### IN THE TENTH COURT OF APPEALS
No. 10
- 11
- 00306
- CV ST. JOSEPH REGIONAL HEALTH CENTER , Appellant v. MIKE HOPKINS AND DAV ID HOPKINS AS HEIRS OF ELIZABETH D EAVERS , Appellee s

From the 85th District Court Brazos County, Texas Trial Court No. 10
- 000 742
- CV
- 85

O P I N I O N
Elizabeth Deavers, now deceased, sued St. Joseph Regional Health Center for negligence and requested damages that included the cost of future custodial care. On February 14, 2011, the jury returned a verdict for Deavers that included $411,936 in future custodial care expenses. On March 4, 2011, before a judgment was rendered on the jury’s verdict, Deavers died. The trial court substituted Deavers’ heirs, Mike Hopkins and David Hopkins, as plaintiffs in the proceeding and rendered ju dgment on the jury’s verdict. St. Joseph appeals; and we affirm.St. Joseph Regional Health Center v. Hopkins Page 2

When a party to a jury trial dies between verdict and judgment, judgment shall be rendered and entered as if all parties were living. T EX

. R. C IV

. P . 156. This has been
the law in Texas s ince 1846. Act of May 13, 1846, 1st Leg. § 37, 1846 Laws of Texas 1678. After the verdict but before Deavers’ death, St. Joseph requested that the trial court order future custodial care expenses awarded by the jury be paid in periodic payments.
T EX

. C I V

. P RAC

. & R EM

. C ODE A NN . § 74.503(a) (West 2011). Subchapter K of the Texas Medical Liability Act creates this option, applicable only if requested, concerning the payment of future damages. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . §§ 74.501

- 74.507 (West 20 11). If and when requested, the trial court “shall” order periodic payments, rather than a lump sum, for future damages, such as custodial care services, awarded in a health care liability claim. Id . § 74.503(a). Periodic payments for custodial care

ser vices, however, terminate on the plaintiff’s death. Id . § 74.506(b). Further, future damages, if any, that are not set up as periodic payments remain as traditional lump sum amounts in the judgment. See id . § 74.503(a). After Deavers’ death, St. Joseph withdrew its request for periodic payments under the Texas Medical Liability Act. In one issue, St. Joseph contends the trial court erred in awarding judgment on the verdict for future custodial care expenses that, it alleges, will never be incurred.
Wit h this issue, St. Joseph seeks to dissolve 166 years of Texas law. Although St. Joseph initially requested periodic payments of the future custodial care expenses awarded by the jury, which would h ave then terminated upon Deaver s ’ death, St. Joseph withdr ew its request for periodic payments. Because St. Joseph withdrew its request for periodic payments, subchapter K of the Medical Liability Act no longer applies, and payment ofSt. Joseph Regional Health Center v. Hopkins Page 3

future custodial care is not terminated. What remains is 166 years of law cur rently embodied in Rule 156 which requires a judgment to be rendered as if all parties were living. Because the trial court followed Rule 156, it did not err in rendering judgment on the jury’s verdict. Accordingly, St. Joseph’s sole issue is overruled. The trial court’s judgment is affirmed.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed December 6, 2012 [CV06]