Quyen Lee, D.D.S. v. Travis Hawkins and Yolanda Hawkins

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00365-CV

Quyen Lee, D.D.S., Appellant

v.

Travis Hawkins and Yolanda Hawkins, Appellees

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 20-0283-C26, THE HONORABLE SCOTT K. FIELD, JUDGE PRESIDING

MEMORANDUM OPINION

Quyen Lee, D.D.S., appeals from the trial court’s final judgment rendered on the

jury’s verdict finding Dr. Lee liable for medical malpractice and awarding Travis and Yolanda

Hawkins damages for injuries sustained by Travis. On appeal, Dr. Lee challenges the trial

court’s admission and exclusion of evidence, the legal and factual sufficiency of the evidence

to support the verdict, and the trial court’s communications with the jury. For the following

reasons, we affirm the trial court’s judgment.

BACKGROUND

Two days after Travis underwent a surgical wisdom-tooth extraction by Dr. Lee,

he suffered a stroke. The extraction occurred during the morning of Friday, September 21, 2018,

and the stroke occurred late in the evening of Sunday, September 23, 2018. Travis was fifty-nine

years old when the stroke occurred. He has atrial fibrillation (A-Fib), which has been managed
for several years by an anticoagulant medication, Xarelto, that he takes every evening pursuant to

the recommendation of his cardiologist, Dr. Javier Eduardo Banchs. However, Travis stopped

taking his Xarelto after his evening dose on September 18, 2018, pursuant to Dr. Banchs’s

instruction to stop the medication forty-eight hours before the procedure. Travis did not resume

taking the Xarelto until the late evening hours of September 23, 2018, after he had started

experiencing visual disturbances. His Sunday evening stroke was confirmed the next day after

he went to the emergency room.

The Hawkinses sued Dr. Lee, Dr. Banchs, and Scott & White Memorial

Hospital—where Dr. Banchs is employed—for their alleged negligence in proximately causing

Travis’s stroke and the resulting damages that he and Yolanda suffered. The jury trial took

place over eight days in January 2024. The evidence is conflicting as to what instruction, if any,

Travis received from Dr. Banchs and Dr. Lee concerning when he should resume taking his

Xarelto after the extraction. However, before we summarize the relevant evidence, we recount

the trial court’s communications with the jury that Dr. Lee challenges on appeal.

The trial court’s off-the-record discussion with the jury

On the first day of trial, before the Hawkinses’ case in chief, the trial judge

dismissed a seated juror following additional voir dire regarding her late-disclosed inability

to remain unbiased. The juror’s dismissal left the empaneled jury without an alternate for the

remainder of trial. After the voir dire and excuse of the juror, the trial judge addressed the

parties and their attorneys, outside the presence of the jury:

Obviously we are in a difficult situation because the 12 need to stay together for
the rest of this time.

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I am going to give a bit of a stern warning to the remaining jurors that this is not
their get out of jail free card. In fact, it may be the opposite.

I do want to clarify this for clients. The last thing I want is the Hawkins to think
that they’re not going to get a fair trial because I have a dentist and doctor son and
daughter-in-law.1 My wife was also the victim of malpractice at MD Anderson,
so whether that weighs at all, I don’t know, but full disclosure, which I’m very big
on at this moment. So give me a chance to do that. I’m going to at least explain
why we have someone going home. I’m going to be very guarded in my
comments, I promise, other than making sure they understand I’m done with
jurors playing games, and we are going to do everything we can to keep them
together and finish this trial. All of your clients deserve that.

The record then indicates a seven-minute recess, during which time the trial judge departed the

courtroom, spoke in private with the jury, and returned to the courtroom to speak with the parties

and their attorneys. The substance of the trial judge’s conversation with the jury is not in the

record, but afterwards the trial judge spoke on the record summarizing for the parties and their

attorneys what he had told the jury:

I have spoken to the jurors. I just explained to them what has happened, why
there’s now 12 of them instead of 14. I was very honest with them about that, and
I told them don’t ask to go home, because unless it’s, like, a dire emergency,
you’re not getting out of jury service.

They actually—the reaction just—of course they didn’t vocalize, but just in their
faces and everything else—because I told them, “Look, the plaintiffs and the
defendants both need closure. This case has been pending a long time. Because
of COVID, a lot of things are behind. And that’s the beauty of our justice system
is that people get closure, good or bad.”

I got a lot of head nods, affirmative looks. And I said, “Can everybody commit to
me you’re going to be here these two weeks and do your very best?” And every
single one of them responded affirmatively, so hopefully no sickness.

1
The trial judge had previously mentioned his dentist son and daughter-in-law doctor
during the voir dire of the dismissed juror.
3
Then jury was called back in, and trial proceeded with the plaintiffs’ calling their first witness

and expert, Dr. Roger Byrne, DDS, MD.

The trial court’s announcement to the jury of Dr. Banchs’s settlement

Over the lunch break on the second day of trial, Dr. Banchs and Scott & White

settled with the plaintiffs. After the jury was brought back in from lunch, the trial court stated,

Please be seated. Welcome back. I hope you had a good break. We did go a
little longer than I told you we would, as happens, but in this case I have what I
can only describe as good news for you, which is, if you noticed, the room has
changed a little bit. We have one less defendant than we used to.

Over the lunch hour, part of the case was settled. Dr. Banchs is no longer in the
case, which means—I can’t tell you exactly what that means yet, because the
lawyers themselves don’t know because it’s new news to them, too, but I can say
that the trial just got shorter. It definitely did not get longer. If that means a
day—I don’t know, timewise, what that means, but rest assured—I already
promised you we wouldn’t go past ten days. It shouldn’t be even that now.

This statement was made in the middle of Dr. Lee’s cross-examination of Dr. Byrne, after which

the cross-examination resumed and the trial against Dr. Lee continued.

Relevant testimony

The parties offered conflicting evidence, including testimony from various

experts, concerning the dispositive evidentiary issues on appeal: responsibility for and causation

of Travis’s injuries, the communications made to him about when he should restart his Xarelto,

and the standards of care applicable to Dr. Banchs and Dr. Lee and whether such standards

were breached.

Dr. Byrne—a dentist, oral and maxillofacial surgeon, and plastic surgeon who

also happens to have A-Fib and takes Xarelto to manage it—testified that he has specialized

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knowledge about the standard of care for dentists like Dr. Lee. Dr. Byrne testified that prior to

tooth extractions, it may be necessary to direct the patient to halt the use of Xarelto, depending

on the number of extractions and the risk of a high level of bleeding during the procedure.

Dr. Byrne explained to the jury that Travis’s records demonstrated that the “problem” wisdom

tooth he had (No. 1) was a “simple extraction” (i.e., pulling out the tooth without an incision)

that would not have required surgery and that Dr. Lee should have planned for a simple

extraction, resorting to a surgical extraction only if the tooth turned out to be more difficult to

remove than it appeared. As a result of Dr. Lee’s decision to make the procedure surgical, it

took nearly an hour rather than a “matter of minutes.”

Dr. Byrne testified that before the dental procedure, Travis informed Dr. Lee that

he was taking Xarelto and that his treating cardiologist was Dr. Banchs. Dr. Byrne testified that

Dr. Lee did not talk to Dr. Banchs or anyone at Dr. Banchs’s office but did send Travis over to

Dr. Banchs’s office with a medical-clearance form for the cardiologist to sign. Dr. Byrne

testified that Dr. Lee, as the surgeon, was responsible for Travis’s care after the surgery and

“should know when to restart” the Xarelto and that, if she did not know, she should have

“refer[red] it to somebody who does.” However, Dr. Lee did not know or discover when Travis

should restart his medication, and she did not inform Travis when he should restart it, which

was “below the standard of care.” Dr. Byrne explained that there was no “clearly documented

anticoagulant management plan for Travis, including . . . when do you restart it” in Travis’s

dental records before the tooth extraction, which was also below the standard of care.

Dr. Byrne testified that it is “the surgeon’s call when to consider restarting [the

Xarelto] when the bleeding has stopped.” Dr. Lee performed the surgery on a Friday and did not

see or communicate with her patient again until Monday, even though she knew he had last taken

5
his Xarelto the Tuesday evening before the surgery. Dr. Byrne testified that the surgery should

not have been scheduled for a Friday because it was Dr. Lee’s “job to check the patient the next

morning to see if the bleeding has stopped. If it has, then [Travis] can automatically restart his

Xarelto.” Dr. Lee “didn’t tell [Travis] when to restart” his Xarelto. Instead, she told him to

restart it “when it stops bleeding,” but that “puts the onus on the patient’s back and says, you

determine when it stops bleeding and then you go back on. Well, that’s not his job. It’s her job

to tell him.” Dr. Byrne explained that it was not Travis’s job to determine “when he has clotted

enough” to go back on his medication; instead, it was Dr. Lee’s job as the surgeon.

Dr. Banchs, Travis’s treating cardiologist at the time of the stroke, testified that he

is a medical director at Scott & White who has administrative duties related to that position but

also sees patients regularly. Half of his practice is A-Fib, and he “pretty much every week”

advises patients like Travis on whether and when to stop and restart taking blood thinners. He

confirmed that Xarelto is a blood thinner, also known as an anticoagulant. Travis began seeing

Dr. Banchs in 2016 “for the management of his atrial fibrillation and his medication related to

atrial fibrillation.” Dr. Banchs described Xarelto as a medication “you can take once a day [that]

inhibits the clotting factors [in blood] and prevents the strokes.” He instructed Travis to stop

taking the Xarelto before the tooth extraction because the “problem with oral anticoagulants is

that when you take them, you’re at risk of bleeding.” He explained that it is “common practice”

to discontinue taking the blood thinner “temporarily” if the patient is going to “undergo a

surgical procedure” that “involves the risk of bleeding.” Dr. Banchs acknowledged that if the

medication is stopped, the risk of stroke increases, and that for someone with the risk factors that

Travis had, his risk of stroke from not taking Xarelto was 2%.

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Dr. Banchs testified that his first contact with Dr. Lee was through a medical-

clearance form that he received from Dr. Lee’s office on July 16, 2018. Dr. Banchs explained

that he signed the form and faxed it back to Dr. Lee the next day, indicating that Travis should

stop taking his Xarelto for the surgical procedure Dr. Lee was planning to perform. However, he

did not indicate anything on the form as to when the medication should be stopped and restarted.

Dr. Banchs testified that in the morning of September 19, 2018, Travis appeared

at his medical clinic “wanting instructions about the anticoagulant and his dental procedure.”

Dr. Banchs was called to his clinic’s front desk by his nurse and spoke with Travis. Dr. Banchs

testified that although he does not remember Travis bringing a second medical-clearance form

with him on that date, there must have been a second form, as “that’s the standard

communication,” and because through the discovery process he learned that there had been a

second form. Dr. Banchs testified that if there was a form, he had “no reason not to sign” it but

that he believed the “most important [thing] was to give [Travis] the instructions and that’s what

[he] recollect[s] the most.”

Dr. Banchs testified that he personally spoke with Travis on September 19 and

told him to stop taking his Xarelto “48 hours” before the procedure. From Dr. Banchs’s review

of the records, he believed that Travis followed his instructions as to when to stop the Xarelto.

Dr. Banchs testified that he told Travis to restart the Xarelto “as soon as there was proper

clotting, that he wasn’t bleeding.” Travis wanted Dr. Banchs to give him a specific restart date,

but Dr. Banchs told him, “I can’t give you a date because I don’t know when the surgery is,

if it’s going to be postponed or not, and I also didn’t know if he was going to bleed or not.”

Dr. Banchs testified that his “habit and practice is to recommend [to patients] as soon as bleeding

is controlled, as soon as there is proper clotting, you can restart right away.”

7
Dr. Banchs testified that Xarelto is a “rapid onset drug,” meaning that

anticoagulation begins “within two to four hours” after a dose, which means that “if you are

bleeding or there is any concern about bleeding and you take it immediately, you are going to be

anticoagulated. You’re going to continue bleeding. So I do explain to my patients you have to

talk to your surgeon. Your surgeon has to tell you if you are bleeding or not, if you are properly

clotting.” Dr. Banchs clarified that with dental procedures, as testimony indicated the previous

day, “the bleeding is evidence. You see the blood coming out. So I explained [to Travis] if you

are bleeding, you cannot take it. If you are not bleeding, you take it right away after the

procedure.” Dr. Banchs believed that he gave clear instructions to Travis about when to stop and

restart the Xarelto and that Travis understood his instructions. Although Dr. Banchs did not

remember a second medical-clearance form, he testified that “90 percent of the time” when a

patient asks when he should restart Xarelto he replies, “ASAP, which means as soon as

possible.” Dr. Banchs believed that if he “wrote something on that form, it would be ASAP

or whenever clotting stops, but it’s a lot faster and quicker and easier to write ASAP.” After

Dr. Banchs spoke with Travis on the morning of September 19, he did not have any further

communication with Travis about when to stop and restart the Xarelto.

Dr. Lee testified that the first medical-clearance form completed and faxed back

to her office from Dr. Banchs’s indicated that Travis should stop taking his Xarelto but did not

specify when he should stop taking it before surgery or when he should restart. Because that

information had not been included, Dr. Lee’s office rescheduled Travis’s surgery date for

September and asked him to take a second medical-clearance form to Dr. Banchs’s office for

completion. Dr. Lee testified that the second form Travis brought back had been completed by

Dr. Banchs’s office and this time specified both a stop date (forty-eight hours before surgery)

8
and a restart date, but she did not recall what was written for the restart date. During her

testimony, Dr. Lee was asked if she remembered that she had previously testified in her

deposition that she could not recall whether any restart date was indicated on that form.

Dr. Lee confirmed that there is nothing in her dental records for Travis, as of

the day of the surgical extraction, indicating when he should have restarted the Xarelto after

the surgical extraction. Dr. Lee testified that Travis had told her, prior to the surgery, that

Dr. Banchs had told him to restart the Xarelto “when he clotted properly.” She testified that

Travis should have been able to determine, just as well as she could, whether he could taste

blood and whether a clot had formed at the extraction site. Dr. Lee admitted that she did not

tell Travis when to restart his Xarelto.

Dr. Lee sent Travis home with a standard, pre-printed post-op instruction sheet.

The sheet indicated,

DO NOT DISTURB THE AREA: For the next few days, and especially the
first 24 hours, it is very important to allow your body to form a good clot and start
the natural healing process. Swishing, sucking through a straw, and smoking can
all dislodge the clot. Keep anything sharp from entering the wound (crunchy
food, toothpicks, eating utensils). Be sure to chew on the opposite side for 24
hours.

BLEEDING: When you leave the office, you might be biting on a gauze pad to
control bleeding. Keep slight pressure on this gauze for at least 30 minutes.
Don’t change it during this time; it needs to remain undisturbed while a clot forms
in the extraction socket. After 30 minutes you may remove it. You may bite on
another moistened gauze or a tea bag for another 30 minutes if you feel it is still
bleeding. Small amounts of blood in the saliva can make your saliva appear quite
red. This is not uncommon and may be noticed the rest of the day after the
procedure.

When Dr. Lee saw Travis on Monday morning, September 24, she advised him to go to the

emergency room because she believed, based on what he’d told her about his visual disturbances

9
and symptoms the night before, that he might have had a stroke. Dr. Lee confirmed that she did

not document her notes from Travis’s surgery until almost midnight on Monday. She wrote in

her notes, “Patient stopped taking Xarelto per cardiologist 48 hours prior to extraction

procedure,” and “Per patient advised by cardiologist to confirm that No. 1 extraction site clotting

properly to continue Xarelto.”

Travis testified that he took the second medical-clearance form to Dr. Banchs’s

office and asked that it be completed. After one of Dr. Banchs’s nurses—Nurse Washek—took

the form to the back office and then returned it to him, it indicated only when to stop the Xarelto

(forty-eight hours before the surgery) but not when to restart it. He inquired about that, and

Washek told him that the restart date is “up to your dentist.” When Travis pressed Washek for a

more definite restart date, explaining that Dr. Lee is not a cardiologist, Washek told him that

Dr. Lee would have to do her “homework.” Travis pressed Washek further because he

recognized that the surgery would be on a Friday and he was not sure when he would see Dr. Lee

again. He asked Washek, “how long can I go” without taking the Xarelto? Travis testified

that Washek told him, “I’ve seen people with your kind of A-fib go for months with no trouble

off of Xarelto at all.” Travis decided to let the issue go, because he knew and trusted Washek.

Contrary to Dr. Banchs’s testimony, Travis denied speaking with or seeing Dr. Banchs on the

day he took the second medical-clearance form to Dr. Banchs’s office; instead, he testified that

he spoke only with Washek.

Travis testified that there was nothing written on the second medical-clearance

form about when to restart the Xarelto; the form only specified when to stop the medication

before the surgery. Travis then took the form to Dr. Lee’s office. He recounted his conversation

with Washek to Dr. Lee and gave the medical-clearance form to her. Then, after the surgery two

10
days later, Travis asked Dr. Lee, “So when do I restart my Xarelto?” Dr. Lee responded, “I’ll

see you Monday morning first thing,” and Travis said goodbye and left.

The verdict and judgment

The jury found that the negligence of both Travis and Dr. Lee proximately caused

Travis’s injury but that Dr. Banchs’s negligence did not proximately cause the injury. The jury

apportioned 75% of the responsibility for Travis’s injury to Dr. Lee, 25% to Travis, and 0% to

Dr. Banchs. The jury awarded Travis the following in damages: $62,500 for past physical pain

and mental anguish; $62,500 for future physical pain and mental anguish; $218,875 for past loss

of earning capacity; $335,267 for future loss of earning capacity; and $1,471,134.54 in future

medical-care expenses. The jury awarded Yolanda $43,391.70 in loss of household services

sustained in the past and $130,175.10 for future loss of household services.

In rendering judgment, the trial court added in pre-judgment interest on past

damages and reduced each category of damages by 25% (for Travis’s responsibility), resulting in

the following total damages awards: $1,446,577.21 to Travis and $143,325.30 to Yolanda, plus

post-judgment interest and court costs. Dr. Lee filed a motion for new trial and request for

remittitur, which was denied by operation of law, and then perfected this appeal.

DISCUSSION

Dr. Lee raises six issues on appeal. She contends that the trial court erred in

admitting and excluding evidence (issues two and three) and had improper communications with

the jury by announcing Dr. Banchs’s settlement and by having the off-the-record discussion

with the jury (issues one and four). In issue six, she contends that there is legally and factually

insufficient evidence to support the jury’s findings that she was negligent and that her negligence

11
proximately caused Travis’s injury and that there is factually insufficient evidence to support the

jury’s allocation of no fault to Dr. Banchs. In issue five, she contends that the cumulative effect

of multiple trial errors resulted in an unfair trial that requires reversal.

Admission and exclusion of evidence

Dr. Lee argues in her second issue that the trial court abused its discretion in

admitting exhibits 82, 83, and 85. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998) (noting that standard of review for evidentiary rulings is abuse of discretion).

Exhibit 82 is a one-page table offered during the testimony of Dr. Stan Smith (the plaintiffs’

expert economist) summarizing his contemporaneous testimony about Travis’s lost earning

capacity due to the stroke. Exhibit 83, also offered during Dr. Smith’s testimony, is a one-page

table summarizing his contemporaneous testimony about the lost value of the household services

that Travis can no longer perform due to his stroke. Exhibit 85 is a three-page chart offered

during the testimony of Dr. Leigh Ann Levy, the plaintiffs’ expert life-care planner, summarizing

her opinions regarding the future medical-care expenses that Travis will have due to his stroke.

The trial court does not abuse its discretion in matters of evidence “if there is

any legitimate basis for the ruling.” Id. Moreover, “[e]rroneous admission of evidence requires

reversal only if the error probably (though not necessarily) resulted in an improper judgment.”

Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Dr. Lee objected to exhibits

82 and 83 on the grounds of hearsay and that they were summaries of voluminous writings for

which the proper predicate had not been laid. See Tex. R. Evid. 801, 1006. However, the tables

in exhibits 82 and 83 depict the same data that Dr. Smith had just discussed for the jury while the

table was being shown to them as part of his testimony. For instance, Dr. Smith testified that

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when Travis is age 77, his estimated cumulative earnings since his stroke would have been

$1,209,575, which is the same number for that age as depicted on the exhibit 82 table that was

admitted. Because Dr. Smith testified as to the same information as that depicted in the tables,

the tables were not hearsay but instead written expressions of the very testimony he was

contemporaneously providing. Cf. id. R. 801 (defining “statement” and “hearsay”). Nor were

the tables summaries of voluminous writings; instead, as Dr. Smith explained, they were the

product of various calculations that he had performed based on life-expectancy information,

salary research, inflation, taxes, and the difference between a person’s earning “capacity” and

his wages. Cf. id. R. 1006 (“Summaries to Prove Content”). There were, therefore, legitimate

bases for the trial court’s overruling Dr. Lee’s objections.

Similarly, exhibit 85 was shown to the jury while Dr. Levy testified about its

individual components. After Dr. Levy specifically testified about the different categories of

future medical and life-care expenses and the dollar amounts she had estimated for each, the

plaintiffs’ attorney offered the exhibit for admission. Dr. Lee first argues on appeal that exhibit

85 was improperly admitted under Rule 901 because it was not “properly authenticated.”

However, Dr. Lee does not explain how Rule 901’s requirements were not met, instead arguing

that the numbers contained therein “were offered as truth of the cost of Plaintiffs’ future medical

needs without any foundation or evidence of such needs.” See Tex. R. Evid. 901 (providing that

to authenticate item of evidence, proponent must “produce evidence sufficient to support a

finding that the item is what the proponent claims it is,” and that such authentication may

occur through testimony of witness with knowledge “that an item is what it is claimed to be”).

But Dr. Levy had just testified at length, without objection, about the additional diagnostic

evaluations, treatments, medical equipment, and medications that Travis will likely require as a

13
result of his stroke. We disagree with Dr. Lee that the exhibit was not properly authenticated

under Rule 901 or was not supported by evidence of Travis’s future needs.

Dr. Lee also argues that exhibit 85 should not have been admitted because it

likely confused and misled the jury because the numbers contained in the table did not

“accurately reflect the present-day value of the goods and services.”2 But Texas law does not

require specific evidence of the discount rate or that a party introduce evidence of present

value because the jury is qualified to make the calculation based on its common knowledge of

interest rates. See Rangel v. Robinson, No. 01-05-00318-CV, 2007 WL 625042, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 1, 2007, pet. denied) (mem. op.); General Motors Corp. v.

Burry, 203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied). In personal-injury

actions, the trier of fact must assess damages to accrue in the future on the basis of their dollar

amount if they were presently paid in cash. Rangel, 2007 WL 625042, at *2. The jury was

instructed to calculate all damage awards as a sum “if paid now in cash,” and we must presume

that the jury followed such instruction.3 See id. We conclude that the trial court did not abuse its

discretion in admitting exhibit 85. We overrule Dr. Lee’s second issue.

In her third issue, Dr. Lee argues that the trial court abused its discretion by

excluding from evidence the audio recordings of two phone calls made by Maria Gorostieta, an

employee of Dr. Lee, to Travis and Yolanda to discuss the litigation after it was apparent that a

lawsuit was imminent. Dr. Lee argues that in the phone calls, the Hawkinses admitted that they

2
Dr. Lee also argues that the exhibit was inadmissible hearsay, but she did not preserve
that issue because she did not object to the exhibit’s admission on that basis.
3
The jury awarded Travis $1,471,134.54, compared to the total of $2,754,108.79 to
which Dr. Levy testified and that was depicted on the chart, indicating that the jury may well
have discounted the amounts to present value.
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believed Dr. Banchs, and not Dr. Lee, was the one responsible for Travis’s injuries by giving him

“remarkably bad advice” and that it was a surprise to the Hawkinses that their attorney was also

suing Dr. Lee. Dr. Lee argues that these statements were “critical impeachment evidence that

directly contradicted Plaintiffs’ trial testimony, and their exclusion caused the rendition of an

improper judgment, as evidenced by the jury’s failure to attribute negligence to Dr. Banchs.”

As with the alleged erroneous admission of evidence, the erroneous exclusion of

evidence will support reversal only if the error probably resulted in the rendition of an improper

judgment. See Owens-Corning, 972 S.W.2d at 43. To make this determination, a court must

determine whether the excluded evidence was “crucial to a key issue” and, if so, reverse the

judgment unless the evidence was cumulative or “the rest of the evidence was so one-sided that

the error likely made no difference.” Id.

The record reflects that Dr. Lee played the recordings for the court outside the

presence of the jury so that the court could rule on the Hawkinses’ objections to their admission.

The Hawkinses objected to admission of the recordings on several bases: that they were

protected by the attorney-client privilege, that the calls were made at the request of Dr. Lee’s

insurance carrier even though the carrier and Dr. Lee knew that the Hawkinses were represented

by counsel, that the calls would be unduly prejudicial because a reference to the Hawkinses’

insurance would be necessary to understand the calls’ context, and that the statements therein

were lay-witness opinions about medical standards of care and thus inadmissible on that issue.

The trial court, in excluding the recordings, informed Dr. Lee that she could ask Gorostieta—

who was the next witness to testify—about the substance of the phone conversations as long as

the questions did not elicit anything about the Hawkinses’ communications with their attorneys.

However, Dr. Lee did not question Gorostieta about the calls.

15
Dr. Lee argued at trial, and reasserts on appeal, that the recordings were offered as

proof of the previous subjective beliefs of the Hawkinses about the negligence or relative fault of

Dr. Lee and Dr. Banchs, and to impeach their later blaming Dr. Lee more than Dr. Banchs for

negligently causing Travis’s stroke. However, a witness who is not a testifying expert cannot

give opinion testimony unless it is “rationally based on the witness’s perception” and “helpful to

clearly understanding the witness’s testimony or to determining a fact in issue.” See Tex. R.

Evid. 701. Standards of care for the health industry and whether conduct falls below those

standards are not a matter of common knowledge about which a lay person would be competent

to testify. Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex. App.—Corpus

Christi–Edinburg [1st Dist.] 1999, no pet.); see Tilotta v. Goodall, 752 S.W.2d 160, 163 (Tex.

App.—Houston [1st Dist.] 1988, writ denied) (“Lay witness testimony about negligence and

proximate cause has no probative force in a medical malpractice action.”). Moreover, were the

Hawkinses competent to testify about the standard of care, the recordings would not have served

as impeachment evidence because neither Travis nor Yolanda testified to any probative opinion

about the applicable standards of care or whether either Dr. Lee or Dr. Banchs breached those

standards. Ultimately, what Travis and Yolanda believed about the relative fault of Dr. Lee and

Dr. Banchs was not probative of the fact questions for the jury—that is, their beliefs were not

“crucial to a key issue,” see Owens-Corning, 972 S.W.2d at 43—and thus, it was not reversible

error for the trial court to exclude the recordings. We overrule Dr. Lee’s third issue.

Evidentiary sufficiency

In her sixth issue, Dr. Lee argues that the evidence is legally and factually

insufficient to support the jury’s finding that she was negligent and that her negligence

16
proximately caused Travis’s stroke. She also argues that the evidence is factually insufficient to

support the jury’s finding that Dr. Banchs was not negligent and its allocation of no fault to him

for Travis’s stroke.4

In reviewing for legal sufficiency, “we view the evidence in the light most

favorable to the verdict, crediting favorable evidence when reasonable jurors could do so and

disregarding contrary evidence unless reasonable jurors could not.” Pike v. Texas EMC Mgmt.,

LLC, 610 S.W.3d 763, 794 (Tex. 2020). A party challenging the legal sufficiency of an adverse

finding on which it did not bear the burden of proof at trial “must demonstrate on appeal that no

evidence supports the adverse finding.” Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261,

263 (Tex. 2014) (per curiam). In reviewing for factual sufficiency, “we examine the entire

record and consider and weigh all the evidence, both in support of and contrary to the challenged

finding.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When a party attacks the factual

sufficiency of an adverse finding on which it did not bear the burden of proof, we will set aside

the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). Under either

standard, the trier of fact is the sole judge of the credibility of witnesses and the weight to be

given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

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In the same issue, Dr. Lee also asserts that (1) the evidence “does not support the jury’s
damages awards” and (2) the trial court erred in “denying remittitur of excessive damages”
because the evidence of damages is factually insufficient. However, she devotes only one
paragraph to each of these arguments and cites nothing in the record to support the second;
she has therefore waived the second argument due to inadequate briefing. See Tex. R. App.
P. 38.1(i). For the first argument, the only evidence she cites are the exhibits we have already
determined were properly admitted, arguing that they were not properly authenticated and thus
erroneously admitted; we accordingly overrule that argument.
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In citing evidence to support her argument, Dr. Lee focuses solely on her own

testimony and that of her witnesses to demonstrate that she followed standard dental practices

and fails to account for contradictory evidence that supports the verdict on negligence. For

example, Dr. Byrne testified that Dr. Lee did not advise Travis to restart the Xarelto the night

after the procedure, as she should have, and that Dr. Lee should have checked in with her

patient the next morning to verify that there was no bleeding and to instruct him to resume the

medication. Evidence showed that the first time there is any notation in Dr. Lee’s records about

when Travis should restart the Xarelto is from just before midnight on the Monday following the

Friday procedure—after Dr. Lee testified that she already suspected Travis had suffered a stroke.

In the notation, Dr. Lee says that Travis told her that Dr. Banchs had told him to restart the

Xarelto when the bleeding stopped; yet Travis testified that he did not tell Dr. Lee that

Dr. Banchs had told him when to resume the drug. Moreover, the only copy of the second

medical-clearance form—about which the record is conflicting as to what Dr. Banchs wrote on

it, if anything, as to when to restart the drug—went missing after Travis provided it to Dr. Lee’s

office. It was never scanned into Travis’s medical record at Dr. Lee’s office, despite that being

the office’s general practice, and no party was able to produce it in discovery.

Dr. Byrne unequivocally explained to the jury that it was Dr. Lee’s duty to

properly instruct Travis when to resume his Xarelto:

And she [Dr. Lee] didn’t tell him when to restart. She said if it – when it stops
bleeding, and puts the onus on the patient’s back and says, you determine when it
stops bleeding and then you go back on. Well, that’s not his job. It’s her job to
tell him . . . somebody had to give permission to restart. Not the patient, the
dentist, who is the surgeon, and not the cardiologist.

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Dr. Banchs likewise corroborated that the duty to instruct Travis to resume Xarelto was on the

dentist, as the “proceduralist,” and that the decision of when to restart medication should not be

left to the patient. We conclude that legally and factually sufficient evidence supports the jury’s

finding that Dr. Lee was negligent.

As to proximate cause, both Dr. Byrne and Dr. Gregg Zoarski, M.D.—an

interventional neuroradiologist—testified that had Travis been instructed by Dr. Lee to resume

his Xarelto on Friday evening or Saturday morning after the procedure, he probably would not

have suffered a stroke. Dr. Byrne explained the research showing that Xarelto resumes its

anticoagulant effect and prevents strokes within thirteen hours after a dose is taken in a man of

Travis’s age. Thus, as Dr. Byrne explained, had Dr. Lee properly followed up with Travis to

confirm there was no bleeding that Friday evening or the Saturday morning after the procedure,

and instructed him to restart his Xarelto on either occasion, then the full effect of the medication

would have been reached Saturday evening at the latest and would have prevented his stroke late

Sunday night. Dr. Zoarski testified that Travis’s being off his Xarelto “was the cause” of his

stroke and that the stroke most likely would have been prevented had he resumed the medication

Friday evening or Saturday morning.

Similarly, Dr. Kenneth Clyde Fischer, the plaintiffs’ expert neurologist, testified

that Travis’s not restarting his Xarelto before Sunday, September 23, 2018, was the cause of his

stroke. He explained that when a person has A-Fib, “there is a five to eightfold increased risk of

stroke. That risk is reduced by medicines like Xarelto by 80 percent or more. If, however, the

Xarelto is suspended, it has a relatively short half-life, and after a relatively short period of time,

the benefit it has is gone.” Dr. Fischer explained further that, during the four or five-day period

when Travis was off his Xarelto, its anticoagulative effect “was gone, and the stroke occurred.”

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He opined that, “unquestionably, the cause of his stroke was the lack of Xarelto in that critical

period of time.” Like Dr. Byrne and Dr. Zoarski, Dr. Fischer testified that had Travis been

instructed to resume taking his Xarelto the Friday evening or Saturday morning following the

extraction, his stroke would have been prevented. Dr. Fischer confirmed that Xarelto has a

“rapid onset of action” and provides a “protective value” within four hours of taking it and a

“therapeutic level” within twelve to twenty-four hours.

Furthermore, although Dr. Lee cites discrete portions of the testimony of Dr.

Jennifer Elizabeth Rasmussen-Winkler—the neurologist who performed a stroke consultation of

Travis when he was in the hospital—to support her proximate-cause arguments, other portions of

Dr. Rasmussen-Winkler’s testimony unequivocally point to Travis’s being off his medication too

long as the cause of his stroke. For instance, to support her contention that proximate cause was

not proven, Dr. Lee cites Dr. Rasmussen-Winkler’s testimony that “the hypercoagulability risk”

from being off Xarelto occurs at the 120th hour after being off the medication. Dr. Lee argues

that Travis’s stroke occurred before the 120th hour and therefore could not have been caused by

his being off the Xarelto because until that hour, he had “normal coagulation factors.” However,

this argument both suffers from a factual flaw—Travis had indeed been off his medication for

close to 120 hours when the stroke occurred because evidence showed his last dose had been

taken on Tuesday night—and ignores other portions of Dr. Rasmussen-Winkler’s testimony, in

which she explained that (1) the 120th hour is merely the peak risk on a gradual bell curve with

ever-increasing stroke risk for each hour after the last dose was taken; and (2) hypercoagulability

was not the only risk factor for stroke in this case because Travis’s A-Fib further increased the

risk from his being off his medication. Furthermore, Dr. Rasmussen-Winkler answered “yes” to

the question, “And are you essentially saying that Mr. Hawkins had a stroke as a result of

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stopping Xarelto?” We conclude that the evidence is legally and factually sufficient to support

the jury’s finding that Dr. Lee’s negligence was a proximate cause of Travis’s stroke.

As to the jury’s finding that Dr. Banchs was not negligent and its allocation of no

fault to him, we conclude that there is factually sufficient evidence to support the finding. To

support her argument on this issue, Dr. Lee cites the testimony of her expert, Dr. Joseph Boyle,

DDS, who stated that it is reasonable and prudent for a dentist to rely on (a) the recommendation

of a patient’s treating cardiologist about when to stop and restart Xarelto and (b) her patient’s

following his medical providers’ instructions. But even had the jury given weight and credibility

to such testimony, that testimony was not inconsistent with Dr. Byrne’s and Dr. Banchs’s

testimony that it was Dr. Lee’s responsibility to confirm that Travis had stopped bleeding and

had properly clotted before informing him to restart the Xarelto—which was the condition for

restarting the Xarelto that Dr. Banchs testified he had notated on the second medical-clearance

form and informed Travis about. The only cardiologist to testify about the standard of care for

cardiologists was Dr. Banchs himself, and he testified that he had not breached any standard of

care because the duty was on Dr. Lee as the surgeon to give Travis instructions regarding

restarting Xarelto after the procedure. We cannot say that the jury’s finding of no negligence on

the part of Dr. Banchs was against the great weight and preponderance of the evidence, and we

accordingly overrule Dr. Lee’s sixth issue.

Trial court’s communications with the jury

In her first issue, Dr. Lee argues that the trial judge improperly announced to the

jury that Dr. Banchs had settled with the plaintiffs and that such announcement harmed her by

influencing the jury’s allocation of fault. She contends that the judge’s announcement that

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Dr. Banchs had settled—which was “good news”—“created a substantial risk that the jury

would adjust its findings on liability and damages.” This, Dr. Lee further argues, led the jury to

answer “No” to the question of whether Dr. Banchs’s negligence proximately caused Travis’s

injury and likewise caused the jury to find that Dr. Banchs had no comparative responsibility for

Travis’s injury.

However, Dr. Lee did not preserve this alleged error because she did not object to

the announcement or make a request for a limiting instruction at the time. See Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001) (acknowledging that party fails to preserve error about

trial court’s alleged improper conduct or comment if no contemporaneous objection is made

unless such comment or conduct cannot be rendered harmless by proper instruction); see also

Tex. R. App. P. 33.1(a)(2)(A) (error-preservation rule). When a party fails to make a timely

objection and attempt to cure in response to a claimed error of this type at trial, such issues are

reviewable on appeal only if the issue concerns “incurable error.” See Dow Chem., 46 S.W.3d at

241. The claimant bears the burden to explain how any comments made by the trial judge were

incurable or would excuse the claimant’s failure to preserve error. Id. Because a retraction or an

instruction from the trial judge can generally cure any probable harm, there are only “rare

instances” where “the probable harm or prejudice cannot be cured.” Standard Fire Ins. v. Reese,

584 S.W.2d 835, 839 (Tex. 1979).

Specifically, informing a jury of a party’s settlement is the type of error that

courts have determined can be cured by an instruction to disregard. See Salazar v. Payan,

676 S.W.3d 752, 756 (Tex. App.—El Paso 2023, no pet); Columbia Med. Ctr. of Las Colinas v.

Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.—Fort Worth 2003, pet. denied); Beutel v.

Paul, 741 S.W.2d 510, 513–14 (Tex. App.—Houston [14th Dist.] 1987, no writ). Dr. Lee has

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not cited any applicable authority supporting her argument that the trial court’s announcement to

the jury about Dr. Banchs’s settlement constituted incurable error. She needed, therefore, to

object to the statement and request an instruction to cure. Because she did not, she has not

preserved her first issue for our review.

In her fourth issue, Dr. Lee contends that the trial court’s ex parte, private

communication with the jury after dismissing one of the jurors on the first day of trial likely

resulted in an unfair trial and “raised concerns about impartiality,” which violated her due-

process rights. She argues that such communication, combined with the trial judge’s

immediately preceding comments about his wife’s being the victim of medical malpractice

and his frustration with the jury, reflect judicial bias or at least the appearance of partiality.

However, as with the previous issue, Dr. Lee did not object to the trial court’s ex parte comments

to the jury or request any limiting or curative instructions and therefore did not preserve the issue

for review. See Dow Chem., 46 S.W.3d at 241. She also has not cited any relevant legal

authority for the proposition that a judge commits reversible error merely by talking to a jury

outside the presence of counsel, or that a reviewing court is to presume anything other than that a

sitting trial judge is being forthright about what has occurred in the jury room. Cf. United States

v. Gagnon, 470 U.S. 522, 526 (1985) (“The mere occurrence of an ex parte conversation between

a trial judge and a juror does not constitute a deprivation of any constitutional right.”).

Furthermore, to the extent that Dr. Lee argues the trial judge lacked impartiality

or created an appearance of partiality by having the challenged private conversation just after

making his comments about his family members’ occupations and malpractice experience,

allegedly as “reflected in subsequent discretionary rulings that disfavored Dr. Lee,” we disagree.

After reviewing the entire record, we fail to detect any improper judicial bias on the part of the

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trial judge. See Dow Chem., 46 S.W.3d at 240–41 (observing that to support challenge of bias or

partiality, judge’s comments must show “a deep seated favoritism or antagonism that would

make fair judgment impossible”); Holmes v. GMAC, Inc., 458 S.W.3d 85, 93 (Tex. App.—El

Paso 2014, no pet.) (overruling argument that trial court’s comments showed deep-seated

antagonism or bias when considered in context in which they were made and entire record). We

have concluded that the challenged evidentiary rulings were not an abuse of discretion and, when

viewing the trial judge’s summary of what he told the jury in its proper context, there is no

record support for Dr. Lee’s allegation of partiality or the appearance thereof. We overrule Dr.

Lee’s fourth issue.

Cumulative errors

In her fifth issue, Dr. Lee contends that the above-discussed alleged errors by the

trial court cumulatively resulted in an unfair trial and “undermined the integrity of the trial.” She

argues that even if the individual alleged errors are each deemed harmless, their “cumulative

effect” deprived her of a fair trial and requires reversal. See Owens-Corning Fiberglass Corp. v.

Malone, 916 S.W.2d 551, 570 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35

(Tex. 1998) (“Multiple errors, even if considered harmless taken separately, may result in

reversal and remand for a new trial if the cumulative effect of such errors is harmful.”).

However, we have determined that the trial court did not make the errors asserted

and preserved by Dr. Lee and, therefore, there are no errors to cumulate. We overrule Dr. Lee’s

fifth issue.

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CONCLUSION

Having overruled Dr. Lee’s appellate issues that were properly preserved, we

affirm the trial court’s final judgment.

__________________________________________

Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: September 18, 2025

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