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[W] Healthcare Centers of Texas3/7/2002
ay seem to be, or whatever may seem to be its omission, courts cannot . . . make it apply to cases to which it does not apply, without assuming functions that pertain to the legislative department of the government." Turner v. Cross, 83 Tex. 218, 224, 18 S.W. 578, 579 (1892). We recognize this is a case of first impression with regard to interpretation of section 41.005. Finding no ambiguity in the statute, it is our considered opinion that section 41.005 bars plaintiff's recovery of punitive damages if the corporation cannot be held criminally responsible. The legislature, by enacting section 41.005, sought to curb punitive damage awards where the harm resulted from the criminal act of a third party. The plaintiff has presented no evidence of any exception to that statute; therefore, we conclude that section 41.005 bars recovery of punitive damages. LaPorte's first issue is sustained.
LaPorte next contends the jury's finding of malice is not supported by sufficient evidence. In its second and third issues, LaPorte challenges the assessment and the amount of punitive damages. The jury finding that Healthcare Centers, through its vice-principal, acted with malice could entitle the plaintiff to a recovery of punitive damages. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (holding that a corporation can be liable for punitive damages if it commits gross negligence or malice through the actions or inactions of a vice-principal). In this case, however, the efficient cause of plaintiff's harm was the intentional criminal act of Mr. Jones. In enacting section 41.005 of the Civil Practice and Remedies Code, the legislature excluded recovery of punitive damages in cases where, under common law, punitive damages might have been recoverable. § 41.005. Because section 41.005 bars recovery of punitive damages despite the jury finding of malice, we need not address the sufficiency of the evidence to support the malice finding or the amount of punitive damages. See id.
Bystander Recovery
In its fourth issue, LaPorte first contends that Mrs. Rigby's recovery for bystander injuries is precluded by the Medical Liability Insurance Act. See TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon Supp. 2002). The MLIA was enacted to alleviate a perceived medical malpractice insurance crisis by reforming health care liability laws to ensure affordable health care by reducing medical malpractice insurance rates. See id. § 1.02(a)(5), (b). The act applies only to a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety that proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract. Id. § 1.03(a)(4). The definition of health care provider includes a nursing home. Id. § 1.03(a)(3).
In holding that a bystander could not recover in a medical malpractice case, the Supreme Court stated:
The very nature of medical treatment is often traumatic to the layperson. Even when a medical procedure proves to be beneficial to the patient, it may shock the senses of the ordinary bystander who witnesses it. A bystander may not be able to distinguish between medical treatment that helps the patient and conduct that is harmful. A physician's primary duty is to the patient, not to the patient's relatives. Guided by these policy concerns, we hold that Texas' bystander cause of action precludes bystander recovery in medical malpractice cases. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997).
The event that Mrs. Rigby witnessed was not a medical procedure being admini
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