Regent Care of San Antonio, L.P. v. Robert H. Detrick and Carolyn Dart Detrick

IN THE SUPREME COURT OF TEXAS
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No. 19-0117
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REGENT CARE OF SAN ANTONIO, L.P., PETITIONER,

V.

ROBERT H. DETRICK AND CAROLYN DART DETRICK, RESPONDENTS

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
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Argued January 29, 2020

JUSTICE BUSBY delivered the opinion of the Court.

This medical malpractice case presents two issues concerning the formation of a trial

court’s judgment as to damages. Robert Detrick and his wife sued a skilled nursing facility,

claiming its nurses negligently failed to notify his doctors of a change in his condition. Detrick

alleged that this failure led to a delay in diagnosing a compression of his spinal cord, resulting in

his paralysis. Detrick also sued other defendants but settled with them before trial. A jury found

for Detrick, holding the nursing facility 55% responsible for his injuries and awarding damages.

In this Court, the nursing facility challenges the trial court’s application of a settlement

credit and damages cap, as well as its finding that a certain amount of Detrick’s medical

expenses should be paid periodically. We hold that the trial court properly applied the settlement

credit to reduce the claimant’s recovery while separately applying the damages cap to reduce the
defendant’s liability. We also hold that the trial court did not abuse its discretion in declining to

order periodic payment of a larger amount of Detrick’s medical expenses. We do not reach two

other issues because they present no reversible error and discussing them would not add to the

jurisprudence of the State. We therefore affirm.

BACKGROUND

On November 26, Professor Robert Detrick was admitted to Regent Care Center of San

Antonio, a skilled nursing facility, to receive short-term treatment for a rash prior to undergoing

hip replacement surgery. He introduced evidence that he began experiencing incontinence after

his admission, but nurses at Regent Care failed to notify his treating physicians—Drs. Nora

Cubillos and Rohan Coutinho—of this change in his condition. Detrick grew progressively

weaker and on December 9, when he could no longer feel or move his legs, he was transferred to

the hospital. An MRI revealed a tumor in Detrick’s spinal canal that had compressed his spinal

cord. His paralysis proved to be permanent.

Evidence at trial showed that if Detrick had surgery even a few days earlier, he could

have recovered and been able to walk. If the spinal cord is being compressed, surgery will

alleviate the pressure, but more damage is possible the longer the compression lasts. Drs.

Cubillos and Coutinho both testified that they would have ordered an MRI earlier had they been

notified of Detrick’s new-onset incontinence.

Detrick and his wife (collectively, Detrick) sued Regent Care as well as Drs. Cubillos and

Coutinho and their medical practices. 1 Detrick settled with all defendants other than Regent

Care for a total of $1,850,000. Regent Care elected a dollar-for-dollar settlement credit. See

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Detrick and his wife also sued Mobilex USA and Dr. Elliot Wagner for negligence in taking and
interpreting x-rays of Detrick’s back while he was at Regent Care.

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TEX. CIV. PRAC. & REM. CODE § 33.012(c). Following trial, the jury found that Regent Care and

each of the settling defendants were negligent and proximately caused Detrick’s injury, and it

apportioned 55% responsibility for the injury to Regent Care. The jury awarded economic

damages of $3 million for future medical expenses, $390,000 for past medical expenses, and

$245,000 for loss of household services. It also awarded $10,250,000 in noneconomic damages.

In applying the dollar-for-dollar settlement credit, the trial court calculated the

percentages of economic versus noneconomic damages awarded by the jury and allocated the

credit using those percentages, subtracting 27% of the credit from the economic damages and

73% from the noneconomic damages. The court then further reduced the noneconomic damages

to $250,000 as required by the Texas Medical Liability Act (TMLA), leaving a total judgment of

$3,399,371. See id. § 74.301(b). Regent Care requested that the entire award of damages for

future medical care be paid in periodic payments, but the trial court ordered that $256,358 be

paid over a 24-month period. See id. § 74.503(a).

Regent Care appealed, challenging the sufficiency of the evidence, the admission of

expert testimony, the trial court’s application of the settlement credit, and the amount of the trial

court’s award of periodic payments. 567 S.W.3d 752, 757 (Tex. App.—San Antonio 2018). The

court of appeals reversed the award of damages to Detrick’s wife for loss of household services

(not at issue here) but otherwise affirmed the trial court’s judgment. Id. at 771. The court held

that the evidence was sufficient to support the jury’s findings with regard to causation, past and

future medical expenses, and allocation of responsibility. Id. at 761, 765, 768. The court also

held that Regent Care failed to show the trial court abused its discretion in admitting Detrick’s

expert’s testimony over objections that it was conclusory and speculative. Id. at 764–65. As to

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damages, the court of appeals held that the trial court correctly applied the settlement credit and

TMLA cap on noneconomic damages, and that its determination of the amount of future medical

damages to be paid periodically was not an abuse of discretion. Id. at 770–71.

In this Court, Regent Care asserts that the trial court should have applied the settlement

credit after determining the capped noneconomic damages. Regent Care also challenges the trial

court’s order that $256,358 be paid periodically, asserting that this amount is entirely

unsupported by the evidence. Finally, Regent Care challenges the sufficiency of the evidence of

causation and the admission of expert testimony regarding past medical damages.

ANALYSIS

I. The trial court properly applied the settlement credit and damages cap separately.

We first address Regent Care’s issue concerning whether the trial court properly applied

the statutory settlement credit and damages cap in its judgment. Statutory construction involves

questions of law that we review de novo. Cadena Comercial USA Corp. v. Tex. Alcoholic

Beverage Comm’n, 518 S.W.3d 318, 325 (Tex. 2017).

Chapter 33 of the Civil Practice and Remedies Code instructs trial courts how to

determine a claimant’s recovery as well as a defendant’s liability in cases involving findings of

proportionate responsibility, including cases in which some parties have settled. A claimant’s

recovery and a defendant’s liability are distinct concepts, and each must be calculated and

applied separately. Roberts v. Williamson, 111 S.W.3d 113, 123 (Tex. 2003). That principle is

the key to understanding the correct resolution of this issue.

One section of Chapter 33, which Regent Care elected to apply here, addresses how

settlements of health care liability claims affect a claimant’s recovery:

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[I]f the claimant in a health care liability claim . . . has settled with one or more
persons, the court shall . . . reduce the amount of damages to be recovered by the
claimant with respect to a cause of action by an amount equal to . . . the sum of
the dollar amounts of all settlements.

CIV. PRAC. & REM. CODE § 33.012(c)(1). Chapter 33 also generally limits a defendant’s liability

for damages based on the jury’s finding of that defendant’s proportionate responsibility for the

harm, but this limit does not apply here because the jury found Regent Care more than 50%

responsible. Id. § 33.013(b)(1). Other statutes outside Chapter 33 also limit a defendant’s

liability for damages. As relevant here, the TMLA provides that when judgment is rendered

against a single health care institution, “the limit of civil liability for noneconomic damages of

the [defendant] shall be limited to an amount not to exceed $250,000 for each claimant.” Id.

§ 74.301(a).

In forming its judgment, the trial court applied these statutes as follows. The jury

awarded $3,635,000 in economic damages and $10,250,000 in noneconomic damages. The trial

court calculated that prejudgment interest on past damages was $51,375, so the total amount of

the verdict plus prejudgment interest was $13,936,375. Turning to the settlement credit under

section 33.012(c), the trial court applied the $1.85 million credit first to prejudgment interest as

required by Battaglia v. Alexander, 177 S.W.3d 893, 908 (Tex. 2005). The court applied the

remaining credit of $1,798,625 by determining what percentage of the jury’s damage awards

were for economic damages (27%) versus noneconomic damages (73%) and allocating the credit

using those percentages. 2 Using this method, the court reduced the claimant’s economic

2
Regent Care did not challenge this allocation of the settlement credit between economic and noneconomic
damages in its merits briefing, and we therefore express no opinion on the matter. The court of appeals noted that a
similar allocation was used in Christus Health Gulf Coast v. Houston, No. 01-14-00399-CV, 2015 WL 9304373, at
*8 (Tex. App.—Houston [1st Dist.] Dec. 22, 2015, no pet.). We recently discussed the general principles governing
allocation of settlement credits in Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 107–08 (Tex. 2018).

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damages by $485,629 (27% of $1,798,625) and noneconomic damages by $1,312,996 (73% of

$1,798,625). This reduction left Detrick a recovery of $3,149,371 in economic damages and

$8,937,004 in noneconomic damages. The court then capped Regent Care’s liability for

noneconomic damages at $250,000 as required by section 74.301. The court therefore rendered

judgment that Detrick recover from Regent Care $3,149,371 in economic damages and $250,000

in noneconomic damages.

Regent Care contends the trial court erred because the applicable statutes required it to

apply the $1.85 million settlement credit after capping the noneconomic damages. Regent

Care’s position is that under section 33.012, the amount received in settlement must reduce the

“damages to be recovered,” not the damages awarded by the jury. Here, it contends, the

noneconomic damages to be recovered by Detrick were $250,000. Therefore, the settlement

credit should have been applied to that amount, not to the full amount of noneconomic damages

found by the jury. Detrick responds that the trial court’s approach of first applying the

settlement credit before imposing the statutory cap on recovery is consistent with caselaw and

the statutory language.

The court of appeals and Detrick rely on Edinburg Hospital Authority v. Trevino, in

which we considered whether a settlement must be offset before or after applying the Texas Tort

Claims Act’s damages cap. 941 S.W.2d 76, 81–82 (Tex. 1997). The claimant in that case sued

Edinburg Hospital Authority, a governmental unit whose liability for damages was capped under

the Tort Claims Act. Id. at 78, 81 (citing CIV. PRAC. & REM. CODE § 101.023). The claimant

settled with another defendant before trial and then obtained a jury verdict against the Hospital

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Authority for $750,000. Id. at 81. The trial court first offset that verdict by the settlement

amount and then reduced the plaintiff’s recovery to the statutory cap. Id.

We rejected the Hospital Authority’s argument that it was liable only for its liability cap

minus the settlement amount, explaining that the cap in the Tort Claims Act did not

“circumscribe a plaintiff’s total recovery for a given injury. Instead, it delineates the extent of

the government’s waiver of immunity from liability for that injury.” Id. (emphasis added).

Because “the settlement does not affect the maximum dollar amount” of the government’s

liability for damages, “[a] settlement with one tortfeasor should . . . be offset before the verdict

against the governmental unit is reduced to the statutory maximum.” Id. at 82. We observed that

a contrary rule “would completely bar recovery against a tortfeasing municipal hospital authority

when a plaintiff settles with another defendant for more than the hospital authority’s damages

cap,” which “cannot be the intent of the Legislature.” Id.

Regent Care asserts that Trevino does not apply here because it cannot supplant section

33.012(c)’s mandate that settlement credits reduce “the amount of damages to be recovered by

the claimant.” CIV. PRAC. & REM. CODE § 33.012(c) (emphasis added). But the distinction we

made in Trevino between a claimant’s recovery and a defendant’s liability shows why this

argument is incorrect. Section 74.301’s cap limits an individual defendant’s “liability for

noneconomic damages”; it does not address the total amount a claimant may recover from all

defendants and settling persons.

We also applied this distinction in Roberts v. Williamson, which considered whether a

settlement credit should have been applied before reducing a defendant’s liability based on a

proportionate responsibility finding under Chapter 33. 111 S.W.3d at 122. We discussed the

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proportionate responsibility and settlement credit statutes and noted that “although related, the

two sections pose separate inquiries.” Id. at 123 (comparing CIV. PRAC. & REM. CODE

§§ 33.012, .013). We explained that the plaintiffs’ recovery was limited to the amount of

damages found by the jury minus the settlement credit, but that limit was “independent of section

33.013’s limitation on a particular defendant’s percentage of responsibility.” Id.

Similarly here, one statute controls the claimant’s recovery while a different one governs

the defendant’s liability. See id. The “damages to be recovered by the claimant”—the amount of

damages found by the jury minus any settlement credits—are independent of a defendant health

care institution’s “limit of civil liability for noneconomic damages” under the TMLA. See CIV.

PRAC. & REM. CODE §§ 33.012(c), 74.301(b). Because Regent Care’s liability for noneconomic

damages is limited to $250,000 under section 74.301(b), and that figure does not exceed the

amount Detrick may recover under section 33.012, “no further credit is required.” Roberts, 111

S.W.3d at 123. This method of calculation does not run afoul of the one satisfaction rule because

when the “damages to be recovered” are reduced by the amount of a settlement, as they were

here, a claimant does not obtain “more than one recovery for the same injury.” Stewart Title

Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991); see also Trevino, 941 S.W.2d at 82. We

therefore agree with the court of appeals that the trial court properly applied the settlement credit

and damages cap, and we overrule this issue.

II. The amount of periodic payments awarded was not an abuse of discretion.

In its second issue, Regent Care asserts the trial court abused its discretion by ordering

that $256,358 in future medical damages be paid periodically because that figure is unsupported

by the evidence and does not conform to the verdict. Under Subchapter K of the TMLA, “[a]t

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the request of a defendant physician or health care provider or claimant, the court shall 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.”

CIV. PRAC. & REM. CODE § 74.503(a); see id. § 74.501(1) (clarifying that statute applies to

awards of future damages for such services). Periodic payments are to be made “to the recipient

of future damages at defined intervals.” Id. § 74.501(3).

The jury found that $3 million, “if paid now in cash,” would compensate Detrick for his

future medical expenses. After trial, Regent Care asked the court to order payment of the jury’s

entire award periodically over five to eight years. Detrick responded that before considering

what portion of future medical expenses should be paid periodically, the trial court should

subtract the attorneys’ fees and expenses Detrick would be required to pay upon judgment,

leaving $1,256,358. Based on the evidence at trial as well as post-trial expert affidavits, Detrick

argued the jury reasonably could have concluded he would incur medical costs in the range of

$800,000 to $1 million annually. Detrick therefore asked the court to order Regent Care to pay

$1 million in a lump sum and the remaining $256,358 monthly. The trial court’s judgment

ordered Regent Care to pay $256,358 periodically in twenty-four monthly installments.

When a trial court orders periodic payments, it “shall make a specific finding of the dollar

amount of periodic payments that will compensate the claimant for the future damages” and shall

specify the amount, number, timing, and recipient of those payments in its judgment. Id.

§ 74.503(c)–(d). 3 Regent Care argues that the amount found by the trial court must be supported

3
We note that Subchapter K does not apply unless a party so requests and the present value of the future
damages award equals or exceeds $100,000. See CIV. PRAC. & REM. CODE §§ 74.502–.503. Both of those
prerequisites are met. In addition, if a defendant requesting periodic payments is not adequately insured, the court

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by sufficient evidence in the record. It acknowledges that a court may order only part of the

future medical damages paid periodically if, for example, the record shows a lump-sum payment

is warranted to meet expenses expected soon after trial. But it contends the record does not

support the split between periodic and lump-sum payments ordered here.

Detrick responds that the statutory language gives the trial court discretion to order only

part of the future damages paid periodically, and the court complied with the statute. In

Detrick’s view, the trial court did not abuse its discretion in rejecting Regent Care’s request that

the entire $3 million award be paid periodically, as Regent Care did not point to any evidence

supporting that request. Detrick notes that Regent Care made no provision for the fees and

expenses due immediately, and that paying the jury’s award periodically would undercompensate

him because the award was in present value.

We review a trial court’s order for periodic payments for an abuse of discretion. 4 The

court may order that an award of future medical expenses be paid periodically either in whole or

in part, but the “dollar amount” of the “periodic payments” it orders must be the amount that

evidence shows will “compensate the claimant for the future damages.” Id. § 74.503(c). In other

words, any division between lump-sum payments and periodic payments of damages that will be

“incurred after the date of judgment” must be founded in the record. Id. § 74.501(1). The party

requesting an order for periodic payments has the burden to identify for the trial court evidence

regarding each of the findings required by section 74.503, and the findings must be supported by

must require the defendant to provide evidence of financial responsibility sufficient to assure full payment of the
damages awarded. See id. § 74.505(a). The trial court found that Regent Care did so here.
4
See Pedernal Energy, LLC v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 492 (Tex. 2017) (“If a statute vests
trial courts with discretion as to a matter, then we review a trial court’s decision as to that matter for abuse of
discretion.”); see also CIV. PRAC. & REM. CODE § 74.503(a) (providing that a trial court shall order periodic
payments “in whole or in part” (emphasis added)).

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sufficient evidence. See Granado v. Meza, 398 S.W.3d 193, 194–95 (Tex. 2013) (per curiam).

The trial record may not contain all of the evidence necessary to make the required findings, 5 and

the trial court has discretion to receive additional evidence for that purpose. Such evidence may

not be used to contradict the jury’s findings on any issues submitted to it, however. Subchapter

K gives the trial court no discretion to craft its own award of damages inconsistent with the

jury’s verdict.

Applying these principles, we agree with Regent Care that the specific amount the trial

court ordered to be paid periodically—$256,358—is not supported by sufficient evidence.

Evidence at trial showed that Detrick’s life expectancy was six to eight years. Detrick’s expert

opined that $250,000 was an appropriate and supportable figure for his annual care, including

both hospital and nursing home care. He testified that the annual cost of Detrick’s care could

increase to $500,000, however. There was also evidence that Detrick could benefit from private

nursing care, which would cost up to an additional $150,000 per year. The jury awarded $3

million in damages for future medical care, which was within the range of evidence.

But no evidence indicated that only $256,358 of these medical expenses would be

incurred periodically. In proposing that figure, Detrick started with the jury’s $3 million award

and subtracted attorneys’ fees and expenses he owed upon judgment, leaving $1,256,358.

Subchapter K contemplates that fees will be considered in awarding periodic payments, 6 and

Regent Care does not argue that the trial court abused its discretion in taking account of fees and

5
Indeed, all parties may not even know until after trial that periodic payments are being requested.
6
See CIV. PRAC. & REM. CODE § 74.507 (“For purposes of computing the award of attorney’s fees when
the claimant is awarded a recovery that will be paid in periodic payments, the court shall: (1) place a total value on
the payments based on the claimant’s projected life expectancy; and (2) reduce the amount in Subdivision (1) to
present value.”).

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expenses here. Even with that subtraction, however, the evidence just summarized cannot

support a finding that Detrick would incur $1 million for medical care services soon after trial,

leaving $256,358 to be paid periodically.

Nevertheless, Regent Care is not entitled to reversal unless this error harmed it 7—that is,

unless the trial court had discretion to order that a larger amount of Detrick’s damages be paid

periodically. We conclude such an order would be an abuse of discretion on this record because

Regent Care did not point the court to any evidence supporting its request that the entire

$3 million award be paid periodically, nor to evidence of any specific dollar amount of medical

expenses that would be incurred periodically. At trial, the parties presented their evidence

regarding damages solely in present values without detailing how those damages were

discounted, and the jury found the amount that would fairly and reasonably compensate Detrick

for future medical care expenses “if paid now in cash.” No party requested that the jury find the

amount that would compensate Detrick if paid periodically—unsurprisingly, as Subchapter K

had not yet been invoked. Nor did Regent Care offer evidence post-trial from which the trial

court could make such a finding. We agree with Detrick that 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 here because it would effectively “double discount” the award,

undercompensating him for the expenses he would incur in each future period. 8 See CIV. PRAC.

7
See TEX. R. APP. P. 44.1(a)(1).
8
An amicus acknowledges this problem but suggests it could be overcome, for example, by requiring the
defendant to purchase an annuity with the entire present-value amount of the damages the trial court finds should be
paid periodically. See CIV. PRAC. & REM. CODE § 74.505(b)(1). Detrick responds that this approach would only
compensate the claimant for his future damages if the annuity’s interest rate corresponded to the likely future rate of
growth of medical costs. We do not address this issue because the trial court did not order an annuity and, in any
event, the record includes no evidence regarding the proper rate.

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& REM. CODE § 74.503(c) (requiring trial court to find dollar amount of periodic payments that

will “compensate the claimant for the future damages”).

Because no other order was possible given the evidence before it, we hold the trial court

did not abuse its discretion by declining to order that more of the damages Regent Care owed

Detrick be paid periodically. We therefore overrule Regent Care’s second issue.

III. Regent Care’s sufficiency challenges present no reversible error.

Regent Care also challenges the sufficiency of the evidence to support the jury’s findings

on causation and past medical damages. Having independently reviewed these issues, we

conclude they present no error requiring reversal. The court of appeals’ judgment is correct, and

further discussion of the issues would not add to the jurisprudence of the State. In reaching this

conclusion, we express no opinion on the court of appeals’ reasoning. 9

CONCLUSION

We hold the trial court properly applied the settlement credit and liability cap in

determining Regent Care’s liability. We also hold that the trial court did not abuse its discretion

in its order of periodic payments. We therefore affirm the judgment of the court of appeals.

__________________________________
J. Brett Busby
Justice

OPINION DELIVERED: May 8, 2020

9
See, e.g., In re L.G., ___ S.W.3d ___, ___ (Tex. 2020) (per curiam); City of Waco v. Abbott, 209 S.W.3d
104, 105 (Tex. 2006) (per curiam); Engelman Irrigation Dist. v. Shields Bros., Inc., 989 S.W.2d 360, 360 (Tex.
1998) (per curiam); W. Tex. Gulf Pipe Line Co. v. Hardin County, 321 S.W.2d 576, 577 (Tex. 1959) (per curiam);
cf. TEX. R. APP. P. 56.1(b)(1).

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