1994, and April 1995, and that these results led them to conclude with 99% confidence that the needle stick did not cause the HIV. Even if the deposition on written question was improperly excluded, we cannot conclude that it probably caused the rendition of an improper judgment because the excluded evidence was cumulative and did not affect the ability of the experts to explain their medical opinions. We therefore hold that the hospital has not shown that it was harmed by the exclusion of the evidence. See Mentis, 870 S.W.2d at 16; Benavides, 189 S.W.3d at 880.
Dr. Seibert testified as follows:
Q: Have you had an opportunity to review any additional HIV screening in Ms. Price's case?
A: I saw the one test that was done seventeen months afterwards.
Q: And what was the result of that test?
. . .
A: It was positive — I'm sorry, it was negative.
Dr. Seibert testified as follows:
Q: I want you to assume with me, for purposes of a hypothetical, that somebody has a needle stick event and tests negative on day one, negative six weeks, negative nine months, negative seventeen months, assuming those facts to be true, what does that do to the probability that HIV resulted from that needle stick?
A: Well, it makes — it makes it almost impossible.
Dr. Septimus, the hospital's other expert, also testified about the consequences of a negative HIV test that was performed 17 months after an exposure to HIV. Dr. Septimus stated the he had "reviewed some records from Dr. Meredith," and stated that "[a]nother blood test was done, I believe, by Dr. Meredith." After this, Price objected to the testimony and the objection was sustained. Dr. Septimus thus did not specifically testify as to the timing or the results of the test. However, when he stated his opinion about the lack of temporal proximity between the exposure and the onset of HIV, he noted that a negative test 17 months after the exposure to HIV suggests that the exposure did not cause the HIV. Dr. Septimus stated that a negative test at six months gave him 95% confidence that the exposure had not resulted in HIV infection, that a ten-month test gave him 99% confidence, and that a 17 month test "would virtually rule out" that the exposure resulted in infection and that "it would be 99.9% that the transmission did not occur."
We overrule the hospital's first issue.
Admission of Expert Opinion Testimony
In its second issue, the hospital contends that the trial court erred by allowing Price's expert, Dr. Salvato, to offer her opinion of causation to the jury. Specifically, the hospital asserts that Dr. Salvato's opinion was unreliable because
(1) Dr. Salvato's opinion that [Price] and her pattern of HIV illness matched a health care worker who had gotten the virus from a needle stick as reported in a Center for Disease Control (CDR) [sic] article was erroneous; (2) the article from the New England Journal of Medicine, Defendant's Exhibit 3, which Dr. Salvato relied on in basing her opinion that the June 30, 1994 needle stick was the cause of [Price's] HIV status was based on highly variable T-cell progression rates; (3) Dr. Salvato opined in prior affidavits that it was only possible that [Price] had been affected by the 1994 needle stick; and (4) Dr. Salvato exclusively relied upon [Price's] subjective complaints in forming her opinion on causation.
Price responds that the hospital's challenges concern "the unreliability of Dr. Salvato's conclusions," and not "the underlying methodology on which Dr. Salvato based her conclusions."
The trial court has broad discretion in determining whether an expert's testimony is reliable and admissible. Keo v. Vu, 76 S.W.3d 725, 730 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id. If expert testimony is not reliable, it is not admissible. Brookshire Brothers, Inc., v. Smith, 176 S.W.3d 30, 36 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (citing Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712-13 (Tex. 1997) and Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 610 (Tex.App.-Houston [1st Dist.] 2002, pet. denied)). To determine reliability, the court may consider the following non-exclusive factors: (1) the extent to which the expert's theory has been or can be tested, (2) the extent to which the technique relies upon the expert's own subjective interpretation, (3) whether the expert's theory has been subjected to peer review and publication, (4) the potential rate of error of the theory, (5) whether the expert's theory or technique has been generally accepted as valid by the relevant scientific community, and (6) the non-judicial uses that have been made of the expert's theory or technique. Keo, 76 S.W.3d at 734 (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998)). "The trial court is not to determine whether the expert's conclusions are correct, but only whether the analysis used to reach them is reliable." Id. (citing Gammill, 972 S.W.2d at 728). If an expert's opinion is shaky or is based on a weak factual foundation, this does not necessarily render the opinion inadmissible because cross-examination is "the traditional and appropriate means of attacking shaky but admissible evidence." Gammill, 972 S.W.2d at 728 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct. 2786 (1993)); see also Keo, 76 S.W.3d at 734-35 (stating that alleged unreliability of doctor's expert opinion because it was based on allegedly self-serving statements of plaintiff went "to the weight, rather than the admissibility, of the evidence").
To be admissible, an expert must also be qualified. See Keo v. Vu, 76 S.W.3d 725, 730 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)). In this case, the hospital has not challenged Dr. Salvato's qualifications. Dr. Salvato specializes in the treatment of patients with HIV and AIDS.
Dr. Salvato opined that, in reasonable medical probability, Price was infected with HIV by the needle stick in 1994. Dr. Salvato's primary practice is the treatment of patients with HIV and AIDS. Dr. Salvato testified that she was Price's primary care physician and had been for six years. Dr. Salvato testified that she based her opinion on the medical history Price gave to her in the course of their six-year doctor-patient relationship; the progression of Price's T-cell count; medical articles regarding the progression of HIV and AIDS, including the period of time for which persons can be infected before seroconversion; and her own experience and education regarding HIV infection.
The hospital contends that Dr. Salvato's reliance on a New England Journal of Medicine article from 1989 shows that her testimony that a person may be infected and remain seronegative for long periods of time is unreliable. The article describes 31 patients who were infected with HIV. However, 27 of the 31 patients remained seronegative for up to 36 months. The hospital contends that because the study was based on homosexual men, it is distinguishable from Price's case. The hospital also points out that Dr. Salvato admitted that this study did not disturb conventional thinking that 95% of persons infected with HIV test positive on an antibody test within six months. However, the hospital does not explain the significance of the gender or sexual orientation of an HIV positive patient. Dr. Salvato testified, "It doesn't matter how you get the virus, the virus is the same. . . . So if she got the virus by needle stick or she got it by blood transfusion or IV drug use, the AIDS virus is the AIDS virus, we can't say that it's going to progress differently in her than a homosexual male." We cannot conclude that the trial court abused its discretion by admitting the testimony of Dr. Salvato, a medical doctor with extensive experience treating patients with HIV, including this patient, and whose opinion was supported by peer-reviewed medical literature.
As noted above, any purported error must be harmful — here, that admitting Dr. Salvato's testimony "probably did cause, `rendition of an improper judgment.'" Benavides, 189 S.W.3d at 879 (quoting Tex. R. App. P. 44.1(a)(1) and Owens-Corning, 972 S.W.2d at 43). The hospital contends that the error was harmful because "[t]here was no other evidence [Price] relied upon in proving causation" and "the remaining competent evidence was insufficient to support the judgment." We disagree.
Even without Dr. Salvato's testimony, we conclude that the remaining testimony is sufficient to support the jury's verdict. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999) (concluding that error in admitting expert testimony was harmless because other testimony was sufficient to support jury's verdict). The jury may accept or reject the testimony of any witness, including an expert's opinion testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005); see also Bruce, 998 S.W.2d at 620 ("`Jurors realize that they are the final triers to decide the issues. They may accept or reject an expert's view.'") (quoting Louder v. De Leon, 754 S.W.2d 148, 149 (Tex. 1988)).
First, in this suit seeking to reverse a TWCC decision in Price's favor, the burden was on the hospital to persuade the jury that the needle stick did not cause Price's HIV infection, not on Price to establish that it did. See Tex. Lab. Code Ann. § 410.303. Although Dr. Seibert opined that Price did not contract HIV from the needle stick, he nonetheless testified that seroconversion nine months after infection was possible, but "very rare." Further, Dr. Seibert and Dr. Septimus testified regarding the most common methods of HIV infection. They stated that the most common methods of transmission for HIV are (1) mother to fetus; (2) sexual transmission (the highest risk in this category is male-to-male sexual activity); and (3) blood-borne transmission (which includes needle sticks and IV drug use). It is undisputed that Price's infection was not a result of mother-to-fetus transmission or male-to-male sexual transmission. Price testified that she was not an IV drug user and that she had not been exposed to sexual transmission of HIV. She also stated that her only exposure to HIV infection was the needle stick in 1994.
The hospital had the burden to prove by a preponderance of the evidence that Price was not infected with HIV by the 1994 needle stick. The jurors could choose to believe Price's testimony and reject in part the testimony from the hospital's experts. Further, the record contains no evidence that anything other than the needle stick caused Price's HIV, a method of transmission that the hospital's experts acknowledged as a common method of transmission of the virus. Accordingly, we conclude that the hospital has not shown that it was harmed by the admission of Dr. Salvato's testimony. See Bruce, 998 S.W.2d at 620.
We overrule the hospital's second issue.
We affirm the judgment of the trial court.