SOUTHEAST TEXAS RECORD

Finding that a jury charge question was "harmless," the Ninth Court of Appeals affirmed a lower court's ruling and declined to give a child psychiatrist a new trial.

Dr. James Grubbs filed suit against Memorial Hermann Baptist Beaumont Hospital after his contract was terminated in 2004, alleging he was let go for reporting illegal Medicare billing practices.

Conversely, the hospital claimed Grubbs' contract was terminated because he "failed to use his best efforts to bill and collect," court papers say.

As the Southeast Texas Record previously reported, on Oct. 22, 2009, a Jefferson County jury sided with Memorial Hermann, finding that Grubbs failed to comply with the agreement he signed.

Court records show that jurors awarded the hospital $156,081 in damages -- money that Grubbs received from the hospital.

After failing to obtain a new trial, Grubbs filed an appeal last April, arguing that the evidence does not support the jury's verdict, court papers say.

Grubbs further contended on appeal that the trial court improperly submitted a jury question asking which party first breached the agreement, arguing that the question confused the jury and misled the jury into believing that the issue of who breached first was determinative.

On July 14 Ninth Court justices issued an opinion affirming a lower court's ruling not to grant a new trial, opining that once the jury determined that Grubbs, not the Hospital, breached the agreement, the question would not have altered the effect of the jury's verdict.

"Assuming without deciding that the trial court abused its discretion by submitting question 3 to the jury, we conclude that any error is harmless," writes Chief Justice Steve McKeithen.

"Considering the probable effect on the minds of the jury in the light of the entire jury charge, we further conclude that question 3 did not confuse the jury or mislead the jury into believing that who breached first was the determining factor.

"Accordingly, we cannot say that the error probably caused the rendition of an improper judgment or prevented appellant from properly presenting his case on appeal. We overrule issue three. Having overruled Grubbs' three issues, we affirm the trial court's judgment."

During the trial, Grubbs testified that computer problems kept him from his billing duties.

Defense attorney David Bernsen openly called Grubbs' computer problems an "excuse" as he testified, prompting plaintiff's attorney Gary Cornwell to object to his counterpart's "sidebar."

The contract, court records show, called for Baptist Beaumont to reimburse Grubbs up to $20,000 a month for one full year.

Hypothetically speaking, Bernsen said, if Grubbs collected $5,000 in the month of February 2004, then the hospital would be on the line to pay him $15,000 - and if Grubbs made nothing, then Baptist Beaumont would be on the hook for the full $20,000.

Bernsen is attorney for the Beaumont law firm Moore Landrey.

Cornwell has a practice in Beaumont.

Judge Donald Floyd, 172nd District Court, presided over the trial.

Trial case No. A173-730
Appeals case No. 09-10-00190-CV