Full opinion text
OPINION PATRICK A. PIRTLE, Justice. Appellant, THI of Texas at Lubbock I, LLC, (THI), d/b/a Southwest Regional Specialty Hospital (Southwest Hospital) appeals from a judgment entered following a jury trial in a medical malpractice action seeking wrongful death and survival damages in favor of Appellees, Max Perea, Mario Perea, Tony Perea, and George Per-ea (collectively Perea), and the estate of their deceased father, Jacob Perea (Jacob). In support, THI asserts: (1) the trial court erred by denying THI’s proposed jury instruction on negligence; (2) the trial court erred by permitting Appellees to amend their petition during trial to assert an action for negligent credentialing/hiring; (3) the trial court erred by granting judgment on Appellees’ negligence theories; (4) Ap-pellees’ evidence of gross negligence was legally and (5) factually insufficient; (6) the trial court erroneously excluded THI’s testimony regarding an in-house investigation into the circumstances of Jacob’s death; and (7) the trial court failed to apply certain statutory liability caps to the damage awarded in Appellees’ favor. We reverse the trial court’s judgment and remand the case for further proceedings. Background In December 2005, Appellees filed a medical malpractice action against THI, Pharmasource Healthcare, Inc. and Omni-care Inc., d/b/a Pharmasource Healthcare, Inc. (collectively Pharmasource), seeking wrongful death and survival damages. Appellees’ amended petition alleged that Southwest Hospital’s nurses were negligent and grossly negligent in administering two fatal doses of Ativan to Jacob despite information known to Southwest Hospital’s staff and located in his medical records indicating he had an allergy to Ativan. Appellees asserted THI and Pharmasource acted with negligence, gross negligence, and malice. I. Trial Amendment During their case-in-chief, Appellees elicited testimony from Leonard Espinoza, a former charge nurse at Southwest Hospital who allegedly wrote an unauthorized order prescribing Ativan for Jacob, that he had, prior to being employed by THI at Southwest Hospital, similarly administered Ativan to a patient without a physician’s authorization and was disciplined by the Colorado Board of Nurse Examiners. Af-terwards, Appellees sought to amend their original petition to allege THI was negligent for credentialing or hiring Espinoza because “it knew or should have known [Espinoza] was incapable of providing safe and competent care to” Jacob. The trial court permitted the amendment. II. Evidence at Trial-Medical Malpractice Claim In 2004, Jacob was a seventy-eight year old widower with four sons — Tony, George, Max, and Mario. He had a history of heart disease complicated by respiratory issues and diabetes. Nevertheless, until he experienced a fall in November 2004, Jacob spent his time maintaining seventeen acres of land owned by his sons. During the summer, he arose at 5:00 a.m. to mow and shred the land, quit at 10:00 a.m. due to the heat and then resumed at 6:00 p.m. He cleaned his own home and did not regularly use a walker or cane. He performed these tasks despite intervening gallbladder and heart surgeries. In April 2004, Jacob was admitted to Covenant Medical Center in Lubbock, Texas, to have his gallbladder removed. While at Covenant, Jacob experienced confusion and was sedated with morphine and Ativan. Two days later, his cardiologist noted Jacob’s “confusion [was] worse” and that “he may be over-sedated.” Later, the same day, his cardiologist noted Jacob “was still confused, too sedated,” and suspended the use of Ativan. The following day Jacob’s neurologist noted Jacob was sitting in a chair, quite alert and attentive but still confused. His neurologist also noted that “holding ... other potentially sedating meds is also working.” Two days after the medication change, Jacob was discharged. Several days after returning home, Mario observed that his father’s “mind was straight.” In May, Jacob was again seen at Covenant complaining of abdominal pain. On admission, his physical exam showed he was awake, alert, and able to answer questions reasonably well. His final diagnosis prior to discharge was acute renal failure. The discharge also stated Jacob was “not in clinic for congestive heart failure, medications adjusted, no episode of chest pain or shortness of breath, had baseline chronic renal insufficiency.” In June, Jacob returned to Covenant complaining of confusion and chest pain. During a consultation, his doctor noted Jacob had received Ativan the night before for agitation and appeared alert. His doctor opined that Jacob “likely has baseline dementia [with] secondary decompensation due to medical problems, change in environment, etc.” His doctor subsequently issued an order to avoid Ativan. Jacob was later discharged home with continuation of home medications. His discharge summary indicated “[n]o acute interaction planned ... cardiac status-wise.” In July, Jacob underwent a successful coronary bypass surgery. Within weeks after the surgery, Jacob was driving and attending to his normal schedule. His doctors told Mario that morphine, prescribed for Jacob in the hospital, was causing him to be disoriented at home and Ativan was a major problem for Jacob. His discharge summary indicated there were no “operative complications, able to discharge home — stable condition.” In September, Jacob was admitted to Covenant suffering from shortness of breath. His doctor recommended Jacob continue his current heart medications while considering dialysis for chronic renal failure. Jacob was discharged three days later. His discharge summary stated “nothing acute, medications, home with family.” In October, Jacob was admitted with complaints of shortness of breath. He was treated and “discharged in good condition.” In early November, Jacob was admitted to Covenant complaining of abdominal pain. He had missed his regularly scheduled dialysis and was feeling poorly with fluid overload. After a consultation, his doctor diagnosed Jacob as suffering from “congestive heart failure secondary to fluid overload.” He recommended Jacob be discharged after dialysis and continue his current heart medications. In late November, Jacob returned to Covenant complaining of a fall. His vital signs were stable. A CT scan showed a slight cervical spine fracture and he was placed in a collar. On examination, his doctor noted he was a “well-developed and well-nourished male who [was] sedated but arousable and follow[ed] commands.” His doctor recommended Jacob undergo an MRI but recommended the test be delayed until the next day because Jacob was “too sedated [and] his myonclonus is too jerky for his MRI; at this time.” His overall treatment plan was to admit Jacob, perform dialysis, resume his medication, and closely monitor. During a discussion on December 1, Jacob’s family informed Covenant’s medical staff that Jacob became confused on Ati-van. The staff then listed Ativan as an allergy for Jacob and notified the pharmacy. On December 2, Dr. C.J. Wheeler wrote an order indicating Jacob was sensitive to “Ativan/Benzodiazepines.” For the MRI, he ordered that Jacob be sedated with Demerol and Versed with an antidote available in case of over sedation. Prior to the MRI, Jacob was given Versed to sedate him while the MRI was being performed. Four hours later, Jacob went into cardiac arrest. He was intubat-ed and placed on a breathing machine or ventilator. Naidu Chekuru, M.D., performed a consultation and noted that “[a]n MRI was planned; as [Jacob] was too restless I believe they gave him Ativan which led to cardiopulmonary arrest” and “[h]e was required to be intubated and ventilator support.” A Covenant charge nurse’s report showed Jacob was allergic to morphine and Ativan. The allergies were also listed in his Restraint Assessment, Physician Order and Documentation Protocol: “Allergies: Morphine/Ativan.” On December 12, Jacob was discharged from Covenant and transferred to Southwest Hospital, a skilled nursing facility, under the care of Kenneth Michael Rice, M.D. The narrative summary indicated Jacob, on admission, was “neurologically intact, stable cardiac evaluation.” Recommendations included a neck brace to immobilize Jacob’s neck and continuation of antibiotics. The discharge summary noted that Jacob was “released in stable condition” and he was “ALLERGIC TO LORA-ZEPAM AND MORPHINE.” On December 15, Nurse Jahomo admitted Jacob to Southwest Hospital at approximately 4:40-4:45 p.m. Jacob’s original chart from Covenant indicated he had allergies to morphine and Ativan. In addition, Covenant’s patient transfer form listed Ativan in the area related to drug sensitivity. Nurse Jahomo filled out a nursing assessment form indicating Jacob was allergic to Ativan, placed an allergy sticker on his chart and an allergy bracelet on his wrist. On Dr. Rice’s admitting orders, Nurse Jahomo wrote that Jacob had allergies to morphine and Ativan. She testified that, from the information she initially put in the medical records, every nurse who later cared for Jacob on every shift should have known he was allergic to morphine and Ativan. That evening, Dr. Rice received a call from Mario who was requesting to take his father home. Dr. Rice spoke to Mario and explained that his father had suffered a serious fracture and might be paralyzed if not properly taken care of. Mario relented but informed Dr. Rice that his father had allergies or side effects to morphine and Ativan. Dr. Rice assured Mario that Southwest Hospital had procedures to “guard against such a thing happening.” On December 16, Dr. Rice noted in Jacob’s “History and Physical: Allergies: Morphine and Ativan.” In an early morning Nursing Documentation Report (“NDR”), the nurse acknowledged: “Allergies; MS04 [morphine], Ativan.” This acknowledgement was carried over to the NDR for the next shift beginning at 7:00 p.m. which also listed morphine and Ativan as allergies for Jacob. The NDR and Dr. Rice’s progress note dated December 17 both indicated Zyprexia was effective for treating Jacob. A physical examination showed “cardiovascular, regular rate and rhythm, chest — • bilateral breath sounds are diminished throughout.” The NDR for the shift ending at 7:00 a.m. on December 17 indicated the nurse had received the prior report and assumed care. Jacob received Zypre-xia which he tolerated well and was resting. The Report also listed morphine, Ati-van, and Demerol as allergies for Jacob. A second NDR for the 7:00 p.m. shift also listed Jacob’s allergies as Ativan and Demerol. On December 18, Kimberly Graham, Dr. Rice’s Nurse Practitioner, examined Jacob. She observed Jacob was a little sedated, but calm. She checked his breathing status, vital signs, noted his oxygen saturations, respiratory rate, and “didn’t see anything abnormal.” She testified she had no discussions with Espinoza, the charge nurse then responsible for Jacob’s care, while she was at the hospital. She also testified that she did not write an order permitting Espinoza to administer Ativan to Jacob. She testified that, if she had changed the prescription to Ativan, she would have had a prior discussion with Dr. Rice, and, if approved, written or phoned in an order prescribing a much lower dose than 2 mg. and discontinued Zyprexia — none of which occurred. Nurse Frances Rosales was assigned to Jacob from 7:00 a.m. to 7:00 p.m. on December 18. She testified that to familiarize herself with Jacob, she reviewed his MAR and physician’s orders for her shift — neither of which alerted her to Jacob’s allergies. She also could not recall whether Jacob was wearing an allergy bracelet. At 1:00 p.m., she testified Jacob became upset, tried to get out of bed, and was agitated. At 2:00 p.m., she medicated him with Zyprexia to calm him. At 6:00 p.m., she testified Jacob was attempting to climb out of bed and she notified her supervisor, charge nurse Espinoza. She testified Espinoza told her to administer Ativan to Jacob. She gave Jacob two milligrams. For the remainder of her shift, she testified Jacob rested with his eyes closed. Espinoza testified that, as charge nurse, he managed the staff of floor nurses and any communications to a physician came through him. Espinoza testified he “believe[d]” he contacted Kimberly Graham by telephone and she gave him the order for Ativan. Although, on examination, he first denied ever giving Ativan to a patient without a doctor’s authorization, he later conceded on cross-examination that he administered Ativan without a doctor’s order when he was a nurse in Colorado and was disciplined for that conduct. He agreed it was extremely dangerous to give Ativan without a doctor’s order and, after the Colorado incident, he realized he had put the patient in Colorado in extreme risk. He testified further that “[i]n December 18, 2004, he knew what extreme risk of harm he could put [Jacob] in by giving him Ativan without a doctor’s orders.” He also agreed that, “if he wrote the order, he would be consciously disregarding [Jacob’s] health, safety and welfare.” Nurse Rosales reported Jacob’s condition to Nurse Rick Joiner who was assigned to care for Jacob for the 7:00 p.m. to 7:00 a.m. shift. Nurse Joiner looked at Nurse Rosales’s NDR, Jacob’s MAR, and his CARDEX — neither of which he testified indicated Jacob had an allergy to Ati-van. He noticed that, on Nurse Rosales’s NDR, Jacob had received a two milligram dose of Ativan earlier. At 1:80 a.m., when Jacob was again acting agitated, Nurse Joiner administered a second two milligram dose of Ativan to Jacob. Before administering the drug, he noticed a pink band on Jacob’s wrist but, because it was not one of theirs, he did not attend to it. Nurse Joiner checked on Jacob at 3:30 a.m. and noted Jacob’s “respiration [was] even, unlabored.” At 5:40 a.m., he noted that Jacob was “sleeping quietly in bed.” Nurse Joiner did not check Jacob’s vital signs and testified each of these visits lasted a maximum of thirty-five seconds. When his shift ended at 7:00 a.m. on December 19, Nurse Joiner left the hospital. Fifteen minutes later, at 7:15 a.m., Joiner’s replacement discovered Jacob had no vital signs and was unresponsive. CPR was started at 7:18 a.m., Jacob was intu-bated at 7:27 a.m., EMS obtained a good pulse and Jacob was transported to Covenant where he was admitted for respiratory failure. Southwest Hospital’s discharge summary did not list Ativan as a medication received by Jacob. After arriving at Covenant, Jacob was again intubated and placed on ventilation support. Dr. Wheeler examined Jacob and noted he was “currently obtunded, probably secondary to Ativan injection.” Dr. Wheeler noted that “allergies noted on [Southwest Hospital’s] history show morphine and Ativan.” Under medications, Dr. Wheeler stated: “[Jacob] was recently given Ativan 2 mg IV push q. 4 hours p.r.n., he has received two doses of this over the last 24 hour period.” Dr. Wheeler’s problem list was, in pertinent part, as follows: “1. decreased mental status, previous agitation; 2. respiratory failure now on ventilator and intubated ... 7. congestive heart failure with elevated BNP.” He noted Jacob’s “heart had a regular rate and rhythm,” and, under allergies, he wrote: “MS04 AND ATIVAN.” The admission report of consulting physician Srinivas Kadiyala noted Jacob was found at Southwest Hospital “unresponsive and in cardiorespiratory arrest.” She also stated: As per the nursing staff on the floor, the patient apparently had a respiratory arrest when he was in this hospital a few weeks ago. It was felt he was sensitive to Ativan at the time of the CT scan study. There was little, or no, change in Jacob’s condition during the following week and, after a long discussion, Jacob’s family decided to place him as do-not-resuscitate. Jacob expired shortly after he was removed from the ventilator. III. Expert Testimony Expert testimony at trial centered around whether Jacob’s death was caused by the administration of the two doses of Ativan by Southwest Hospital’s nurses on December 18 and 19. A. Appellees’ Expert— Joe Haines, M.D. Joe Haines, M.D., testified that, in his opinion, Southwest Hospital’s nurses were negligent in Jacob’s care and treatment. He testified Southwest Hospital’s nurses administered the Ativan despite extensive documentation of his allergy. He also testified their negligence caused Jacob’s death. Based on his experience, he testified common side effects from Ati-van range from sedation and respiratory depression (not taking enough breaths or not breathing deeply enough) to agitation and confusion. He also testified Ativan’s manufacturer listed respiratory depression as the top adverse reaction to the drug and an overdose of Ativan can cause respiratory depression to the extent the person’s heart stops. Based upon Jacob’s past medical history that indicated Jacob had experienced serious problems with Ativan, in particular his cardiac arrest subsequent to being sedated for an MRI at Covenant, he opined the dosage was too high for Jacob considering his age, his sensitivity to the drug, the drug’s side effects, and Jacob’s multiple health problems. Dr. Haines opined that, after Jacob received the second two milligram dose of Ativan at 1:30 a.m. on the morning of December 19, he was overdosed and over-sedated causing his breathing to become increasingly more shallow until there was insufficient oxygen to support the functions of the heart or brain causing his heart to go into arrhythmia until Jacob suffered a cardiac arrest and finally quit breathing altogether due to respiratory depression. Dr. Haines testified that prior to the multiple doses of Ativan, the medical records did not show Jacob was experiencing irregular heart rhythms that were dangerous or any symptoms indicating a heart attack, i.e., chest pains, nausea, shortness of breath. He also testified that, although Jacob did not undergo a medical test to determine whether he had an actual “allergy” to Ativan, there was sufficient evidence in his medical records to show he reacted badly to the drug, i.e., Jacob quit breathing four hours after receiving Versed (a faster acting drug of the same class as Ativan-Benzodiazepine) prior to the MRI at Covenant. Dr. Haines testified that the documentary evidence showed his physicians had seen enough evidence and been sufficiently warned by Jacob’s family to show “the doctor’s [sic] [were] obviously concerned, and they are concerned enough to enter it on the chart, so that everybody that looks at the chart that day will see that.... So it’s basically putting everybody on alert. Don’t use this drug on this patient.” Although he recognized that Jacob’s reaction to Ativan might be characterized in his medical records as an “allergy,” “sensitivity,” “adverse reaction” or “paradoxical reaction,” he testified “[w]hat is important is that they didn’t want him to have [Ativan], because it was bad for him to have [Ativan], and they should have known that and not given it to him.” Dr. Haines opined that the administration of the two doses of Ativan to Jacob by Southwest Hospital’s nurses involved an extreme degree of risk considering the probability and magnitude of potential harm to Jacob. Further, Dr. Haines opined that Espinoza had actual awareness of the risk involved but proceeded with conscious indifference to the rights, safety, and welfare of Jacob. In sum, Dr. Haines opined that Southwest Hospital and its nurses were grossly negligent. B. THI’s Experts — Stacey Hail, M.D. and Kenneth Rice, M.D. Stacey Hail, M.D., opined that the two doses of Ativan did not proximately cause Jacob’s death. Rather, she testified he died of a heart attack. She testified Jacob’s medical records indicated he had a long history of coronary artery disease that resulted in scar tissue on his heart from past heart attacks. The scar tissue was irritable and had a tendency to cause arrhythmias, i.e., an accelerated heart rate. In her opinion, an arrhythmia caused Jacob’s heart attack and he died from a fatal ventricular tachyarrhythmia. In support, she relied on approximately fifteen pages of telemetry strips obtained from heart monitors attached to Jacob on December 1, 3, 5, 6, 10, 14, and 15 while he was at Covenant. She also relied on the results of a blood test taken on December 19 at 8:00 a.m., an hour after Jacob had been found unresponsive at Southwest Hospital and been admitted to Covenant. The blood test showed positive troponins measuring .26 indicating to her that Jacob had suffered a heart attack. Later, at midnight (sixteen hours after Jacob had coded at Southwest Hospital), Jacob’s troponin level measured 1.23. In addition, she testified his Basic Metabolism Panel (BMP) was greater than 5,000 indicating the “possibility” of congestive heart failure. She further testified Ativan did not cause Jacob’s death because he did not have an allergy to the drug and Ativan does not affect the cardiac muscle. She testified Ativan works on the same brain receptor that alcohol does and the drug makes you sleep — the higher the dose the longer you sleep. She testified Ativan does not cause respiratory depression based upon her experience with suicidal patients she had seen in the emergency room. She opined that “two milligrams of Ativan is, by no means, an overdose,” based on her experience in the emergency room where she has prescribed “a dose of eight milligrams at one time.” Dr. Rice opined that Jacob died from his underlying medical conditions. After his first visit with Jacob, he noted his multiple medical problems and concluded Jacob was “at a very high risk for respiratory failure, SCD [sudden cardiac death], and fluid overload.” In support, he also relied on Jacob’s troponin levels and an elevated BMP of 5,000, both measured after Jacob was transferred from Southwest Hospital to Covenant. In his opinion, Covenant’s laboratory results “proved conclusively that [Jacob] suffered an acute myocardial infarction and, most likely, based on his history and underlying medical problems, was the cause of his death.” Dr. Rice testified Jacob’s death was not consistent with an overdose of Ativan because: (1) there is no scientific evidence that Ativan causes respiratory depression or distress; (2) heart attacks or sudden cardiac death usually occur within a very short period of time; and (3) he would have expected to see an adverse reaction from the Ativan within several minutes or hours. On cross-examination, however, Dr. Rice agreed that respiratory failure is a side effect of Ativan reported by its manufacturer and decreased oxygen from decreased respirations can cause brain injury. Although he testified there was no scientific proof Ativan causes respiratory depression or failure, he conceded the side effect was listed by the manufacturer as a possible side effect. He also agreed that complications from taking a drug of the benzodiazepine class include obtundation— a level of consciousness before a coma. He testified that he did not want Jacob to take Ativan because: (1) it is well known in literature that Ativan, in geriatric patients or in a severely ill patient, can cause a paradoxical result; (2) becoming more agitated was the type of reaction to Ativan described by Jacob’s son; (3) he did not want Jacob to become significantly agitated because he had a bad heart, underlying disorders, and a C2 fracture; and (4) he did not want Jacob to raise his heart rate, nor put him on any type of stimulus that might cause him to have a heart attack or complicate his actions. IV. Evidence at Trial — Negligent Credentialing/Hiring In Appellees’ case-in-chief, Dr. Haines was asked whether a director of nurses or administrator of a facility should have some involvement in ensuring the employment of competent nurses. Dr. Haines responded that a person in that position should research the references of people that they hire, i.e., they should determine the nature and extent of them training and their past employment record. They should also learn whether there were problems at previous hospitals, and they should investigate any previous firings or allegations of inappropriate conduct. Espinoza testified that, in September 1997, he agreed to a stipulated order from the State Board of Nursing in Colorado placing him on probation for administering Ativan to a patient without a physician’s order and failing to document the drug’s administration while working at a care center in Colorado Springs, Colorado. The conditions of his year-long probation were: (1) service while employed as a nurse for at least an average of thirty-two hours a week under adequate supervision by a licensed nurse with an unrestricted license; (2) board notification of the commencement or termination of such nursing employment; (3) submission of a written plan of nursing supervision for the Board’s review and approval within six months of obtaining nursing employment; (4) completion of Board-approved education courses (twelve to fifteen hours of legal/ethical course(s); one credit pharmacology course); (5) provision of a copy of the stipulated order to the immediate nursing supervisor at his place of employment; (6) submission of a written report to the Board acknowledging, among other things, that the stipulated order was read and that the role of nursing supervisor was understood by that supervisor; and (7) in the event of relocation to another state, Espinoza would notify the Board of his change of address and give consent to the Board that it may notify the Board of Nursing of the state to which Espinoza relocated of the existence of the terms of and Espinoza’s compliance with the stipulated order. Espinoza testified that, after the complaint in Colorado was filed, he relocated to Texas and immediately started to practice as a nurse without disclosing the complaint or the Colorado Board proceedings. When the stipulated order was entered, he did not disclose that fact to his employer, Methodist Hospital in Lubbock, Texas, and he did not comply with any of the obligations required by that order. From June 1996 to April 1997, Espinoza worked at Methodist Hospital. From May 1997 to September 2001, he worked at Highland Medical Center under the supervision of Connie Long. During the hiring process, although he did disclose his previous employment in Colorado, the Colorado Board disciplinary proceedings never came up. Sometime in 1997, more than six years prior to the incident giving rise to this litigation, Espinoza did speak to Long about his probation in Colorado. Espinoza testified that in 2002 Long recruited him to work at Southwest Hospital. He testified that, at the time, even though she was aware of his stipulated order with the Colorado Board of Nursing, she did not have a problem putting him on the floor and permitting him to dispense medications to patients. Espinoza further testified that in early 2005 he informed Long that he had a drug addiction. Notwithstanding this admission, Long continued to permit him to work at Southwest Hospital. On December 22, 2005, just over a year after Jacob’s death, Espinoza was discharged by Long and Southwest Hospital Administrator Deanna Graves. In May 2007, Espinoza surrendered his license to the Texas Board of Nurse Examiners pursuant to an agreed order. The agreed order indicated that from approximately July 28, 2005, through August 8, 2005, Espinoza misappropriated morphine and Demerol from Southwest Hospital’s computerized medicine dispensing system and took the medicine himself without proper authorization. The order further indicated that he had used the drugs for his own use and not the patients, and that at times he was impaired on duty — sleepy, sleep-walking, running into walls, falling asleep at patients’ bedsides. In addition, it was determined that he had inserted an external jugular venous catheter into a patient without authorization. During trial, Dr. Rice was asked whether a nurse whose license was suspended in 1997 for giving a medication to a patient without having obtained a doctor’s order was unfit for employment as a nurse in 2004, and he responded “no.” He further testified that it was okay to hire such a nurse if he or she had done everything they were supposed to do as required by the board of nurse examiners to rectify the mistake. He opined that nurses that go through rehabilitation deserve a second chance because they have complied with the board’s orders related to probation or suspension. If not, he testified, they would not have a license and could not work. He further testified that a nurse “out there writing orders without permission puts a patient in an extreme risk, if put in extreme risk, could suffer injury to the patient’s life.” V. Jury Instructions Following the presentation of all the evidence, the trial court issued its jury charge stating, in pertinent part, as follows: QUESTION 1 Did the negligence, if any, of those named below proximately cause the injury in question? Answer “Yes” or “No” for each of the following: Southwest Regional Specialty Hospital Pharmasource Healthcare STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES — GENERAL NEGLIGENCE; INTENTIONAL PERSONAL TORTS, PJC 4.1 (2008). QUESTION 3 What sum of money would have fairly compensated Jacob Perea for— a. Pain and mental anguish ... means the conscious physical pain and emotional pain ... experienced by Jacob Perea before his death as a result of the occurrence in question.... STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES — SURVIVAL DAMAGES, PJC 10.2 (2008). QUESTIONS 4-7 What sum of money, if paid now in cash, would fairly and reasonably compensate [Mario, Max, Tony, George] for [their] damages, if any, resulting from the death of Jacob Perea? STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES — WRONGFUL DEATH DAMAGES, PJC 9.3 (2008). THI sought to replace Question 1 with the following language: “[d]id the negligence, if any, of the ones named below proximately cause the death of Jacob Per-ea?” (Emphasis added). Appellant also made the following objection, in pertinent part, to the charge: [T]he question should be a question about whether the negligence of either of the two Defendant parties proximately caused the death of Mr. Perea.... And I say this because only in the event that the negligence of the Defendants caused the death of Mr. Perea are wrongful death beneficiaries entitled to recover. If the jury were to believe that some act or omission by the employees of Southwest .... or Pharmasource ... caused an injury to Mr. Perea, but not his death, then the wrongful death beneficiaries would not be entitled to recover.... The only evidence of injury in this case is death. So the Court’s Charge should reflect that, and the jury’s answer should also reflect that they are actually answering the question that would permit recovery of wrongful death beneficiaries. [Emphasis added]. VI. Judgment Thereafter, the jury found THI and Pharmasource proximately caused the injury in question and awarded Jacob’s estate $159,718.40 in damages for pain and mental anguish, medical expenses, and funeral and burial expenses. Jacob’s sons were each awarded $100,000 for past loss of companionship and society, future loss of companionship and society, past mental anguish, and future mental anguish for a total of $400,000. The jury also found that Southwest was grossly negligent and awarded exemplary damages of $1,250,000. Based upon these jury findings, the trial court entered a judgment decreeing that Appellees recover from THI the sum of $1,696,895.50. In its judgment, the trial court apportioned Appellees recovery as follows: Mario Perea, individually $ 347,283.82 Max Perea $ 347,283.82 Tony Perea $ 347,283.82 George Perea $ 347,283.82 Total Judgment — Soutlvimst Regional Specialty Hospital $1,696,895.50 Thereafter, THI filed a motion for judgment notwithstanding the verdict, remitti-tur, and to modify, correct, or reform the judgment. The trial court denied THI’s motion and its motion for reconsideration. This appeal followed. Discussion THI asserts: (1) the trial court abused its discretion by using a broad-form jury instruction on negligence and proximate cause when Appellees sought survival and wrongful death damages; (2) the trial court abused its discretion by granting Appellees a trial amendment to assert an action for negligent eredentialingdiiring because the amendment was prejudicial to the presentation of THI’s defense; (3) Ap-pellees’ evidence was legally and factually insufficient to support a judgment on then-claims of negligent eredentialing/hiring and factually insufficient to support Appel-lees’ claim of negligence, i.e., that THI’s conduct proximately caused Jacob’s death or the nurses at Southwest Hospital were negligent in the performance of their duties; (4) Appellees’ evidence that THI was grossly negligent is legally and (5) factually insufficient; (6) the trial court abused its discretion by excluding evidence of the fact that THI had conducted an investigation related to Jacob’s death; and (7) the trial court abused its discretion as a matter of law by failing to apply statutory damage caps in sections 41.008(b) and 74.301(b) of the Texas Civil Practice and Remedies Code. I. Juiy Instruction A. Standard of Review We review a trial court’s decision to submit or refuse a particular jury instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006). See In the Interest of V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). Although a trial court has great latitude and considerable discretion to determine necessary and proper jury instructions; see Tex.R. Civ. P. 277; H.E. Butt Grocery Company v. Bilotto, 985 S.W.2d 22, 23 (Tex.1998), the trial court abuses its discretion if “the court acts arbitrarily, unreasonably or without reference to guiding principles of law.” McWilliams v. Masterson, 112 S.W.3d 314, 317 (Tex.App.-Amarillo 2003, pet. denied). When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the juiy to render a proper verdict. Shupe, 192 S.W.3d at 579 (citing Tex. Workers Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000)). Further, omission of an instruction is harmful, or reversible error, only if the omission probably caused the rendition of an improper judgment; Tex.R.App.P. 44.1(a), 61.1(a); see Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex.2003); and is harmless “when the findings of the jury in answer to other issues are sufficient to support the judgment.” Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980). See City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (a jury question may be immaterial, or harmless, “when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict”). Whether harm exists is viewed in the context of the whole charge. Boatland, 609 S.W.2d at 749-50. B. Wrongful Death and Survival Actions The Texas Survival Statute permits a decedent’s heirs, legal representatives, and estates to bring actions for personal injuries the decedent suffered before his death; see Tex.Civ.Prac. & Rem. Code Ann. § 71.021 (Vernon 2008), while the Texas Wrongful Death Act confers a cause of action upon the surviving spouse, children, and parents of a decedent for their damages resulting from the decedent’s death. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002, 71.004 (Vernon 2008). To establish a cause of action under either statute, the claimant must establish a death and the occurrence of a wrongful act. Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.). If negligence is alleged as the wrongful act, the claimant must show that the defendant’s negligent act or omission was a substantial factor in bringing about the decedent’s death, and without it, the decedent’s death would not have occurred. See Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008) (citing IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004)). The difference between the two statutes is the nature of the damages that may be recovered and who may collect them. The purpose of the Texas Survival Statute is “to continue a decedent’s cause of action beyond death to redress decedent’s estate for decedent’s injuries that occurred before he died.” Borth v. Charley’s Concrete Co., 139 S.W.3d 391, 395 (Tex.App.-Fort Worth 2004, pet. denied). See Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 2008). On the other hand, the purpose of the Wrongful Death Act is to permit a surviving husband, wife, child, and parents of the decedent to bring a cause of action to redress their injuries resulting from the decedent’s death. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002, 71.004, 71.010 (Vernon 2008). Here, the gist of Appellees’ action is that Southwest Hospital’s nurses wrongfully administered two doses of Ativan to Jacob proximately causing his death. Jacob’s estate sought to recover Jacob’s damages for injuries he suffered prior to his death and Jacob’s sons sought to recover damages they suffered because of his death. Thus, in order to recover, Appellees were required to prove THI breached a duty owed to Jacob and the breach proximately caused the damages sought by Jacob’s estate and sons. Hogue, 271 S.W.3d at 246. To determine whether Southwest Hospital was negligent, the trial court chose to charge the jury with the Texas Pattern Jury Charge or Broad Form Charge for Joint Submission of Negligence and Proximate Cause. See STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES-GENERAL NEGLIGENCE; INTENTIONAL PERSONAL TORTS, PJC 4.1 (2008). Although the Texas Pattern Jury Charges are not “law,” they are heavily relied upon by bench and bar and based on what the State Bar Committee perceives the present law to be. H.E. Butt Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex.App.-San Antonio 1996), aff'd, 985 S.W.2d 22 (Tex.1998). See Borden, Inc. v. Price, 939 S.W.2d 247, 254 (Tex.App.-Amarillo 1997, writ denied). The trial court’s charge instructed the jury that, absent a proper legal definition for a term, the jury should attribute the “meaning commonly understood” to the words in the charge. Given the facts of this ease and the similarity in the meanings of the terms “injury” and “death,” as a precipitant to damages, we cannot say that, as a matter of law, a reasonable juror would have been misguided by the trial court’s instruction. This is particularly so when the vast majority of the evidence at trial, both testimonial and documentary, was related to Jacob’s manner of death and whether the Ativan dosage caused his death. In fact, during the trial court’s hearing on the jury instructions, THI’s counsel affirmatively stated that “[t]he only evidence of injury is death.” Further, while a Comment to PJC 4.1 addressing use of the terms “occurrence” or “injury” suggests that “[i]n a case involving death, the word ‘death’ may be used instead of ‘injury’ (emphasis added), this Comment addresses circumstances where there may be evidence of a plaintiffs negligence that is “injury-causing” or “injury-enhancing” but not “occurrence-causing.” This Comment is inapplicable insofar as THI points to no evidence of record establishing that any negligence by Jacob, or by any other third party, may have either caused or enhanced his injury or death. Furthermore, THI did not request an issue attributing any negligence to Jacob. Neither did the trial court abuse its discretion by failing to issue two instructions, i.e., one using the word “injury” and one using the word “death.” While trial courts should obtain fact findings on all theories pleaded and supported by the evidence, a trial court is not required to, and .should not, confuse the jury by submitting differently worded questions that call for the same factual finding. See Star Enterprise v. Marze, 61 S.W.3d 449, 459 (Tex.App.-San Antonio 2001, pet. denied). Questions are duplicitous if they embrace the same fact question, whether identical in language or merely similar in form. Miller v. Wal-Mart Stores, 918 S.W.2d 658, 664 (Tex.App.-Amarillo 1996, writ denied) (citing Holmes v. J.C. Penney Corn- pany, 382 S.W.2d 472, 473 (Tex.1964)). Here, either “injury” or “death” would have been appropriate terras for the negligence instruction. Given the trial court’s broad discretion in submitting jury questions, we cannot say the trial court abused its discretion by choosing the term “injury” over “death.” Finally, even if use of the term “injury” rather than “death” was error, the answers sought by Southwest Hospital can be found in Questions 3(c) and 4 through 7. While Question 1 sought to establish whether THI’s conduct negligently caused Jacob’s injury, Questions 3(c), and 4 through 7, sought to establish damages resulting from his death. Moreover, THI fails to offer any evidence establishing that use of the term “injury” rather than “death” caused rendition of an improper judgment. Accordingly, THI’s first issue is overruled. II. Trial Amendment During their case-in-chief, Appellees confronted Espinoza with the Colorado Board of Nursing’s stipulated order and examined him without objection. Thereafter, when Appellees sought to amend their petition to assert a negligent credentialing/hiring claim against THI, THI objected that (1) Appellees were pleading a cause of action for which there was no recovery because there were no damages; (2) the evidence was irrelevant because Espinoza worked as a Licensed Practical or Vocational Nurse in Colorado, not as a Registered Nurse; and (3) evidence of Espinoza’s disciplinary proceeding six years earlier was irrelevant. THI did not seek a continuance. Under Rule 66 of the Texas Rules of Civil Procedure, a trial court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and thus is prejudicial on its face and the opposing party objects to the amendment. Hart v. Moore, 952 S.W.2d 90, 95 (Tex.App.-Amarillo 1997, writ denied) (citing Greenhalgh v. Service Lloyds Insurance Co., 787 S.W.2d 938, 939 (Tex.1990)). See The State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.) (per curiam) (decision to permit or deny trial amendment rests in sound discretion of trial judge if amendment asserts new cause of action or defense and thus prejudicial on its face), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994). The opponent of the trial amendment has the burden of showing surprise or prejudice, and “[a] motion for continuance based upon the ground of surprise or prejudice is essential before the filing of a trial amendment will constitute reversible error.” Resolution Trust Cow v. Cook, 840 S.W.2d 42, 46 (Tex.App.-Amarillo 1992, writ denied). See Jones v. Blackmon, 419 S.W.2d 434, 440 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref'd n.r.e.) (trial court does not ordinarily abuse its discretion when party opposing an amendment does not ask for a postponement). Appellees’ trial amendment was made during their case-in-chief. THI had yet to put on its defense. THI did not object to the amendment because of surprise or prejudice, nor did it seek a continuance. Rather, THI asserted that the proposed action was legally deficient and/or the underlying evidence in support of the action was irrelevant. Having failed to object to the amendment based upon surprise or prejudice, THI may not now assert these grounds on appeal. To preserve error on appeal, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity and complies with the rules of evidence and procedure. See Tex. R.App.P. 33.1(a). Because THI presents this argument for the first time on appeal, it is waived. Id. See Marine Transp. Corp. v. Methodist Hosp., 221 S.W.3d 138, 147 n. 3 (Tex.App.-Houston [1st Dist.] 2006, no pet.). THI’s second issue is overruled. III. Recovery Under Appellees’ Negligence Theories THI asserts Appellees’ evidence at trial in support of their negligent credentialing/hiring claim is both legally and factually insufficient, i.e., Appellees failed to establish Southwest Hospital’s conduct breached any standard of care in hiring Espinoza or that any negligence in hiring Espinoza caused Jacob’s death. THI also asserts Appellees’ evidence at trial in support of their negligence claim against Southwest Hospital is factually insufficient, i.e., Appellees’ expert evidence that Southwest Hospital’s negligence caused Jacob’s death, when compared to THI’s expert evidence, is so weak that it is clearly wrong and manifestly unjust. A. Standard of Review In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the challenged finding, indulge every reasonable inference to support it; City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005), and credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. A challenge to legal sufficiency will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006). Furthermore, so long as the evidence falls within the zone of reasonable disagreement, we may not invade the factfinding role of the jurors, who alone determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or part of their testimony. Wilson, 168 S.W.3d at 822. In reviewing a factual sufficiency challenge, we consider all the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). If, as here, the appellant is challenging the factual sufficiency of the evidence to support a finding on an issue on which the other party had the burden of proof, we must overrule the complaint unless, considering all the evidence, the finding is clearly wrong and manifestly unjust. See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637 (Tex.App.-Tyler 2004, no pet.) (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)). Inferences may support a judgment only if they are reasonable in light of all the evidence; id., and, again, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given then-testimony. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). In addition, the mere fact that we might have reached a different conclusion on the facts does not authorize us to substitute our judgment for that of the jury. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). See Richmond, Condominiums v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 658 (Tex.App.-Fort Worth 2008, no pet.). B. Analysis 1. Negligent Credentialing/Hiring Here, although Appellees’ claim is that Southwest Hospital was negligent in ere-dentialing or hiring Espinoza, the thrust of the claim is that the health care facility failed to protect its patient — a claim that “necessarily implicate^] the acceptable standards of safety pursuant to the definition of health care liability claim.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex.2005). Negligent hiring claims are both health care liability claims, see In Re McAllen Medical Center Inc., 275 S.W.3d 458, 462 (Tex.2008), and “simple negligence causes of action.” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet.). To establish a claim for negligent hiring, supervision and retention, a plaintiff must prove the following elements: (1) a duty to hire, supervise, and retain competent employees; (2) an employer’s breach of the duty; and (3) the employer’s breach of the duty proximately caused the damages sued for. See LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex.App.-Amarillo 1997, writ denied). An employer is liable for negligent hiring, supervision, or retention when proof is presented that the employer hired an incompetent or unfit employee whom it knew or, by the exercise of reasonable care, should have known was incompetent or unfit, thereby creating an unreasonable risk of harm to others. See Dangerfield v. Orrmby, 264 S.W.3d 904, 912 (TexApp.-Fort Worth 2008, no pet.). Because Ap-pellees’ claim of negligent credentialing and hiring is cognizable under chapter 74 of the Texas Civil Practice and Remedies Code; Garland Community Hosp. v. Rose, 156 S.W.3d 541, 544, 545-46 (Tex.2003), expert testimony is necessary to establish the elements of the claim. Holguin, 256 S.W.3d at 356. THI asserts Appellees failed to produce more than a scintilla of probative evidence that THI breached its standard of care by hiring Espinoza and, if so, any breach by THI proximately caused Jacob’s injuries. Appellees’ expert, Dr. Haines, testified on direct examination, without objection, that a director of nurses and hospital administrators should have some involvement in assuring that nurses on their staff will not write orders without a doctor’s permission. He testified that, when hiring nurses, nursing directors, and administrators they should look at a nurse’s past employment record and determine whether they had problems or troubles at prior nursing facilities. He further opined that nursing directors and hospital administrators had a duty to research the background of people they hired. Dr. Haines also testified that, if a nurse went “rogue” and administered prescription drugs without the authority to do so, the nurse should lose their license. Nurse Jahomo testified that, if she wrote an order for a patient’s medication without a doctor’s permission, she would be in violation of her nursing license. She also testified that, administering medication without the proper approval would be extremely dangerous for the patient and could cause the patient’s death if there was an adverse effect. Nurse Graham testified that, in December 2004, Espinoza had a reputation for being a “rogue” nurse and agreed with Nurse Jahomo that a nurse who administered prescription drugs without proper authority should lose them license. Espinoza testified that, prior to being employed at Southwest Hospital, he had been disciplined by the Colorado Board of Nursing for administering Ativan to a patient without a physician’s prior approval. The Colorado Board of Nursing placed Espinoza on probation with specific tasks to be completed prior to reinstatement of his nursing license. He testified he relocated to Texas, began practicing as a nurse, and failed to comply with any conditions of his Colorado probation. Espinoza further testified that in 1997 he was hired at Highland Medical Center where his supervising nurse was Connie Long. He testified that he spoke to Long about his probation in Colorado and she hired him despite knowing that he had his license suspended in Colorado for administering Ativan without a doctor’s approval. After Long moved to Southwest Hospital to take a position as Director of Nursing, she recruited Espinoza to join her and, in 2002, Espinoza began working at Southwest Hospital. Espinoza testified that, although Long was by then aware of his stipulated probation order with the Colorado Board of Nursing, she had no problem putting him on the floor and permitting him to dispense medications to patients. While he was employed at Southwest Hospital, he testified his evaluations were always above average. Although Espinoza testified he wrote the order to administer Ativan to Jacob after receiving approval from Nurse Graham by telephone, the jury could reasonably infer from Dr. Rice’s and Nurse Graham’s testimony that Espinoza wrote the order himself without prior approval. Nurse Graham testified that she did not receive any calls from Espinoza that day and had no doubt that she did not approve the order to administer Ativan to Jacob. Although the testimony regarding who approved the administration of Ativan to Jacob was conflicting, the jury’s verdict indicates they credited and gave weight to Nurse Graham’s testimony. See Wilson, 168 S.W.3d at 819 (“Jurors are the sole judges of the credibility of witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another” and “[Reviewing courts cannot impose their own opinions to the contrary.”). See also Texas Drydock, Inc. v. Davis, 4 S.W.3d 919, 924 (Tex.App.-Beaumont 1999, no pet.). Moreover, “[controverted trial issues are properly within the province of the jury if reasonable minds could differ as to the truth of the controlling facts.” Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). Given this evidence, we conclude there was more than a scintilla of evidence establishing that THI breached its duty to hire nurses that were competent or fit for employment. The jury could reasonably infer from the evidence that THI, through Long, hired Espinoza knowing he was on probation due to disciplinary proceedings in another state, for conduct that reasonably endangered the health and safety of patients entrusted to his care. The evidence also reflects Long did so without taking any precautions to assure that Espinoza would not commit the same violations again. Further, Espinoza was permitted to medicate patients and then ultimately was placed in a managing position with responsibilities that included supervising authority over nurses, advising physicians or their assistants on medications, writing telephone orders for the administration of drugs to patients, and instructing nurses on which drugs to administer. THI points to Dr. Rice’s answer to a hypothetical question as evidence that Southwest Hospital was not negligent in hiring Espinoza. Dr. Rice testified he would not consider a previously disciplined nurse unfit if that nurse had complied with the rehabilitative conditions established by the board of nursing and had worked for six years at two different hospitals without further incident. Notwithstanding this statement, the jury was free to conclude that Espinoza never complied with the rehabilitative conditions of the Colorado order. THI also asserts that the passage of six years time between the act that caused the Colorado Board of Nursing to place Espinoza on probation and Jacob’s injury rendered the Colorado Board of Nursing Order irrelevant. This assertion overlooks the principle that, “[wjhen a plaintiffs credentialing [or hiring] complaint centers on the quality of the [patient’s] treatment ... the hospital’s acts or omissions in credentialing [or hiring] are inextricably intertwined with the patient’s medical treatment and the hospital’s provision of health care.” Rose, 156 S.W.3d at 546. The Rose court stated, in pertinent part, as follows: Rose’s is a case in point. She complains of acts and omissions that occurred, in significant part, during her treatment. Rose alleges that the Hospital acted negligently and maliciously in allowing Dr. Fowler to perform Rose’s surgeries.... These decisions necessarily occurred during Rose’s treatment. It is not necessary, however, to dissect Rose’s claims in to pre-treatment and post-treatment components. Regardless of when the acts occurred, the allegations all revolve around the same basic premise: that the Hospital put Rose at risk by allowing Dr. Fowler to treat her. It makes no sense to conclude that some credentialing [or hiring] claims are subject to the MLIIA and others are not, depending on what point in time the credentialing decision occurred. 156 S.W.3d at 545. (Emphasis added). Accordingly, we cannot say that the passage of time or Espinoza’s prior employment, as a matter of law, absolves THI of any breach of its duty to hire and retain competent nurses. Regarding causation, here, Espinoza’s conduct, as it pertains to Jacob, is identical to the wrongful conduct he committed in Colorado, i.e., administering Ativan without required approvals. The evidence supports the conclusion that, although Long was aware of Espinoza’s stipulated probation order, she never reported that fact to the Texas nursing authorities, knowing it would affect his em-ployability as a nurse licensed to practice in Texas. The evidence of record further indicates that not only did Long not take precautions to prevent similar conduct from occurring again, she promoted Espinoza to a position of authority with sufficient power to make it relatively easy for him to engage in the same errant behavior. The jury’s findings that THI was negligent in hiring Espinoza and that negligence causéd Jacob’s injury are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, we cannot say that the evidence was either legally or factually insufficient to support the jury’s verdict under Appellees’ negligent credentialing/hiring theory of recovery. 2. Medical Malpractice — Negligence THI next contends the evidence is factually insufficient to support the jury’s finding that THI’s negligence, through its employees, in administering two doses of Ativan to Jacob proximately caused his death. In support, THI asserts the credentials of its expert, Dr. Hail, are superi- or to Dr. Haines’s credentials and the opinions of its experts, Dr. Hail and Dr. Rice, are entitled to more weight than Dr. Haines’s opinions. While proximate cause in a medical malpractice case must be based upon reasonable medical probability; Park Place Hasp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995), “[t]he quantum of proof required is simply ‘that it is more likely than not’ that the ultimate harm or condition resulted from such negligence.” Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397, 400 (Tex.1993). A plaintiff is not required to exclude every other reasonable hypothesis; Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.App.-Fort Worth 2003, pet. denied), and more than one proximate cause may exist. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001) (question is whether the wrongful act “was ‘a’ proximate cause, not ‘the’ proximate cause” of decedent’s death). To satisfy the causal element of proximate cause, the wrongful act need only be a substantial factor in bringing about the harm. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.2002); Sisters of St. Joseph of Texas, Inc. v. Cheek, 61 S.W.3d 32, 35 (Tex.App.-Amarillo 2001, pet. denied). Further, whether a particular act of negligence is a cause-in-fact of an injury is a particularly apt question for jury determination. Farley v. MM Cattle Co., 529 S.W.2d 751, 756 (Tex.1975). See Tex. Dept. of Transp. v. Pate, 170 S.W.3d 840, 848 (Tex.App.-Texarkana 2005, pet. denied). Any objection to the qualifications or methodology of Appellees’ expert witness, Dr. Haines, was waived at trial because THI made no objection to his testimony. To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. See Volksivagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex.2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex.2004). Further, whether an expert’s testimony is credible or not is best left to the jury. See Pascouet, 61 S.W.3d at 615-16. Dr. Haines practiced family medicine for twenty-three years. His practice is comprised of approximately thirty percent of patients over sixty-five years of age. He has cared for patients taking benzod