Antonio Salinas, Jr. and San Juana Salinas, Individually and as Personal Representatives of the Estate of Tiffany Marie Salinas v. John W. Kristensen, M.D.

Citation: Not availableDocket: 13-08-00110-CV

Court: Court of Appeals of Texas; November 24, 2009; Texas; State Appellate Court

Original Court Document: View Document

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The case involves an appeal by Antonio Salinas, Jr. and San Juana Salinas, as personal representatives of their deceased daughter Tiffany's estate, against Dr. John W. Kristensen following a medical malpractice trial. The jury found Dr. Kristensen 40% negligent, with the Salinases each 30% responsible, awarding them $152,000 for survival claims and $25,000 for wrongful death claims. However, due to the Salinases’ combined negligence exceeding 50%, the trial court entered a take-nothing judgment in favor of Dr. Kristensen. 

On appeal, the Salinases raised five issues, arguing that the trial court improperly granted judgment for Dr. Kristensen based on parental immunity and failed to award them a percentage of damages. Conversely, Dr. Kristensen argued that if the appellate court accepted any Salinases' issues, the trial court had abused its discretion by denying his motion to dismiss related to the adequacy of their expert report.

The appellate court noted that the Salinases filed a limited appeal based on a partial reporter's record but did not specify the issues they intended to appeal or limit their appeal in their notice. As a result, the court could not grant them the presumption that the omitted record portions were irrelevant, meaning those portions were presumed to support the trial court's judgment. Ultimately, the court reversed the trial court's judgment and remanded the case for further proceedings.

The Salinases argue that Dr. Kristensen should not have his damages reduced by their percentage of negligence due to the parental immunity doctrine, which prohibits a child from suing their parents for actions involving reasonable parental authority. This doctrine applies to cases of ordinary negligence related to parental discretion, as established in *Shoemake v. Fogel, Ltd.* and *Plainview Motels v. Reynolds*. However, parental immunity does not protect parents from liability if they committed willful, malicious, or intentional acts, abandoned their responsibilities, or caused harm through negligent vehicle operation, as per *McCullough v. Godwin* and *Hall v. Martin*. The court found no evidence in the trial record to support the Salinases' claim of parental immunity, leading them to conclude that the trial court did not err in rejecting this defense.

Additionally, the Salinases contend that the trial court incorrectly issued a take-nothing judgment based on the jury's finding that the combined responsibility of the parents exceeded 50%. According to Texas Civil Practice and Remedies Code Section 33.001, a claimant cannot recover damages if their percentage of responsibility is over 50%, but if it is less, the damages awarded must be reduced by that percentage. The court agreed with the Salinases on this point, indicating that the trial court's judgment was flawed.

Chapter 33 defines "claimant" as a party seeking damages under Section 33.001, which includes plaintiffs, counterclaimants, and third-party plaintiffs. In wrongful death actions, both the deceased and the party seeking damages are considered claimants. Section 33.003 mandates that the trier of fact determine the percentage of responsibility for each claimant and defendant concerning harm caused by negligence or defective products.

The Salinases argue that the trial court wrongly treated them as one claimant by combining their responsibility percentages, asserting that each parent should be viewed as a distinct claimant for damage apportionment. In contrast, Dr. Kristensen contends that the parents constitute a single claimant, arguing their combined 60% responsibility bars recovery under Section 33.001.

The court references the case of Sanchez v. Brownsville Sports Center, Inc., where it ruled that multiple plaintiffs could not combine their responsibility percentages to reach the 51% threshold and be barred from recovering damages. Each parent in Sanchez was recognized as a separate claimant entitled to recover damages apportioned by the jury. Dr. Kristensen’s argument that this precedent conflicts with the Texas Supreme Court's decision in Drilex Systems, Inc. v. Flores is rejected, as Drilex dealt with settlement credits rather than the determination of claimants' rights under Chapter 33.

The court concludes that the trial court erred by issuing a take-nothing verdict and aligns with the precedent set in Sanchez, ruling in favor of the Salinases and ensuring they receive appropriate relief under Texas law.

A fair interpretation of relevant Texas statutes prohibits combining the percentages of multiple claimants to deny recovery, similar to how it prevents combining defendants’ percentages for joint and several liability assessments. Specifically, Texas Civil Practice and Remedies Code sections 33.012(a) and 33.013 outline the reduction of damages based on the claimant's responsibility and the conditions for joint and several liability. In this context, Dr. Kristensen argues that the Salinases' survival claims should be treated differently from the wrongful death claim in Sanchez, asserting that the parents, acting as estate representatives, constitute a single claimant. However, there is no supporting authority for this position, and the precedent from Sanchez is applied. Additionally, Dr. Kristensen references former article 4590i, section 13.01(r)(3), which states that all plaintiffs claiming damages from a single individual's injury or death are considered a single claimant. However, no case law supports the application of this section in a proportionate liability context, particularly distinguishing between health care and products liability claims. The court finds that the trial court incorrectly ruled that the collective responsibility of the parents barred recovery, thereby sustaining the Salinases' appeal on this issue.

In a conditional cross-issue, Dr. Kristensen contends that if the Salinases' appeal is upheld, the trial court abused its discretion in denying his motions to dismiss due to the inadequacy of their expert report on causation as outlined in former section 13.01. The court, however, disagrees, emphasizing that under Texas Rules of Appellate Procedure Rule 25.1(c), any party seeking to alter a trial court's judgment must file a notice of appeal, which Dr. Kristensen failed to do.

Dr. Kristensen's cross-issue challenges the trial court’s ruling on his motion to dismiss but does not pertain to the trial or the take-nothing judgment. If the cross-issue were upheld, it would lead to a reversal of the trial court's denial of the dismissal motions and result in the dismissal of the Salinases' claims, rather than affirming the take-nothing judgment. This matter should be raised in a cross-appeal, not as a basis to uphold the existing judgment. Dr. Kristensen failed to file a notice of appeal, as required by Texas Rule of Appellate Procedure 26.1(d), which limits the timeframe for filing after a judgment is signed. Consequently, the cross-issue is not properly before the Court. The Court reverses the trial court’s take-nothing judgment against the Salinases and remands for a new judgment consistent with this opinion. Justice Vela filed a dissenting memorandum opinion on November 25, 2009.