
    Dennis and Michelle WILLIAMS, Appellants, v. Annie BRISCOE and Linda Hardrick d/b/a Hardrick & Associates, Appellees.
    No. 01-03-00074-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 18, 2004.
    
      • Mary M. Wagner, Wagner Law Firm, Houston, for appellant.
    Annie Briscoe, Houston, pro se.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION

EVELYN V. KEYES, Justice.

This is an appeal of a judgment notwithstanding the verdict (JNOV) rendered in favor of defendants/appellees, Annie Bris-coe and Linda Hardrick d/b/a Hardrick & Associates, after a jury awarded plaintiffs/appellants, Dennis and Michelle Williams, $265,000 in damages for legal malpractice based on the alleged mishandling of an underlying negligence suit against a dialysis clinic.

In four issues, appellants contend that the trial court erred in rendering the JNOV because there was more than a scintilla of evidence demonstrating that (1) a judgment in the underlying case would have been recoverable and collectible; (2) the dialysis clinic was negligent; (3) damages resulted from the negligence; and (4) the evidence justified the award of exemplary damages.

Because appellants failed to establish that they would have prevailed in the underlying medical negligence cause of action — a necessary prerequisite to prevailing in the legal malpractice suit — we affirm.

Factual & Procedural Background

Before his death in 2001 during the pen-dency of this suit, Dennis Williams was morbidly obese, partially blind, and in end-stage renal failure resulting from insulin-dependent diabetes. Three times a week, he underwent dialysis at the Gambro North dialysis clinic in Houston. In September 1995, Williams stepped on a piece of glass that punctured his foot. It appears from the record that the clinic disinfected the wound, bandaged it, and instructed Williams to apply bacitracin, a topical antibiotic. Michelle Williams testified that the dialysis clinic personnel periodically asked about the condition of the wound over the next few weeks, but apparently did not re-treat Williams’s foot, inject him with antibiotics, or supply a prescription for oral antibiotics.

On October 11, 1995, Williams consulted with his podiatrist, Dr. Gary Lepow. De-pew’s notes from his examination indicate that Williams was suffering from a “grade 1 approaching grade 2 ulceration” on his left foot. Williams informed Lepow that the dialysis clinic was recommending an unspecified “invasive procedure” to treat the foot wound. Lepow ordered home health wound care and indicated he intended to discuss administration of antibiotics with Williams’ dialysis physician. Although Williams was instructed to return to see Lepow in a week, he did not keep the appointment. Approximately 10 days later, Williams was admitted to Hermann Hospital for emergency treatment of the wound. Because the foot was gangrenous, the doctors determined that it was necessary to amputate most of Williams’s left leg. Williams also underwent hyperbaric treatment that was intended to speed healing of the surgical wound, but that had the side-effect of seriously impairing Williams’s hearing.

In 1997, appellants hired Briscoe to sue for damages. Briscoe brought a medical malpractice action against Hermann Hospital under article 4590i of the former Texas Medical Liability and Insurance Improvement Act. In adherence to the prerequisites of article 4590i, Briscoe provided the hospital records to Dr. Robert Hodgell to obtain his expert evaluation. In his report, Hodgell essentially cleared Hermann Hospital and its physicians of any medical error. Hodgell did not have records to review from the dialysis clinic or other treating doctors/nurses/home health aides, but noted in pertinent part as follows:

I do have some serious concerns about the instructions given him, regarding the proper care of injuries in an insulin dependent diabetic. Therefore, I would recommend looking at the management of the patient prior to hospitalization .... Furthermore, the treatment at 1.5 weeks prior to hospitalization, which consisted of only a topical bacterial ointment, is totally inadequate therapy in an insulin dependent diabetic. In addition, at that time, the patient may have already shown signs of cellulitis and probably should have been referred to a surgeon. Furthermore, the hemodialy-sis unit caring for the patient during the 3 months prior to hospitalization, may also have ignored symptoms of the foot injury which probably would have been evident during his 3 times a week hemo-dialysis. The left foot was probably bandaged and was apparently not properly examined or evaluated by hemodial-ysis personnel. Therefore, if anyone is responsible for the events that resulted in the ultimate loss of hearing, it is the medical personnel who cared for the patient prior to admission to the hospital.

Briscoe also obtained a second expert report in 1999 from Dr. Jeffrey Stone of Wound Care Consultants. It is not clear from the letter (or elsewhere in the record) precisely what documents Stone reviewed, and the letter is very brief, but Stone informed Briscoe, “I have reviewed the case at length and have found that they [sic ] met the standard of care in their treatment and concern.”

These expert reports notwithstanding, Briscoe filed an article 4590i suit against Hermann Hospital and some of its in-house physicians, but she did not name the dialysis clinic or any of its personnel in the suit. Briscoe did not file a medical negligence suit against any of the parties. This fact was significant because the article 4590i medical malpractice suit was dismissed for want of an adequate expert report. Providing an expert report in advance of litigation is not a procedural step required in a medical negligence action; therefore, lack of an adequate expert report would not have been a reason to dismiss such an action.

In the instant case, Katherine Young-blood, an attorney who specializes in health care claims defense, testified that, because a dialysis clinic is not enumerated in the statute, a medical negligence cause of action should have been brought against the clinic rather than an article 4590i cause of action. Accordingly, appellants’ suit for legal malpractice was based on Bris-coe’s failure to file a negligence action against the dialysis clinic, not on the dismissal of the article 4590i suit.

Before charging the jury, the trial court dismissed the article 4590i claims against Hermann Hospital and its staff, and it dismissed Hardrick from this suit. The only issue remaining for the jury to determine was whether Briscoe committed legal malpractice by not pursuing a medical negligence claim against the dialysis clinic. The jury determined that Williams would have recovered on the original claim against the dialysis clinic had the claim been properly prosecuted and awarded him $50,000 in damages. The jury also awarded Michelle Williams $15,000 in damages and $200,000 in exemplary damages.

Briscoe’s motions for summary judgment, directed verdict, and JNOV were all based on the same grounds — appellants would have been successful in the underlying medical negligence suit against the dialysis clinic because there was no evidence of negligence, no evidence of recoverable, collectible damages, and no evidence of malice. The trial court granted the JNOV without specifying the basis for its ruling.

Standard of Review

A trial court may disregard a jury’s verdict and render a JNOV if there is no evidence to support the jury’s findings or if a directed verdict would have been proper. Brown v. Bank of Galveston, 963 S.W.2d 511, 513 (Tex.1998). To determine whether the trial court erred in rendering a JNOV, we consider only the evidence and reasonable inferences that support the jury’s answers. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). In other words, we view the evidence in the light most favorable to the verdict. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is more than a scintilla of competent evidence to support the jury’s findings, this Court should reverse the JNOV. Old Republic Ins. Co. v. EX-IM Services Corp., 920 S.W.2d 393, 396 (Tex.App.-Houston [1st Dist.] 1996, no writ). When the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions, the evidence comprises more than a scintilla. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

Analysis

To recover on a claim for legal malpractice, a plaintiff must prove that the attorney (1) owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused plaintiffs injuries; and (4) the plaintiff was damaged. Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). When a legal malpractice claim arises from earlier litigation, the plaintiff also bears the burden to prove he would have prevailed on the underlying cause of action. Id.; Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ refd n.r.e.). In addition, a plaintiff must prove the amount of damages he would have recovered and collected in the underlying case if it had been properly prosecuted. Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989). Evidence that damages could have been collected is required because, even if an attorney’s negligence prevented the entry of a judgment in the client’s favor, the client suffered no damage unless he could have collected some part of that judgment. Vanasek v. Underkofler, 50 S.W.3d 1, 8 (Tex.App.-Dallas 1999) rev’d in part on other grounds, 53 S.W.3d 343 (Tex.2001). This aspect of plaintiffs burden is commonly referred to as the “suit within a suit” requirement. Greathouse, 982 S.W.2d at 173. Thus, to prove that Briscoe committed legal malpractice, appellants had to prove that she failed to bring a medical negligence claim against the dialysis clinic, that the medical negligence claim would have been successful, that it would have resulted in damages, and that those damages would have been collectible.

In her motion for JNOV, Briscoe addressed the “suit within a suit” burden and contended there was no evidence to show that the underlying suit for medical malpractice would have been successful; that being so, appellants could not establish their legal malpractice claim, and JNOV was appropriate. To prevail on the underlying medical negligence claim, i.e., the suit within the suit, the appellants had to prove four elements: (1) the dialysis clinic’s duty to act according to a certain medical standard; (2) the clinic’s breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of the standard of care and the injury. See Day v. Harkins & Munoz, 961 S.W.2d 278, 280 (Tex.App.-Houston [1st Dist.] 1997, no writ). Briscoe argued that none of the elements of medical negligence by the dialysis clinic were established by the evidence presented by appellants at trial. She also argued that there was no evidence to show that the clinic was solvent and no evidence to show that damages resulting from a successful negligence suit against the clinic would have been recoverable and collectible, as required to establish legal malpractice. Thus, appellants did not show that Briscoe had a duty to bring a medical negligence claim against the clinic or that they were harmed by her failure to do so. Finally, Briscoe argued that there was no evidence to show that she acted with malice, as necessary to support an award of exemplary damages.

Because the trial court did not state the grounds for its JNOV ruling, appellants have challenged each of Briscoe’s contentions, arguing in four issues for review that there was more than a scintilla of evidence to negate each of the grounds upon which the JNOV could have been granted. See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991) (noting that appellant must challenge all grounds in motion if JNOV does not state ground). Appellants argue that they adduced evidence sufficient to support the jury’s findings because Youngblood’s testimony established that Briscoe mismanaged the negligence claim, that the claim did not need to be brought under article 4590i, that the value of the claim was between $100,000 and $500,000, and that, had Youngblood been defending the dialysis clinic, she would have advised them that there was at least an 80% chance of its being found liable. Appellants conclude that the jury reasonably inferred from this testimony that the dialysis clinic would have been found hable and would have had to pay damages. Appellants also argue that there was sufficient evidence to support the jury finding that a judgment in the medical negligence suit would have been collectible because they showed that the dialysis clinic was settling claims during the relevant time period and that the clinic remained in business for the next six years; thus it was clearly solvent and had sufficient assets from which they could have recovered. Briscoe reiterates on appeal her contention that this evidence amounted, in essence, to no evidence at all to show that appellants would have won the underlying suit for medical negligence. We agree.

To prove their legal malpractice claim, appellants were required to show that, but for Briscoe’s legal malpractice, they would have recovered on their medical negligence claim against the dialysis clinic, ie., they were first required to shoulder the burden of providing competent evidence in regard to each element of medical negligence— duty, breach, injury, and proximate cause — thereby showing that they would have prevailed on the “suit within the suit.” In other words, appellants were required to present enough evidence from which a jury could have found that (1) the clinic had the duty to act according to a certain medical standard; (2) the clinic breached the applicable standard of care; (3) Williams was injured; and (4) there was a causal connection between the clinic’s breach of the standard of care and Williams’s injury. See Day, 961 S.W.2d at 280.

In determining whether appellants produced sufficient evidence with respect to them “suit within the suit” to withstand the JNOY, we consider only the evidence favorable to the jury’s findings, which consists of Hodgell’s expert report and Youngblood’s testimony.' Hodgell’s report indicates that Hodgell had serious concerns about Williams’ care and the instructions given him before he went into the hospital. In the report, Hodgell states that treatment at 1.5 weeks prior to hospitalization consisting only of a topical bacterial ointment was “totally inadequate therapy in an insulin-dependent diabetic.” He further states that “at that time the patient may have already shown signs of cellulitis and probably should have been referred to a surgeon” and that “the hemo-dialysis unit caring for the patient during the 3 months prior to hospitalization, may also have ignored symptoms of the foot injury which probably would have been evident during his 3 times a week hemo-dialysis.” (Emphasis added.) However, nothing in the report specifies a standard of care for the clinic, states how the clinic breached that standard of care, or identifies the causal connection between the clinic’s breach of duty and Williams’s injury. At best, Hodgell’s report indicates that the care accorded Williams by the clinic and its effect on his condition were questions to be explored. Hodgell’s report, therefore, creates no more than a surmise of negligence by the clinic.

Youngblood testified on the type of suit Briscoe should have brought against a negligent dialysis clinic and said that, had she been defending against such a suit, she would have advised the clinic that it had an 80% chance of being found hable. She testified to this, however, as a legal expert, not a medical expert. Youngblood did not review any of the medical records, did not speak directly with appellants, obtained all of the information about Williams’s injury solely from appellants’ counsel, and did not consult a medical expert regarding the standard of care or how the clinic breached that standard. The record indicates that Youngblood simply assumed the clinic was negligent and based her conclusions solely on that assumption, without providing the clinic records, identifying the proper standard of care, or offering evidence showing who breached the standard, and how. The clinic may have been negligent. Nevertheless, Youngblood’s evidence, like Hodgell’s, does not establish the necessary elements of medical negligence. Aside from Hod-gell’s report and Youngblood’s testimony, there is no other evidence in the record concerning these elements that is favorable to the jury’s findings.

We hold that appellants did not raise more than of a scintilla of evidence to prove they would have prevailed in the medical negligence suit against the dialysis clinic. Accordingly, they failed to establish that Briscoe committed legal malpractice by failing to bring a medical negligence claim against the clinic. We overrule issues one and two presented for review. Given this holding, we need not determine whether any damages would have been collectible against the clinic or whether appellants showed that Briscoe acted with malice, justifying an award of exemplary damages; accordingly, we decline to addi'ess issues three and four.

We affirm the trial court’s judgment. 
      
      . Briscoe, appellants’ attorney, did not obtain records from the dialysis clinic at the time she was handling the underlying suit and appellants did not offer them during the legal malpractice trial. This information is reflected in the record in a report from another of Williams’s treating physicians and from Michelle Williams's testimony.
     
      
      . Act of August 29, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (formerly codified at Tex.Rev.Civ. Stat. Ann. art. 4590i, §§ 1.01-16.02), repealed by Act of September 1, 2003, 78th Leg., R.S. ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884.
     
      
      . Although Briscoe contends in her brief that Dr. Stone reviewed records from the dialysis clinic, neither the letter nor the pages referenced in the record show this to be true. It may have been true, but it is impossible to tell because the clinic records are not mentioned specifically in the letter or in the testimony. Thus, we do not know who "they” are.
     
      
      . The parties disagreed at trial about whether the dialysis clinic should have been sued under article 4590i or under a general negligence cause of action. While appellate courts have reached differing conclusions about the scope and breadth of article 4590i’s application to entities not specifically named in the statute, one court has held that a dialysis center is not governed by article 4590i, but instead is subject only to suit for personal injury. Finley v. Steenkamp, 19 S.W.3d 533, 542 & n. 6 (Tex.App.-Fort Worth 2000, no pet.).
     
      
      .Appellants believed that Hardrick was Bris-coe's legal associate, but she was not.
     