In a case we have reported on at least twice during its sojourn, the San Antonio Court of Appeals has proposed a remittitur to cure defects in a remand judgment in a health care liability case that resulted in a $14.2 million jury verdict. This is the same case in which the court of appeals previously ruled that the settlement credit was unconstitutional, a decision SCOTX reversed.
Virlar v. Carr (No. 04-24-00551; April 30, 2026) arose out of a medical malpractice case involving a patient who suffered complications from gastric bypass surgery that left her with serious brain dysfunction requiring 24-hour long term care. The plaintiff and her mother (as guardian for the plaintiff’s minor daughter) sued the physicians (Virlar, Patel, and Martinez), their employer (Gonzaba), and other providers for negligence seeking damages for physical pain, mental anguish, loss of earnings, loss of future earning capacity, and past and future medical expenses. The plaintiff’s minor daughter alleged past and future damages for loss of parental consortium, emotional trauma, and loss of care, maintenance, companionship and other damages. The plaintiff’s mother alleged separate damages for loss of services resulting from her daughter’s injury.
Prior to trial, the plaintiff’s mother settled and nonsuited both her own and the minor child’s claims with all defendants, including those against the doctors and the employer. The plaintiff settled with or nonsuited her claims against all defendants except the doctors and the employer. The jury assigned responsibility to Virlar (60%) and Patel (40%) and awarded the plaintiff $133,202 for past loss of earnings, $888,429 for future loss of earning capacity, and $13,263,874.86 for future medical expenses. The defendants filed a motion to apply a settlement credit for the plaintiff’s, plaintiff’s mother, and minor child’s settlements with the other defendants, as well as for an order for periodic payments of the future medical expenses. The trial court denied both motions and entered judgment against Virlar and Gonzaba for $14,109.349.02.
The defendants appealed to the San Antonio Court of Appeals. In a split decision, with Chief Justice Marion and Justice Alvarez filing separate concurring and dissenting opinions, the court of appeals upheld the judgment, subject to ordering a remittitur of $8,000 on the future loss of earning capacity award. The court of appeals, holding that the settlement credit was unconstitutional, rejected the defendants’ motion to remit the total award by $434,000 to cure potential error from the trial court’s denial of the defendants’ motion for settlement credit. The defendants appealed to the Texas Supreme Court
SCOTX affirmed in part and reversed in part. First, SCOTX ruled that the settlement credit was constitutional. Consequently, the $14.2 million judgment for plaintiff had to be reduced by the dollar amount of Plaintiff’s settlement with the hospital, or $3.3 million. Second, SCOTX held that Chapter 74, CPRC, required the trial court to order at least partial periodic payments for future damages, rather than a lump sum total. The Court then remanded to the court of appeals to conform the judgment to its decision
In an opinion by Justice Brissette, the court of appeals suggested a remittitur of $533,038.51 to address the trial court’s excessive lump sum judgment award. Section 74.053(b), CPRC, requires at least a “part” of future damages to be paid “in periodic payments rather by a lump sum payment.” As the trial court has “considerable discretion in structuring such periodic payments,” the trial court’s determination “is subject to an abuse of discretion standard of review” (citations onitted). The court first held that “the trial court did not abuse its discretion in determining which categories of damages, fees, and costs should be included in the lump sum.” Out of a total of over $14.2 million, the trial court awarded various amounts for loss of past and future earnings and future medical expenses (about $13.2 million). It then calculated prejudgment interest on the award of loss of past earnings and applied the dollar-for-dollar settlement credit as SCOTX instructed (assigning the credit first to the past damages and prejudgment interest, zeroing out that part of the award). The remainder of the credit went to offsetting the award of lost future earning and future medicals, which the court applied pro rata, yielding a little over $671,000 for future earnings and $10,115,506.09 for future medicals).
Then, against following SCOTX’s instructions, the trial court divided the resulting $10,786,921.24 total judgment between the damages categories, litigation expenses and costs, and attorney’s fees. Once the attorney’s fees of $4.3 million were taken care of as part of the lump sum payment, the court scheduled the remaining $4,906,371.74 to future medicals, interim medicals, and litigation expenses and costs as periodic payments for each year of Plaintiff’s projected life expectancy. The court approved of the trial court’s methods, as they were consistent with SCOTX’s instructions and the jury findings. The problem the court found, however, was that the trial court didn’t “set forth the dollar amounts for litigation expenses and costs or interim medical costs.” On remand from the court of appeals, the trial court provided the figures. They, however, came up $63,438,85 of the total lump sum.
To rectify this problem, the court examined the trial court’s numbers. First, it found that the trial court’s calculation of interim medicals should have been discounted and thus reduced by $6,015. As to the attorney’s fees, costs, and expenses, Defendants argued that the amount of attorney’s fees “front-loaded in the lump sum payment should be calculated only on the amount of future medical expenses to be paid in future periodic payments.” They also should exclude any fees “calculated based on the portions of future medical expenses that would have been due after the date of [Plaintiff’s] death (March 30, 2020). Observing that SCOTX has stated that § 75.057 “confirms the expectation that [attorney’s fees] will be paid at the outset,” the court stated that the 40% contingency fee agreement between Plaintiff and her counsel should be moved into the lump sum payment. But the trial court calculated 40% of the total judgment on the wrong base. It “should have calculated the amount of fees to be moved from future medical payments to the lump sum based on 40% of $9,627,962.09,” which takes out the awards for loss of earning capacity and interim medical expenses. This mistake yielded an excess of $463,583.66 for attorney’s fees, which the court suggested be cured by remittitur.
The court rejected Defendants’ argument that no attorney’s fees should be assessed on future medical expenses that will never become due after Plaintiff’s death. But, the court pointed out, those damages were awarded before her death, and SCOTX ordered on remand that the trial court enter the judgment it should have entered. “Further,” the court observed, “the Texas Supreme Court recognized in Columbia that noting in section 74.507 indicates that the legislature intended for a defendant to be able to take advantage of a plaintiff’s untimely death by not only avoiding future medical expense payments but by reducing the amount of attorney’s fees to be recovered.” Finally, the court ruled that that sufficient evidence supported the award of Plaintiff’s litigation expenses and costs (which included $200,000 to repay part of a $310,000 loan from Plaintiff’s daughter’s settlement for litigation expenses, plus additional litigation expenses of Plaintiff exceeding $100,000).
The court also disagreed with Defendants’ argument that the trial court erred by awarding future medicals for the whole of 2020 rather than cutting them off in March, when she died. Declining to “set the precedent that a court would have to, in its judgment, state that any payment already made would have to be refunded pro rata in the event of a recipient’s death after it was paid but before the next payment was due,” the court held that “the trial court’s award for all of 2020 periodic payments does not violate the periodic-payments statute.” It should be noted, however, that per § 74.507, the remand judgment does not require Defendants to make any periodic payment payable after Plaintiff’s death. But the court did suggest remittitur of the trial court’s award of interim medical expenses to cure the court’s failure to discount those expenses but not the periodic payments for 2019 and 2020 (because they were not due on the date of final judgment). To round things off, the court ruled that the trial court did not err by awarding postjudgment interest from the date of the original judgment rather than the remand judgment. Had the trial court been required to conduct additional evidentiary proceedings or a new trial, the answer would be different, but that didn’t happen here.
All in all, the court of appeals suggested remittitur of $533,038.51 to bring the remand judgment into line with the proper calculation of damages, costs and expenses, and attorney’s fees. The court had authority to do that because although “there is insufficient evidence to support the full amount of the award . . . [there was] sufficient evidence to support a lesser award” (citations omitted). That was true here because the court found that the evidence supported “a specific lesser amount for the lump sum award and we find no other reversible errors in the remand judgment ….”
