### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10–50845

PATRICIA ANN ELLIS, Individually, and as Next Friend of A.M.G. and R.T.G. and a s Executrix of the Estate of Melissa Busch; CORALON BUSCH, Individually and as Next Friend of C.L.A.B. and M.W.L.B., Plaintiffs - Appellees-Cross Appellants
v. UNITED STATES OF AMERICA, Defendant - Appellant - Cross Appellee

Appeals from the United States District Court for the Western District of Texas

Before BARKSDALE, GARZA, and ELROD, Circuit Judges. EMILIO M. GARZA, Circuit Judge: In this Federal Tort C l a i ms Act case arising out of medical malpractice t h a t l e d to the death of Melissa Busch (“Ms. Busch”), the United States G o vernment (“Government”) and Ms. Busch’s family members Patricia An n Ellis, Coralon Busch, and Ms. Bus c h ’ s children (together, “Plaintiffs”) cross-appeal the district court’s judgment. The district court refus e d to reduce the Plaintiffs’ damages award by amounts the Government claimed NE Methodist Hospital (“NE Methodist”) or Ms. Busch were liable. T h e d i s t r i ct court also limited Plaintiffs’ recovery for U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 2, 20 12 Lyle W . Cayce Clerk Case: 10-50845 Document: 00511775027 Page: 1 Date Filed: 03/02/2012No. 10–50845

household services to the Texas Me d i c a l Liability Act’s $250,000 noneconomic damages cap. We AFFIRM in part and REVERSE and REMAND in part. I A This case arises out of repeat e d medical misdiagnoses that led to the untimely death o f Melissa Busch. The Government’s conceded medical malpractice spanned two years, from 1997, when Ms. Busch complained of lingering foot pain to doctors at the Brooke Army Medical Center (“BAMC”) at Fort Sam Houston in San Antonio, Texas, to 1999, when doctor s at NE Methodist, a private, non-gov e r n m e nt al m e di c al i n s titution, also in San Antonio, diagnosed Ms. Busch with the synovial foot cancer that eventual l y k i l l e d her. M s . B u s c h ’s family’s negligence claim against BAMC stems from two visit s Ms. Busch made to BAMC on January 8 and 9, 1997. Ms. Busch had first visited BAMC for care to her left foot in August 1996 after she hurt it whil e p l a y i ng with her children. She returned to BAMC in January 1997 because the pain and

s w e lling in her left foot persisted despite her compliance with treatm e n t

. A physician’s assistant at BAMC first gave Ms. Busch an X-ray and a bone scan. After both tests ruled out a stress fracture, the physician’s assistant instructed Ms. Busch to pursue an orthopedic consultation. Although the assistant did not tell her so, the orthopedic consultation was intended to further investigate the

cause of the pain and swelling; the consult likely would have revealed cancer if present. Ms. Busch sought an orthopedic appointment with BAMC, but BAMC employees told her no appointments were immediately available. They placed her on a waiting list and told her t h e y w o uld contact her to set up an appointment. But they did not, and Ms. Busch d i d n o t receive an orthopedic consultation. 1

BAMC app aren tly sc hedu ledan appoi ntm ent f or Ms . Busc h eightee n mont hs lat er 1 but fai ledt o n oti fy her. 2 Case: 10-50845 Document: 00511775027 Page: 2 Date Filed: 03/02/2012No. 10–50845

By the end of that month, Ms. Busch divorced her husband and as a result, lost access to military health benefi t s . S h e was ineligible to visit BAMC for further treatment. She did not return to BAMC or seek me dical advice or treatment from BAMC again. Eight months passed. Ms. Busc h re-injured her left foot in September 1997 after a pipe fell on her foot while she was at work. She visited the ER at NE Methodist for treatm e n t

. N E Methodist’s doctors failed to advise her that they observed a “ r e t a i n e d foreign body” in her X-ray. Ms. Busch made no ment i o n to NE Methodist physicians that BAMC had previously advised an orthopedic consultation. Increased swelling i n h e r foot compelled Ms. Busch’s return to the NE Methodist ER only three days later. Ms. Busch c o m p l a ined of “continued redness, pain, and swelling” in her left foot. The doctor who treated her at the E R c o u l d n ot recall later if she consulted the radiological report or viewed the X-rays o f Ms. Busch’s foot from Ms. Busch’s visit to NE Methodist three days before. The ER doctor did recall that Ms. Busch failed to “relate any information about a prior injury or prior swelling.” T h e ER doctor suspected that Ms. Busch had a skin infection on her left foot that necessitated a quick foll o w -up appointment. The doctor advised Ms. Busch to follow up with a visit to a private physician or return to the ER within seventy-two hours and gave Ms. Busch the names of physicians to contact. But Ms. Busch failed to obtain follow-up care for her foot even thou gh pain and swelling persisted. The doctor later testified, “We can only tell them [to follow up]. We can’t take them to their appointment.” Over the next year and a half, Ms. Busch continued to see private doctors for medical care unrelated to her foot. Sh e b ecame pregnant in 1998 and delivered a healthy child that October.

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Ms. Busch did not again seek treatment for her foot until January 8, 1999. A p h ysician’s assistant initially saw her and referred her to a podiatrist. Th e podiatrist located a t u m or in Ms. Busch’s foot, and after further examination diagnosed Ms. Busch with synovial sarcoma, a rare, serio u s c a n c e r . Due to delays in diagnosis, treatment was aggressive. Doctors amputated Ms. Busch’s left leg within a mon t h

. Ms. Busch ended a pregnancy shortly after her amputation so that she could begin chemothera p y . H e r efforts to evade the

cancer were futile. Over the next several years, the cancer r e c u rred despite repeated bouts of chemot h e rapy and radiation. It invaded Ms. Busch’s bones and lungs. It killed her i n O c t o b er 2005. Ms. Busch was only thirty-three. Among her survivors w ere her husband, Coralon Busch, whom she married in 1999; their two children; two children from her first marriage; and Ms. Busch’s mother, Patricia Ellis. B Before her death, Ms. Busch sued N E Methodist in Texas state court in 1999, see Busch v. Lopez, et al , No. 99-CI-16625 (Dist. Ct., Bexar County, Tex. 1999), alleging negligence because NE Methodist never tol d h e r t hat X-rays taken in September 1997 revealed a retained foreign body in her left foot. Ms. Busch and NE Methodist settled Ms. Busch’s claim without a trial i n March 2002. Ms. Busch sued the Government und e r the Federal Tort Claims Act in August 2003, c h a rging negligence based on BAMC’s failures to schedule an orthopedic consultation in January 1997 and warn Ms. Busch of the p o tential urgency of her condition, both of which in tur n caused a two-year delay in her cancer diagnosis and treatment. 2 After Ms. Busch’s death in October 2005, Ms. Busch’s mother substituted

as plaintiff in Ms. Busch’s federal lawsuit, and transformed Ms. Busch’s

She fir st fil ed a tim ely adm inis tra tive clai m wi th the Arm y in Sep tem ber 1999. See 2 28 U .S .C. §§ 240 1(b) , 2675. 4 Case: 10-50845 Document: 00511775027 Page: 4 Date Filed: 03/02/2012No. 10–50845

negligence claim into one for wrongful death. Ms. Busch’s mother, along with Ms. Busch’s husband and minor children, also separately sued the Government. The district court consolidated these cases. The Government designated NE Methodist and physicians treating Ms. Busch there as responsible third parties under T E X
. C I V
. P RA C

. & R E M
. C O D E AN N
. § 33.004, contending that the district court should mitigate the Government’s liability by the percentage of fault properly allocated to NE Methodist. The district court reached the merits of Plaintiffs’ consolidated claims in

a four-day bench trial. The district court held the Government li ab l e for Ms. Busch’s death, finding that although a BAMC employee recognized that Ms. Busch had a potentially serious medi c a l problem and directed her to seek an orthopedic consultation , BAMC employees negligently failed to arrange the appointment for her or inform her of the urgency of the consult. The district court refuse d t o m i tigate the Government’s liability by the responsibility allocable to NE Methodist; it held that the Government failed to show that NE Methodist shouldered any res p o n s ib ility f o r M s . B u sch’s condition. The district court further held that Ms. Busch was not comparatively negligent by failing to follow up on her care at either hospital. The district court awarded Plaintiff s s i gnif i c a nt d a m a g e s b u t s ubj e c t e d their request for household damages to the Texas Medical Liability Act’s $250,000 cap on noneconomic dama ges. Both parties appealed. The G overnment identifies two issues for our review: (1) whether the district court erred in holding the Government alone liable for the failure to detect cancer , w h e n M s . Busch was seen with similar symptoms at both BAMC and NE Methodist and neither hospital discovered or diagnosed the cancer; and (2) whether the district court erred in holding that Ms. Busch was not comparatively negligent for her failure to seek medical assistance after a physician’s assistant at BAM C a n d physicians at NE Methodist recommended that she seek additional care.

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The Plaintiffs identify one issue for our review: whether the district court erred by excluding Plaintiffs’ damages for household services from the economic damages award, thus limiting their recovery for household services to the Texas Medical Liability Act’s $250,000 noneconomic damages cap. We review the district court ’ s f a ctual findings in a bench trial for clear

err o r . Se e, e .g. , Dickerson v. Lexington Ins. Co. , 556 F.3d 290, 294 (5th Cir. 2009). We review the district court’s legal conclusions de novo. Id. II The Federal Tort Clai m s Ac t (“FTCA”) holds the Government liable for “injury or loss of property, o r p e r s onal injury or death caused by the negligent

or wrongful act” of federal employees acting w i t hin the scope of their employment. 28 U.S.C. § 1346(b)(1). The FTCA im p o s e s l i ability on the Government “in accordance with the law of the place where the act or omission occurred,” id. , maki n g the Government liable “in the same manner and to the

same extent as a private individual under like circumstances.” 28 U.S.C. § 2674; accord 28 U.S.C. § 1346(b)(1). Because the malpractice central to this case took place exclusively in Texas, Texas law applies. See28 U.S.C. § 1346(b)(1). A The Government contends that the district court erred in holding the Government alone liable for th e f ailu r e t o detect Ms. Busch’s cancer. Specifically, the Government contends that NE Methodist should also be held liable for Ms. Busch’s death. The district court allowed the Government to designate NE Methodist and physician s w ho treated Ms. Busch there as “responsible third parties” under T E X
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. & R E M
. C O D E AN N
. § 33.004. Texas law instructs the trier of fact 3

A “re sp ons ible par ty” is “any per so n w ho is allege d to have caus ed or cont ribut ed 3 to caus ing in any wa y the harm for wh ich rec overy of dam ages is so ught, wh ethe r by negligent act or om iss io n, by any def ect ive or unrea so nably danger ous pr oduc t, by othe r cond uct or

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to allocate to responsible third parties any damages attributabl e to them. See id. § 33.003(a)(4). Here, the district court concluded that the Government failed to show that NE Methodist or the phys i c i a n s t r eating Ms. Busch there were negligent and thus failed to show that they are responsible third parties. We agree. Th e G overnment focuses its appeal only on the negligence of NE Methodist. To establish the negligence of NE Methodist as a responsible third

4 party, and thus that it shares liability for damages, the Government must show N E M e thodist committed medical malpractice. Under Texas law, to show N E Methodist’s malpractice, the Government must show (1) NE Methodist’s duty to act according to an applicable standard of care; (2) a breach of that standard of
care; (3) injury; and (4) causation. Hannah v. United States , 523 F.3d 597, 601 (5th Cir. 2008). To establish causation, the Government must produce evidence that by a “reasonable medical probability” or a “ r e asonable probability,” NE Methodist caused, at least in part, Ms. Busch’s injuries. See Jelinek v. Casas , 328 S.W.3d 526, 532–33 (Tex. 2010). This means “simply that it is ‘more likely than not’ that the ultimate harm or condition resulted from such negligence.” Id. at 533. “[E]xpert testimony is necessary to establish causation a s t o medical conditions outside the common knowledge and experience of [the finder of fact].” Guevara v. Ferrer , 247 S.W.3d 662, 665 (Tex. 2007); see Hannah , 523 F.3d at 601 (“‘Unless the mode or form of treatment is a matter of common knowledge or is

act ivity that violat es an app lica ble legal st andar d, or by any com binat ion of thes e.” T E X

. C IV

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. & R E M

. C ODE AN N

. § 3 3.01 1(6)

. The Go vernm ent ass ert s on app eal only that NE Me thod ist—no t any phys icia ns wh o 4 tre ated Ms

. Busc h ther e—i s a res pons ible thir d par ty. The Go vernm ent ther efo re has wa ived any appe al of the dis tri ct cour t’s holdin g to the extentit appl ies to the liabi lity of physic ians wh o tre atedMs. Busch at NE Metho dis t. See F E D

. R. AP P

. P. 28(a)( 9)(A); Al am eda Fil ms SA de CV v. A uthors Rights R estor atio n Co rp ., Inc. , 331 F.3d472 , 483 n.34 ( 5th Cir. 200 3). 7 Case: 10-50845 Document: 00511775027 Page: 7 Date Filed: 03/02/2012No. 10–50845

within the experience of the layman, expert testimony will be required to meet this burden of proof.’” (quoting Hood v. Phillips , 554 S.W.2d 160, 165–66 (Tex. 1977))). It is not enough for an expert simply to opine that

the defendant’s negligence caused [t h e plaintiff’s] injury. The expert must also, to a reasonable degree of medical probability, explain how and why the
n egligence caused the injury. [The Texas Supreme Court has] rejected expert o p inions not grounded in a sound evidentiary basis: [I]f no basis for the opinion is offered, o r the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence , r egardless of whether there is no objection. [A] claim will not stand or fall on the mere ipse dixit of a credentialed witness. When the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and s tate that in medical probability the injury was caused by the defendant’s neglige n c e . The expert must e x p l a in why the inferences drawn are medically preferable to competing inf e rences that are equally consistent with the known facts. Thus , w h e n the facts support s e veral possible conclusions, only some of which establish that the defendant’s negligence caused the plaintiff’s injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion.
Jelinek , 328 S.W.3d a t 5 3 6 (internal quotation marks and citations omitted). Also relevant to this issue on appeal is Federal Rule of Evidence 6 0 7 , which instructs that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Rule 607 replaced the co m m o n l a w 5 “vouching rule,” which prevented a party calling a witness from impeaching that

Rule 607 wa s ame nded o n De cem ber 1, 2011 for clar ity only. It now read s, “Any 5 par ty, in clud ing t he par ty thatc alledt he wi tnes s, m ay at tac k the wi tnes s’ s cre dibi lity. ” 8 Case: 10-50845 Document: 00511775027 Page: 8 Date Filed: 03/02/2012No. 10–50845

witness. See McConville v. Fla. Towing Corp. , 321 F.2d 162, 165 (5th Cir. 1963) (“[A] party may not attack the c r e d ib ility of its own witness (e.g., by impeachment.”)). The Government asserts NE Methodist violated the standard of care through the actions of three physicians who treated Ms. B u s c h t h ere. The district court, a f

t e r n oting that Federal Rule of Evidence 607 abrogated the

common law vouching rule, concluded that t h e Government nevertheless “vouched” for the three treating physicians by failing to impeach their testimony after each one testified that he or she had met the applicable standard of care. Th e di s tri ct court concluded, “In the absence of any impeachment te s ti m o ny f r o m these t h ird-party doctors who are themselves allegedly responsible for the wrongdoing, the government has vouched for its p h ysicians/witnesses who testified in Court that they did not breach the standard of care.” T he district court further found that the testimony of the thir d

- p a r t y witnesses supported the conclusion that these medical providers did not breach the standard of care by failing to tell Ms. Busch that her X-ray revealed a “retained foreign body.” The district court indirectly reasoned that to the extent any doctors suspected a foreign body could be present, they reasonably would not have suspected it was cancer, but rather a foreign body retained from the specific injury which brought her to the hosp i t a l

— a retained foreign body somehow related to the pipe which fell on her foot. Unlike BAMC, which confronted Ms. 6

The dis tri ct cour t ide ntif ied tes tim ony that sup por ted its reas onin g : D r . L o pez 6 chec ke d the “inap pli cable ” box for for eign bod y beca use “th ere wa s no ope n wo und, no [ind icat i o n ] of any type of pene tra ting injury. ” Dr

. Lope z tes tif ied that he ord ere d an X- ray but did not se e a ret ained for eign bod y. Dr

. Sto lle, a rad iolo gist exam ining Ms

. Busc h, fou nd “s ofttiss ue sw ellin g withpos sib le ret ainedfore ign body, ” wh ich he tho ught coul d be “a lit tle pie ce of plas tic or wo od fr om a pene tra ting injury. ” And on cro ss , Dr

. Sto lle tes tif ied that Ms

. Busc h’s injury by pip e did not rule out a pene tra ting injury. Dr

. Scr ibbic k expla ined that she
wr ote , “f

ore ign bod y?” to indi cat e that an exam inati on of Ms

. Busc h’s lef t foo t revea led no pene tra ting injury or ope n wo und wh ich wo uld indi cat e that a ret ained for eign b o d y c o u ld pos sib ly be p res ent. 9 Case: 10-50845 Document: 00511775027 Page: 9 Date Filed: 03/02/2012No. 10–50845

Busch’s pain with the knowledge that it had inexplicably persisted for over five months, NE Methodist treated Ms. Busch on the basis of her narrow complaint of a workplace injury and without knowledge of BAMC’s earlier treatment and recommendations. The district court therefore found that the evidence s upported the conclusion that NE Methodist physicians did not breach the standard of care in failing to tell Ms. Busch that her X-ray revealed a retained foreign body. Having found that the Government failed to prove an essential e l e m e n t of its claim against the third-party phy s i cians, the district court concluded that the Government did not show negligenc e o n the part of the medical providers it brought in court to testify—and thus no negligence on NE Methodist’s part. Although the Government stresses t h at NE Methodist shares responsibility for the failure to detect Ms. Busch’s cancer because the Plaintiffs’ and Government’s medical experts agreed that NE Methodist was a t l e a st partially responsible, it fails to overcome the district court’s essential conc l u s i o n: that the Government did not meet its burden in establishing that NE Methodist

was negligent. As the Plaintiffs n o t e , the evidence at trial conflicted over whether third-party doctors b r e a c h ed the standard of care and, further, no evidence showed that any potential breach by the third-party physicians caused Ms. Busch’s death. Rather, as Plaintiffs assert, the evidence at trial showed it

was unlikely Ms. Busch would have survived had the cancer been detected when NE Methodist physicians examined her in September 1997. Plai n t i f f s’ and Government’s experts agreed that th e w i n d o w of opportunity for a cure was between January 1997 and September 1997. Given the persuasive testimony of the NE Methodist phy s i c i a ns in the absence of little other compelling evidence, we agree with the Plaintiffs that the district court did not clearly err in finding that NE Methodist was not liable for Ms. Busch’s inj u r i e s. The Government’s failure to produce convincing expert
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testimony as to NE Methodist’s negligence, taken with the different contexts in

w h ich doctors at BAMC and NE Methodist treated Ms. Busch’s left foot, supports the district court’s holding. The district court’s discussion of the vouching rule, while improper, does not taint its basic conclusion that the Government did not meet its burden. The district court credited the testimony of the NE Methodist witnesses the Government called over any other evidence suggesting NE Methodist’s liability. There is no clear error. B The Government also disputes the district cou r t ’ s c o nclusion that Ms. Busch was not comparatively negligent because she acted as a reasonable and prudent person with her training and experience would have acted in the same
or similar circumstance s . W e h o l d that the district court did not err in concluding that Ms. Busch was not comparatively negligent. U n d e r Texas law, comparative responsibility expressly applies to negligence claims. See T E X
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. § 33.003(a) (directing trier of fact to calculate percentage of responsib i l i ty of the claimant in a negligence case). Applying comparative responsibility, the trier of fact must reduce a plaintiff’s recovery in tort by the proportion she contributed to causing her own harm through actions that were negligent or otherwise fell below some legal standard. T E X
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. C O D E AN N
. § 33.012(a); Gen. Motors Corp. v. Sanchez , 9 9 7 S

. W

. 2 d 584, 593 (Tex. 1999). “[A] claimant may not

recover damages if his percentage of responsibility is greater than 50 percent.” T E X
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. § 33.001. A plaintiff’s comparative negligence arises from her breach of a legal duty in tort, the breach of which proximately causes damages. Columbia Med. Ctr. of Las Colinas , Inc v. Hogue , 271 S.W.3d 238, 246 (Tex. 2008). Patients owe their treating physicians a duty of cooperation. Jackson v. Axelrad , 221 S.W.3d

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650, 654 (Tex. 2007). Where a patient fails in this duty, the trier of fact may find comparative negligence. Elbaor v. Smith , 845 S.W.2d 240, 245 (Tex. 199 2). The duty to cooperate encompasses cooper a t i on in treatment and diagnosis. Axelrad , 221 S.W.3d at 654. “Given the infinite variety of patients, diseases, and c i r c u m stances surrounding medical care,” the Texas Supreme Court has declined to prescribe “an exhaustive list defining a patient’s duty to cooperate.” Id. at 655. But the Texas court has made clear that in most cases, “an ordinary patient’s failure to report the origin of pain will be no evidence of negligence.” Id. Because Ms. Busch had very limited EMT training, the district court held her to the standard of a reasonably prudent person with the same EMT training and experience in the same or similar circumstances. Applying this standard, 7 the district court f

o u n d that Ms. Busch fulfilled her duty to cooperate by: (1) following BAMC’s instructions in her August 2006 visit; (2) returning to BAMC in January 1997 when the swelling and pain did not subside; (3) obtaining a bone scan at BAMC’s direction; and (4) unsuccessfully seeking an appointment for an orthopedic consultation at BAMC’s instruction. The district court emphasized the testimony of the Government’s expert, Dr. Netaji, who impliedly agreed with Plaintiffs’ experts that doctors could and should have diagnosed the cancer in Ms. Busch’s foot in January 1997 when presented with a six-month history of swelling and pain. When a physician’s

a ssistant at BAMC examined Ms. Busch on January 8, 1997, he recogni z e d a potential problem in Ms. Busch’s left foot and took action by requesting X-rays, followed by a bone scan. After t h o s e tests ruled out the possibility of a stress fracture or other damage to bony tissue, the physician’s assistant instructed Ms.

The evide nce sho ws that Ms

. Busc h com ple ted a bas ic EMT tra ining cour se and that 7 her EMT- rela ted expe rien ce wa s lim ite d to volunt eer ing att he Ki rby Fire De par tm ent and a t wo -and -a- half

w eeks tintw ork ing atM ed Sta r. 12 Case: 10-50845 Document: 00511775027 Page: 12 Date Filed: 03/02/2012No. 10–50845

Busch to secure an appoint ment for an orthopedic consultation and recommended Motrin for any discomfort. Ms. Busch fully complied with these recommendations, but BAMC told her she would be placed on a waiting list and would be called to schedule an app o i n t m e n t f or the orthopedic consult. In the meantime, the distric t c o u r t noted, Ms. Busch divorced and lost access to her husband’s military benefits. The district court underscored, and the r e c o r d confirms, that no one informed Ms. Busch about the possibility of a tumor during her visits to BAMC in August 1996 and January 199 7

. A p hysician’s assistant ordered an orthopedic consultation but no one told Ms. Busch that it was critical. Re g ardless, Ms. Busch sought an immediate orthopedic appointment, but BAMC placed her on a waiting list. Further, the district court noted that after Ms. Busch consu l t e d with BAMC three or four times over a six-month period (the record reflects that the district court uses the term “consulted” expansively to include Ms

. B u s c h ’ s p hone calls in which she attempted to make an appointment), BAMC repeatedly told her that her injury was only a c o n t u s i on. When Ms. Busch sought medical treatment at NE Methodist in September 1997 after her new work-re l ated injury, Ms. Busch was again told her injury was only a contusion. This repeated diagnosis led Ms. Busch t o b elieve it was futile to attempt to discuss her foot pain with other doctors from whom she sought medical care. The district court ultimately found that based on common sense and Ms. Busch’s limited training and experi e n c e f r om EMT classes, BAMC’s acts and omissions were the substantial factor that caused her ultimate harm; they influenced and affected all her later act i ons with respect to treatment. The district court found that without the specialized medical training and knowledge described in Axelrad , Ms. Busch had the duty to cooperate in the diagnosis, but

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no duty to diagnose herself—and that Ms. Busch was t h u s e n t itled to rely on BAMC’s diagnosis of a contusion. The Government pins Ms. Busch’s comparative negligence on her failure to pursue medical assistance after BAMC and NE Methodist physicians told her to seek additional care. The Government emphasizes that Ms. Busch failed to obtain an orthopedic consultation after a BAMC physician’s a s s i s t a n t told her to do so in January 1997. The Government explains that the BAMC employee warned Ms. Busch tha t b ecause active-duty soldiers at Fort Sam Houston received priority over army dependents, she should follow up a nd obtain an orthopedic referral if she d i d not hear from BAMC within three to four days. The Government stresses that Ms. Busch did not fo l l o w up. The Government similarly underscores that Ms. Busch failed to follow up on appointments at NE Methodist eight months later to seek recommended c o n s ultations. Had Ms. Busch made follow-up appointments as advised, D r . Scribbick explained, “a prudent family doctor would have been more aggressive in terms of finding—you know, finding what was going on.” But Ms. Busch did not make any follow-up appointments; she also failed to return to NE Methodist’s ER, as Dr. Scribbick prescribed. 8

Furt her, the Go vernm ent note s that dur ing the per iod betw een Ms

. Busc h’s las t visi t 8 to BAMC in Januar y 1997 and her diagno sis wi th foo t canc er in Januar y 1 9 9 9 , Ms

. Busc h visi ted doc tor s tw enty- thr ee tim es for dif fer ent reas ons but did not ask for ass ist ance wi th her cont inuing foo t pain

. The Go vernm ent cont ends that thes e fai lure s to se ek a diagno sis com pel the conc lus ion thatt here w as cont ribut ory negligenc e. The Go vernm ent las tly reit erat es the tes tim ony of the expe rts on Ms

. Busc h’s rela tive faul t: The Go vernm ent’ s ort hope dic expe rt ass es se d Ms

. Busc h’s res pons ibili ty for the mi ss ed diagno sis at fif

ty per cent ; Plaint iffs’ onco logis t dee me d Ms

. Busc h tw enty per cent res pons ible; Plaint iffs’ fam ily-p rac tic e expe rt surm ise d tw o to fo ur per cent res pons ibili ty. In light of this tes tim ony, the Go vernm ent ass ert s that the dis tri ct cour t’s det er m inati on of zero res pon s ibili ty for Ms

. Busc h is both legally and fac tuall y inco rre ct and unsu st ainable

. The Go vernm ent mai ntain s that the dis tri ct cour t sho uld have heldM s. Bus ch at leas t par tial ly res pons ible for the del ay in det ect ing and t r e ating her cond itio n. Becaus e we hold that the dis tri ct co urtdid noterr in conc ludi ng that Ms

. Busc h act ed as a reaso nably pru dentpers on and thus w as not at com par ativel y negli gent, w e n eedno t reac h t hes e a rgum ents

. 14 Case: 10-50845 Document: 00511775027 Page: 14 Date Filed: 03/02/2012No. 10–50845

Plaintiffs respond that the di s t r i c t court properly found that Ms. Busch acted as a reasonab l y p r u d e n t patient with the same training and experience would have in similar circumstances: she complied with healthcare providers’ instructio n s and repeatedly sought treatment for swelling to her left foot, but

w a s always told it was merely a contusion. Plaintiffs assert that the uncontroverted evidence shows that Ms. Busch imme d iately sought an orthopedic consultation but the Government placed Ms. Busch on a waiting list and then failed to make the appointment as required by t h e i r o w n p olicy and

never contacted Ms. Busch regarding an appointment. Plaintiffs also maintain that the uncontroverted evidence shows that after treatment at NE Methodist

on September 5, 1997, Ms. B u s c h r eturned for follow-up treatment on September 8, 1997, and called the h o s p i t a l on September 15, 1997, as follow-up—a reasonable course of action in light of her diagnosis of a contusion. 9

Plaint iffs ide ntif

y the fol low ing evide nce as sup por ting the conc lus ion that Ms

. Busc h 9 act ed as a reas onable pat ient wi th her tra ining and expe rien ce in the cir cum s t a nces of this cas e: (1) In August 1996, she so ught tre atm ent at BAMC for an injury to her lef t foo t; (2) When sw ellin g per sis ted , Ms

. Busc h ret urned to BAMC on Januar y 8, 1997, for exam inati on and tre atm ent of her lef t foo t; (3) On Januar y 8, 1997, Ms

. Busc h info rm ed BAMC healt hcar e pr ovide rs that she had injure d her lef t foo t app roxim atel y s ix mo nths earl ier, X- rays tak en a t t h a t tim e we re negati ve for a fr act ure, and she expe rien ced chr onic sw ellin g, but n o n e w injury to that foo t; (4) On Januar y 8, 1997, Ms

. Busc h com pli ed wi th BAMC’s ins tru cti ons to obta in an X- ray of her lef t foo t; (5) On Januar y 9, 1 9 9 7 , M s. Busc h com pli ed wi th BAMC’s ins tru cti ons given on Januar y 8, 1997, to obta in a bone sc an of her lef t foo t, and com pli ed wi th BAMC’s ins t r u cti ons regar ding the ort hope dic cons ultat ion by att em pt ing to sc hedu le an app oint me nt, but wa s tol d ther e we re n o a v ailabl e app oint me nts and she wa s plac ed on a wa itin g lis t; (6) Ms

. Busc h reas onably reli ed on the r e p r e s e ntat ions by the Go vernm ent’ s agents and em plo yees in Januar y 1997 that she wo uld be cont act ed regar ding the ort hope dic cons ultat ion; (7) Ms

. Busc h reas onably reli ed on BAMC’s diagno sis that she had sus taine d a cont usi on and the injury wa s not se riou s; ( 8) O n S ept em ber 5, 1997, M s. Busc h injure d her lef t foo t at wo rk and Dr. Lope z exam ined and treate d her at NE Metho dis t’s ER, aft er which Ms

. Busc h com pli ed wi th Dr

. Lope z’s pr ecis e ins tru cti ons and ke pt her foo t elevat ed and iced ; (9) The only diagno sis t h a t Dr

. Lope z gave to Ms

. Busc h wa s that she had sus taine d a cont us i o n , “ e ss enti ally a bruis e to the foo t”; Ms

. Busc h reas onably reli ed on this diagno sis wh ich wa s sim ilar to BAMC’s pr evious diagno sis ; (1 0 ) D r . L ope z tes tif ied that Ms

. Busc h coul d ret urn to the ER f or fol low -up , and the healt hcar e p rovid ers atN E M etho dis t tol d her to ret urn to the ER if she cont inued to have pr oblem s, and so , on Sep tem ber 8, 1 9 9 7 , Ms

. Busc h ret urned to the NE Me thod ist ER for fol low -up regar ding the wo rk -r elat ed injury to her 15 Case: 10-50845 Document: 00511775027 Page: 15 Date Filed: 03/02/2012No. 10–50845

The district court did not clearly err in finding that Ms. Busch acted as a reasonably prudent person with her training in the circumstances she faced. We further hold that the district court did not err in concluding that Ms. Busch was not comparatively negligent. BAMC’s own failure to follow up with Ms. Busch thwarted Ms. Busch’s efforts to pursue further treatment. The fact that doctors repeatedly diagnosed her with contusions supports the inference that Ms. Busch did not view the doctors’ requests with the same urgency as she would have had they even hinted a t the possibility of something more serious. Further, testimony showed that she was cooperative and willing to take doctor’s advice. And, more fundamentally, the district court’s characterization o f M s. Busch’s failure to fully pursue treatment appeals to common sense. Nothing in the record shows that Ms. Busch was advised of the possibility of cancer or that the failure to pursue further treatment could cause her death. Rather, throughout this period, all medical service providers consistently diagnosed Ms. Busch with a mere contusion. III Plaintiffs contend o n a p p e a l that the district court erred by excluding damages for household services from their economic damages award, t hus limiting Plaintiffs’ recovery for household services to a $250,00 0 c a p on noneconomic damages. The district court applied the cap because the Plaintiffs

foo t beca use the pain , sw ellin g and red nes s did not go aw ay; Dr

. Lope z c o n c e d e d that Ms

. Busc h’s ret urn to the NE Me thod ist ER wa s her wa y of fol low ing up; (11) W h e n Ms

. Busc h ret urned to NE Me thod ist on Sep tem ber 8, 1997, Dr

. Scr ibbic k’ s diagno sis wa s “co ntus ion and lef t foo t cell ulit is, meani ng a left fo ot s ki n infec tio n”; it was reas onable for Ms

. Busc h to re ly on this diagno s i s wh ich, excep t for the sk in infe cti on diagno sis , wa s sim ilar to the pr evious diagno sis she had been given by othe r healt hcar e pr ovide rs at BAMC and NE Me thod ist ; and (12) Dr. Scribbicktes tif iedthat on Sep tem ber 8, 1997, sh e inst ruc ted Ms

. Busc h not to wor k for se venty- tw o hours , ke ep the foo t elevat ed, and ret urn for feve r and incr eas ed red nes s; Ms

. Busc h c om pli ed wi th Dr

. Scr ibbic k’ s ins tru cti ons , and as a res ult, the red nes s sub sid ed and the sw ellin g d im inis hed so t hat Ms

. Busc h be lievedt he pr oblem r es olved

. 16 Case: 10-50845 Document: 00511775027 Page: 16 Date Filed: 03/02/2012No. 10–50845

failed to show actual monetary losses from Ms. Busch’s lost household services. We hold that the district court committed legal error. As of 2003, the Texas Medical Liability Act (“TMLA”) imposes a limitation of $250,000 on a claimant’s noneconomic damages:

In an action on a health care liability claim where final judgment is rendered against a single health care institution, the limit of civil liability for nonec o n o m i c damages inclusive of all persons and entities for which vicarious liability theo r i e s may apply, shall be limited to an amount not to exceed $250,000 for each claimant.
T E X
. C I V
. P RA C

. & R E M
. C O D E AN N
. § 74.301(b). The T M LA i n c o r p orates the definitions of “economic damages” and “nonecomomic damages” provided in Chapter 41 of the Texas Civil Practices and Remedies Code. Id. § 74.001(6), (20). “Economic damages” are “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss” but not “exemplary damages

or noneconomic damages.” Id. § 41.001(4). In wrongful death cases, “[p]ecuniary loss . . . is not subject to precise mathematical calculation.” Christus Health v. Dorriety , 345 S.W.3d 104, 113 (Tex. App.—Ho u s t on [14th Dist.] 2011, pet. denied). A plaintiff may recover pecuniary losses “even in the absence of specific evidence of the amount of contributions being made by the deceased before her death or that she would have continued to contribute i n t h e future.” Id. Factfinders maintain “significant discr e t i on in determining this element of damages” and “may look beyond evidence of calculable financial contributions.” Id. In contrast, “noneconomic damages” are “damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or a n g uish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience , l o ss of enjoyment

17 Case: 10-50845 Document: 00511775027 Page: 17 Date Filed: 03/02/2012No. 10–50845

of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.” T E X
. C I V
. P RA C

. & R E M
. C O D E AN N
. § 41.001(12). Historically, t he term “household services” has encompassed domestic duties, Dougherty v. Gifford , 826 S.W.2d 668, 681 (Tex. App.–Texarkana 1992,

no writ), for which no dollar amount must be proven. EDCO Pr o d

. , Inc. v. Hernandez , 794 S.W.2d 69, 7 7 ( T e x. App.—San Antonio 1990, writ denied). Household services have been t r e ated as distinct from intangible or emotional damages recoverable in a loss of consortium claim. Whittlesey v. Mil l e r , 5 7 2 S.W.2d 665, 666 n.2 (Tex. 1978). But see U-Haul Intern. v. Waldrip , 322 S.W.3d 821, 856 (Tex. App.—Dallas 2010, pet. granted Dec. 16, 2011) (listing “services” among emotional and intangible damages encompassed by loss of consortium). After the passage of the TMLA’s cap, at least one Texas court has treated household services as a pecuniary loss, not subject to the limit on noneconomic d a m a g e s . Se e Dorriety , 345 S.W.3d at 111–13. In Dorriety , a Texas appellate court held that plaintiffs could recover household services, a pecu n i a r y l oss, b a s e d o n their expert’s testimony that calculated the value of the loss of thei r family member’s household services by looking to national survey s , i n light of t h e family member’s age and the age of her son. Id. at 112. The c o u r t t h e n awarded the plaintiffs damages for household services in excess of TMLA’s cap. Id. at 112–13. Whether household services were an econom i c o r noneconomic damage was not considered or in dispute; a l l parties and the court proceeded under t h e a s s u m ption that household services are a pecuniary loss; the court focused its inquiry on whether proof for this pecuniary loss had been shown. See id. at 111–13. The district court here treated Plai n t i f f s’ claimed household services damages as a noneconomic loss because i t f o und that they had not presented evidence of actual costs incurred from the loss of Ms

. B u s c h ’s services. At the

same time, the district court held that Plaintiffs’ household services were
18 Case: 10-50845 Document: 00511775027 Page: 18 Date Filed: 03/02/2012No. 10–50845

inextricable from their loss of society and compani o n ship. In awarding the maximum amount for noneconomic damages, it is unclear wheth e r Plaintiffs’

c laim for household services separately formed any part of the award or if t h e noneconomic damages award was i n f act entirely based on Plaintiffs’ loss of

s o ciety and companionship. The district court erred, but the impact o f t h a t 1 0 error is unclear. To explain: The Plaintiffs assert th a t the district court’s ruling is inconsistent with the historical treatment of household services in Texas as an economic damage. We agree. Our review of the law leaves us convinced that household services are a pecuniary loss, the loss of which, particularly in a wrongful death case like this one, need n o t b e s h o wn with mathematical precision. See, e.g. , Dorriety , 345 S.W.3d at 113. Plaintiffs also dispute t h a t t h e r e was a lack of evidence as to the dollar

a m o unt in this case. The Plaintiffs explain that Dr. Smith, the Gover n m e n t ’ s expert, testified that the present value of the loss for rep l acement of household/family housekeeping and household management services as a result of the reduction of Ms. Busch’s ability to physically perform household services from 1999 through 2004 is $33,946 with future losses of $ 2 97,857. Dr. Smith addressed the loss of household services as work performed that has an economic benefit to the household, not as a part of the loss of love and affection, concluding

The dis tri ct cour t that dec ide d the i s s ue now on app eal pr evious ly add res se d 1 0 wh ethe r hous eholdservi ces are econ om ic or none cono mi c dam ages in Tel lo v . Uni ted States , 608 F. Sup p. 2d 805 (W. D. Tex. 2 0 0 9 ) ( B i e ry, J.)

. In Tel lo , the plai ntif fs so ught to rec over dam ages for the los s of thei r wi fe and mo ther ’s se rvice s, wh ich inclu ded coo ki ng, clea ning, laund erin g, and child car e. Id. at 807

. T h e d i s t r i ct cour t char act erize d thes e se rvice s as “m anif es tat ions of love and aff ect ion, ” the los s of wh ich c ould be cons ide red in det erm ining dam ages
. Id. at 809. But the dis tri ct cour t fou nd “no evide nce [t hat] the los s of thes e se rvice s nece ss aril y res ulte d in dir ect fina ncial los s to the sur vivors ” and ther efo re fou nd that they did not fal l wi thin the sc ope of “ec onom ic” dam ages
. Id

. N e i t h e r Tel lo nor the dis tri ct cour t’s analys is below , how ever, pr ope rly enca ps ulate s Texas law

. See, e. g. , Do rri ety , 345 S. W.3 d at 113. 19 Case: 10-50845 Document: 00511775027 Page: 19 Date Filed: 03/02/2012No. 10–50845

that the total economic loss of “h o u s ehold/family housekeeping and household

m a n a g e m e nt s e rvices” was $313,803. And Dr. Swiger, Plaintiff s ’ e xp e rt , t e s tif

i e d that the present va l u e o f e conomic loss of household services that Plaintiffs suffer e d a s a r esult of Ms. Busch’s illness was $12,224 up to her death with future losses of $588,760. The Government, on the other hand, maintains that no testimony showed that Ms. Bus c h ’ s f

a m i ly ever hired anyone to replace her, either during the illness or after her death on October 10, 2005. In the economic analysis prepared by Plaintiffs’ expert Dr. Swiger, the calculations for lo s t h o u s ehold contributions through that date were based not on any replacement help either actually anticipated or act u a l l y hired, but on “substantial reductions in the

a m o u n t o f household contributions that she was able to make,” which we r e “estimat ed” as “amount[ing] to 30 hours per week” based on “an average replacement cost of $7 per hour.” The district court’s analysis rested on the assumption that to recover the loss of household services as an economic damage , the Plaintiffs had to show with mathematical precision the amount of monetary loss they suffered as the

r e s u l t of Ms. Busch’s death. This, however, contradicts Texas law that, e v e n after the passage of TMLA’s damages cap, treats hous e h o l d services as a p e cuniary loss and, moreover, does not require plaintiffs in a wrongful de a t h

case to show with mathematic a l precision the amount of their pecuniary loss. See, e.g. , Dorriety , 345 S.W.3d at 113. The district court’s finding of no evidence as to household services rested on an erroneous interpretation of the law. The expert testimony and evidence presented at trial may be sufficient to make a finding of pecuniary loss. That is a question the district court must consider on remand.

20 Case: 10-50845 Document: 00511775027 Page: 20 Date Filed: 03/02/2012No. 10–50845 IV For the reasons above, we AFFIRM the district cou rt’s judgment in part and REVERSE and REMAND in part for further consideration of the evidence in light of our opinion today. We h o l d t hat the district court did not err in finding the Government fully l i ab l e f or the damages award because the Government did not present adequate evidence of NE Methodist’s liability. The district court also did not err in conc l u d i n g t h at Ms. Busch was not comparatively negligent because the evidence shows that Ms. Busch acted as a reasonable prudent person of her same training and experience woul d have acted in similar circumstances. But the district court did err in its assessment of Plaintiffs’ claim for household services.

21 Case: 10-50845 Document: 00511775027 Page: 21 Date Filed: 03/02/2012